II 115th CONGRESS 2d Session S. 3550 IN THE SENATE OF THE UNITED STATES October 4, 2018 Mr. Heinrich (for himself and Mrs. Capito ) introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources A BILL To modify the procedures for issuing special recreation permits for certain public land units, and for other purposes.

1. Short title This Act may be cited as the Public Land Recreational Opportunities Improvement Act . 2. Definitions In this Act: (1) Associated agency The term associated agency means the Federal land management agency, other than the lead agency, that manages a public land unit that is the subject of a single joint special recreation permit under section 7(a). (2) Federal land management agency The term Federal land management agency has the meaning given the term in section 802 of the Federal Lands Recreation Enhancement Act ( 16 U.S.C. 6801 ). (3) Lead agency With respect to a single joint special recreation permit application submitted under section 7(a), the term lead agency means the Federal land management agency designated to administer the single joint special recreation permit under section 7(a)(2). (4) Multijurisdictional trip The term multijurisdictional trip means a trip that— (A) uses 2 or more public land units; and (B) is under the jurisdiction of 2 or more Federal land management agencies. (5) Public land unit The term public land unit means— (A) a unit of the National Forest System; (B) a unit of the National Park System; (C) a unit of the National Wildlife Refuge System; (D) a district of the Bureau of Land Management; and (E) a project of the Bureau of Reclamation. (6) Secretary concerned The term Secretary concerned means— (A) the Secretary of Agriculture, with respect to a public land unit described in paragraph (5)(A); and (B) the Secretary of the Interior, with respect to a public land unit described in subparagraph (B), (C), (D), or (E) of paragraph (5). (7) Special recreation permit The term special recreation permit has the meaning given the term in section 802 of the Federal Lands Recreation Enhancement Act ( 16 U.S.C. 6801 ). 3. Special recreation permit and fee (a) Definitions Section 802 of the Federal Lands Recreation Enhancement Act ( 16 U.S.C. 6801 ) is amended— (1) in paragraph (1), by striking section 3(f) and inserting 803(f) ; (2) in paragraph (2), by striking section 3(g) and inserting section 803(g) ; (3) in paragraph (6), by striking section 5 and inserting section 805 ; (4) in paragraph (9), by striking section 5 and inserting section 805 ; (5) in paragraph (12), by striking section 7 and inserting section 807 ; (6) in paragraph (13), by striking section 3(h) and inserting section 803(h) ; (7) by redesignating paragraphs (1), (3), (4), (5), (6), (7), (8), (9) and (13) as paragraphs (15), (1), (3), (4), (5), (6), (7), (8), and (14), respectively, and moving the paragraphs so as to appear in numerical order; (8) by inserting after paragraph (8) (as so redesignated) the following: (9) Recreation services provider The term recreation services provider means an individual or entity that— (A) provides outfitting, guiding, or other recreation services; or (B) conducts recreational or competitive events, including incidental sales. ; and (9) by inserting after paragraph (12) the following: (13) Special recreation permit The term special recreation permit means— (A) with respect to the Forest Service, an outfitting and guiding special use permit; (B) with respect to the National Park Service, a commercial use authorization for outfitting and guiding; (C) with respect to the United States Fish and Wildlife Service, a special use permit for recreational, sport fishing, or hunting guiding; (D) with respect to the Bureau of Land Management, a special recreation permit for commercial outfitting; and (E) with respect to the Bureau of Reclamation, a use authorization for guiding, outfitting, or other recreational services. . (b) Special recreation permit and fee Section 803 of the Federal Lands Recreation Enhancement Act ( 16 U.S.C. 6802 ) is amended— (1) in subsection (b)(5), by striking section 4(d) and inserting section 804(d) ; and (2) by striking subsection (h) and inserting the following: (h) Special recreation permit and fee (1) Special recreation permit The Secretary may issue a special recreation permit for specialized individual or group use of a Federal facility or Federal recreational lands and waters to a recreation services provider for an activity at a Federal facility or on Federal recreational lands and waters, including— (A) the use of— (i) a special area; or (ii) an area in which use is allocated; (B) motorized recreational vehicle use; and (C) a group activity or event. (2) Special recreation permit fee (A) In general The Secretary may charge a special recreation permit fee in connection with the issuance of a special recreation permit under paragraph (1). (B) Amount of fee A special recreation permit fee shall not exceed the difference between— (i) the sum of— (I) 3 percent of the annual gross revenue of the recreation services provider for all activities authorized by special recreation permits; and (II) any applicable revenue addition; and (ii) any applicable revenue exclusion or similar per-person fee. (C) Disclosure of fees A special recreation permit holder may inform customers of any fee charged by the Secretary under this paragraph. (3) Reports The Secretary shall make available to holders of special recreation permits under paragraph (1) and the public an annual report describing the use of fees collected by the Secretary under paragraph (2). . (c) Use of special recreation permit revenue Section 808 of the Federal Lands Recreation Enhancement Act ( 16 U.S.C. 6807 ) is amended— (1) in subsection (a)(3)(F), by striking section 6(a) and inserting section 806(a) ; (2) in subsection (d), by striking section 5 each place it appears and inserting section 805 ; (3) by redesignating subsections (b) through (d) as subsections (c) through (e), respectively; and (4) by inserting after subsection (a) the following: (b) Use of special recreation permit fee revenue Revenue from a special recreation permit fee may be used for— (1) the purposes described in subsection (a); and (2) expenses— (A) associated with processing applications for special recreation permits; and (B) incurred in the improvement of the operation of the special recreation permit system. . (d) Permanent authorization Section 810 of the Federal Lands Recreation Enhancement Act ( 16 U.S.C. 6809 ) is amended— (1) by striking The authority and inserting the following: (a) In general Except as provided in subsection (b), the authority ; and (2) by adding at the end the following: (b) Applicability Subsection (a) shall not apply to— (1) section 803(h); or (2) section 808(b). . 4. Permitting process improvements (a) In general To improve the process of the issuance and renewal of special recreation permits and reduce the cost of administering special recreation permits, the Secretary concerned shall— (1) evaluate the special recreation permitting process; (2) identify opportunities— (A) to eliminate duplicative processes; (B) to reduce costs; and (C) to decrease processing times; and (3) implement the improvements identified under paragraph (2). (b) Environmental reviews In issuing and renewing a special recreation permit, the Secretary concerned may, in accordance with the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.)— (1) use a programmatic environmental review; and (2) adopt or incorporate material from a previous environmental impact statement or environmental assessment. (c) Categorical exclusions (1) In general Not later than 1 year after the date of enactment of this Act, the Secretary concerned shall— (A) evaluate whether 1 or more categorical exclusions developed in compliance with the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.) would reduce processing times or costs for the issuance and renewal of special recreation permits without significantly affecting the human environment; and (B) if the Secretary concerned determines under subparagraph (A) that a categorical exclusion would reduce processing times or costs for the issuance and renewal of special recreation permits without significantly affecting the human environment, establish that categorical exclusion in compliance with the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.). (2) Administration (A) In general In administering a categorical exclusion established under paragraph (1)(B), the Secretary concerned shall comply with the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.) (including regulations promulgated pursuant to that Act). (B) Extraordinary circumstances In determining whether to use a categorical exclusion established under paragraph (1)(B), the Secretary concerned shall apply the extraordinary circumstances procedures described in— (i) section 1508.4 of title 40, Code of Federal Regulations (or a successor regulation); and (ii) as applicable— (I) section 220.6 of title 36, Code of Federal Regulations (or a successor regulation); or (II) section 46.215 of title 43, Code of Federal Regulations (or a successor regulation). (d) Needs assessments Except as required under section 4(c) of the Wilderness Act ( 16 U.S.C. 1133(c) ), the Secretary concerned shall not conduct a needs assessment as a condition of issuing a special recreation permit for a public land unit under this Act. 5. Permit flexibility (a) Similar activities The Secretary concerned shall establish a permit administration protocol that authorizes, to the maximum extent practicable, a permittee issued a special recreation permit for a public land unit under section 803(h) of the Federal Lands Recreation Enhancement Act ( 16 U.S.C. 6802(h) ) to engage in a recreational activity that is substantially similar to the specific activity authorized under the special recreation permit, if the substantially similar recreational activity does not— (1) result in a greater impact on natural and cultural resources than the authorized activity; and (2) adversely affect any other permittee issued a special recreation permit for a public land unit under that subsection. (b) Voluntary return of surplus service days (1) In general The Secretary concerned shall establish a pilot program to allow a permittee issued a special recreation permit for a public land unit to voluntarily and temporarily return to the Secretary concerned 1 or more surplus service days, to be made available to any other existing or potential permittee. (2) Limitations A voluntary return of 1 or more surplus service days under paragraph (1)— (A) shall— (i) be for a period of not more than— (I) 1 season beginning on the date on which the permittee makes the return and ending on a date determined by the Secretary; or (II) 1 calendar year beginning on the date on which the permittee makes the return; and (ii) be without prejudice or penalty to the permittee who makes the return; and (B) shall not be used to reduce any future allocation of service days to the permittee who makes the return. (c) Forest Service temporary permits Not later than 180 days after the date of enactment of this Act, the Secretary of Agriculture shall establish and implement a program— (1) to authorize the issuance of temporary special recreation permits that are issued to permittees for a period of not more than 2 years; and (2) to provide for the conversion of a temporary special recreation permit issued under paragraph (1) to a long-term special recreation permit beginning on the date on which the Secretary of Agriculture has determined that the permittee has completed 2 years of satisfactory operation under the temporary special recreation permit. 6. Permit administration (a) Permit availability (1) Notification of permit availability If the Secretary concerned has determined that special recreation permits are available on a public land unit, the Secretary concerned shall publish that information on the website of the Department of Agriculture or the Department of the Interior, as applicable. (2) Updates The Secretary concerned shall ensure that information published on the website under this subsection is consistently updated to provide current and correct information to the public. (3) Electronic mail notification The Secretary concerned shall— (A) establish a system by which potential special recreation permit applicants may subscribe to receive notification of the availability of special recreation permits by electronic mail; and (B) direct employees of the Department of Agriculture or the Department of the Interior, as applicable, to use that system to notify the public of the availability of special recreation permits. (b) Permit application acknowledgment Not later than 60 days after the date on which the Secretary concerned receives an application for a special recreation permit for a public land unit, the Secretary concerned shall— (1) provide to the applicant notice acknowledging receipt of the application; and (2) (A) issue a final decision with respect to the application; or (B) provide to the applicant notice of a projected date for a final decision on the application. 7. Permits for multijurisdictional trips (a) Single joint special recreation permits (1) In general In the case of a multijurisdictional trip, the Federal land management agencies with jurisdiction over the multijurisdictional trip may offer to the applicant a single joint special recreation permit that authorizes the use of each public land unit under the jurisdiction of those Federal land management agencies. (2) Lead agency In offering a single joint special recreation permit under paragraph (1), the applicable Federal land management agencies shall designate a lead agency for administering the single joint special recreation permit based on the following considerations: (A) The length of the multijurisdictional trip and the relative portions of the multijurisdictional trip on each public land unit. (B) The congressional or administrative designations that apply to the areas to be used during the multijurisdictional trip and the degree to which those designations impose limitations on recreational use. (C) The relative ability of the Federal land management agencies with jurisdiction over the multijurisdictional trip to respond to the single joint special recreation permit application in a timely manner. (D) Other relevant administrative considerations. (3) Application An applicant desiring to be offered a single joint special recreation permit under paragraph (1) shall submit to the lead agency an application, as required by the lead agency. (4) Option to apply for separate permits An applicant for a special recreation permit for a multijurisdictional trip may apply to each applicable Federal land management agency for a separate permit for the portion of the multijurisdictional trip on the public land unit managed by each applicable Federal land management agency. (b) Requirements In issuing a single joint special recreation permit under subsection (a), the lead agency shall— (1) coordinate with the associated agency, consistent with the authority of the Secretary concerned under section 330 of the Department of the Interior and Related Agencies Appropriations Act, 2001 ( 43 U.S.C. 1703 ), to develop and issue 1 joint permit that covers the entirety of the multijurisdictional trip; (2) in processing the joint recreation permit application, incorporate the findings, interests, and needs of the associated agency; and (3) complete the permitting process within a reasonable timeframe. (c) Cost recovery The coordination with the associated agency under subsection (b) shall not be subject to cost recovery. (d) Effect of section Nothing in this section modifies, expands, or limits the applicability of any Federal law (including regulations) to land managed by the Secretary concerned. 8. Permit fee calculation (a) Exclusion of certain revenue and payments In calculating fees for a special recreation permit, the Secretary concerned shall— (1) exclude revenue from goods, services, souvenirs, merchandise, gear, food, and activities provided or sold by a permit holder outside of the public land unit covered by the permit, including transportation costs, lodging, and any other service provided before or after a trip; and (2) provide for a deduction in the amount equal to any fee to be paid by the special recreation permit holder under applicable law for a special recreation permit for an activity on a public land unit for which a separate permit is issued. 9. Forest Service permit use reviews (a) In general In carrying out a use review, a renewal, or an adjustment of allocations of use with respect to a special recreation permit for use of a public land unit managed by the Forest Service, the Secretary of Agriculture (referred to in this section as the Secretary ) shall— (1) allocate the highest level of actual annual use during the period under review plus 25 percent of that use, not to exceed the level allocated to the permit holder on the date on which the permit was issued, if the Secretary determines that a special recreation permit holder has received a satisfactory performance review; and (2) (A) recognize that recreation demand can vary considerably as a result of seasonal variations and during off-peak periods; and (B) take that variability into account in determining whether an allocation to a special recreation permit holder should be adjusted. (b) Waiver The Secretary may waive a special recreation permit use review for any period during which use of the assigned capacity has been prevented by a circumstance beyond the control of the permit holder such as— (1) unfavorable weather; (2) fire; (3) natural disaster; (4) wildlife displacement; or (5) business interruption. 10. Liability (a) Indemnification by government entities The Secretary concerned may not require an organization to indemnify the United States as a condition for issuing a special recreation permit for a public land unit under this Act if— (1) the organization is prohibited by State or local law from providing indemnification to the United States; and (2) the organization carries adequate liability insurance coverage, or is adequately self-insured, for activities conducted under the special recreation permit. (b) Exculpatory agreements The Secretary shall not implement, administer, or enforce any regulation or policy prohibiting the use of an exculpatory agreement between a recreation service provider and a customer of the recreation service provider for services provided under a special recreation permit.