[Federal Register Volume 73, Number 181 (Wednesday, September 17, 2008)]
[Notices]
[Pages 53823-53845]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21618]


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DEPARTMENT OF AGRICULTURE

Forest Service

RIN 0596-AC50


Final Directives for Forest Service Outfitting and Guiding 
Special Use Permits and Insurance Requirements for Forest Service 
Special Use Permits

AGENCY: Forest Service, USDA.

ACTION: Notice of final directives; response to public comment.

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SUMMARY: The Forest Service is revising directives governing special 
use permits for outfitting and guiding conducted on National Forest 
System lands by simplifying the application and administrative process; 
establishing a flat land use fee for temporary use permits; developing 
a process for allocation of use on a first-come, first-served or 
lottery basis for temporary use permits to facilitate greater 
participation in outfitting and guiding by youth, educational, and 
religious groups; offering the same terms and conditions to educational 
and institutional permit holders as offered to other types of permit 
holders when they operate as a business; and clarifying policy for 
priority use permits governing performance, inspections, and allocation 
of use. In addition, the Forest Service is revising the directives 
governing insurance requirements for Forest Service special use 
permits. Public comment was considered in the development of the final 
directives, and a response to comments is included in this notice.

DATES: Effective Date: These directives are effective October 17, 2008.

ADDRESSES: The record for these final directives is available for 
inspection at the office of the Director, Recreation, Heritage, and 
Volunteer Resources Staff, USDA, Forest Service, 4th Floor Central, 
Sidney R. Yates Federal Building, 1400 Independence Avenue, SW., 
Washington, DC, during regular business hours (8:30 a.m. to 4 p.m.), 
Monday through Friday, except holidays. Those wishing to inspect these 
documents are encouraged to call ahead at (202) 205-1426 to facilitate 
access to the building. Copies of documents in the record may be 
requested under the Freedom of Information Act.

FOR FURTHER INFORMATION CONTACT: Carolyn Holbrook, (202) 205-1426, 
Recreation, Heritage, and Volunteer Resources Staff.

SUPPLEMENTARY INFORMATION:

Table of Contents

1. Background and Need for the Final Directives
2. Public Comments on the Proposed Directives and Agency Responses
    <bullet> Overview of Comments
    <bullet> Response to General Comments
    <bullet> Response to Comments on Specific Sections of the 
Directives
    FSH 2709.11, section 41.53
    FSH 2709.11, section 37.21b
    FSM 2713.1
    <bullet> Response to Comments on Regulatory Certifications in 
the Proposed Directives
3. Summary of Revisions to the Final Directives
4. Regulatory Certifications for the Final Directives
    <bullet> Environmental Impact
    <bullet> Regulatory Impact
    <bullet> No Taking Implications
    <bullet> Civil Justice Reform
    <bullet> Federalism and Consultation and Coordination with 
Indian Tribal Governments
    <bullet> Energy Effects
    <bullet> Unfunded Mandates
    <bullet> Controlling Paperwork Burdens on the Public
5. Access to the Final Directives

1. Background and Need for the Final Directives

    Outfitting and guiding conducted on National Forest System lands 
have become one of the chief means for the recreating public to 
experience the outdoors. The Forest Service administers approximately 
5,000 outfitting and guiding permits, authorizing activities ranging 
from guided hunting and fishing trips to jeep tours and outdoor 
leadership programs. The agency anticipates that outfitting and guiding 
will increase in importance as the public's desire for use of Federal 
lands increases and as the agency encourages use by increasingly 
diverse and urban populations, many of whom may lack the equipment and 
skills necessary in the outdoors. Therefore, agency policy needs to 
reflect the public's demand for services while incorporating standard 
business practices and sustaining the natural environment in which 
these activities occur.
    Except for the revision to term length for priority use permits 
(April 14, 2005, 70 FR 19727), outfitting and guiding directives have 
remained relatively unchanged since they were finalized in 1995. Since 
that time, proposed legislation and field implementation of current 
policy have shown the need for updating the directives. The changes 
adopted will be incorporated as appropriate in the standard special use 
permit for outfitting and guiding, form FS-2700-4i, and other 
applicable forms.
    In addition, the Forest Service is updating direction on the 
minimum amount of insurance coverage required for special use permits 
generally, including outfitting and guiding permits.

2. Public Comments on the Proposed Directives and Agency Responses

Overview of Comments

    The proposed directives were published in the Federal Register for 
public notice and comment on October 19, 2007 (72 FR 59246). The Forest 
Service received several requests for extension of the comment period 
and published two notices, each of which extended the comment period 
(72 FR 71113; December 14, 2007, and 73 FR 8264; February 13, 2008). 
The comment period closed on March 20, 2008.
    The Forest Service received approximately 480 comments on the 
proposed directives. Respondents fell

[[Page 53824]]

into the following categories: Unguided recreation--249; camps and 
youth organizations--20; universities--11; nonprofit outfitters and 
guides--4; state agencies and officials--5; state outfitting and 
guiding associations--13; national outfitting and guiding 
associations--5; and commercial outfitters and guides--173.

Response to General Comments

    Comments. One respondent opposed the proposed changes in their 
entirety and stated that the directives should be withdrawn.
    A number of respondents opposed the proposed directives because 
they perceived them as granting exclusive access to National Forest 
System (NFS) lands to commercial outfitters and guides at the expense 
of the unguided public and without the opportunity for public input.
    Another respondent believed that the proposed directives were 
seriously flawed because the Forest Service did not collaborate with 
the outfitting and guiding industry in their development, which 
rendered them unworkable. Another respondent recommended that the 
Forest Service consider meeting with key interested parties to ensure 
that the final directives provide a balance for the needs of parties 
seeking permits.
    Another respondent recommended that the proposed directives be 
revised and republished for public notice and comment. One respondent 
supported the inclusion of resource protection in the overall 
objectives of the proposed directives.
    One respondent expressed support for most of the proposed 
directives and viewed them as enhancing the relationship between the 
Forest Service and outfitters and guides.
    Response. The Forest Service disagrees that these directives should 
be withdrawn in their entirety. The outfitting and guiding program is 
not new, and the Forest Service has many years of experience managing 
these services. The changes that will result from implementing these 
directives can be characterized as enhancement of the existing program. 
The directives will not significantly change the types or quantities of 
public services that are being provided. The directives will improve 
access to recreational experiences to some underserved groups and will 
provide a more secure business opportunity for those who intend to 
conduct ongoing operations. The Forest Service believes that these 
directives address resource protection more effectively than current 
policy, but does not believe that inclusion of resource protection in 
the objectives section of the directives is appropriate as it is not 
their principal focus.
    Forest Service special use permits do not grant exclusive use (36 
CFR 251.55(b)).
    The Forest Service followed appropriate procedures for public 
involvement under the Administrative Procedure Act in developing and 
issuing these final directives.
    Many respondents recommended changes to specific sections of the 
proposed directives. The agency is making some changes to the proposed 
directives in response to these comments. Therefore, additional public 
notice and comment are unnecessary. Some of the comments were outside 
the scope of the proposed directives.

Response to Comments on Specific Sections of the Directives

FSH 2709.11, section 41.53
41.53a--Authorities
    Comments. Several respondents believed that the Federal Lands 
Recreation Enhancement Act (REA) should not be used as the authority 
for issuing outfitting and guiding permits because doing so would 
provide an incentive to increase commercial use of Federal lands.
    Response. The agency believes that REA is an appropriate authority 
for authorizing outfitting and guiding on Federal lands. REA authorizes 
the Forest Service to issue special recreation permits for specialized 
recreation uses of Federal recreational lands and waters, such as group 
activities, recreation events, and motorized recreational vehicle use 
(16 U.S.C. 6802(h)). Outfitting and guiding is a specialized recreation 
use. This authority has been used since December 2004 by both the 
Forest Service and Bureau of Land Management (BLM) for outfitting and 
guiding permits. The Forest Service does not see any incentive in REA's 
special recreation permit authority for increasing commercial use of 
Federal lands.
41.53b--Objectives
    Comments. Several respondents observed that the Forest Service 
should recognize the important role educational providers play in 
furthering the agency's management goals. These respondents noted that 
nearly all university outdoor programs attempt to provide educational 
and developmental experiences for students that differ from the intent 
and purpose of commercial outfitting and guiding. These respondents 
recommended adding a new objective to encourage outfitting and guiding 
services that facilitate greater participation by youth, educational, 
and religious groups through improved access to temporary use permits 
and assignment of priority use to institutional permit holders. Another 
respondent believed that the Forest Service should be more proactive in 
assisting universities in finding wilderness areas that can support 
more outfitters and guides, for example, by providing a list of 
national forests that can issue more outfitting and guiding permits. 
This same respondent stated that Forest Service employees appear to be 
reluctant to work with universities that want to conduct outfitting and 
guiding.
    Response. The Forest Service agrees that it is important to 
recognize the contribution made by educational outfitters and guides. 
Accordingly, in the final directives, the Forest Service has added an 
objective in section 41.53b, paragraph 2, that states: ``Facilitate 
greater participation in the outfitting and guiding program by 
organizations and businesses that work with youth and educational 
groups.'' The agency does not believe that it would be appropriate for 
the directives to address assistance to universities in finding 
suitable wilderness areas for outfitting and guiding. Interested 
parties should work with administrative units and regions to determine 
available opportunities.
41.53c--Policy
    Comments. One respondent stated that a goal of the directives 
should be to broaden the spectrum of services and service providers 
able to meet the demand for guided services. Several respondents 
believed that administrative units should take more initiative in 
evaluating the demand for new recreation and guiding opportunities.
    Response. While the Forest Service agrees that broadening the 
spectrum of services and providers may be appropriate, the agency 
believes that it is best to make this determination case by case 
through a needs assessment, rather than to state that it is always 
appropriate. Additionally, it is not possible to authorize new 
activities without reviewing proposals and applications and conducting 
environmental analysis.
    Comments. One respondent supported proposed section 41.53c, 
paragraph 2, which addresses authorization of permitted access routes. 
Another respondent questioned what was meant by this term.
    Response. The Forest Service added the following definition in 
section

[[Page 53825]]

41.53d for permitted access route: ``Any road or trail that a holder is 
authorized to use under an outfitting and guiding permit or operating 
plan for purposes of pedestrian, stock, or vehicular access.''
    Comment. One respondent suggested revising section 41.53c, 
paragraph 3, to be consistent with the Wilderness Act. This respondent 
suggested prohibiting any development or permanent improvements in 
wilderness areas and stated that the proposed wording was insufficient 
to meet the intent of the Wilderness Act by allowing improvements in 
wilderness areas. The respondent suggested that the wording in the 
current directives at section 41.53b, paragraph 3, be retained and that 
no development, improvements, installations, or caches be allowed in 
wilderness areas for the purpose of convenience to the holder or the 
holder's clients in order to preserve the areas' wilderness character.
    Response. The Forest Service agrees with the respondent that the 
current language in section 41.53b, paragraph 3, is more consistent 
with the Wilderness Act and more accurately reflects the agency's 
intent with regard to improvements in wilderness areas. Therefore, the 
agency has revised proposed section 41.53b, paragraph 3, to restore the 
wording in the current directives.
    Comment. One respondent suggested adding ``other types of permit 
holders'' to proposed section 41.53c, paragraph 4, and using this 
provision to involve outfitters and guides in developing thresholds for 
allocation of priority use.
    Response. The Forest Service has added the phrase ``other 
interested parties'' to the list of individuals and entities in section 
41.53c, paragraph 4, with whom the Forest Service will work to 
encourage outfitters' and guides' compliance with applicable law.
    Comment. One respondent supported the content of proposed section 
41.53c, paragraph 6, regarding not issuing permits to applicants with 
no tangible assets.
    Response. The Forest Service agrees that outfitting and guiding 
permits should not be issued to applicants with no tangible assets.
41.53d--Definitions
    Comments--Allocation of Use. One respondent suggested that the 
agency modify the definition of allocation of use to add allocation-
free systems where the unguided public as well as outfitters and guides 
would compete equally for limited use from a common pool. Several 
respondents recommended adding a definition for ``common pool'' or 
``allocation-free use'' to clarify that a common pool is open to the 
unguided public.
    Response. The management of use by the unguided public is beyond 
the scope of these directives. See the response to comments on proposed 
section 41.53e for further detail.
    Comments--Commercial Use or Activity. One respondent agreed that 
intent to make a profit is irrelevant to the determination of whether a 
use or activity is commercial. However, this respondent believed that 
further clarification is necessary regarding the meaning of ``entry or 
participation fee.'' Another respondent recommended revisiting the 
definition of commercial use or activity and stated that tuition for 
educational guiding should not be viewed as the sale of a product. 
Another respondent suggested adopting a more detailed definition of 
commercial use or activity, based on the BLM's definition in its 
policy.
    Response. The Forest Service does not believe that modification of 
the definition for commercial use or activity is warranted. The 
definition for this term in the Forest Service's directives is the same 
as the definition in the agency's regulations at 36 CFR 251.51 and is 
consistent with BLM's definition. In addition, the definition for 
commercial use or activity was not proposed for revision and is 
therefore beyond the scope of the proposed directives. Finally, current 
policy at FSH 2709.11, section 37.21k, provides that tuition is 
excluded from revenue for purposes of calculating land use fees for 
outfitting and guiding.
    Comments--Concessionaire. One respondent noted that the term 
``concessionaire'' as used in Forest Service Manual (FSM) 2713.1 
governing insurance is not included in the definitions for the 
outfitting and guiding directives. Another respondent wanted 
clarification of the term ``concessionaire.''
    Response. A definition for concessionaire has been added to the 
final directives.
    Comments--Educational Outfitting. Several respondents suggested 
defining educational outfitter and guide separately from outfitter and 
guide, as follows: ``An organization that in conducting outfitting and 
guiding furthers the public interest and that is either a tax-exempt or 
governmental entity.'' These respondents believed that since 
educational outfitters and guides spend most of their time providing 
educational services, they should be differentiated from other 
outfitters and guides, who do not typically provide educational 
services. These respondents also believed that they should not be 
included in the definition of commercial use or activity.
    Response. The Forest Service believes that it is not necessary or 
appropriate to create a new category of use for educational outfitters 
and guides. The definition of outfitting and guiding in the directives 
matches the definition of those terms in the agency's regulations at 36 
CFR 251.51. Arguably, all outfitters and guides further the public 
interest, in that without their services, some recreational activities 
and amenities would be beyond the reach of many members of the public. 
The agency does not believe that outfitters' and guides' non-profit 
status determines whether they derive revenue from the services they 
provide. Under current directives in Forest Service Handbook (FSH) 
2709.11, section 37.21k, tuition charged for a program for which 
students earn credit is excluded from revenue for purposes of 
calculation of the land use fee for outfitting and guiding. Finally, 
the definitions for outfitting and guiding were not proposed for 
revision and are therefore beyond the scope of the proposed directives.
    Comments--Interim Temporary Use. One respondent recommended adding 
the following definition for interim temporary use: ``For permits that 
are subject to conversion to priority use, temporary use may be 
authorized for up to five, one-year terms with no limits on the amount 
of use assigned to the permit until the interim temporary use permits 
can be converted to priority use status. The permits may include a 
clause that allows the use to roll over for each year if no significant 
performance, financial, safety, or resource protection issues are 
found. Use may be adjusted from year to year as may be appropriate for 
resource conditions. Use pools for temporary use may also be 
established in accordance with 41.53j (revised).'' Several respondents 
suggested the following definition: ``Authorization of use for a trial 
two-year term for a new outfitter with no prior experience prior to 
issuance of a priority use permit for a full ten-year-term.''
    Response. The Forest Service agrees that a definition is needed for 
temporary use permits that may be eligible for conversion to priority 
use permits, but prefers the term ``transitional priority use,'' which 
is more descriptive of the future use contemplated. Consequently, the 
agency has added the following definition in the final directives: 
``Transitional Priority Use. Interim redesignation of temporary use as 
classified under the Forest Service's June 12, 1995, outfitting and 
guiding policy (60 FR 30830), for holders who

[[Page 53826]]

meet all the requirements in section 41.53p.
    Comments--Needs Assessment. One respondent recommended modifying 
the definition of needs assessment to include assessment of public 
demand for commercial services in relation to public demand for 
unguided use. Additionally, some respondents stated that excess use 
should be allocated through a common pool open to the unguided public, 
as well as to commercial outfitters and guides.
    Response. The Forest Service generally does not allocate 
noncommercial use. To the extent noncommercial use is allocated (for 
example, in wilderness areas through restrictions on the number of 
people at one time in an area), that type of allocation is beyond the 
scope of these directives. Therefore, the proposed modification of the 
definition of a needs assessment and the proposed allocation of excess 
outfitting and guiding use are not appropriate.
    Comment--Nonrecurring Temporary Use and Nonrecurring Temporary Use 
Pool. One respondent suggested adding the following definition for 
nonrecurring temporary use: ``Authorization of a minor, non-recurring 
outfitting or guiding activity for 1 season or less from non-recurring 
use pools,'' and the following definition for non-recurring temporary 
use pool: ``A pool established for non-recurring temporary uses. The 
amount of use assigned to the pool may be based on the general 
availability of capacity at a resource but without reducing allocations 
from any user segment.''
    Response. The Forest Service believes that the proposed definitions 
are unnecessary because they would be redundant with the definition of 
temporary use.
    Comment--Outfitter. One respondent recommended dropping or 
clarifying the phrase ``for other gain'' in this definition because it 
is ambiguous.
    Response. The agency believes that the phrase ``for other gain'' is 
clear. ``Other gain'' in this context means any value other than cash, 
such as barter, received by holders in exchange for services they 
provide on NFS lands. The Forest Service considers cash and other gain 
obtained by concessionaires in exchange for their services in 
determining and auditing their land use fee.
    Comments--Priority Use. One respondent supported the definition of 
priority use. Another respondent recommended that the term ``priority 
use'' be changed to ``commercial use'' and that the permit term for 
priority use be limited to 5 years.
    Response. The Forest Service is retaining the term ``priority use'' 
to describe long-term allocations of use for outfitting and guiding. 
After many years of use, affected parties are familiar with the term. 
In addition, the term ``commercial use'' would be ambiguous because all 
Forest Service outfitting and guiding permit holders are commercial. 
The term ``priority use'' refers to a subset of those outfitters and 
guides who have a long-term allocation of use. Outfitting and guiding 
permit terms are addressed in the response to comments on proposed 
section 41.53l.
    Comment--Priority Temporary Use. One respondent wanted to add the 
following definition for priority temporary use: ``Authorization of a 
minor outfitting or guiding activity for 1 season or less that may be 
authorized from priority temporary use pools,'' and the following 
definition for priority temporary use pool: ``A pool that may be 
established for access by priority use permittees from redistribution 
of unutilized use allocations from priority use permittees, consistent 
with the provisions in 41.53l. Use may also be contributed voluntarily 
to the pool by priority use permittees.''
    Response. The Forest Service has added a section entitled, 
``Management of Priority Use Pools'' that addresses temporary 
allocation of use to priority use permit holders. Therefore, the 
proposed definitions are unnecessary.
    Comments--Quota. One respondent supported the definition of quota. 
Another respondent suggested adding ``per year'' as another unit of 
measure for use allocations.
    Response. The phrase ``or other unit of measure'' in the definition 
is broad enough to include ``per year'' if that unit of measure were 
appropriate. However, allocations per year are unlikely because they 
generally would not provide sufficient specificity.
    Comment--Renewal. One respondent supported the definition of 
renewal.
    Response. The Forest Service has not proposed changes to and is not 
changing the definition for renewal.
    Comment--Resource Capacity. One respondent supported including the 
definition for resource capacity, since determining resource capacity 
is critical for protecting national forest resources.
    Response. The Forest Service agrees that the definition for 
resource capacity is warranted.
    Comments--Service Day. One respondent recommended striking the 
phrase ``multiplied by the number of clients on the trip'' because it 
confuses the concept of a service day with trip capacity. Another 
respondent recommended simplifying the definition of a service day, for 
example, by allocating use for river outfitters and guides in launches, 
rather than service days.
    Response. The agency agrees that the proposed definition of service 
day was confusing and has corrected the last sentence of the definition 
to read: ``The total number of service days is calculated by 
multiplying each service day by the number of clients on the trip.'' 
The directives provide that use may be allocated in service days or 
quotas. Since launches are a type of quota, use may be allocated in 
launches, if appropriate.
    Comments--Temporary Use. One respondent proposed replacing the 
definition of temporary use with 5 new terms: Non-recurring temporary 
use, non-recurring temporary use pool, priority temporary use, priority 
temporary use pool, and interim temporary use. Another respondent 
believed that the definition for temporary use was inappropriate given 
the lack of viable means for converting temporary use to priority use.
    Response. The agency believes that these proposed definitions are 
unnecessary and that the definitions for temporary use and temporary 
use pool adequately address the concepts covered by the proposed 
definitions. The comment regarding conversion of temporary use to 
priority use is addressed in the response to comments on section 
41.53p, Transitional Priority Use.
41.53e--Needs Assessment, Resource Capacity Analysis, and Allocation of 
Use
    Comments Concerning Scope. One respondent stated that it was 
unfortunate that the agency was not including in these provisions 
members of the recreating public who do not utilize outfitting and 
guiding services. Many respondents were concerned that the directives 
would give an advantage to commercial outfitters over members of the 
unguided public. Others suggested that when competitive interest exists 
for the same resources or type of use or when significant changes are 
being considered to current use or demand, a common pool should be 
established for the distribution of outfitting and guiding permits for 
all recreational use groups. One respondent proposed that the Forest 
Service evaluate public demand for unguided recreation before 
evaluating any need for new or increased commercial outfitting and 
guiding services. One respondent stated that all users of the national 
forests should be able to compete equally. Another respondent

[[Page 53827]]

proposed a common pool for allocation of permits that would be open 
equally to unguided recreationists as well as outfitters and guides and 
issuance of commercial outfitting and guiding permits without an 
allocation of use.
    Several respondents suggested allocating use in service days or 
quotas for unguided as well as guided use, following a resource 
capacity analysis. One respondent stated that allocation of use should 
not be required and should be employed only if necessary for resource 
protection. Another respondent was concerned that outfitters and guides 
would bear the brunt of use restrictions because it is more difficult 
to assess and control use by the general public. One respondent 
believed that the general public and non-permitted groups should be 
subject to the same use restrictions as permitted users, who are 
enabling recreational use by the general public in a way that benefits 
the national forests and the agency.
    One respondent supported new provisions in the directives requiring 
all groups to register with the Forest Service to gain access. This 
respondent believed that this requirement would help manage use and 
mitigate impacts from noncommercial and commercial use. This respondent 
also suggested that all groups utilizing NFS lands be subject to fees 
and stated that these fees would support proper administration, 
resource protection, user education, and law enforcement. One 
respondent suggested that both for-profit and non-profit outfitters and 
guides receive priority with respect to obtaining an allocation if they 
provide educational programs and services, since educational programs 
directly support the agency's mission to educate visitors to the 
national forests. Another respondent suggested making unused service 
days available to priority use outfitters and guides first. Many 
respondents wanted assurance that the proposed directives would not 
require allocation of use in areas where it is not currently required, 
such as on the Deschutes River and in the Boundary Waters Canoe Area 
(BWCA).
    Response. There appears to be some confusion among respondents 
about the scope of these directives. These directives will be included 
in the Forest Service's Special Uses Handbook (FSH 2709.11) and are 
specific to administration of outfitting and guiding. Outfitting and 
guiding on NFS lands are commercial activities that require a special 
use authorization under 36 CFR 251.50(a) and the Special Uses Handbook. 
These directives do not govern noncommercial recreational activities 
conducted by individuals or groups. Generally, a special use 
authorization is not required for noncommercial recreational 
activities, such as camping, picnicking, hiking, fishing, boating, 
hunting, and horseback riding (36 CFR 251.50(c)).
    Moreover, the Forest Service generally does not allocate use for 
noncommercial activities. However, some congressionally designated 
areas are governed by specific statutes, such as the Wild and Scenic 
Rivers Act, which require the Forest Service to limit recreational use. 
Limits on all recreational use in these areas are determined in the 
planning process for the areas, and a system may be established to 
manage unguided recreation in these areas. For example, the BWCA is a 
congressionally designated wilderness area that has a lottery system 
for unguided recreation. In addition, special use permits are issued to 
commercial outfitters and guides operating in the BWCA. The Forest 
Service does not manage the lower sections of the Deschutes River, 
which are used for recreational river runs. Rather, those sections are 
under the jurisdiction of BLM.
    The Forest Service does not believe that allocation of use for 
commercial operators should be optional. The agency depends on 
allocation of use to quantify and manage outfitters' and guides' use of 
NFS lands. It is not feasible for commercial outfitters and guides to 
plan and market their businesses without knowing how much use they are 
authorized to conduct on NFS lands.
    The agency believes that regulation of commercial and noncommercial 
use pursuant to applicable regulations and directives is sufficient and 
that registration of users of NFS lands is unnecessary. In addition, 
the propriety of registration of users of NFS lands is beyond the scope 
of these directives. The Forest Service may and does charge fees only 
as provided by applicable law.
    As stated above, whether outfitters and guides provide educational 
services is irrelevant to their eligibility for allocation of use under 
the directives. Under the directives, outfitters' and guides' 
eligibility for allocation of use depends on whether they hold a 
priority use (longer-term) permit as opposed to a temporary use 
(shorter-term) permit. The agency believes that qualification for a 
longer-term permit is a more objective and appropriate basis for 
triggering allocation of use than the characteristics of services 
provided.
    The final directives enhance allocation of unused service days and 
quotas for both temporary use and priority use permit holders. See 
sections 41.53k and 41.53n in the final directives.
    Comments Concerning Planning. One respondent stated that the 
proposed directives failed to create a consistent planning process 
linking outfitting needs assessments, resource capacity analysis, and 
use allocation as well as linking all of these to existing standards 
and guidelines in the applicable land management plan, other relevant 
planning documents, and Forest Service policy. Another respondent 
stated that the final directives should require development of 
outfitting and guiding plans.
    Response. It is not the purpose of these directives to address land 
management planning. The Forest Service has separate directives 
governing this topic (see FSM 1921). The basic unit of Forest Service 
planning is the land management plan. To the extent appropriate, land 
management plans may address outfitting and guiding use. When required 
by statute, a plan is prepared for a congressionally designated area 
and is incorporated into the applicable land management plan. 
Wilderness management direction is prepared as a part of the land 
management planning process as required by 36 CFR part 219 and FSM 
1922. Planning is also conducted in compliance with the National 
Environmental Policy Act (NEPA) (36 CFR part 220, FSM 1950, and FSH 
1909.15). The applicable land management plan is implemented through 
development of schedules for projects and activities designed to meet 
management standards and guidelines established for the wilderness 
area. Additionally, the agency has directives governing wilderness 
planning (FSM 2322) and river recreation management (FSM 2354). These 
directives should be read in conjunction with the directives on 
outfitting and guiding administration. The Forest Service believes that 
existing planning tools are sufficient and that outfitting and guiding 
land use plans are unnecessary.
    Comments Concerning Public Involvement. One respondent was 
concerned that the proposed directives did not require public 
involvement for an outfitting and guiding needs assessment, resource 
capacity analysis, and use allocation or enumerate how the agency would 
otherwise comply with NEPA during these processes. Various respondents 
noted that decisions to authorize outfitting and guiding should be 
accompanied by environmental analysis that is conducted at the 
appropriate scale (regional, forest, district, or watershed level); 
that includes a needs assessment,

[[Page 53828]]

resource capacity analysis, and a reasonable range of alternatives for 
allocation of use to make the allocation process transparent; and that 
allows for public involvement, efficient analysis of cumulative 
impacts, development of more effective mitigation, and regional 
assessment of educational outfitting and guiding needs and providers. 
One respondent also noted that the Forest Service needs to address 
analysis of cumulative impacts at the appropriate temporal and spatial 
scales and compliance with other relevant statutes, including the 
Endangered Species Act and National Historic Preservation Act.
    Several respondents were concerned about NEPA compliance associated 
with issuance of temporary use permits and noted that the proposed 
directives are silent on this issue. One respondent noted that 
environmental analysis associated with many recreation-related 
activities remains incomplete because it is time-consuming and 
expensive. One respondent believed that issuance of temporary use 
permits under the proposed directives without environmental analysis 
would simplify administration of the outfitting and guiding program and 
reduce agency costs. One respondent noted that a perception exists that 
NEPA and cost recovery requirements do not apply to temporary use 
permits.
    Response. There appears to be confusion among respondents regarding 
the trigger for environmental analysis and the relationship among a 
needs assessment, a capacity analysis, and an environmental analysis. 
The Forest Service has separate directives governing environmental 
policy and procedures (see FSH 1909.15). These directives govern 
environmental analysis, scoping, and public participation and should be 
read in conjunction with these directives. Comments regarding public 
involvement and environmental analysis related to outfitting and 
guiding permits are therefore beyond the scope of these directives.
    Needs assessments and resource capacity analyses are not agency 
decisions subject to environmental analysis. Rather, they are 
analytical tools that inform an agency decision. For example, a needs 
assessment could support a decision to issue a permit. A needs 
assessment also could support a decision to amend a land management 
plan. Additionally, a needs assessment and resource capacity analysis 
are typically used to develop a river management plan. The outfitting 
and guiding directives are intentionally flexible with regard to 
selection of the geographical area to be analyzed for efficient 
outfitting and guiding administration because the authorized officer is 
in the best position to determine the appropriate scope of analysis.
    Decisions that are made to authorize use pursuant to a needs 
assessment and resource capacity analysis, including issuance of 
permits, amendments of land management plans, and allocations of use in 
plans, are subject to NEPA. The Forest Service complies with applicable 
law and policy, including NEPA, in making these decisions.
    Comments Concerning Resource Capacity Analysis. One respondent 
supported the direction to base allocations of use on accurate resource 
capacity analyses and needs assessments. One respondent recommended 
revising section 41.53e, paragraph 1b, to provide for review of 
previous needs assessments ``with new public input'' when reauthorizing 
use. One respondent stated that where a needs assessment identifies 
over-capacity, no new outfitting and guiding should be considered. One 
respondent recommended that section 41.53e be revised to require 
completion of a resource capacity analysis, followed by a needs 
assessment, and use of the information gained from these analyses in 
making decisions on allocation of use. One respondent believed that 
this section implied that all future wilderness, wild and scenic river, 
and land management plans would include allocations for priority and 
temporary use and that these allocations should be based on capacity 
studies and needs assessments.
    One respondent believed that the directives should require 
development and implementation of allocation plans before, rather than 
after, resource capacity has been reached. This respondent wondered who 
would determine when information regarding resource capacity is 
reliable and when resource capacity has been reached. One respondent 
recommended revising section 41.53e, paragraph 2, to require that a 
resource capacity analysis be performed to assess the amount of use and 
types of activities that may be conducted without detrimental 
environmental or social impacts prior to establishing any quotas or 
allocating service days in permits.
    Response. The Forest Service agrees that when complexity warrants, 
such as when multiple proposals are submitted for limited resources or 
when coordinated review of proposals is otherwise required, allocations 
of use should be supported by a resource capacity analysis and needs 
assessment.
    However, a resource capacity analysis and needs assessment are not 
necessary for simple situations. Resource capacity analyses and needs 
assessments are costly, and decisions to revisit them need to be 
efficient.
    If a resource capacity analysis identifies over-capacity, no 
additional use will be authorized, and existing use may be reduced. 
Either a resource capacity analysis or a needs assessment may eliminate 
a proposal from further analysis. The authorized officer has the 
discretion to determine which analysis to conduct first for management 
efficiency.
    The purpose of a resource capacity analysis is to quantify the 
amount and type of activities that can be accommodated in a 
geographical area. When multiple entities want to use the same area or 
when multiple activities are proposed in the same area, it is necessary 
to evaluate the variety of uses proposed and to determine which ones to 
accommodate. For example, 15 entities may submit proposals when there 
is capacity for only 5 entities, in which case, applicants will be 
selected competitively (for priority use) or by lottery (for temporary 
use). As stated above, resource capacity analyses are not subject to 
environmental analysis.
    The agency has modified section 41.53e, paragraph 2, to clarify 
that when monitoring indicates that impacts associated with use may 
exceed desired conditions, a resource capacity analysis should be 
conducted.
    Comments Concerning Needs Assessments Generally. One respondent 
stated that needs assessments should be timely, based on sound science, 
and involve public scoping. One respondent encouraged the agency to 
assess public demand based on accurate visitor information and prior to 
assessing the need for commercial services. Another respondent stated 
that the allocation of service days to a large extent is arbitrary 
because it is based on a needs assessment that might not have a 
scientific basis and that service days may be increased when there is 
no need for additional services. One respondent believed that visitor 
preference surveys should not be the only means to determine use 
allocations because these surveys fail to measure the preferences of 
future visitors or past visitors who have been displaced from an area 
due to use trends. Another respondent wondered how the agency would 
acquire data on use by public and institutional groups that are not 
currently authorized to operate for purposes of performing accurate 
needs assessments.

[[Page 53829]]

    Several respondents stated that the Forest Service should confer 
with or defer to states when issuing or limiting permits involving 
fishing and hunting. One respondent believed that the proposed 
directives would weaken the role a needs assessment plays in 
determining the appropriateness of issuing outfitting and guiding 
permits for hunting.
    Another respondent proposed revising section 41.53e, paragraph 3, 
to read: ``Determine the allocation of use between outfitted and guided 
visitors and self-outfitted, non-guided visitors,'' and striking the 
last sentence regarding allocation of temporary use. One respondent 
stated that temporary use pools should not be formed by decreasing the 
allocation of use to the public or by increasing allocations of use, 
but rather by employing unused commercial allocations. Another 
respondent believed that educational outfitters and guides need to be 
given preference in allocations of use so that they can provide 
essential safety, land ethics, and educational services the Forest 
Service cannot provide. One respondent underscored the importance of 
treating all users equitably when making choices about the levels of 
use in a needs assessment.
    Yet another respondent suggested that no change be made to any 
priority use allocations until a resource capacity analysis has been 
completed. One respondent recommended that a resource capacity analysis 
be conducted before renewal of priority use permits.
    Response. The purpose of a needs assessment in the context of 
commercial outfitting and guiding is to evaluate the need for a public 
service. The public may have a need for outfitting and guiding services 
(e.g., guidance, skills, or equipment necessary to access certain 
amenities or conduct certain recreational activities) or the agency may 
have a need for these services (e.g., to reduce incidents that involve 
search and rescue or to promote leave no trace ethics). If there is no 
need for these services, an outfitting and guiding proposal will not be 
accepted.
    The agency agrees that needs assessments should be timely and based 
on sound information. The Forest Service has two scientifically based 
methods for surveying public recreation needs: National Visitor Use 
Monitoring, which involves systematically interviewing clients on site 
for each national forest and national grassland, and the National 
Survey on Recreation and the Environment, which involves interviewing 
the general public by telephone. In addition to these resources, local 
managers can rely on their experience regarding the types of requests 
they receive for recreational use, public comments, and field 
observation of recreational use.
    The Forest Service coordinates with state fish and wildlife 
agencies when evaluating the need for outfitting and guiding. The 
states' projected animal harvest levels are a key component of a needs 
assessment. The agency does not believe that these final directives 
will weaken the role of a needs assessment in determining the 
appropriateness of authorizing outfitting and guiding for hunting. 
Rather, the agency believes these directives will enhance consistency 
in the use of needs assessments.
    The agency knows from discussions with youth groups, camps, and 
universities which use or would like to use NFS lands that access to 
outfitting and guiding permits could be improved by creating a 
sustainable reserve of use for short-term temporary permits. One of the 
objectives of preparing these directives was to simplify the process 
for issuing temporary use permits so as to increase public access to 
NFS lands and outfitting and guiding opportunities. The agency believes 
that the final directives strike a balance between supporting current 
and future outfitters and guides and establishing a process that will 
improve public access to recreational opportunities and public service. 
Sections 41.53k and 41.53n in the final directives address formation 
and operation of temporary and priority use pools. These pools will be 
formed from unemployed use. The appropriate distribution of priority 
use, temporary use, and unguided use will be determined on a site-
specific basis using processes outlined in these and existing 
directives. The agency does not believe that it is appropriate to 
establish preferences for allocation of use based on the 
characteristics of the services provided.
    A decision to adjust allocation of use in or to renew a priority 
use permit is separate from a decision to authorize use. The allocation 
of use in a priority use permit is a privilege that can be lost through 
non-use. Under certain conditions, the agency may shift unemployed use 
to another outfitter. See section 41.53m. Priority use permits are 
renewable, provided that certain conditions are met. See section 
41.53l.
    Comments Concerning Needs Assessments and Wilderness Areas. Several 
respondents advised that when conducting a needs assessment for 
outfitting and guiding in a wilderness area, the agency should assess 
whether these activities are necessary and proper for realizing the 
recreational or other wilderness purposes of the area and the extent to 
which the activities may or may not be authorized consistent with 
maintaining the wilderness character of the area. These respondents 
recommended that the agency evaluate the spatial and temporal scope of 
commercial services to be authorized and document the wilderness 
purpose achieved by those services.
    Another respondent proposed revising the directives to state that 
outfitting and guiding are nonconforming uses in wilderness areas that 
should not impair their wilderness character. One respondent objected 
to authorization of commercial use in all congressionally designated 
areas. Another respondent believed that the proposed directives were 
inconsistent with the intent of the Wilderness Act with regard to 
allocation of use to outfitters and guides in wilderness areas.
    Another respondent believed that needs assessments for wilderness 
areas must balance guided activities, such as hunting and equestrian 
trips, with unguided activities, such as backpacking and hiking. 
Another respondent believed that the increase in motorized use has 
caused more conflicts with quiet activities like backpacking and 
hiking, and that therefore more service days in wilderness areas are 
required. Yet another respondent stated that the mission of youth and 
university-based programs is aligned with wilderness areas and that 
these programs need more service days in wilderness areas.
    Response. Before commercial activities, including outfitting and 
guiding, are authorized in a wilderness area, a needs assessment must 
be completed that addresses the extent to which the activities are 
necessary for realizing the recreational or other wilderness purposes 
of the area. An environmental analysis, possibly including a capacity 
analysis, must also be completed to analyze the effects of the proposed 
activities on the wilderness character of the area. Both of these 
requirements are addressed in the final directives in sections 41.53e, 
paragraph 1a, and 41.53h, paragraph 3. The Wilderness Act and agency 
wilderness policy require that wilderness character be preserved.
    The Forest Service disagrees that outfitting and guiding is a non-
conforming use of wilderness areas. The Wilderness Act specifically 
allows for commercial services to be performed in wilderness areas to 
the extent they are necessary and proper for realizing the recreational 
or other wilderness purposes of the areas.

[[Page 53830]]

    The appropriate distribution of priority use, temporary use, and 
unguided use in wilderness areas will be determined on a site-specific 
basis using processes outlined in these and existing directives. The 
Forest Service does not believe that more service days in wilderness 
areas are required because of a growth in motorized recreational use. 
The amount of service days allotted in wilderness areas will be based 
on the need to provide an outfitted and guided experience in wilderness 
areas, while preserving their wilderness character.
    The Forest Service believes that the mission of many for-profit as 
well as non-profit outfitters and guides is aligned with wilderness 
areas and that all these operators can provide the public with a 
successful wilderness experience. Therefore, the agency does not 
believe that youth and university-based programs need more service days 
in wilderness areas based on the mission of these programs.
    Comments Concerning Needs Assessments and Quotas. A respondent 
recommended that quotas be applied equally to all recreational uses and 
that outfitters and guides not be permitted to have larger group sizes. 
Another respondent stated that allocation of trailhead entries in a 
wilderness management plan is more important than allocation of service 
days.
    Response. How much use to allocate to various recreational users 
and outfitters and guides is determined by a needs assessment. 
Distribution of an equal amount to all may not be the best method of 
serving the public. Under these directives, the authorized officer has 
discretion to determine whether to manage use by service days or 
quotas. A limit on trailhead entries is a quota, which, like service 
days, is a way of measuring use.
41.53f--When Permits Are Required
    Comments. One respondent recommended changing the terminology in 
section 41.53f, paragraph 1, from ``priority use'' to ``commercial 
use.''
    Another respondent suggested that the final directives provide 
clear and consistent direction to the field on development and issuance 
of the new temporary use permit.
    Response. In the final directives, the Forest Service has retained 
the term ``priority use'' to describe permits that are issued for a 
period of up to 10 years to provide commercial public services. Current 
directives state that (1) Priority use is intended for ongoing 
operations, (2) priority use permits will be reissued if there is 
sustained satisfactory performance by the holder, and (3) a comparable 
permit will be issued to the purchaser of the assets of a holder of a 
priority use permit if the purchaser is technically and financially 
qualified. Since outfitters and guides are familiar with the term 
``priority use'' and its meaning and since the Forest Service is not 
changing the characteristics of priority use, it is not necessary to 
change the term.
    There will be a standard national form for temporary use permits. 
Additionally, the Forest Service plans to conduct training on the new 
directives, including use of the new form.
41.53g--Issuance of New Outfitting and Guiding Permits
    Comment. One respondent recommended adding language to section 
41.53g, paragraphs 2a through 2e, 3, and 4, to allow outfitting and 
guiding only after the needs for unguided recreation have been met.
    Response. The agency does not believe that it is appropriate to 
supplant site-specific needs assessments with a presumption that 
unguided recreation should take precedence over guided recreation.
    Comments. One respondent supported limiting use when required for 
protection of national forest resources. However, this respondent 
requested additional information about competitive issuance of permits 
and was concerned about the administrative and financial burden, 
particularly for small outfitting and guiding operations, of responding 
to a prospectus.
    Another respondent was concerned about migration toward competitive 
issuance of priority use permits because of the lack of standard 
procedures for making selections. One respondent believed that the 
agency should clarify policy on competitive issuance of permits. Other 
respondents were concerned about how the agency makes selections in a 
competitive process when applicants are similarly qualified. These 
respondents supported the use of performance-related criteria in 
selection decisions.
    Some respondents observed that the return to the Federal government 
should not be a selection criterion, and others were concerned that 
financial capability would become the tie-breaking factor. Another 
respondent recommended consideration of past experience, knowledge of 
the area, financial capability, economic viability of existing holders, 
performance record, return to the Federal government, and other factors 
in selecting the most qualified applicant. One respondent recommended 
adding the consideration of interpretive skills, educational skills, 
and performance record, including use of leave no trace techniques, to 
the list of evaluation criteria.
    One respondent noted that since institutional outfitters and guides 
do not earn as much revenue as for-profit outfitters and guides, 
institutional outfitters and guides are at a disadvantage in a 
competitive process, which requires submission of a proposed land use 
fee based on a percentage of revenues.
    Response. It has been a long-standing policy of the Forest Service 
to offer new business opportunities competitively when there are 
multiple interested parties and not all of them can be accommodated 
(FSM 2712.1). That policy is now codified at 36 CFR 251.58(c)(3)(ii). 
FSM 2712.1, paragraph 3, lists the following evaluation criteria for 
applications submitted in response to a prospectus: Kind and quality of 
services proposed in terms of meeting public need; the applicant's 
experience in this or related fields and the applicant's qualifications 
to fully satisfy the public need for service; verification of financial 
resources; and return to the government. These directives supersede 
paragraph 3 of FSM 2712.1 and include the following as evaluation 
criteria for selecting among applicants for an outfitting and guiding 
permit: the applicant's experience, knowledge of the area to be 
authorized, financial capability, performance record as an outfitter or 
guide, and other pertinent factors. To address the concern regarding 
the competitive disadvantage of institutional outfitters and guides, 
the agency has revised section 41.53g, paragraph 3a, to clarify that 
return to the government is not a selection criterion for outfitting 
and guiding permits at this time.
    When a prospectus is being prepared, the authorized officer has the 
discretion to determine the type of services desired and may make the 
provision of those services a requirement for applicants. For example, 
the prospectus may require interpretation, education, or instruction of 
leave no trace ethics.
41.53h--Applications for Outfitting and Guiding Permits
    Comments. One respondent asked that the directives include a 
description of an applicant's qualifications for both priority and 
temporary use. Another asked that a description of an applicant's 
qualifications be included in the application form. Additionally, some 
respondents suggested that qualifications for first aid and emergency 
evacuation procedures for backcountry be described in the application 
form.

[[Page 53831]]

    One respondent noted that applicants should be required to state 
and document their experience in providing services. One respondent 
suggested enumerating what an applicant must submit.
    One respondent recommended deleting the phrase ``proposed number of 
service days or quotas'' from section 41.53h, paragraph 2. Another 
respondent believed that it was not appropriate to let applicants for 
outfitting and guiding permits identify the service days or quotas they 
need without considering the need of the unguided public. One 
respondent suggested that schools complete one application each year 
for uses they conduct in multiple forests.
    Response. Special use regulations at 36 CFR 251.54(d) and Forest 
Service directives at FSH 2709.11, section 12.31, address the content 
of proposals and the information required from a proponent or applicant 
to determine technical and financial qualifications. These regulations 
and directives should be read in conjunction with these final 
directives. One of these requirements is a project description, which 
for outfitting and guiding must include the amount of use an applicant 
proposes to conduct. Authorized officers need the discretion to 
determine specific qualifications and knowledge appropriate or 
necessary for a particular operation in a particular location. 
Therefore, it would not be appropriate to predetermine those 
qualifications.
    The Washington Office and Regional Offices of the Forest Service 
are not staffed to allow for submission of a single proposal and 
application for outfitters and guides who propose to conduct operations 
on multiple forests. In addition, since the supporting environmental 
analysis for outfitting and guiding applications must be site-specific, 
it does not make sense to consolidate proposals and applications for 
outfitting and guiding.
41.53i--Requirements for Temporary and Priority Use Permits
    Comments. Many respondents proposed that there be no assigned sites 
set aside specifically for outfitters and guides. These respondents 
believed that assigning sites would conflict with unguided use of 
Federals lands and that it is inappropriate to set aside assigned sites 
for outfitters and guides, since their services are not available to 
the general public free of charge.
    Response. Assignment of sites is a management tool available to the 
authorized officer. These directives describe how to address assignment 
of sites in a permit; these directives do not require or effect 
assignment of sites. Assignment of sites is a site-specific decision. 
Current Forest Service directives already provide for assignment of 
sites to outfitters and guides (see FSH 2709.11, sec. 37.05 and 
37.21h). The topic is included in section 41.53i for purposes of 
administrative efficiency.
    Comments. One respondent objected to the requirement in section 
41.53i, paragraph 4, to submit a report on actual use within 30 days of 
the close of the operating season on the grounds that it is unnecessary 
and contrary to local practice. Another respondent suggested revising 
section 41.53i, paragraph 4, to provide for submission of the report at 
the beginning of each operating season or when needed.
    Response. The requirement to report actual use within 30 days of 
the end of the operating season is necessary for timely reconciliation 
of land use fees and was not proposed for revision.
41.53i, Paragraph 5--Contracts for Ancillary Services and Equipment
    Comments. One respondent supported section 41.53i, paragraph 5, 
which authorizes outfitters and guides to contract for ancillary 
services. Another respondent agreed that permit holders should be 
responsible for the actions of their subcontractors. This respondent 
also believed that the directives should recognize holders' use of 
volunteers, as well as employees.
    Another respondent requested clarification as to which services 
would be deemed ancillary and wondered whether services provided by 
faculty members who are contractors rather than full-time employees 
would be considered ancillary. One respondent noted that most Montana 
fishing outfitters and guides use licensed guides as independent 
contractors, rather than hiring guides as employees; that to be 
certified by the Montana Department of Labor and Industry as an 
independent contractor, contractors must not be under the direct 
control of the contracting party, as they would be classified as 
employees; and that unless paragraphs 4 and 5b of section 41.53i are 
revised, they will prevent Montana outfitters and guides from using 
independent contractors under their special use permits. Another 
respondent requested that the directives encompass arrangements that 
enable holders to provide a range of unique opportunities to the 
public, such as contracting for the services of a guest speaker or 
instructor.
    Another respondent believed that contracted services should be 
provided by other permitted outfitters and guides, and that it was not 
appropriate to cede management of trips to a holder who has no 
experience. Another respondent believed that many insurers would not 
cover the activities of subcontractors and wanted to add language to 
section 41.53i, paragraph 5b(2), to read: ``The contracted guide or 
outfitter who already holds a permit at the resource has all required 
state licenses and appropriate Forest Service permits.''
    One respondent believed that section 41.53i, paragraph 5c, which 
authorizes contracting for additional services and equipment in 
emergencies, was too restrictive in requiring those services and 
equipment to be provided by another permit holder. This respondent was 
concerned that additional services and equipment might not be available 
from another holder. One respondent stated that the Forest Service 
should not dictate to private businesses whom they can employ.
    Another respondent believed that the requirement that the 
contracting holder exercise management authority over day-to-day 
operations, including guiding services, could void the contracted 
guide's liability insurance and suggested striking section 41.53i, 
paragraph 5b(4).
    Some respondents questioned the requirement for an insurance policy 
endorsement for contractors who provide ancillary services and 
equipment. Another questioned the requirement in section 41.53i, 
paragraph 5a(3), for a holder to submit a contract for ancillary 
services at the beginning of the operating season. This respondent 
noted that the need for ancillary services may not be identified until 
the last minute. One respondent was concerned that section 41.53i, 
paragraph 5c, would encourage illegal sublicensing of permits.
    Response. The Forest Service developed the provisions authorizing 
contracts for ancillary services and equipment in response to requests 
from holders, who believe that the existing directives, which do not 
allow these contracts, are too restrictive. In order for legal 
requirements to be met, permit holders must remain responsible for all 
activities authorized by their permit and may not circumvent their 
responsibility through the use of contractors or volunteers. Everything 
authorized under an outfitting and guiding permit, including contracts 
for ancillary services and equipment, must be covered by insurance. For 
further discussion of insurance, see the response to comments on 
proposed FSH 2713.1, paragraph g.
    These directives do not require the use of contracts for ancillary 
services and equipment. Rather, they allow the

[[Page 53832]]

use of these contracts, subject to certain conditions. The requirement 
to submit contracts for ancillary services and equipment at the 
beginning of the operating season is intended to allow sufficient time 
for review.
    The Forest Service does not dictate whom outfitters and guides can 
employ. The directives give holders the option of utilizing existing 
holders, whose skills, experience, and insurance coverage are known to 
the authorized officer, to avoid submission of a contract for ancillary 
services and equipment at the beginning of the operating season. 
Additionally, the final directives give holders' contractors the option 
of procuring a separate insurance policy that covers their services and 
equipment and that names the United States as an additional insured.
    The final directives at FSH 2709.11, section 41.53d, define an 
ancillary service as ``a service that supports use authorized by an 
outfitting and guiding permit and that is provided by a party other 
than the holder or the holder's employees or agents.'' This definition 
is broad enough to include the services of a guest speaker or 
instructor.
    A faculty member who is hired by a school as a contractor and 
provides ongoing outfitting and guiding services for the school would 
not be a contractor for purposes of these directives because outfitting 
and guiding is the primary use authorized by the permit, rather than an 
ancillary service that supports the authorized use. Thus, the faculty 
member must be covered by the holder's insurance. Likewise, licensed 
guides in Montana who are hired as independent contractors, rather than 
as employees, to provide ongoing outfitting and guiding services for 
permit holders are agents of the holder and would be providing the 
primary service, rather than an ancillary service, under the final 
directives.
    Comments. One respondent objected to proposed section 41.53i, 
paragraph 5a(3), which would authorize priority use permit holders to 
contract for the services of a specialized guide for people with 
disabilities or highly technical trips on the grounds that the 
provision was equivalent to a requirement for specialized certification 
for guides and therefore burdensome to nonprofit outfitters and guides. 
Another respondent stated that it was useful to have the flexibility to 
contract for ancillary services and equipment, thereby significantly 
lowering specialized capital expenditures.
    Response. Section 41.53i, paragraph 5a(3), does not require 
specialized certification for guides. To the contrary, paragraph 5a(3) 
gives outfitters and guides the flexibility to contract, as needed, for 
guides with specialized training or skills.
    Comments. One respondent commented that the Forest Service should 
not allow partial transfers of authorized use. Another respondent 
stated that some outfitters and guides swap service days and that this 
practice should not be prohibited. Yet another respondent proposed 
amending section 41.53i, paragraph 6, to allow the Forest Service to 
approve transfers or reassignments of authorized use to an affiliate of 
an existing holder. One respondent suggested revising section 41.53i, 
paragraph 6, to authorize transfers or reassignments of authorized use 
in connection with a change of control of a business entity that holds 
a permit. One respondent suggested reinforcing the language that 
precludes transfer of a permit. One respondent was concerned that 
section 41.53i, paragraph 5c, could allow hunting guides to increase 
staff and operations without oversight and could result in 
concentration of hunters.
    Response. Long-standing Forest Service policy has reserved the 
authority to allocate use to the authorized officer. Allowing holders 
to transfer or reassign use would undermine the agency's ability to 
manage resources and to provide for public safety and liability 
protection. Permits and allocations of use are not transferable. 
However, under both the current and revised directives, when there is a 
change of ownership or control of a holder of a priority use permit, 
the Forest Service issues a new priority use permit to the purchaser if 
the purchaser is technically and financially qualified. In addition, 
utilization of allocations is reviewed, and allocations are adjusted, 
if appropriate (see FSH 2709.11, 41.53m). Outfitter and guide staffing 
and operations are addressed in operating plans, which are prepared by 
the holder in consultation with the authorized officer and approved by 
the authorized officer.
41.53j--Issuance of Temporary Use Permits
    The Forest Service received many comments on proposed section 
41.53j. Some of these comments resulted in creation of three new 
sections. For clarity, comments and responses on the following topics 
have been moved to their corresponding new sections:
    (1) Temporary use pools: section 41.53k, Management of Temporary 
Use Pools;
    (2) priority use pools: new section 41.53n, Management of Priority 
Use Pools;
    (3) conversion of temporary use permits issued under the 1995 
policy to priority use: new section 41.53p, Transitional Priority Use
    Comments Regarding the 100-Day Limit on Service Days for Temporary 
Use. Several respondents favored the creation of temporary use pools, 
but were concerned about the 100-day limit on service days for the 
pools. These respondents believed that it would be difficult to run 
more than one program during a season with only 100 service days and 
suggested a 200-day limit instead. One respondent suggested a 150-day 
limit, and another recommended a 250-day limit. One respondent observed 
that there are outfitters and guides who offer special week-long events 
that have a large number of participants (200 to 3,000) at one time, 
that this type of event would not qualify for a temporary use permit 
due to the 100-day limit, and that the outfitters and guides would 
therefore have to obtain a priority use permit. One respondent 
suggested that temporary use permits for all four seasons be offered at 
the beginning of every calendar year. One respondent suggested that 
additional consideration be given to permit holders interested in off-
season use.
    Response. The Forest Service agrees that the amount of use 
available for a temporary use permit should be increased and has 
revised section 41.53j, paragraph 1, in the final directives to provide 
for up to 200 service days for temporary use permits. The Forest 
Service does not agree that the number of service days should be 
increased further to accommodate large groups. Holders who intend to 
serve large numbers of clients at one time should obtain a priority use 
permit.
    Additionally, section 41.53j, paragraph 2, provides that a holder 
may obtain one temporary use permit every 180 days. Thus, a temporary 
use permit holder will be able to operate in more than one season. 
Applicants wanting a permit in the off-season should have a good chance 
of getting one because there will be less use in the off-season.
    Comments Concerning Qualifications. Several respondents believed 
that the Forest Service would not evaluate the qualifications of 
applicants for temporary use permits and would not maintain a record of 
their performance and that failing to do so was not in the public 
interest and was arbitrary and capricious. One respondent was concerned 
that proposals to authorize temporary use could conflict with state 
requirements for licensing outfitters and guides. Another respondent 
stated that the Forest Service should coordinate

[[Page 53833]]

with state licensing agencies regarding an applicant's qualifications 
and not duplicate state screening processes. One respondent wondered 
whether it would be possible to get a temporary use permit if an 
outfitter and guide never had a Forest Service outfitting and guiding 
permit. One respondent believed that educational outfitters and guides 
could be at a disadvantage in competing with for-profit outfitters and 
guides for temporary use permits.
    Response. All applicants for special use permits must be qualified 
to conduct the activities that they propose (see the response to 
comments on section 41.53h regarding applicants' qualifications). If a 
state requires licensing for outfitters and guides, the Forest Service 
will require the holder to obtain a state license to be eligible for a 
Forest Service permit. However, very few states have a licensing 
requirement for outfitters and guides, and even those that do may 
require a license only for a few activities, such as hunting. 
Applicable qualifications are determined at the local level. Proponents 
and applicants do not have to have had a Forest Service permit; they 
must merely demonstrate their technical and financial qualifications 
for a permit. The agency does not elevate for-profit over non-profit 
status. The agency has revised section 41.53h, paragraph 2, to provide 
that proponents and applicants must describe their technical and 
financial qualifications to provide the services that they are 
proposing.
    Comments Concerning Performance Ratings and Operating Plans. 
Several respondents recommended revising section 41.53j, paragraphs 11 
and 12, to require annual performance evaluations and operating plans 
for holders of temporary use permits to encourage acceptable 
performance. Another respondent believed that conducting performance 
evaluations for holders of temporary use permits would enhance public 
safety and resource protection. One respondent recommended establishing 
performance standards for all permit holders and informing them of the 
potential for inspection and performance review. One respondent 
suggested requiring holders to adhere to a set of standards regarding 
public health and safety, protection of resources, and education of 
national forest visitors. Several respondents stated that not requiring 
performance evaluations and operating plans for temporary use permit 
holders would exempt them from regulatory oversight, which would be 
unfair to priority use permit holders.
    One respondent observed that there is no guidance to field staff on 
when to require operating plans and that operating plans should be 
required for higher-risk activities and activities conducted in remote 
settings. One respondent suggested revising section 41.53j, paragraph 
12, to provide that operating plans generally are required for higher-
risk activities or activities conducted in remote settings and that 
operating plans should be required for extensive overnight backcountry 
use. Another respondent suggested that in lieu of a multi-page 
operating plan, the Forest Service should require a 1-page worksheet.
    Response. The Forest Service agrees that temporary use permits 
should have an operating plan. Accordingly, the agency has revised 
section 41.53j, paragraph 6, in the final directives to provide that 
holders of temporary use permits must have an operating plan that 
addresses public health and safety, emergency procedures, and resource 
protection. However, the final directives do not require a performance 
evaluation for holders of temporary use permits. The Forest Service 
believes that it would be costly and unnecessary to require performance 
evaluations for temporary use permit holders. However, the agency has 
added section 41.53j, paragraph 8, to clarify that violations of law, 
customer complaints, and adverse performance ratings from the Forest 
Service or other agencies will be considered in evaluating an 
applicant's technical qualifications.
    Comment. One respondent recommended revising proposed section 
41.53j, paragraph 2, so that the geographic basis would be ``per area 
consistent with'' a needs assessment and capacity analysis, rather than 
``per area specified in'' those documents.
    Response. The Forest Service has revised section 41.53j, paragraph 
2, to read ``per use area.''
41.53j--Management of Temporary Use Pools
    Comments Regarding the Concept of Temporary Use Pools. Several 
respondents supported temporary use pools. One respondent believed that 
they would give the public more choice by allowing institutional groups 
to provide commercial services, as well as expand services offered in 
an area.
    Several respondents believed that the proposed directives were 
unclear regarding how temporary use permits would be allocated. These 
respondents also believed that the proposed directives were vague 
regarding procedures for establishment of temporary use pools and that 
temporary use pools would create administrative burdens for the agency 
and confusion for applicants. These respondents questioned how long it 
would take to establish temporary use pools; how use would be 
distributed from the pools; and what would happen if critical elements 
of the directives regarding temporary use pools were not implemented. 
These respondents stated that how fast a temporary use pool is 
established will depend on the Ranger District's ability to complete 
analyses and identify priority use permit holders' unused service days 
and terminated temporary use permits.
    One respondent suggested allowing temporary use permit holders to 
utilize priority use permit holders' unused service days on an annual 
basis. One respondent was concerned that service days for temporary use 
pools would be taken from existing priority use permits, at the expense 
of small commercial outfitters. One respondent believed that extensive 
authorization of temporary use would undercut the privileges of 
priority use permit holders.
    One respondent noted that it is more financially efficient, less 
time-consuming, and safer for schools and other organizations to hire a 
priority use permit holder than to offer their own outfitting and 
guiding programs and that schools and other organizations buy lower-
quality equipment than for-profit outfitters and guides.
    One respondent recommended revising section 41.53j, paragraph 7, to 
provide that the unguided public may obtain for use from a temporary 
use pool on a first-come, first-served basis through a lottery system 
or through some other equitable method of allocation. Additionally, 
this respondent believed that allocations for temporary use pools 
should come from priority use permit allocations.
    Response. The Forest Service agrees that temporary use pools will 
enhance public service and outfitting and guiding opportunities for 
qualified entities that previously had difficulty obtaining short-term 
permits. Some administrative units already have needs assessments and 
capacity analyses completed and will be able to establish these pools 
promptly. Other units have needs assessments and capacity analyses 
underway and should be able to implement pools within a year. Other 
units will have to initiate these tasks and may take a year or two to 
establish a temporary use pool.
    The Forest Service agrees that more direction is needed on 
management of temporary use pools and has added a new section 41.53k, 
Management of Temporary Use Pools. Units may

[[Page 53834]]

authorize temporary use in accordance with section 41.53j without 
establishing a temporary use pool. However, a temporary use pool may be 
necessary in high-demand areas.
    Operators of youth camps and university programs have for many 
years expressed frustration with their limited access to outfitting and 
guiding permits. These operators are not likely to hire a for-profit 
outfitter and guide unless they do not have the equipment or staff 
necessary to conduct a trip. Many university programs are training 
students to lead outdoor adventures. Operators of these programs are 
not satisfied that the services offered by for-profit outfitters and 
guides fit the educational and training objectives of these programs. 
Improving the access of youth camps and universities to temporary use 
permits will not detract from the privileges of priority use permit 
holders.
    Issuance of noncommercial recreation permits to individuals and 
groups is beyond the scope of these directives, which govern outfitting 
and guiding. For additional discussion regarding unguided recreation, 
see the response to comments on proposed section 41.53e, Needs 
Assessments, Resource Capacity Analysis, and Allocation of Use.
    Comments Regarding the Function of Temporary Use Pools. Several 
respondents commented on the function of temporary use pools. One 
respondent wanted priority use permit holders to be able to apply for a 
temporary use permit from a pool at least 120 days in advance. One 
respondent believed that holders of priority use permits should be 
allowed to apply for a temporary use permit 180 days in advance. Many 
respondents believed that it was not feasible to plan and schedule 
trips with only 30 days notice. One respondent recommended revising 
section 41.53j, paragraph 5, to treat all applicants the same. Another 
respondent wanted all permit holders to be able to apply for a 
temporary use permit 12 months in advance, so that they could manage 
their programs. One respondent questioned whether a priority use permit 
holder authorized to operate on one national forest could apply for a 
temporary use permit to operate on another national forest 12 months in 
advance.
    One respondent suggested that the Forest Service establish open 
seasons for applications for each type of permit in each use area. This 
respondent believed that accepting applications on a first-come, first-
served basis would result in competition to obtain permits and would 
make it more difficult for small outfitters and guides to obtain 
permits. One respondent suggested revising proposed section 41.53j, 
paragraph 9, to provide that priority use service days or quotas not 
used within the first month of a priority use permit term be 
reallocated to a pool for access by all recreational use groups. One 
respondent recommended deleting proposed section 41.53j, paragraphs 5, 
6, and 7, on the ground that they would limit access to temporary use 
permits by priority use permit holders.
    Response. New section 41.53k, Management of Temporary Use Pools, in 
the final directives provides for establishment of one or more open 
seasons, specifies who may apply during an open season, addresses 
distribution of any use remaining after an open season has closed, and 
allows the authorized officer to shift service days between temporary 
and priority use pools based on their utilization. Service days or 
quotas may be allocated to a temporary use pool based on a resource 
capacity analysis demonstrating that additional capacity exists; a 
determination that service days or quotas have been insufficiently used 
during the first 5 years of a priority use permit; or a determination 
that service days or quotas may be reallocated when a priority use 
permit is revoked or not renewed.
    Priority use permit holders in the use area are ineligible to apply 
for use from a temporary use pool during the open season. However, 
after the open season, priority use permit holders in the use area may 
apply for use from a temporary use pool, provided that if a priority 
use pool has been established for the same use area, applications for 
any remaining service days may be restricted to qualified applicants 
who do not hold a priority use permit. Priority use permit holders 
outside the use area may apply for use from a temporary use pool during 
the open season.
    The Forest Service has also added section 41.53n in the final 
directives. This new section provides for establishment of priority use 
pools and contains direction on application and operating procedures 
for the pools, including the timing and number of open seasons.
    In the final directives, the Forest Service has replaced the term 
``administrative unit,'' which includes a national forest, national 
grassland, or other comparable unit of the NFS per 36 CFR 212.1, with 
``use area,'' which is now defined in section 41.53d as any 
geographical configuration that allows for efficient management.
41.53l--Issuance of Priority Use Permits
    In the proposed directives, this section was numbered as section 
41.53k.
    Comments. One respondent did not object to providing outfitting and 
guiding opportunities for institutional and youth organizations and 
observed that many of these entities already hold priority or temporary 
use permits. One respondent requested that institutional users not be 
given a free permit and not be able to have their permit reissued to a 
for-profit business. One respondent did not support a system 
exclusively for institutional use. Another respondent believed that 
both non-profit and for-profit entities should be able to provide 
commercial services.
    Response. The final directives remove the prohibition against 
issuing priority use permits to institutional or semi-public 
organizations. The Forest Service believes that each entity should have 
the type of permit that best fits its mode of operation. Some of the 
largest outfitting and guiding operations are run by non-profit 
entities. They are not eligible for a land use fee waiver when they are 
operating as a commercial entity.
    Comments. One respondent supported authorizing priority use for up 
to 10 years at the discretion of the Forest Service, on the grounds 
that a longer term supports a positive business environment for 
organizations committed to long-term programs in specific areas and 
whose enrollment depends upon significant amounts of advance program 
planning and consistency.
    One respondent disagreed with the agency's recent extension of 
priority use permit terms from up to 5 years to up to 10 years. Several 
respondents believed that 5 years is a more appropriate maximum permit 
term that would give land managers more discretion in properly managing 
the resource and accomplishing agency objectives and that 10 years is 
too long a term. One respondent stated that as permit terms are 
extended, the revocation process needs to be strengthened, simplified, 
and shortened. One respondent objected to longer terms.
    Response. The revised maximum term length for priority use permits 
was published in the Federal Register as a proposed directive on August 
13, 2004 (69 FR 50160). The final Federal Register notice adopting the 
10-year permit term was published on April 14, 2005 (70 FR 19727). The 
agency did not propose changing the maximum term for priority use 
permits in these directives. The process for revoking permits is 
governed by the APA and 36 CFR 251.60 and is also beyond the scope of 
these directives.

[[Page 53835]]

    Comments. One respondent supported a 2-year probationary period, so 
that an outfitter and guide who does not provide adequate public 
service, protect resources, or support the agency's objectives will 
lose the privilege to operate. Another respondent agreed and stated 
that it is harder to take away an allocation than not to issue one. One 
respondent suggested using the phrase ``2-year interim priority'' in 
proposed section 41.53k, paragraph 3. Several respondents suggested an 
option to extend the permit for 10 rather than 8 years because new 
holders may need more time to establish their business. One respondent 
suggested that more explicit direction be provided when a permit is 
issued upon change of ownership. This respondent wanted clarification 
that a new permit would be subject to the 2-year probationary period if 
the purchaser was a new operator.
    Response. The Forest Service had two objectives in proposing the 2-
year plus 8-year term for new operators: To overcome the agency's 
inertia in converting eligible holders from an annual permit to a 
priority use permit, and to use the same timeframe (10 years) for 
evaluating environmental impacts when authorizing the use. The Forest 
Service disagrees with the notion that a 2-year plus 10-year term 
should be offered because it would not meet the standard horizon for 
analyzing the use. The Forest Service does not believe it is necessary 
to create a new term, such as ``interim priority use,'' to refer to the 
probationary period. A new holder will simply have priority use for a 
2-year probationary period.
    Comments. One respondent stated that upon termination, priority use 
permits should be competitively bid by other prospective holders to 
allow for competition. One respondent wanted to revise proposed section 
41.53k, paragraph 10, to provide that priority use permits may be 
reissued to the original holder, provided that the permits are 
consistent with the applicable land management plan and there has been 
satisfactory performance. One respondent believed that priority use 
permits should be renewed only if the unguided public does not need 
access. One respondent believed that renewal at the sole discretion of 
the authorized officer could be a biased decision and proposed striking 
``at the sole discretion of the authorized officer.'' This respondent 
also wanted to strike the citation to the cost recovery regulations at 
36 CFR 251.58. One respondent supported retaining proposed section 
41.53k, paragraphs 6 through 10, as written.
    Response. Long-standing agency policy and permit terms provide for 
reissuance of priority use permits if the holder has satisfactory 
performance and issuance to the purchaser of ownership of or a 
controlling interest in the holder's business if the purchaser is 
technically and financially qualified. The agency has not proposed 
revising this policy in these terms in these directives.
    The Forest Service is retaining the citation to the cost recovery 
regulations, which are beyond the scope of these directives. Outfitting 
and guiding applications and permits are exempt from cost recovery, 
unless they take more than 50 hours to process or monitor.
    Comments. One respondent believed that priority use permits have 
monetary value because of their allocation of use and access rights and 
that the agency should be able to prevent the sale of those rights. One 
respondent disagreed with the assertion in proposed section 41.53k, 
paragraph 7b, that a permit is not real property. This respondent 
believed that this statement was inconsistent with a finding by the 
Internal Revenue Service (IRS). One respondent stated that he purchased 
an outfitting and guiding permit at an IRS tax auction and that the 
Forest Service allowed the auction to take place, thereby acknowledging 
that outfitting and guiding permits are real property. Several 
respondents wanted to revise proposed section 41.53k, paragraph 4, to 
provide appeal rights for performance ratings.
    Response. Forest Service special use permits are not real property 
and are not transferable (36 CFR 251.59). They are a license to conduct 
a business on NFS lands. While an outfitting and guiding business may 
be sold, an outfitting and guiding permit may not, per current Forest 
Service directives at FSH 2709.11, section 41.53f, paragraph 4. This 
provision remains in the final directives at section 41.53l, paragraph 
7b. Purchasers of an outfitting and guiding business must apply for and 
obtain a permit.
41.53m--Allocation of Use for a Priority Use Permit
    In the proposed directives, this section was numbered as 41.53l.
    Comments. Several respondents supported the agency's intent to 
allocate use efficiently, particularly given that service days can go 
unused for years, while many potential operators are unable to obtain 
the allocation that they need. Several respondents supported the 
requirement to return unused service days, thereby increasing the 
availability of service days for reallocation to those who will make 
use of them. These respondents believed that the proposed directives 
would potentially open up use in areas that are not available under 
current management practices and would be helpful to holders who 
consistently use and pay for allocated use. One respondent supported 
optimum utilization of service days and redistribution of use when 
outfitters and guides under-perform by some reasonable margin.
    One respondent proposed adjusting allocations annually instead of 
once every 5 years, so that unused service days or quotas could be made 
available to small local livery and recreational supply businesses that 
cater to the public. One respondent stated that use should be adjusted 
annually, instead of every 5 years, to allow unused service days to be 
made available for use by the unguided public. This respondent 
recommended dropping proposed section 41.53l, paragraph 2a. This 
respondent also recommended that use be reallocated on a first-come, 
first-served basis through a lottery system, a common pool, or some 
other method that would give access to unguided recreation. Another 
respondent was concerned that proposed section 41.53l would encourage 
holders to report more than their actual use and that surplus use would 
not be made available to the unguided public.
    One respondent questioned whether reallocation of use would be 
based on holders' overall use or on their use in each authorized area 
or for each authorized activity and recommended that reallocation be 
based on the highest percentage of use from among the authorized areas 
or activities during the last 5 years. Several respondents suggested 
evaluating use over a 10-year rather than a 5-year period, since after 
a major wildfire or other natural disaster, it takes longer than 5 
years to return to previous levels of use. One respondent objected to 
review of priority use every 5 years. One respondent recommended that 
the utilization rate be negotiated with priority use permit holders who 
operate in remote areas. Several respondents suggested that extenuating 
circumstances, such as a natural disaster, a reduction in consumer 
confidence, increased placement of group bookings (which are subject to 
change or cancellation), or a variation due to weather in the length of 
the operating season, should be taken into account in reviewing 
priority use. One respondent suggested that extenuating circumstances 
exempt priority use

[[Page 53836]]

permit holders from review and redistribution of allocations of use.
    One respondent was concerned that the effort to reallocate unused 
priority use could create an anti-growth environment and untenable 
business conditions for priority use permit holders. One respondent was 
concerned that review of priority use would require additional Forest 
Service resources.
    Several respondents recommended revising proposed section 41.53l, 
paragraph 3, to provide for maintaining, increasing, or decreasing 
priority use allocations at the time of renewal, provided that any 
change to the allocations be consistent with the applicable land 
management plan, applicable project decision, or other appropriate 
analysis.
    Many respondents were concerned that the proposed directives would 
require a reduction in allocation to priority use permit holders who 
are in compliance with their permits. One respondent believed that a 
reduction of service days would cause businesses to close. Several 
respondents observed that the proposed directives would not provide for 
returning service days to holders. Several respondents suggested that 
instead of requiring service days to be taken from priority use permit 
holders, the directives should allow them to contribute service days to 
a pool voluntarily without losing them. One respondent suggested that 
holders who contribute service days to the pool should get them back if 
they use them for 2 out of 10 years. One respondent observed that the 
proposed directives would result in a one-way decline in service 
opportunities for quality, long-term holders.
    Many respondents were concerned that priority use permit holders 
would be required to use all or nearly all of their allocated use once 
in a 5-year period to avoid a reduction in their allocation. These 
respondents stated that it is impossible to achieve a 100 percent 
utilization rate in the tourism industry and that therefore it would be 
unlikely that holders could recover lost service days. These 
respondents stated that the tourism industry books at 100 percent to 
achieve a 75 to 85 percent utilization rate and that average hotel 
occupancy in the United States is approximately 65 percent of capacity. 
One respondent noted that to achieve 100 percent of capacity, most 
businesses in the tourism industry have to overbook in peak periods and 
that this practice is not allowed by Forest Service directives and land 
management plans. In addition, these respondents believed that 
utilization would always be below 100 percent because of fluctuation in 
the business climate, weather, game populations, snow pack, drought, 
and wildfires. Several respondents believed that even after adding a 10 
percent cushion, allocations would be reduced because of the difficulty 
of obtaining the required utilization rate. Other respondents cautioned 
against including shoulder seasons, when there is inconsistent demand, 
and other periods when the permitted activity is infeasible in the 
utilization calculation. One respondent recommended that the 100 
percent utilization requirement apply only to the peak season.
    Several respondents requested that allocations not be reduced 
unless holders' utilization falls significantly below the average 
utilization for other holders providing the same services in the same 
use area during the peak season. These respondents recommended that the 
utilization rate and the peak season should be established in 
consultation with holders in each use area. These respondents also 
recommended that review of priority use be suspended when economic or 
environmental factors have seriously compromised the ability of holders 
to attract business.
    Several respondents believed that a 70 percent utilization rate 
should be required to avoid a decrease in allocation of use. One 
respondent suggested that if permit holders are not able to meet the 70 
percent threshold, they should be required to renegotiate the number of 
approved service days with the Forest Service. Another respondent 
stated that a 75 percent utilization rate for 1 out of 5 years was 
achievable. One respondent supported the 10 percent buffer on the 
utilization rate for large allocations, as the buffer would likely be 
adequate to account for temporary increases in bookings. This 
respondent believed that for small allocations, a buffer of 15 to 20 
percent would be necessary to accommodate periodic fluctuations. 
Another respondent suggested a 10 percent buffer in addition to a 70 
percent utilization rate.
    One respondent observed that if holders have an 80 percent 
utilization rate, their use should not be cut 10 percent. One 
respondent believed that the utilization rate should be the highest 
amount of actual use in the last 5 years plus 20 percent. Another 
respondent recommended a utilization rate of actual use plus 35 
percent.
    Several respondents suggested adding 10, 15, or 20 percent to 
allocations for holders who have a 100 percent utilization rate. One 
respondent suggested removing the limitation in the proposed directives 
that the new allocation not exceed the old one, so as to accommodate 
growth in public demand. This respondent suggested increasing holders' 
allocations by 20 percent if there is additional demand and they have a 
100 percent utilization rate for 2 or more of the past 5 years. One 
respondent recommended allowing qualifying holders to remedy the 
reduction in use by fully utilizing their allocation during a 
reasonable period.
    One respondent suggested that reductions in allocations of use be 
subject to administrative appeal.
    Response. The Forest Service agrees that holders should not be 
allowed to retain service days or quotas they do not need. 
Additionally, the agency agrees that it is appropriate to provide a 
margin above actual use in deciding whether to adjust allocations, 
given the effects of fluctuations in the business climate, weather, 
game populations, wildfires, and natural disasters. Consequently, the 
final directives provide that for permits with more than 1,000 service 
days or the equivalent in quotas, holders can retain their highest use 
in 1 year during the past 5 years, plus 15 percent of that amount, 
provided that the total does not exceed the allocation when the permit 
was issued. For permits with 1,000 service days or less or the 
equivalent in quotas, holders can retain their highest use in 1 year 
during the past 5 years, plus 25 percent of that amount, provided that 
the total does not exceed the allocation when the permit was issued. 
Smaller entities, which have smaller allocations, need a bigger margin 
because they do not have the economies of scale available to larger 
entities.
    Original allocations are based on requisite analysis. Any amount of 
use that a holder proposes to add above the original allocation would 
be considered a new proposal and would require environmental analysis.
    The directives do not preclude overbooking. Holders may not exceed 
their allocation of use, but overbooking is a management decision. 
While 100 percent utilization of an allocation may be difficult for 
some operations, the agency disagrees that 100 percent utilization of 
an allocation is impossible. Experience shows that many holders fully 
utilize their allocations.
    A reduction in an allocation of use would be appealable under 36 
CFR part 251, subpart C.
    The Forest Service believes that the customized limitations on and 
waivers of allocation adjustments suggested by respondents would not be 
affordable to administer. Additionally, these

[[Page 53837]]

proposed revisions would result in inconsistent treatment of similarly 
situated entities. Therefore the agency is not adopting these proposed 
revisions.
    Comments. One respondent suggested provisions to mitigate the 
effects of the proposed directives on priority use permit holders, 
including allowing them to apply for a permit amendment to increase 
their allocation prior to implementation of the final directives; 
allowing Forest Service officials to approve requests to increase 
priority use allocations for operators with acceptable ratings, when 
consistent with the applicable land management plan; and providing for 
increases in allocations when holders use 100 percent of their 
allocation.
    Response. The Forest Service does not believe that there is any 
need to mitigate effects of the final directives on priority use permit 
holders. Priority use permit holders may apply for an amendment to 
their permit at any time. Applications are evaluated in accordance with 
applicable laws, regulations, directives, and land management plans and 
requisite analysis. Allocations of use and adjustments to allocations 
of use are made in accordance with directives and applicable land 
management plans and requisite analysis. The agency believes that the 
determination of whether to allocate additional use and how much use to 
allocate for priority use permit holders should be informed by a needs 
assessment.
    Comments. One respondent stated that the requirement to request and 
obtain approval of non-use in current section 41.53h, paragraph 4, 
should be retained. Another respondent recommended eliminating the 
requirement. This respondent stated that the requirement does not 
result in efficient use of allocations and takes too much time to 
administer.
    Response. The Forest Service agrees that requests for and approval 
of non-use should be eliminated. The process for approval of non-use is 
costly to administer. In the final directives, the agency has replaced 
this process with the criteria for adjusting allocations of use.
    Comments. One respondent suggested revising proposed section 
41.53l, paragraph 2, to provide for review of actual use on a monthly 
basis, taking an average of all months, annually adjusting the 
allocation of use to the average seasonal use, and shifting all unused 
service days or quotas to the unguided public. This respondent 
recommended eliminating proposed section 41.53l, paragraphs a and b, 
which provided for review of use before renewal, and instead 
reallocating the use to a common pool for unguided and guided 
recreational use or reserving it until a capacity analysis shows that 
recreational demand of the unguided public has been met.
    Response. The Forest Service believes that it would be too costly 
and is not necessary to review use monthly. Long-standing Forest 
Service policy in current section 41.53f, paragraph 3, addresses 
renewal of outfitting and guiding permits. In the final directives, 
this provision is located in section 41.53l, paragraph 4. A needs 
assessment is conducted to determine how much commercial use is 
appropriate. Unguided use is not allocated by the Forest Service.
    Comments. One respondent stated that the value of an outfitting and 
guiding business is directly tied to the number of service days it is 
allocated under a permit and that the value of the business diminishes 
when the agency reduces the number of service days allocated. One 
respondent stated that when the respondent bought two outfitting and 
guiding businesses, the banks wanted to know exactly how many service 
days would be allocated to the businesses to determine cash flow and 
business value. This respondent noted that outfitters and guides report 
false numbers to protect their service days and that it is better to 
pay for unused service days than to lose those days and incur 
devaluation of their business.
    Response. An allocation of use is a privilege that may be lost 
through non-use. Allocations of use are not determinative of past and 
future earnings; rather, allocations of use are only one aspect of past 
and future earnings. In addition, under the existing and final 
directives, an outfitting and guiding permit is not real property, does 
not convey any interest in real property, and may not be used as 
collateral for a loan. FSH 2709.11, sec. 41.53f, para. 4a(3) in the 
current directives and sec. 41.53l, para. 7b, in the final directives.
    Comment. One respondent suggested that proposed section 41.53l, 
paragraph 1, recognize that Section 802(2) of the Alaska National 
Interest Land Conservation Act (ANILCA) establishes a policy of giving 
preference to subsistence uses over other uses on NFS lands in the 
State of Alaska.
    Response. The Alaska Region of the Forest Service has issued a 
regional supplement to FSH 2090.23, which addresses the provisions of 
Section 802(2) of ANILCA generally in the context of Forest Service 
programs in the State of Alaska. Therefore, the Forest Service does not 
believe that it is necessary to address Section 802(2) of ANILCA in the 
national outfitting and guiding directives.
    Comment. One respondent believed that by offering the same terms 
and conditions to educational and institutional permit holders as to 
other types of permit holders, the proposed directives would give 
thousands of young people easier access to Federal lands. This 
respondent believed that priority use permits facilitate greater 
business continuity, consistency, and longer-term business plans for 
youth organizations.
    Response. The Forest Service agrees that it is appropriate to offer 
priority use permits to educational and institutional outfitters and 
guides and has done so in the final directives.
41.53n--Management of Priority Use Pools
    This section is new and was added in response to comments.
    Comments. Several respondents observed that the proposed directives 
require drawing from the allocation of priority use permit holders to 
stock temporary use pools and that there is no way under the proposed 
directives to recover these lost service days.
    Several respondents observed that priority use permit holders need 
additional service days to expand their businesses and requested 
additional direction regarding how they could increase their allocation 
if service days are available other than through the permit renewal 
process.
    Many respondents suggested that pools be established or existing 
pools be maintained for priority use permit holders and that the final 
directives establish guidance for priority use pools, rather than 
assigning all available service days to a temporary use pool. Many 
respondents recommended that unused service days from priority use 
permits or service days from revoked or expired priority use permits be 
assigned to a priority use pool for a variety of purposes, including 
meeting the short-term needs of priority use permit holders during a 
season with heavy demand; meeting long-term needs of priority use 
permit holders by allowing them to expand their businesses; and 
allowing a permit holder who lost service days after an allocation 
adjustment to recover. One respondent proposed the use pool for the Bob 
Marshall Wilderness Area, which is stocked with voluntary, temporary 
contributions from priority use permit holders, as a model for national 
priority use pools.
    One respondent suggested that unused service days be divided 
equally between temporary and priority use

[[Page 53838]]

pools. One respondent recommended that the agency establish a priority 
use pool on each administrative unit to allow for flexibility in and 
growth of holders' businesses.
    One respondent observed that river outfitters and guides who have 
priority use permits also have recurring temporary use and that 
temporary use permits aid priority use permit holders in handling 
fluctuations in business. Several respondents observed that state 
hunting licenses are allocated by lottery and that hunting outfitters 
risk losing use due to circumstances beyond their control, such as 
state limitations on licenses for certain hunts. One respondent 
believed that a pool for outfitted hunts would be useful and that any 
licensed hunter who decides to contract with an outfitter should be 
eligible to apply for use from the pool. This respondent also observed 
that outfitters should not be restricted to specific geographical areas 
(such as a hunt management unit) because this type of restriction might 
drive up prices.
    Several respondents did not want to lose existing use pools. They 
stated that existing pools of surplus service days are shared by 
priority use permit holders. Another respondent observed that existing 
use pools would be eliminated under the proposed directives unless they 
are included in a land management plan. Several respondents observed 
that priority use permit holders currently contribute to pools that 
they can use and that institutional outfitters and guides have a 
separate use pool.
    Several respondents believed that outfitters and guides would not 
voluntarily relinquish use if it would be permanently lost.
    One respondent recommended allowing priority use permit holders to 
apply for use from a temporary use pool more than 30 days in advance.
    Response. The Forest Service agrees that the management of priority 
use in some situations would benefit from establishment of priority use 
pools and accordingly has added section 41.53n, Management of Priority 
Use Pools, in the final directives. Under this section, the authorized 
officer may establish a priority use pool when it would benefit 
management of outfitting and guiding. When a priority use pool is 
established, it will be stocked by allocating service days based on a 
resource capacity analysis demonstrating that additional capacity 
exists; a determination that service days or quotas have not been used 
during the first 5 years of a priority use permit; or a determination 
that service days or quotas may be reallocated when a priority use 
permit is revoked or not renewed. The authorized officer may establish 
application and operating procedures for the pool, such as creation of 
an open season for short-term allocations. Additionally, this new 
section provides that once short-term needs have been met and when 
supported by a needs assessment and capacity analysis, the authorized 
officer may increase allocations for priority use permit holders or 
issue new priority use permits. Furthermore, this new section provides 
that the authorized officer may shift use between temporary and 
priority use pools based on their utilization.
    The Forest Service does not believe that the amount of use assigned 
to temporary and priority use pools should be predetermined. Rather, 
the agency believes that this decision should be informed by a needs 
assessment.
    Under section 41.53k of the final directives, priority use permit 
holders outside the use area may compete for use from a temporary use 
pool during the open season. Priority use permit holders inside the use 
area may compete for use from a temporary use pool after the end of the 
open season, provided that if a priority use pool has been established 
for the same use area, applications for any remaining temporary service 
days may be restricted to qualified applicants who do not hold a 
priority use permit in the use area.
    Existing use pools adopted pursuant to formal decisions will remain 
in effect after issuance of the final directives. However, they must 
conform to these directives.
    While holders may voluntarily contribute use to a pool, voluntary 
contributions will not change how the agency will review utilization of 
their allocation.
    The Forest Service agrees that pools are a good management tool for 
meeting the needs of hunting outfitters who have little control over 
whether their clients will draw a license in a lottery.
41.53o--Reduction of Use Based on New or Changed Decisions
    In the proposed directives, this section was numbered as 41.53m.
    Comments. One respondent supported proposed section 41.53l (section 
41.53m in the final directives) as written. One respondent believed 
that allowing holders to retain the highest amount of actual use in a 
5-year period plus 10 percent of that amount would commit the Forest 
Service to growth, even if it is inappropriate. One respondent 
suggested revising proposed section 41.53m to change the title and the 
text to address both increases and decreases in use. This respondent 
suggested adding a paragraph stating that use may be increased when 
capacity analysis or other assessments indicate the availability of 
increased capacity. Several respondents suggested revising proposed 
section 41.53m, paragraph 3, to qualify that use would be allocated 
through issuance of a prospectus only when existing holders have 
sufficient use to sustain their operations, the amount of new capacity 
is sufficient to sustain a new permit holder, and there is competitive 
interest. Additionally, these respondents suggested following the 
direction in proposed section 41.53l, paragraphs 1 through 4, governing 
allocation of use for a priority use permit, if appropriate. Yet 
another respondent proposed that reductions in use based on new or 
changed decisions be mandatory and stated that when reductions are 
needed, the agency has the authority to reduce use. One state agency 
encouraged voluntary reduction of use to address game resource 
management needs.
    Response. This section replaces section 41.53i in the current 
directives and has the same purpose, that is, to establish a procedure 
for reducing allocations of use when they are no longer consistent with 
the applicable land management plan or project decisions implementing 
the plan. The Forest Service agrees that voluntary reductions are 
desirable. However, if permit holders will not voluntarily reduce use, 
it may be necessary for the Forest Service to impose proportionate 
reductions in use or, when the amount of remaining use will not support 
the number of existing holders, to select among those holders through a 
competitive process. Increases in use or new capacity are beyond the 
scope of this section.
41.53p--Transitional Priority Use.
    This section is new and was added in response to comments.
    Comments. One respondent observed that annual renewal of an 
institutional permit was cumbersome for both the holder and the Forest 
Service and welcomed the prospect of obtaining a priority use permit. 
Several respondents suggested creating an interim temporary use permit 
that could be authorized for consecutive 1-year terms for up to 5 
years, that would not be limited in the amount of use that could be 
assigned to the permit until conversion to priority use status, and 
that could be reissued if necessary. These respondents suggested that 
outfitters and guides with satisfactory performance and eligibility for 
priority use under the current

[[Page 53839]]

outfitting and guiding directives routinely qualify for an interim 
temporary use permit. One respondent recommended modifying proposed 
section 41.53j, paragraphs 4 and 8, to add the phrase ``or interim 
temporary permit'' so that interim temporary permits would not be 
subject to renewal and that the use they authorized would be returned 
to a common pool.
    Several respondents supported conversion from temporary use under 
the current directives to priority use. However, these respondents 
believed that there was no affordable mechanism for the conversion. One 
respondent recommended that the directives provide a reasonable period 
for applications for new or modified special use permits. Several 
respondents observed that needs assessments, resource capacity 
analyses, and NEPA compliance required for the conversion were costly, 
that these costs would all be passed on to permit holders through cost 
recovery, and that these costs would be beyond the financial capacity 
of many small businesses and organizations. These respondents believed 
that cost recovery would make conversion from temporary to priority use 
unaffordable for many temporary use permit holders.
    Response. The Forest Service agrees that more direction should be 
provided for conversion from temporary to priority use. Therefore, the 
agency has added section 41.53p, Transitional Priority Use, to the 
final directives. This section provides that holders of temporary use 
under the current directives are eligible for reclassification of their 
use as transitional priority use when their use is active and 
recurring; their performance has been satisfactory; they request 
reclassification within 1 year of the date of publication of these 
final directives; and they agree to meet the application requirements 
for conversion to priority use within 5 years of the date of their 
request.
    Section 41.53p, paragraph 5, in the final directives describes how 
the allocation will be determined for transitional priority use. When 
transitional priority use permit holders apply for conversion to 
priority use, their allocation will be based on their highest amount of 
actual use in 1 year during the past 5 years, plus 25 percent of that 
amount if their allocation was 1,000 service days or less or 15 percent 
of that amount if their allocation was for more than 1,000 service 
days.
    Section 41.53p, paragraph 8, in the final directives provides that 
for those holders who elect conversion in a timely manner, the needs 
assessment and capacity analysis necessary to determine whether the 
priority use may be authorized will be considered programmatic costs 
and will not be subject to processing fees. Thus, for cost recovery 
purposes, the agency's costs for converting transitional priority use 
to priority use will be based on an estimate of the costs associated 
with reviewing the application and conducting the environmental 
analysis necessary to issue a priority use permit for the first time. 
Environmental analysis costs associated with outfitting and guiding 
permits for two national forests ranged from $120 to $8,750. We 
estimate that these costs will typically be $1,200. Additionally, these 
costs could be spread over 5 years if necessary. The typical estimated 
cost of $1,200 is comparable to the average cost of $950 for processing 
applications for all types of special uses established in a 1995 
nationwide study. Adjusted for inflation the typical average cost would 
be $1,345. Applicants may spread these costs over 5 years, if 
necessary. Annual costs for conversion from transitional priority use 
to priority use are estimated to range from $24 to $1,750 per entity. 
Thus, the average annual cost is $269 per entity.
41.53q--Administration of Outfitting and Guiding Permits
    In the proposed directives, this section was numbered as 41.53n.
    Comments. One respondent commented that proposed section 41.53n did 
not address how permits with service days on multiple Ranger Districts 
would be administered and suggested that they should be administered by 
one Ranger District only.
    Several respondents suggested that the findings from inspections be 
subject to administrative appeal. One respondent suggested that 
termination of permits be subject to administrative appeal because 
termination is based on findings from field inspections that need to be 
subject to objective review. One respondent suggested that the 
directives provide at least 90 days between performance evaluations and 
ratings to allow holders to take corrective action.
    One respondent proposed that the directives require all commercial 
users to abide by the same leave-no-trace standards that apply to 
noncommercial users. One respondent suggested that proposed section 
41.53n, paragraph 4, regarding imposition of an immediate suspension of 
a permit to protect public health and safety or the environment, 
reference fish and wildlife specifically as an integral part of the 
environment.
    Response. When an outfitting and guiding permit covers use on 
multiple Ranger Districts, the Forest or Grassland Supervisor has the 
option of assigning permit administration to the supervisor's office or 
assigning a lead Ranger District pursuant to FSM 2704.33 and 2704.34.
    Findings from inspections are not written decisions of the 
authorized officer and are therefore not appealable under 36 CFR part 
251, subpart C. However, the performance rating based on those findings 
is a written decision of the authorized officer relating to 
administration of a permit and is therefore subject to administrative 
appeal. While revocation of a permit is appealable pursuant to 36 CFR 
251.60(a)(2)(ii), termination of a permit is not appealable pursuant to 
36 CFR 251.60(a)(2)(iii).
    The Forest Service disagrees that the time provided to take 
corrective action should be fixed at 90 days. The authorized officer 
needs to have discretion to determine the appropriate amount of time to 
take corrective action, based on case-specific circumstances.
    The authorized officer has discretion to require compliance with 
leave-no-trace standards. These types of requirements are usually 
addressed in the operating plan, which covers day-to-day operations.
    Consistent with Forest Service regulations at 36 CFR 251.60(f), the 
final directives state that an immediate suspension may be imposed on 
all or part of a permit to protect public health and safety or the 
environment. The agency believes that the term ``environment'' is broad 
enough to include fish and wildlife.
41.53r--Administration of Priority Use Permits
    In the proposed directives, this section was numbered as 41.53o.
    Comments. One respondent observed that proposed section 41.53o 
would give unfettered discretion to authorized officers. One respondent 
was concerned that the agency would not be able to conduct an annual 
review of each permit holder's operation, given the agency's limited 
resources, and did not want the agency to establish a requirement that 
could not be met. This respondent observed that competitive issuance of 
a permit and reissuance of a priority use permit depend on the holder's 
past performance and that it is therefore critical for the agency to 
complete performance evaluations. One respondent suggested conducting 
performance evaluations of transitional priority use permit holders and 
adding professional associations to the list of

[[Page 53840]]

consultants in proposed section 41.53o, paragraph 3.
    Response. The agency believes that authorized officers need 
discretion in administering priority use permits. Performance reviews 
are necessary to establish performance ratings, which serve as the 
basis for determining whether enforcement action is necessary and 
whether a priority use permit may be reissued.
    The agency agrees that performance reviews are important in 
competitive offerings. Competitive offerings are typically used for 
priority use permits, which are subject to performance reviews. The 
agency also agrees that performance reviews are important for 
transitional priority use permit holders and has therefore included a 
requirement for performance evaluations for transitional priority use 
permit holders in section 41.53p, paragraph 4, of the final directives. 
The Forest Service does not believe that it is necessary to conduct 
performance evaluations for temporary use permit holders, especially as 
temporary use will no longer be a stepping stone to priority use. The 
Forest Service does not believe that it is appropriate to consult 
professional associations when performance standards are established, 
as doing so could raise concerns under the Federal Advisory Committee 
Act.
FSH 2709.11, Section 37.21b, Flat Fee for Temporary Use
    Comments. A number of respondents commented on the amount of the 
flat land use fee for temporary use. Several stated that the proposed 
fee was too high because it did not accurately reflect outfitting and 
guiding revenue, while others stated that the proposed fee was too low.
    One respondent commented that the proposed flat fee for temporary 
use should not be based on gross revenue.
    Some stated that the fee should be waived for non-profit entities, 
while others were concerned that non-profit entities would be given an 
unfair advantage if the fee were waived and believed that the standard 
fee policy should apply to all outfitters and guides. One respondent 
stated that the Forest Service should not establish a flat fee schedule 
for temporary use without changing other outfitting and guiding fees 
because the different fee structure for the same activities would 
likely result in unfair competition. Some respondents noted that non-
profit status does not denote noncommercial status or eligibility for a 
fee waiver. One respondent stated that priority use outfitters and 
guides should pay the same fee as temporary use outfitters and guides.
    One respondent suggested increasing the number of service days 
covered by the flat fee.
    Response. The Forest Service has several objectives in establishing 
a flat land use fee for temporary use permits. First, the land use fees 
for these permits need to be sufficient to cover the cost of 
administering them. To meet that objective, the agency needs to reduce 
the administrative cost of calculating the fees. Applications for these 
permits will typically be exempt from cost recovery because they will 
involve 50 hours or less to process. However, the agency estimates that 
it will cost from $236 to $512 to screen a temporary use proposal and 
to issue and administer a temporary use permit under the final 
directives. Under the final directives, the agency is likely to collect 
less in fees than it costs to issue permits with up to 100 service days 
and to collect more than it costs to issue permits with up to 200 
service days.
    Second, the temporary use permit system is intended to increase 
access to NFS lands; fees for those permits should not be higher than 
necessary so as to encourage participation in the program. Like land 
use fees for priority use permits, the flat fee schedule is based on 3 
percent of gross revenue. The flat fee of $150 for up to 50 service 
days was determined by multiplying 50 service days by $100, which is a 
typical service day charge, and multiplying the product by 3 percent 
(i.e., 50 x $100 = $5,000; $5,000 x .03 = $150). Holders of a temporary 
use permit will pay a lower fee than under the current directives if 
their service day charge exceeds $100 or a higher fee if their service 
day charge is less than $100.
    In most contexts, gross revenue is an appropriate basis for 
calculating the value of special use privileges. Generally, the gross 
revenue of a business conducted on NFS lands is an accurate reflection 
of the value of the business's use of those lands, regardless of 
whether the business involves improvements on NFS lands. Gross revenues 
derived from use or occupancy of NFS lands are an accurate indicator of 
the value of that use or occupancy because generation of the income 
depends on use of NFS lands: without them, the business would not 
exist. This conclusion is supported by the 1996 Government 
Accountability Office (GAO) report, ``Fees for Recreation Special-Use 
Permits Do Not Reflect Fair Market Value,'' which compares land use 
fees for outfitting and guiding based on a percentage of gross revenue 
that are charged by the Forest Service with land use fees for 
outfitting and guiding based on a percentage of gross revenue that are 
charged by the State of Idaho (GAO Report, RCED-97-16, at 7 (Sept. 
1996)).
    Third, the flat fee should be based on the market value of the 
authorized use. Consequently, the Forest Service does not believe that 
fees for non-profit entities should be waived. The outfitting and 
guiding program serves both for-profit and non-profit entities. Non-
profit outfitters and guides are providing commercial services (36 CFR 
251.51). Some of the largest outfitters and guides operating on NFS 
lands are non-profit entities. Waving fees for non-profit entities 
would give them an unfair advantage.
    Comment. One respondent stated that the agency must clarify FSH 
2709.11, section 37.21c, paragraph 2, Fees for Commercial Use for Non-
Profit Organizations, and section 37.21k, Fees for Commercial Use for 
Educational Institutions.
    Response. FSH 2709.11, sections 37.21c and 37.21k, were not 
proposed for revision and are beyond the scope of these directives.
    Comment. One respondent stated that the proposed directives appear 
to conflict with the flat fee policy for outfitting and guiding land 
use fees being developed in the Alaska Region, since under the proposed 
directives, outfitters and guides in the Alaska Region will pay fees 
for temporary use based on a percentage of their gross revenues. This 
respondent wondered whether the national directives or the regional 
directives would apply to temporary use in the Alaska Region.
    Response. Land use fees for outfitting and guiding permits in the 
Alaska Region will be determined by the Alaska Region's flat fee 
policy.
FSM 2713.1--Liability and Insurance
    Comments. Some respondents commented that the proposed insurance 
standards were reasonable and were industry standards.
    A number of outfitters and guides were concerned about the Forest 
Service's proposed classification of levels of risk. These respondents 
stated that the definitions of low, medium, and high risk were 
arbitrary, confusing, and untenable and that these classifications 
would unfairly penalize quality operators and unnecessarily limit 
public access to activities deemed to be higher risk. These respondents 
believed that risk should be determined by a holder's historical safety 
record, current risk management plan, and level of training. Some 
respondents were concerned that their outfitting and guiding activities 
might be characterized as high risk by

[[Page 53841]]

the agency. Some respondents were concerned that the Forest Service 
would impose unreasonable liability insurance requirements and thus 
increase the cost of insurance premiums. Some respondents believed that 
Forest Service personnel do not have the expertise to set insurance 
limits and that minimum liability insurance levels should be set by the 
market for the industry involved, the degree of risk assessed by an 
insurance carrier, and the amount of exposure for the holder's 
business. One respondent stated that hunting outfitters should not be 
required to carry more than $500,000 in insurance coverage.
    Some respondents stated that allowing Regional Foresters and Forest 
Supervisors to increase coverage amounts could result in too much 
variation among administrative units. One respondent suggested that the 
directives state that liability limits may be adjusted based on the 
availability of coverage in the insurance market and the reasonableness 
of rates.
    One respondent objected to dropping the requirement to provide 
proof of liability insurance for holders of temporary use permits, 
another respondent believed that insurance requirements for temporary 
use permits were unclear, and another respondent was concerned that 
temporary use permits might be held to a lower standard than priority 
use permits with respect to insurance.
    Several respondents believed that the requirement for an 
endorsement for contracted services and equipment was unworkable and 
unaffordable and suggested that contractors obtain their own insurance 
coverage and certificate of insurance.
    Some respondents stated that it is unclear why the agency requires 
a copy of an insurance policy and that a certificate of insurance 
should be sufficient. Some respondents stated that other large permit 
holders, besides the Boy Scouts of America should be able to file a 
single set of insurance papers with the Forest Service's National 
Insurance Center to lower administrative costs for the agency and to 
reduce the administrative burden for the field staff.
    One respondent recommended requiring an occurrence policy, which 
covers all claims that arise while the policy is in effect, regardless 
of whether the claims are reported during that period, as that type of 
policy would provide better protection for the agency, outfitters and 
guides, and the guided public.
    One respondent recommended clarifying that the list of activities 
with inherent risk is not exhaustive by stating ``activities, such as 
but not limited to * * * swimming, boating, skiing * * *.'' One 
respondent recommended revising the standard outfitting and guiding 
permit form, form FS-2700-4i, to reflect the inherent risk recognized 
in FSM 2713.1, paragraphs 1a, b, and c, because the language in clause 
IV.G of the permit subjects holders to strict liability.
    Some respondents believed that it was appropriate for the Forest 
Service to be named as an additional insured and to be indemnified as 
required by permits. One respondent did not believe that permit holders 
should be required to indemnify the United States for its own gross 
negligence or willful misconduct. Several state universities stated 
that they could not agree to the indemnification requirement if it 
exceeds state tort liability limits.
    One respondent stated that it is not feasible for holders to 
provide a safe operation, as required by the directives.
    Response. The Forest Service has modified FSM 2713.1, paragraph 2d, 
by removing the level of risk chart and replacing it with an exhibit 
showing minimum coverage amounts for liability insurance by type of 
special use. Many concessionaires already meet these requirements, 
which are consistent with industry standards and which are already 
required in many regions of the Forest Service.
    Under the final directives, as under the current directives, 
temporary use permit holders will be treated the same as priority use 
permit holders for purposes of insurance requirements.
    The final directives give holders' contractors the option of 
procuring a separate insurance policy that covers their services and 
equipment and that names the United States as an additional insured.
    The remaining comments on this section are beyond the scope of 
these directives, i.e., address provisions that were not proposed for 
revision. Regardless, the Forest Service believes it is appropriate for 
Regional Foresters to have discretion to increase minimum requirements 
for insurance coverage based on the market for activities conducted in 
their region.
    The agency needs a copy of concessionaires' insurance policies to 
verify all aspects of coverage. Unlike other concessionaires, the Boy 
Scouts of America has a single set of insurance policies that covers 
its operations world-wide and therefore needs to file only one set of 
insurance papers. If other entities have a single insurance policy that 
covers multiple operations, they may submit the same policy for those 
operations.
    The agency agrees that occurrence policies are preferable to 
claims-made policies. While claims-made polices are allowed, they may 
require additional endorsements, for example, providing for a 2-year 
extension for filing claims, to achieve sufficiency.
    The text of FSM 2713.1 makes it clear that the list of inherent 
risks is illustrative, rather than exhaustive. The agency does not 
believe that form FS-2700-4i needs to be modified with regard to 
inherent risks, which are more appropriately addressed in an assumption 
of risk form provided by outfitters and guides to their clients. In 
addition, form FS-2700-4i does not impose strict liability in tort, 
i.e., liability without regard to negligence.
    The agency agrees that it is appropriate to name the United States 
as an additional insured on concessionaires' policies and to require 
indemnification of the United States under special use permits. These 
requirements minimize the liability of the United States for permit 
holders' acts and omissions on NFS lands and for third-party claims 
associated with permit holders' use and occupancy of NFS lands. The 
Forest Service assumes responsibility for its own acts and omissions to 
the extent authorized by law. The Forest Service believes that states 
and state agencies can indemnify the United States under applicable 
law. Where states maintain that they cannot indemnify the United States 
beyond state liability limits, the Forest Service will agree to accept 
unconditional indemnification up to the state liability limits, 
supplemented by self-insurance or procured insurance that is sufficient 
to cover the assessed risk of the states' use and occupancy of NFS 
lands.
    A key component of the Forest Service's mission is to address 
public health and safety on NFS lands. Therefore, the agency believes 
that it is appropriate to require concessionaires to operate safely on 
NFS lands.

Response to Comments on the Regulatory Certifications in the Proposed 
Directives

Environmental Impact
    Comments. Several respondents believed that these directives had 
the potential for environmental impact, that the Forest Service should 
prepare an environmental assessment (EA) or environmental impact 
statement (EIS) prior to implementing the directives, and that failure 
to do so would violate NEPA and its implementing regulations.
    Response. The Forest Service disagrees that issuance of these 
directives requires documentation of

[[Page 53842]]

environmental analysis in an EA or EIS. Pursuant to NEPA's implementing 
regulations, the Forest Service promulgated a series of categorical 
exclusions (CEs) from documentation in an EA or EIS, which are set 
forth in FSH 1909.15, section 31.12. The specific CE relied upon by the 
Forest Service in publishing both the proposed and final directives is 
``rules, regulations, or policies to establish Service-wide 
administrative procedures, program processes, or instructions.'' 
Publication of the proposed and final directives falls squarely within 
this CE because the directives establish national policy, procedures, 
and direction for administration of the Forest Service's outfitting and 
guiding program. However, issuance of a permit under these directives 
may trigger the need for documentation of environmental analysis under 
NEPA on a case-by-case basis.
Regulatory Impact
    Comments. One respondent stated that the agency did not conduct a 
Regulatory Flexibility Act analysis on the proposed directives. Another 
respondent stated that the proposed directives would negatively affect 
small businesses. Another stated that they would diminish opportunities 
for a number of small businesses and organizations. Another commented 
that the proposed directives would have a disastrous effect on rural 
economies. Another respondent stated that the proposed directives would 
be detrimental to the value and viability of existing permits.
    One respondent stated that those outfitters currently operating all 
or a substantial portion of their business under temporary use permits 
would have their use automatically and immediately cut because existing 
temporary use permits would be invalidated and because temporary use 
would be limited to 100 service days, an amount that is less than what 
is currently available. One respondent stated that reduction of service 
days would cause businesses to close.
    Response. There are three types of costs potentially incurred by 
small entities as a result of implementation of the final directives: 
(1) The cost of environmental analysis associated with the conversion 
from transitional priority use to priority use; (2) an increase in land 
use fees for temporary use permits; and (3) an increase in the cost of 
liability insurance. Based on the threshold Regulatory Flexibility Act 
analysis conducted by the agency, the agency has determined that the 
final directives will not have a significant effect on a substantial 
number of small entities.
    With proration of the additional cost associated with conversion 
from transitional priority use to priority use, no transitional 
priority use permit holders will experience additional costs exceeding 
5 percent of their projected annual gross revenue. Only 1.7 percent of 
all outfitting and guiding permit holders may experience additional 
costs equal to 5 percent of their projected annual gross revenue. Only 
1.8 percent of all outfitting and guiding permit holders may experience 
additional costs exceeding 1 percent of their projected annual gross 
revenue, and less than 3.5 percent of all outfitting and guiding permit 
holders may experience additional costs of less than 1 percent of their 
projected annual gross revenue. Moreover, applications for 
approximately 70 percent of holders likely to be eligible for 
conversion from transitional priority use to priority use are likely to 
be exempt from processing fees. Finally, holders that are not exempt 
from processing fees may request a reduction of processing fees per 36 
CFR 251.58(c)(1)(ii)(A).
    The current minimum land use fee for an outfitting and guiding 
permit is $95. The new land use fee for temporary use permits will be 
$150 for up to 50 service days or the equivalent in quotas. The new 
land use fee represents an increase in $55 for temporary use permits 
authorizing the least amount of use. A $55 increase in fees is likely 
to represent 1.2 to 1.8 percent of annual gross revenue for a temporary 
use permit, which authorizes a small amount of use, and typically 
represents 5 to 20 business days for an outfitter or guide. Thus, the 
increase in fees will constitute a minor part of the business income.
    Increasing the minimum amount of liability insurance coverage will 
not adversely affect small business because most outfitters and guides 
voluntarily carry, and several Forest Service regions already require 
minimum coverage consistent with the minimums required in the final 
directives, in accordance with industry practice.

3. Summary of Revisions to the Directives

In General

    The Forest Service has reformatted and renumbered FSH 2709.11, 
section 41.53, in its entirety. The agency has expanded the number of 
sections from 12 to 18 (sections 41.53a through 41.53r).

Objectives

    The Forest Service has added section 41.53b, paragraph 2, to 
facilitate greater participation in outfitting and guiding by 
organizations and businesses that work with youth and educational 
groups.

Policy

    The agency has revised section 41.53c, paragraph 2, to state that 
permitted access routes and a definition for that term are included in 
section 41.53d. The agency has revised paragraph 3 for greater 
consistency with the Wilderness Act. The agency has added paragraph 7 
to address consideration of applicable provisions in ANILCA regarding 
issuance and administration of outfitting and guiding permits in the 
Alaska Region.

New Definitions

    The Forest Service has added the following definitions in 
alphabetical order in section 41.53d of the final directives:
    Ancillary Service. A service that supports use authorized by an 
outfitting and guiding permit and that is provided by a party other 
than the holder or the holder's employees or agents. This definition 
clarifies what constitutes an ancillary service.
    Open Season. A period specified by the authorized officer during 
which eligible applicants can apply for service days from a temporary 
or priority use pool. This definition clarifies how use in a temporary 
or priority use pool may be obtained.
    Permitted Access Route. Any road or trail that a holder is 
authorized to use under an outfitting and guiding permit or operating 
plan for purposes of pedestrian, stock, or vehicular access. This 
definition clarifies that a permit may specify which access routes a 
holder may use.
    Priority Use Pool. A pool of service days or quotas in a use area 
that may be:
    1. Distributed seasonally to priority use permit holders in that 
use area and returned to the pool for redistribution during the next 
open season; or
    2. Distributed for the term of a permit to increase use allocated 
under priority use permits or to establish use for new priority use 
permits. This definition clarifies the purpose and function of priority 
use pools.
    Temporary Use Pool. A pool of service days or quotas in a use area 
that are reserved for short-term, non-recurring, seasonal distribution 
during an open season to qualified applicants who do not hold a 
priority use permit in that use area, and thereafter may be

[[Page 53843]]

distributed to all qualified applicants on a first-come, first-served 
basis. This definition clarifies the purpose and function of temporary 
use pools.
    Transitional Priority Use. Interim redesignation of temporary use 
as classified under the Forest Service's June 12, 1995, outfitting and 
guiding policy (60 FR 30830), for holders who meet all the requirements 
in section 41.53p. This definition clarifies the agency's intent with 
regard to conversion of temporary use to priority use.
    Use Area. Any geographical configuration, such as a Ranger 
Districts, a wilderness areas, Wild and Scenic River, or National 
Forest, that allows for efficient management of temporary and priority 
use pools. This definition clarifies that the authorized officer has 
the discretion to determine the appropriate geographical area for 
efficient management.

Revised Definitions

    The agency has revised the following definitions to read as 
follows:
    Quota. An allocation of use that is measured as the number of stock 
per trip, people at one time, trips per hour or per day, the number of 
launches per day, or other unit of measure other than a service day; 
that is consistent with applicable land management plan guidance; and 
that is established in a programmatic or project decision. The agency 
has modified this definition to be consistent with terminology used 
elsewhere in the final directives.
    Service Day. An allocation of use constituting a day or any part of 
a day on National Forest System lands for which an outfitter or guide 
provides services to a client. The total number of service days is 
calculated by multiplying each service day by the number of clients on 
the trip. As worded originally, this definition would have erroneously 
calculated the capacity of an entire outfitted and guided trip, instead 
of defining a single service day.
    Temporary Use. Short-term, non-renewable outfitting or guiding use 
that is authorized in increments of 50 service days, up to a maximum of 
200 service days in a 180-day period. The agency modified this 
definition to be consistent with changes made to section 41.53j.

Removed Definition

    The agency has removed the definition for incidental use and has 
replaced it with the definition for temporary use.

Unchanged Definitions

    The agency is retaining the definition of transportation livestock 
in section 41.53c of the current directives and will not adopt the 
proposed term ``livestock use''. The remaining definitions in the 
proposed directives remain unchanged.

Land Use Management

    The Forest Service has modified section 41.53e slightly. In 
paragraph 1a, the agency has deleted the following phrase: ``consider 
whether authorizing the activities would impede the Forest Service's 
ability to meet the recreational and other goals of the Wilderness 
Act.'' The agency has revised paragraph 2 to provide that resource 
capacity analysis may be conducted when monitoring demonstrates that 
impacts associated with the use may exceed desired conditions. The 
Forest Service has revised paragraph 2c to add the phrase ``and visitor 
use trends.''

Applications

    The Forest Service has reversed the order of paragraphs 1 and 2 and 
has revised paragraph 1 of section 41.53h to state that proposals and 
applications to use and occupy NFS lands for outfitting and guiding 
shall be evaluated pursuant to 36 CFR 251.54 and FSM 2712. The agency 
has revised section 41.53h, paragraph 2, to clarify that applicants for 
priority use permits will use form SF-299 and that applicants for 
temporary use permits will use a new form, Application and Temporary 
Special Use Permit for Outfitting and Guiding.

Operations

    The agency has revised section 41.53i, paragraph 5, to provide that 
the holder's contractor may provide a separate insurance policy that 
covers the contractor's services and equipment and that names the 
United States as an additional insured. The agency has redesignated the 
endorsement exhibit as 2713.1, exhibit 02.

Special Uses Streamlining

    The agency has revised section 41.53j, Issuance of Temporary Use 
Permits, as follows:
    Paragraph 1 clarifies that all temporary use will be authorized 
using the new form, Application and Temporary Special Use Permit for 
Outfitting and Guiding, and increases the number of service days that 
may be allocated for temporary use permits to 200.
    Paragraph 2 provides that only 1 temporary use permit may be issued 
per 180 days.
    Paragraph 3 was revised to clarify how permits will be issued non-
competitively.
    Paragraph 10 was renumbered as paragraph 5.
    Paragraph 6 replaces proposed paragraph 12 and identifies the 
elements required in an operating plan for a temporary use permit.
    Paragraph 7 replaces proposed paragraph 11 and directs authorized 
officers not to conduct performance evaluations for temporary use 
permit holders.
    Paragraph 8 is new and provides for consideration of past 
performance in deciding whether to issue temporary use permits.
    The agency has moved paragraphs in section 41.53j addressing 
operation of temporary use pools to new section 41.53k, Management of 
Temporary Use Pools. Section 41.53k in the final directives provides 
that the authorized officer may establish a temporary use pool and 
develop application and operating procedures for the pool. Paragraph 2 
provides that the authorized officer may establish one or more open 
seasons to facilitate administration and equitable distribution of 
service days from the pool. Paragraph 2a provides that during an open 
season, qualified applicants other than holders of priority use permits 
in the use area may apply for service days from the pool. Paragraph 2b 
provides that once an open season ends, any use remaining may be 
distributed on a first come, first-served basis, including to priority 
use permit holders in the use area, provided that if a priority use 
pool has been established for the same area, applications for any 
remaining use may be restricted to qualified applicants who do not hold 
a priority use permit. Paragraph 2c provides that upon termination of a 
temporary use permit, all service days or quotas assigned to that 
permit will be placed in the temporary use pool for the use area. This 
provision replaces proposed 41.53j, paragraph 8. Paragraph 2d provides 
the basis for allocation of use to temporary use pools and matches the 
basis for allocation of use to priority use pools in section 41.53n of 
the final directives. Paragraph 2e provides that the authorized officer 
may shift service days and quotas between temporary and priority use 
pools based on their utilization.
    The agency has redesignated section 41.53k in the proposed 
directives as section 41.53l in the final directives. Paragraph 1 
clarifies that priority use may be authorized under a term permit, 
while temporary use may not. The other

[[Page 53844]]

paragraphs in this section remain unchanged.
    The agency has redesignated section 41.53l, Allocation of Use for a 
Priority Use Permit, in the proposed directives as section 41.53m in 
the final directives. Paragraphs 2a and 3b revise the amount of use 
above actual use that a holder may retain as an allocation. Holders 
with 1,000 service days or less may retain the highest amount of use in 
1 year during the past 5 years, plus 25 percent of that amount, 
provided that the total not exceed the allocation when the permit was 
issued. The agency has edited paragraphs 4, 4a, and 4b for clarity.
    Section 41.53n, Management of Priority Use Pools, is new. This 
section provides for establishment of priority use pools and 
application and operating procedures for the pools at the authorized 
officer's discretion. Paragraph 1 addresses short-term allocations that 
will be returned to the pool at the end of the year. Short-term 
allocations must be authorized under a temporary permit using the new 
form, Application and Temporary Special Use Permit for Outfitting and 
Guiding. Paragraph 2 addresses distribution from the pool after short-
term allocation requests have been met. Paragraph 3 provides the basis 
for allocating service days to a priority use pool. Paragraph 4 
provides that the authorized officer may shift service days between 
temporary and priority use pools based on their utilization.
    The agency has redesignated section 41.53m, Reduction of Use Based 
on New or Changed Decisions, in the proposed directives as section 
41.53o in the final directives.
    Section 41.53p, Transitional Priority Use, is new. This section 
provides that holders of temporary use under the current directives are 
eligible for reclassification of their use as transitional priority use 
when their use is active and recurring; their performance has been 
satisfactory; and they request reclassification of their use as 
transitional priority use within 1 year from the date of publication of 
the final directives. Paragraph 2 provides that reclassification of 
transitional priority use as priority use must be supported by a needs 
assessment, resource capacity analysis, or other pertinent analysis and 
is not guaranteed. Paragraph 3 provides that the permit may be extended 
annually each year until the application for reclassification is 
granted or denied. Paragraph 4 provides that performance evaluations 
will be conducted on transitional priority use holders. Paragraph 5 
provides that the allocation for a transitional priority use permit 
will be determined by the highest actual use in 1 year during the last 
5 years, plus 25 percent of that amount for permits with 1,000 service 
days or less or 15 percent of that amount for permits with more than 
1,000 service days provided that the total may not exceed the highest 
amount of use allocated during that period. Paragraph 6 provides that a 
purchaser of a business that holds a temporary use permit is not 
guaranteed reclassification of transitional priority use as priority 
use. Paragraph 7 provides that if supported by a needs assessment, 
transitional priority use must be reclassified as priority use within 5 
years of the date of the request. Paragraph 8 provides that the cost of 
a needs assessment and capacity analysis needed to determine whether 
transitional priority use may be reclassified will be considered 
programmatic and will not be subject to processing fees. Paragraph 9 
provides that work associated with reclassification of transitional 
priority use as priority use that is subject to cost recovery fees may 
be covered by a major or master cost recovery agreement spanning more 
than 1 year, with fees spread over the term of the agreement. Paragraph 
10 provides that if holders of a temporary use permit are ineligible 
for reclassification of their use as transitional priority use, their 
use will be reallocated to a temporary use pool upon expiration of 
their permit.

Permit Administration

    The agency has redesignated section 41.53n, Administration of 
Outfitting and Guiding Permits, in the proposed directives as section 
41.53q in the final directives.
    The agency has redesignated section 41.53o, Administration of 
Priority Use Permits, in the proposed directives as section 41.53r in 
the final directives. Additionally, the agency has modified paragraph 1 
to clarify that temporary use may not be authorized under a term 
permit.

Flat Fees for Temporary Use Permits

    The agency has modified section 37.21b to extend the flat fee rate 
for up to 200 service days.

Changes to the Insurance Directives

    The Forest Service has modified FSM 2713.1, paragraph 2d, by 
removing the level of risk chart and replacing it with an exhibit 
showing minimum coverage amounts for liability insurance by type of 
special use. The Endorsement for Contracted Outfitting and Guiding 
Services and Equipment has been renumbered as exhibit 02.

4. Regulatory Certifications for the Final Directives

Environmental Impact

    These final directives will revise national policy governing 
administration of special use permits for outfitting and guiding. FSH 
1909.15, section 31.12, paragraph 2 (57 FR 43180, September 18, 1992), 
excludes from documentation in an environmental assessment or 
environmental impact statement ``rules, regulations, or policies to 
establish Service-wide administrative procedures, program processes, or 
instructions.'' The agency has concluded that these final directives 
fall within this category of actions and that no extraordinary 
circumstances exist which would require preparation of an environmental 
assessment or environmental impact statement.

Regulatory Impact

    These final directives have been reviewed under USDA procedures and 
Executive Order 12866, as amended by Executive Order 13422, on 
regulatory planning and review. The Office of Management and Budget has 
determined that these are not significant directives. These final 
directives cannot and may not reasonably be anticipated to lead to an 
annual effect of $100 million or more on or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; raise novel legal or policy issues; or materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights or obligations of beneficiaries of those 
programs. Accordingly, these final directives are not subject to Office 
of Management and Budget review under Executive Order 12866, as amended 
by Executive Order 13422.
    These directives have also been considered in light of the 
Regulatory Flexibility Act (RFA) (5 U.S.C. 602 et seq.). There are 
three types of costs potentially incurred by small entities as a result 
of implementation of the final directives: (1) The cost of 
environmental analysis associated with the conversion from transitional 
priority use to priority use; (2) an increase in land use fees for 
temporary use permits; and (3) an increase in the cost of liability 
insurance. Based on the threshold RFA analysis conducted by the agency, 
the agency has determined that the final directives will not have a 
significant

[[Page 53845]]

effect on a substantial number of small entities.
    With proration of the additional cost associated with conversion 
from transitional priority use to priority use, no transitional 
priority use permit holders will experience additional costs exceeding 
5 percent of their projected annual gross revenue. Only 1.7 percent of 
all outfitting and guiding permit holders may experience additional 
costs equal to 5 percent of their projected annual gross revenue. Only 
1.8 percent of all outfitting and guiding permit holders may experience 
additional costs exceeding 1 percent of their projected annual gross 
revenue, and less than 3.5 percent of all outfitting and guiding permit 
holders may experience additional costs of less than 1 percent of their 
projected annual gross revenue. Moreover, applications for 
approximately 70 percent of holders likely to be eligible for 
conversion from transitional priority use to priority use are likely to 
be exempt from processing fees. Finally, holders that are not exempt 
from processing fees may request a reduction of processing fees per 36 
CFR 251.58(c)(1)(ii)(A).
    The current minimum land use fee for an outfitting and guiding 
permit is $95. The new land use fee for temporary use permits will be 
$150 for up to 50 service days or the equivalent in quotas. The new 
land use fee represents an increase in $55 for temporary use permits 
authorizing the least amount of use. A $55 increase in fees is likely 
to represent 1.2 to 1.8 percent of annual gross revenue for a temporary 
use permit, which authorizes a small amount of use, typically 5 to 20 
business days. Thus, the increase in fees will constitute a minor part 
of the business's income.
    Increasing the minimum amount of liability insurance coverage will 
not adversely affect small businesses because most outfitters and 
guides voluntarily carry, and several Forest Service regions already 
require, minimum coverage consistent with the minimums required in the 
final directives, in accordance with industry practice.
    Based on the foregoing, the agency has determined that these final 
directives will not have a significant economic impact on a substantial 
number of small entities because the directives will not impose new 
record-keeping requirements on them; will not affect their competitive 
position in relation to large entities; and will not significantly 
affect their cash flow, liquidity, or ability to remain in the market.
    To the contrary, the efficiencies and consistency to be achieved by 
the final outfitting and guiding directives will benefit small 
businesses that seek to use and occupy NFS lands by providing the 
potential for greater business continuity for outfitters and guides and 
by reducing the frequency of time-consuming and sometimes costly 
processing of special use applications. The benefits cannot be 
quantified and are not likely to substantially alter costs to small 
businesses.

No Taking Implications

    The Forest Service has analyzed these final directives in 
accordance with the principles and criteria contained in Executive 
Order 12630 and has determined that the final directives will not pose 
the risk of a taking of private property.

Civil Justice Reform

    These final directives have been reviewed under Executive Order 
12988 on civil justice reform. Upon adoption of the final directives, 
(1) All State and local laws and regulations that are in conflict with 
the final directives or that will impede their full implementation will 
be preempted; (2) no retroactive effect will be given to the final 
directives; and (3) they will not require administrative proceedings 
before parties may file suit in court challenging their provisions.

Federalism and Consultation and Coordination With Indian Tribal 
Governments

    The agency has considered these final directives under the 
requirements of Executive Order 13132 on federalism and has concluded 
that the final directives conform with the federalism principles set 
out in this executive order; will not impose any compliance costs on 
the States; and will not have substantial direct effects on the States, 
the relationship between the federal government and the States, or the 
distribution of power and responsibilities among the various levels of 
government. Therefore, the agency has determined that no further 
assessment of federalism implications is necessary.
    Moreover, these final directives do not have tribal implications as 
defined by Executive Order 13175, entitled ``Consultation and 
Coordination With Indian Tribal Governments,'' and therefore advance 
consultation with tribes is not required.

Energy Effects

    These final directives have been reviewed under Executive Order 
13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.'' The agency has determined that 
these final directives do not constitute a significant energy action as 
defined in the Executive Order.

Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1531-1538), the agency has assessed the effects of these final 
directives on State, local, and tribal governments and the private 
sector. These final directives will not compel the expenditure of $100 
million or more by any State, local, or tribal government or anyone in 
the private sector. Therefore, a statement under section 202 of the act 
is not required.

Controlling Paperwork Burdens on the Public

    These final directives do not contain any record-keeping or 
reporting requirements or other information collection requirements as 
defined in 5 CFR part 1320 that are not already required by law or not 
already approved for use. Any information collected from the public 
that will be required by these final directives has been approved by 
the Office of Management and Budget and assigned control number 0596-
0082. Accordingly, the review provisions of the Paperwork Reduction Act 
(44 U.S.C. 3501 et seq.) and its implementing regulations at 5 CFR part 
1320 do not apply.

5. Access to the Final Directives

    The Forest Service organizes its directive system by alphanumeric 
codes and subject headings. The intended audience for this direction is 
Forest Service employees charged with issuing and administrating 
outfitting and guiding special use permits. To view the final 
directives, visit the Forest Service's Web site at http://www.fs.fed.us/specialuses/. Only those sections of the FSM and FSH that 
are the subject of this notice have been posted, specifically, FSH 
2709.11, sections 37.21b and 41.53a through 41.53r, and FSM 2713.1. 
Alternatively, the entire chapters may be viewed at http://www.fs.fed.us/im/directives/.

    Dated: September 4, 2008.
Sally Collins,
Associate Chief.
[FR Doc. E8-21618 Filed 9-16-08; 8:45 am]
BILLING CODE 3410-11-P