Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Notices 53823 

Next Steps 

Recognizing that the Forest Service 

has not decided whether it will seek 

certification, the following are relevant 

considerations: 

The FSC Federal Lands Policy 

establishes three criteria to be met 

before any new Federal land system 

such as the NFS could seek certification. 

In summary, the criteria are a willing 

landowner (the Forest Service), a 

determination that public consensus 

exists regarding management of the 

NFS, and the development of a set of 

standards specific to each category of 

Federal forestland (Forest Service, 

Bureau of Land Management, etc.). 

Because the Forest Service has not 

determined whether it will seek 

certification, FSC has not yet 

determined whether, how or when they 

will address these criteria for the Forest 

Service. 

SFI has indicated that it would 

welcome NFS participation in SFI 

certification. A landowner seeking SFI 

certification must formally commit to 

reporting and management measures 

specific to the SFI Program. How and 

whether the Forest Service could make 

these commitments would also need to 

be determined. 

A public outreach effort is now 

underway to obtain public and 

stakeholder views on the outcomes of 

the National Forest Certification Study 

and the potential implications of NFS 

certification in general. Once this effort 

is completed, the Forest Service will 

evaluate its options and determine how 

to proceed. 

Dated: September 10, 2008. 

Charles L. Myers, 

Associate Deputy Chief, NFS. 

[FR Doc. E8–21611 Filed 9–16–08; 8:45 am] 

BILLING CODE 3410–11–P 

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. 

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, firstserved 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 

• Overview of Comments 

• Response to General Comments 

• Response to Comments on Specific 

Sections of the Directives 

FSH 2709.11, section 41.53 

FSH 2709.11, section 37.21b 

FSM 2713.1 

• 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 

• Environmental Impact 

• Regulatory Impact 

• No Taking Implications 

• Civil Justice Reform 

• Federalism and Consultation and 

Coordination with Indian Tribal 

Governments 

• Energy Effects 

• Unfunded Mandates 

• 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 


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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 


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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 


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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, nonrecurring 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 


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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, 


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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 overcapacity, 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. 


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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 nonconforming 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. 


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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 universitybased 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. 


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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 sitespecific, 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 


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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 


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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 timeconsuming, 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 


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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 forprofit 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 forprofit entities should be able to provide 

commercial services. 

Response. The final directives remove 

the prohibition against issuing priority 

use permits to institutional or semipublic 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. 


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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 underperform 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, firstserved 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 


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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, longterm 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 


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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 nonuse 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. Longstanding 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 nonuse. 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 shortterm 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 


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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 


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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-notrace standards. These types of 

requirements are usually addressed in 

the operating plan, which covers day-today 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 


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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 × $100 = $5,000; 

$5,000 × .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 forprofit 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 


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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 


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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, nonrecurring, 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 


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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, nonrenewable 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 noncompetitively. 

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 


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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 


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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 recordkeeping 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 timeconsuming 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 


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