[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 1969 Reported in Senate (RS)]
Calendar No. 940
106th CONGRESS
2d Session
S. 1969
[Report No. 106-491]
To provide for improved management of, and increased accountability
for, outfitted activities by which the public gains access to and
occupancy and use of Federal land, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 18, 1999
Mr. Craig (for himself, Mr. Murkowski, Mr. Thomas, Mr. Grams, Mr.
Hatch, and Mr. Smith of Oregon) introduced the following bill; which
was read twice and referred to the Committee on Energy and Natural
Resources
October 5 (legislative day, September 22), 2000
Reported by Mr. Murkowski, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
To provide for improved management of, and increased accountability
for, outfitted activities by which the public gains access to and
occupancy and use of Federal land, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Outfitter Policy Act of
1999''.</DELETED>
<DELETED>SEC. 2. FINDINGS.</DELETED>
<DELETED> Congress finds that--</DELETED>
<DELETED> (1) the experience, skills, trained staff, and
investment in equipment that are provided by authorized
outfitters are necessary to provide access to Federal land to
members of the public that need or desire commercial outfitted
activities to facilitate their use and enjoyment of
recreational or educational opportunities on Federal
land;</DELETED>
<DELETED> (2) such activities constitute an important
contribution toward meeting the recreational and educational
objectives of resource management plans approved and
administered by agencies of the Department of Agriculture and
the Department of the Interior;</DELETED>
<DELETED> (3) an effective relationship between those
agencies and authorized outfitters requires implementation of
agency policies and programs that provide for--</DELETED>
<DELETED> (A) a reasonable opportunity for an
authorized outfitter to realize a profit;</DELETED>
<DELETED> (B) a fair and reasonable return to the
United States through appropriate fees;</DELETED>
<DELETED> (C) renewal of outfitter permits based on
a performance evaluation system that rewards outfitters
that meet required performance standards and
discontinues outfitters that fail to meet those
standards; and</DELETED>
<DELETED> (D) transfer of an outfitter permit to the
qualified purchaser of the operation of an authorized
outfitter, an heir or assign, or another qualified
person or entity; and</DELETED>
<DELETED> (4) the provision of opportunities for outfitted
visitors to Federal land to engage in fishing and hunting is
best served by continued recognition that the States retain
primary authority over the taking of fish and wildlife on
Federal land.</DELETED>
<DELETED>SEC. 3. PURPOSES.</DELETED>
<DELETED> The purposes of this Act are--</DELETED>
<DELETED> (1) to establish terms and conditions of access
to, and occupancy and use of, Federal land by visitors who
require or desire the assistance of an authorized outfitter;
and</DELETED>
<DELETED> (2) to establish a stable regulatory climate that
encourages a qualified person or entity to provide, and to
continue to invest in the ability to provide, outfitted
visitors with access to, and occupancy and use of, Federal
land.</DELETED>
<DELETED>SEC. 4. DEFINITIONS.</DELETED>
<DELETED> In this Act:</DELETED>
<DELETED> (1) Actual use.--The term ``actual use'' means the
portion of a principal allocation of outfitter use that an
authorized outfitter uses in conducting commercial outfitted
activities during a period, for a type of use, for a location,
or in terms of another measurement of the term or outfitted
activities covered by an outfitter permit.</DELETED>
<DELETED> (2) Allocation of use.--</DELETED>
<DELETED> (A) In general.--The term ``allocation of
use'' means a method or measurement of access that--
</DELETED>
<DELETED> (i) is granted by the Secretary to
an authorized outfitter for the purpose of
facilitating the occupancy and use of Federal
land by an outfitted visitor;</DELETED>
<DELETED> (ii) takes the form of--</DELETED>
<DELETED> (I) an amount or type of
commercial outfitted activity resulting
from an apportionment of the total
recreation capacity of a resource area;
or</DELETED>
<DELETED> (II) in the case of a
resource area for which recreation
capacity has not been apportioned, a
type of commercial outfitted activity
conducted in a manner that is not
inconsistent with or incompatible with
an approved resource management plan;
and</DELETED>
<DELETED> (iii) is calibrated in terms of
amount of use, type of use, or location of a
commercial outfitted activity, including user
days or portions of user days, seasons or other
periods of operation, launch dates, assigned
camps, or other formulations of the type or
amount of authorized activity.</DELETED>
<DELETED> (B) Inclusion.--The term ``allocation of
use'' includes the designation of a geographic area,
zone, or district in which a limited number of
authorized outfitters are authorized to
operate.</DELETED>
<DELETED> (3) Authorized outfitter.--</DELETED>
<DELETED> (A) In general.--The term ``authorized
outfitter'' means a person that conducts a commercial
outfitted activity on Federal land under an outfitter
authorization.</DELETED>
<DELETED> (B) Inclusion.--The term ``authorized
outfitter'' includes an outfitter that conducts a
commercial outfitted activity on Federal land under an
outfitter authorization awarded under an agreement
between the Secretary and a State or local government
that provides for the regulation by a State or local
agency of commercial outfitted activities on Federal
land.</DELETED>
<DELETED> (4) Commercial outfitted activity.--The term
``commercial outfitted activity'' means an authorized outfitted
activity--</DELETED>
<DELETED> (A) that is available to the
public;</DELETED>
<DELETED> (B) that is conducted under the direction
of paid staff; and</DELETED>
<DELETED> (C) for which an outfitted visitor is
required to pay more than shared expenses (including
payment to an authorized outfitter that is a nonprofit
organization).</DELETED>
<DELETED> (5) Federal agency.--The term ``Federal agency''
means--</DELETED>
<DELETED> (A) the Forest Service;</DELETED>
<DELETED> (B) the Bureau of Land
Management;</DELETED>
<DELETED> (C) the United States Fish and Wildlife
Service; and</DELETED>
<DELETED> (D) the Bureau of Reclamation.</DELETED>
<DELETED> (6) Federal land.--</DELETED>
<DELETED> (A) In general.--The term ``Federal land''
means all land and interests in land administered by a
Federal agency.</DELETED>
<DELETED> (B) Exclusion.--The term ``Federal land''
does not include--</DELETED>
<DELETED> (i) land held in trust by the
United States for the benefit of an Indian
tribe or individual; or</DELETED>
<DELETED> (ii) land held by an Indian tribe
or individual subject to a restriction by the
United States against alienation.</DELETED>
<DELETED> (7) Institutional recreation program.--The term
``institutional recreation program'' means a program of
recreational activities on Federal land that may include the
conduct of an outfitted activity on Federal land sponsored and
guided by--</DELETED>
<DELETED> (A) an institution with a membership or
limited constituency, such as a religious,
conservation, youth, fraternal, or social organization;
or</DELETED>
<DELETED> (B) an educational institution, such as a
college or university.</DELETED>
<DELETED> (8) Limited outfitter authorization.--The term
``limited outfitter authorization'' means an outfitter
authorization under section 6(f).</DELETED>
<DELETED> (9) Livery.--The term ``livery'' means the
dropping off or picking up of visitors, supplies, or equipment
on Federal land.</DELETED>
<DELETED> (10) Outfitted activity.--</DELETED>
<DELETED> (A) In general.--The term ``outfitted
activity'' means an activity--</DELETED>
<DELETED> (i) such as outfitting, guiding,
supervision, education, interpretation, skills
training, assistance, or livery operation
conducted for a member of the public in an
outdoor environment; and</DELETED>
<DELETED> (ii) that uses the recreational,
natural, historical, or cultural resources of
Federal land.</DELETED>
<DELETED> (B) Exclusion.--The term ``outfitted
activity'' does not include a service provided under
the National Forest Ski Area Permit Act of 1986 (16
U.S.C. 497b).</DELETED>
<DELETED> (11) Outfitted visitor.--The term ``outfitted
visitor'' means a member of the public that relies on an
authorized outfitter for access to and occupancy and use of
Federal land.</DELETED>
<DELETED> (12) Outfitter.--The term ``outfitter'' means a
person that conducts a commercial outfitted activity, including
a person that, by local custom or tradition, is known as a
``guide''.</DELETED>
<DELETED> (13) Outfitter authorization.--The term
``outfitter authorization'' means--</DELETED>
<DELETED> (A) an outfitter permit; or</DELETED>
<DELETED> (B) a limited outfitter
authorization.</DELETED>
<DELETED> (14) Outfitter permit.--The term ``outfitter
permit'' means an outfitter permit under section 6.</DELETED>
<DELETED> (15) Principal allocation of outfitter use.--The
term ``principal allocation of outfitter use'' means a
commitment by the Secretary in an outfitter permit for an
allocation of use to an authorized outfitter in accordance with
section 9.</DELETED>
<DELETED> (16) Resource area.--The term ``resource area''
means a management unit that is described by or contained
within the boundaries of--</DELETED>
<DELETED> (A) a national forest;</DELETED>
<DELETED> (B) an area of public land;</DELETED>
<DELETED> (C) a wildlife refuge;</DELETED>
<DELETED> (D) a congressionally designated
area;</DELETED>
<DELETED> (E) a hunting zone or district;
or</DELETED>
<DELETED> (F) any other Federal planning unit
(including an area in which outfitted activities are
regulated by more than 1 Federal agency).</DELETED>
<DELETED> (17) Secretary.--The term ``Secretary'' means--
</DELETED>
<DELETED> (A) with respect to Federal land
administered by the Forest Service, the Secretary of
Agriculture, acting through the Chief of the Forest
Service or a designee;</DELETED>
<DELETED> (B) with respect to Federal land
administered by the Bureau of Land Management, the
Secretary of the Interior, acting through the Director
of the Bureau of Land Management or a
designee;</DELETED>
<DELETED> (C) with respect to Federal land
administered by the United States Fish and Wildlife
Service, the Secretary of the Interior, acting through
the Director of the United States Fish and Wildlife
Service or a designee; and</DELETED>
<DELETED> (D) with respect to Federal land
administered by the Bureau of Reclamation, the
Secretary of the Interior, acting through the
Commissioner of Reclamation or a designee.</DELETED>
<DELETED> (18) Temporary allocation of use.--The term
``temporary allocation of use'' means an allocation of use to
an authorized outfitter in accordance with section 9.</DELETED>
<DELETED>SEC. 5. NONOUTFITTER USE AND ENJOYMENT.</DELETED>
<DELETED> Nothing in this Act enlarges or diminishes the right or
privilege of occupancy and use of Federal land under any applicable law
(including planning process rules and any administrative allocation),
by a commercial or noncommercial individual or entity that is not an
authorized outfitter or outfitted visitor.</DELETED>
<DELETED>SEC. 6. OUTFITTER AUTHORIZATIONS.</DELETED>
<DELETED> (a) In General.--</DELETED>
<DELETED> (1) Prohibition.--No person or entity, except an
authorized outfitter, shall conduct a commercial outfitted
activity on Federal land.</DELETED>
<DELETED> (2) Conduct of outfitted activities.--An
authorized outfitter shall not conduct an outfitted activity on
Federal land except in accordance with an outfitter
authorization.</DELETED>
<DELETED> (3) Special rule for alaska.--With respect to a
commercial outfitted activity conducted in the State of Alaska,
the Secretary shall not establish or impose a limitation on
access by an authorized outfitter that is inconsistent with the
access ensured under subsections (a) and (b) of section 1110 of
the Alaska National Interest Lands Conservation Act (16 U.S.C.
3170).</DELETED>
<DELETED> (b) Terms and Conditions.--An outfitter authorization
shall specify--</DELETED>
<DELETED> (1) the rights and obligations of the authorized
outfitter and the Secretary; and</DELETED>
<DELETED> (2) other terms and conditions of the
authorization.</DELETED>
<DELETED> (c) Criteria for Award of an Outfitter Permit.--The
Secretary shall establish criteria for award of an outfitter permit
that--</DELETED>
<DELETED> (1) identify skilled, experienced, and financially
capable persons or entities with knowledge of the resource area
to offer and conduct commercial outfitted activities;</DELETED>
<DELETED> (2) provide a stable regulatory climate in
accordance with this Act and other law (including regulations)
that encourages a qualified person or entity to provide, and to
continue to invest in the ability to provide, commercial
outfitted activities;</DELETED>
<DELETED> (3) offer a reasonable opportunity for an
authorized outfitter to realize a profit; and</DELETED>
<DELETED> (4) subordinate considerations of revenue to the
United States to the objectives of--</DELETED>
<DELETED> (A) providing recreational or educational
opportunities for the outfitted visitor;</DELETED>
<DELETED> (B) providing for the health and welfare
of the public; and</DELETED>
<DELETED> (C) conserving resources.</DELETED>
<DELETED> (d) Award.--</DELETED>
<DELETED> (1) In general.--The Secretary may award an
outfitter permit under this Act if--</DELETED>
<DELETED> (A) the commercial outfitted activity to
be authorized is not inconsistent with or incompatible
with an approved resource management plan applicable to
the resource area in which the commercial outfitted
activity is to be conducted; and</DELETED>
<DELETED> (B) the authorized outfitter meets the
criteria established under subsection (c)(1).</DELETED>
<DELETED> (2) Use of competitive process.--</DELETED>
<DELETED> (A) In general.--Except as otherwise
provided by this Act, the Secretary shall use a
competitive process to select an authorized outfitter
to which an outfitter permit is to be
awarded.</DELETED>
<DELETED> (B) Exception for certain activities.--The
Secretary may award an outfitter permit to an applicant
without conducting a competitive selection process if
the Secretary determines that--</DELETED>
<DELETED> (i) the applicant meets criteria
established by the Secretary under subsection
(c); and</DELETED>
<DELETED> (ii) there is no competitive
interest in the commercial outfitted activity
to be conducted.</DELETED>
<DELETED> (C) Exception for renewals and
transfers.--The Secretary shall award an outfitter
permit to an applicant without conducting a competitive
selection process if the authorization is a renewal or
transfer of an existing outfitter permit under section
11 or 12.</DELETED>
<DELETED> (e) Provisions of Outfitter Permits.--</DELETED>
<DELETED> (1) In general.--An outfitter permit shall provide
for--</DELETED>
<DELETED> (A) the health and welfare of the
public;</DELETED>
<DELETED> (B) conservation of resource
values;</DELETED>
<DELETED> (C) a fair and reasonable return to the
United States through an authorization fee in
accordance with section 7;</DELETED>
<DELETED> (D) a term of 10 years;</DELETED>
<DELETED> (E) the obligation of an authorized
outfitter to defend and indemnify the United States in
accordance with section 8;</DELETED>
<DELETED> (F) a principal allocation of outfitter
use, and, if appropriate, a temporary allocation of
use, in accordance with section 9;</DELETED>
<DELETED> (G) a plan to conduct performance
evaluations in accordance with section 10;</DELETED>
<DELETED> (H) renewal or termination of an outfitter
permit in accordance with section 11;</DELETED>
<DELETED> (I) transfer of an outfitter permit in
accordance with section 12;</DELETED>
<DELETED> (J) a means of modifying an outfitter
permit to reflect material changes from the terms and
conditions specified in the outfitter permit;</DELETED>
<DELETED> (K) notice of a right of appeal and
judicial review in accordance with section 14;
and</DELETED>
<DELETED> (L) such other terms and conditions as the
Secretary may require.</DELETED>
<DELETED> (2) Extensions.--The Secretary may award not more
than 3 temporary 1-year extensions of an outfitter permit,
unless the Secretary determines that extraordinary
circumstances warrant additional extensions.</DELETED>
<DELETED> (f) Limited Outfitter Authorizations.--</DELETED>
<DELETED> (1) In general.--The Secretary may issue a limited
outfitter authorization to an applicant for incidental
occupancy and use of Federal land for the purpose of conducting
a commercial outfitted activity on a limited basis.</DELETED>
<DELETED> (2) Term.--A limited outfitter authorization shall
have a term of not to exceed 2 years.</DELETED>
<DELETED> (3) Reissuance or renewal.--A limited outfitter
authorization may be reissued or renewed at the discretion of
the Secretary.</DELETED>
<DELETED>SEC. 7. AUTHORIZATION FEES.</DELETED>
<DELETED> (a) Amount of Fee.--</DELETED>
<DELETED> (1) In general.--An outfitter permit shall provide
for payment to the United States of a fair and reasonable
authorization fee, as determined by the Secretary.</DELETED>
<DELETED> (2) Determination of amount of fee.--In
determining the amount of an authorization fee, the Secretary
shall take into consideration--</DELETED>
<DELETED> (A) the obligations of the outfitter under
the outfitter permit;</DELETED>
<DELETED> (B) the provision of a reasonable
opportunity for net profit in relation to capital
invested; and</DELETED>
<DELETED> (C) economic conditions.</DELETED>
<DELETED> (b) Establishment of Amount Applicable to an Outfitter
Permit.--</DELETED>
<DELETED> (1) In general.--The amount of the authorization
fee paid to the United States for the term of an outfitter
permit shall be specified in the outfitter permit.</DELETED>
<DELETED> (2) Requirements.--The amount of the authorization
fee--</DELETED>
<DELETED> (A)(i) shall be expressed as--</DELETED>
<DELETED> (I) a simple charge per
day of actual use; or</DELETED>
<DELETED> (II) an annual or
seasonable flat fee;</DELETED>
<DELETED> (ii) if calculated as a percentage
of revenue, shall be determined based on
adjusted gross receipts; or</DELETED>
<DELETED> (iii) with respect to a commercial
outfitted activity conducted in the State of
Alaska, shall be based on a simple charge per
user day;</DELETED>
<DELETED> (B) shall be subordinate to the objectives
of--</DELETED>
<DELETED> (i) conserving
resources;</DELETED>
<DELETED> (ii) protecting the health and
welfare of the public; and</DELETED>
<DELETED> (iii) providing reliable,
consistent performance in conducting outfitted
activities; and</DELETED>
<DELETED> (C) shall be required to be paid by an
authorized outfitter to the United States on a
reasonable schedule during the operating
season.</DELETED>
<DELETED> (3) Adjusted gross receipts.--For the purpose of
paragraph (2)(A)(ii), the Secretary shall--</DELETED>
<DELETED> (A) take into consideration revenue from
the gross receipts of the authorized outfitter from
commercial outfitted activities conducted on Federal
land; and</DELETED>
<DELETED> (B) exclude from consideration any revenue
that is derived from--</DELETED>
<DELETED> (i) fees paid by the authorized
outfitter to any unit of Federal, State, or
local government for--</DELETED>
<DELETED> (I) hunting or fishing
licenses;</DELETED>
<DELETED> (II) entrance or
recreation fees; or</DELETED>
<DELETED> (III) other purposes
(other than commercial outfitted
activities conducted on Federal
land);</DELETED>
<DELETED> (ii) goods and services sold to
outfitted visitors that are not within the
scope of authorized outfitter activities
conducted on Federal land; or</DELETED>
<DELETED> (iii) operations on non-Federal
land.</DELETED>
<DELETED> (4) Substantially similar services in a specific
geographic area.--</DELETED>
<DELETED> (A) In general.--Except as provided in
subparagraph (B), if more than 1 outfitter permit is
awarded to conduct the same or similar commercial
outfitted activities in the same resource area, the
Secretary shall establish an identical fee for all such
outfitter permits.</DELETED>
<DELETED> (B) Exception.--The terms and conditions
of an existing outfitter permit shall not be subject to
modification or open to renegotiation by the Secretary
because of the award of a new outfitter permit at the
same resource area for the same or similar commercial
outfitted activities.</DELETED>
<DELETED> (5) Actual use.--</DELETED>
<DELETED> (A) In general.--For the purpose of
calculating an authorization fee for actual use under
clauses (ii) and (iii) of paragraph (2)(A), the sum of
authorization fees proportionately assessed per
outfitted visitor in a single calendar day for
commercial outfitted activities at more than 1 resource
area shall be not greater than the equivalent fee
charged for 1 full user day.</DELETED>
<DELETED> (B) Reconsideration of fee.--The
authorization fee may be reconsidered during the term
of the outfitter permit in accordance with paragraph
(6) or section 9(c)(3) at the request of the Secretary
or the authorized outfitter.</DELETED>
<DELETED> (6) Adjustment of fees.--The amount of an
authorization fee--</DELETED>
<DELETED> (A) shall be determined as of the date of
the outfitter permit; and</DELETED>
<DELETED> (B) may be modified to reflect--</DELETED>
<DELETED> (i) changes relating to the terms
and conditions of the outfitter permit,
including 1 or more outfitter permits described
in paragraph (5);</DELETED>
<DELETED> (ii) extraordinary unanticipated
changes affecting operating conditions, such as
natural disasters, economic conditions, or
other material adverse changes from the terms
and conditions specified in the outfitter
permit;</DELETED>
<DELETED> (iii) changes affecting operating
or economic conditions determined by other
governing entities, such as the availability of
State fish or game licenses; or</DELETED>
<DELETED> (iv) the imposition of new or
higher fees assessed under other law.</DELETED>
<DELETED> (c) Establishment of Amount Applicable to a Limited
Outfitter Authorization.--The Secretary shall determine the amount of
an authorization fee, if any, under a limited outfitter
authorization.</DELETED>
<DELETED>SEC. 8. LIABILITY AND INDEMNIFICATION.</DELETED>
<DELETED> (a) In General.--An authorized outfitter shall defend and
indemnify the United States for costs or expenses associated with
injury, death, or damage to any person or property caused by the
authorized outfitter's negligence, gross negligence, or willful and
wanton disregard for persons or property arising directly out of the
authorized outfitter's conduct of a commercial outfitted activity under
an outfitter authorization.</DELETED>
<DELETED> (b) No Liability.--An authorized outfitter--</DELETED>
<DELETED> (1) shall have no responsibility to defend or
indemnify the United States, its agents, employees, or
contractors, or third parties for costs or expenses associated
with injury, death, or damage to any person or property caused
by the acts, omissions, negligence, gross negligence, or
willful and wanton misconduct of the United States, its agents,
employees, or contractors, or third parties;</DELETED>
<DELETED> (2) shall not incur liability of any kind to the
United States, its agents, employees, or contractors, or third
parties as a result of the award of an outfitter authorization
or as a result of the conduct of a commercial outfitted
activity under an outfitter authorization absent a finding by a
court of competent jurisdiction of negligence, gross
negligence, or willful and wanton disregard for persons or
property on the part of the authorized outfitter; and</DELETED>
<DELETED> (3) shall have no responsibility to defend or
indemnify the United States, its agents, employees, or
contractors, or third parties for costs or expenses associated
with injury, death, or damage to any person or property
resulting from the inherent risks of the commercial outfitted
activity conducted by the authorized outfitter under the
outfitter authorization or the inherent risks present on
Federal land.</DELETED>
<DELETED> (c) Agreements.--An authorized outfitter may enter into
contracts or other agreements with outfitted visitors, including
agreements providing for release, waiver, indemnification,
acknowledgment of risk, or allocation of risk.</DELETED>
<DELETED>SEC. 9. ALLOCATION OF USE.</DELETED>
<DELETED> (a) In General.--In a manner that is not inconsistent with
or incompatible with an approved resource management plan applicable to
the resource area in which a commercial outfitted activity occurs, the
Secretary--</DELETED>
<DELETED> (1) shall provide a principal allocation of
outfitter use to an authorized outfitter under an outfitter
permit; and</DELETED>
<DELETED> (2) may provide a temporary allocation of use to
an authorized outfitter under an outfitter permit.</DELETED>
<DELETED> (b) Renewals, Transfers, and Extensions.--The Secretary
shall provide a principal allocation of outfitter use to an authorized
outfitter that--</DELETED>
<DELETED> (1) in the case of the renewal of an outfitter
permit, is not inconsistent with or incompatible with the terms
and conditions of an approved resource management plan
applicable to the resource area in which the commercial
outfitted activity occurs; or</DELETED>
<DELETED> (2) in the case of the transfer or temporary
extension of an outfitter permit, is the same amount of
principal allocation of outfitter use provided to the current
authorized outfitter.</DELETED>
<DELETED> (c) Waiver.--</DELETED>
<DELETED> (1) In general.--At the request of an authorized
outfitter, the Secretary may waive any obligation of the
authorized outfitter to use all or part of the amount of
allocation of use provided under the outfitter permit, if the
request is made in sufficient time to allow the Secretary to
temporarily reallocate the unused portion of the allocation of
use in that season or calendar year.</DELETED>
<DELETED> (2) Reclaiming of allocation of use.--Unless the
Secretary has reallocated the unused portion of an allocation
of use in accordance with paragraph (1), the authorized
outfitter may reclaim any part of the unused portion in that
season or calendar year.</DELETED>
<DELETED> (3) No fee obligation.--An outfitter permit fee
may not be charged for any amount of allocation of use subject
to a waiver under paragraph (1).</DELETED>
<DELETED> (d) Adjustment to Allocation of Use.--The Secretary--
</DELETED>
<DELETED> (1) may adjust an allocation of use assigned to an
authorized outfitter to reflect--</DELETED>
<DELETED> (A) material change arising from approval
of a change in the resource management plan for the
area of operation; or</DELETED>
<DELETED> (B) requirements arising under other law;
and</DELETED>
<DELETED> (2) shall provide an authorized outfitter with
documentation supporting the basis for any adjustment in the
principal allocation of outfitter use, including new terms and
conditions that result from the adjustment.</DELETED>
<DELETED> (e) Temporary Allocation of Use.--</DELETED>
<DELETED> (1) In general.--A temporary allocation of use may
be provided to an authorized outfitter at the discretion of the
Secretary for a period not to exceed 2 years.</DELETED>
<DELETED> (2) Renewals, transfers, and extensions.--A
temporary allocation of use may be renewed, transferred, or
extended at the discretion of the Secretary.</DELETED>
<DELETED>SEC. 10. EVALUATION OF PERFORMANCE UNDER OUTFITTER
PERMITS.</DELETED>
<DELETED> (a) Evaluation Process.--</DELETED>
<DELETED> (1) In general.--The Secretary shall develop a
process for annual evaluation of the performance of an
authorized outfitter in conducting a commercial outfitted
activity under an outfitter permit.</DELETED>
<DELETED> (2) Evaluation criteria.--Criteria to be used by
the Secretary to evaluate the performance of an authorized
outfitter shall--</DELETED>
<DELETED> (A) be objective, measurable, and
reasonably attainable; and</DELETED>
<DELETED> (B) include--</DELETED>
<DELETED> (i) standards generally applicable
to all commercial outfitted
activities;</DELETED>
<DELETED> (ii) standards specific to a
resource area, an individual outfitter
operation, or a type of commercial outfitted
activity; and</DELETED>
<DELETED> (iii) such other terms and
conditions of the outfitter permit as are
agreed to by the Secretary and the authorized
outfitter as measurements of performance.</DELETED>
<DELETED> (3) Special rule for alaska.--With respect to
commercial outfitted activities conducted in the State of
Alaska, objectives relating to conservation of natural
resources and the taking of fish and game shall not be
inconsistent with the laws (including regulations) of the
Alaska Department of Fish and Game.</DELETED>
<DELETED> (4) Requirements.--In evaluating the level of
performance of an authorized outfitter, the Secretary shall--
</DELETED>
<DELETED> (A) appropriately account for factors
beyond the control of the authorized outfitter,
including conditions described in section
7(b)(6)(B);</DELETED>
<DELETED> (B) ensure that the effect of any
performance deficiency reflected by the performance
rating is proportionate to the severity of the
deficiency, including any harm that may have resulted
from the deficiency; and</DELETED>
<DELETED> (C) allow additional credit to be earned
for elements of performance that exceed the
requirements of the outfitter permit.</DELETED>
<DELETED> (b) Levels of Performance.--The Secretary shall define 3
levels of performance, as follows:</DELETED>
<DELETED> (1) Good, indicating a level of performance that
fulfills the terms and conditions of the outfitter
permit.</DELETED>
<DELETED> (2) Marginal, indicating a level of performance
that, if not corrected, will result in an unsatisfactory level
of performance.</DELETED>
<DELETED> (3) Unsatisfactory, indicating a level of
performance that fails to fulfill the terms and conditions of
the outfitter permit.</DELETED>
<DELETED> (c) Performance Evaluation.--</DELETED>
<DELETED> (1) Evaluation system.--The Secretary shall
establish a performance evaluation system that assures the
public of continued availability of dependable commercial
outfitted activities and discontinues any authorized outfitter
that fails to meet the required standards.</DELETED>
<DELETED> (2) Procedure.--An authorized outfitter shall be
entitled--</DELETED>
<DELETED> (A) to be present, or represented, at
inspections of operations or facilities, which
inspections shall be limited to the operations and
facilities of the authorized outfitter located on
Federal land;</DELETED>
<DELETED> (B) to receive written notice of any
conduct or condition that, if not corrected, might lead
to a performance evaluation of marginal or
unsatisfactory, which notice shall include an
explanation of needed corrections and provide a
reasonable period of time in which the corrections may
be made without penalty; and</DELETED>
<DELETED> (C) to receive written notice of the
results of the performance evaluation not later than 30
days after the conclusion of the authorized outfitter's
operating season, including the level of performance
and the status of corrections that may have been
required.</DELETED>
<DELETED> (d) Marginal Performance.--If an authorized outfitter's
level of performance for a year is determined to be marginal, and the
authorized outfitter fails to complete the corrections within the time
period specified under subsection (c)(2)(B), the level of performance
shall be determined to be unsatisfactory for the year.</DELETED>
<DELETED> (e) Determination of Eligibility for Renewal.--</DELETED>
<DELETED> (1) In general.--The results of all annual
performance evaluations of an authorized outfitter shall be
reviewed by the Secretary in the year preceding the year in
which the outfitter permit expires to determine whether the
authorized outfitter's overall performance during the term has
met the requirements for renewal under section 11.</DELETED>
<DELETED> (2) Failure to evaluate.--If, in any year of the
term of an outfitter permit, the Secretary fails to evaluate
the performance of the authorized outfitter by the date that is
60 days after the conclusion of the authorized outfitter's
operating season, the performance of the authorized outfitter
in that year shall be considered to have been good.</DELETED>
<DELETED> (3) Notice.--Not later than 60 days after the end
of the year preceding the year in which an outfitter permit
expires, the Secretary shall provide the authorized outfitter
with the cumulative results of performance evaluations
conducted under this subsection during the term of the
outfitter permit.</DELETED>
<DELETED> (4) Unsatisfactory performance in final year.--If
an authorized outfitter receives an unsatisfactory performance
rating under subsection (d) in the final year of the term of an
outfitter permit, the review and determination of eligibility
for renewal of the outfitter permit under paragraph (1) shall
be revised to reflect that result.</DELETED>
<DELETED>SEC. 11. RENEWAL OR TERMINATION OF OUTFITTER
PERMITS.</DELETED>
<DELETED> (a) Renewal at Expiration of Term.--</DELETED>
<DELETED> (1) In general.--On expiration of the term of an
outfitter authorization, the Secretary shall renew the
authorization in accordance with paragraph (2).</DELETED>
<DELETED> (2) Determination based on annual performance
rating.--The Secretary shall renew an outfitter authorization
under paragraph (1) at the request of the authorized outfitter
and subject to the requirements of this Act if the Secretary
determines that the authorized outfitter has received not more
than 1 unsatisfactory annual performance rating under section
10 during the term of the outfitter permit.</DELETED>
<DELETED> (b) Termination.--An outfitter permit may be terminated
only if the Secretary determines that--</DELETED>
<DELETED> (1) the authorized outfitter has failed to correct
a condition for which the authorized outfitter received notice
under section 10(c)(2)(B) and the condition is considered by
the Secretary to be significant with respect to the health and
welfare of outfitted visitors or the conservation of
resources;</DELETED>
<DELETED> (2) the authorized outfitter is repeatedly in
arrears in the payment of fees under section 7; or</DELETED>
<DELETED> (3) the authorized outfitter's conduct
demonstrates repeated and willful disregard for--</DELETED>
<DELETED> (A) the health and welfare of outfitted
visitors; or</DELETED>
<DELETED> (B) the conservation of resources on which
the commercial outfitted activities are
conducted.</DELETED>
<DELETED>SEC. 12. TRANSFERABILITY OF OUTFITTER PERMITS.</DELETED>
<DELETED> (a) In General.--An outfitter permit shall not be
transferred (including assigned or otherwise conveyed or pledged) by
the authorized outfitter without prior written notification to, and
approval by, the Secretary.</DELETED>
<DELETED> (b) Approval.--</DELETED>
<DELETED> (1) In general.--The Secretary shall approve a
transfer of an outfitter permit unless the Secretary determines
that the transferee does not have sufficient professional,
financial, and other resources or business experience to be
capable of performing under the outfitter permit for the
remainder of the term of the outfitter permit.</DELETED>
<DELETED> (2) Qualified transferees.--Subject to section
6(d)(1), the Secretary shall approve a transfer of an outfitter
permit--</DELETED>
<DELETED> (A) to a purchaser of the operation of the
authorized outfitter;</DELETED>
<DELETED> (B) at the request of the authorized
outfitter, to an assignee, partner, or stockholder or
other owner of an interest in the operation of the
authorized outfitter; or</DELETED>
<DELETED> (C) on the death of the authorized
outfitter, to an heir or assign.</DELETED>
<DELETED> (c) No Modification as Condition of Approval.--The terms
and conditions of an outfitter permit shall not be subject to
modification or open to renegotiation by the Secretary because of a
transfer described in subsection (a), unless the terms and conditions
of the outfitter permit that is proposed to be transferred have become
inconsistent or incompatible with an approved resource management plan
for the resource area as a result of a modification to the
plan.</DELETED>
<DELETED> (d) Consideration Period.--</DELETED>
<DELETED> (1) Threshold for automatic approval.--Subject to
paragraph (2), if the Secretary fails to approve or disapprove
the transfer of an outfitter permit within 90 days after the
date of receipt of an application containing the information
required with respect to the transfer, the transfer shall be
deemed to have been approved.</DELETED>
<DELETED> (2) Extension.--The Secretary and the authorized
outfitter making application for transfer of an outfitter
permit may agree to extend the period for consideration of the
application.</DELETED>
<DELETED> (e) Continuance of Outfitter Permit.--If the transfer of
an outfitter permit is not approved by the Secretary or if the transfer
is not subsequently made, the outfitter permit shall remain in
effect.</DELETED>
<DELETED>SEC. 13. RECORDKEEPING REQUIREMENTS.</DELETED>
<DELETED> (a) In General.--An authorized outfitter shall keep such
reasonable records as the Secretary may require to enable the Secretary
to determine that all the terms of the outfitter authorization have
been and are being carried out.</DELETED>
<DELETED> (b) Burden on Authorized Outfitter.--The recordkeeping
requirements established by the Secretary shall incorporate simplified
procedures that do not impose an undue burden on an authorized
outfitter.</DELETED>
<DELETED> (c) Access to Records.--The Secretary, or an authorized
representative of the Secretary, shall, until the end of the fifth
calendar year beginning after the end of the business year of an
authorized outfitter, have access to and the right to examine any
books, papers, documents, and records of the authorized outfitter
relating to each outfitter authorization held by the authorized
outfitter during the business year.</DELETED>
<DELETED>SEC. 14. APPEALS AND JUDICIAL REVIEW.</DELETED>
<DELETED> (a) Appeals Procedure.--The Secretary shall by
regulation--</DELETED>
<DELETED> (1) grant an authorized outfitter full access to
administrative remedies under the Secretary's authority at the
time of an appeal; and</DELETED>
<DELETED> (2) establish an expedited procedure for
consideration of appeals of Federal agency decisions to deny,
suspend, fail to renew, or terminate an outfitter
permit.</DELETED>
<DELETED> (b) Judicial Review.--An authorized outfitter that is
adversely affected by a final decision of the Secretary under this Act
may commence a civil action in United States district court.</DELETED>
<DELETED>SEC. 15. INSTITUTIONAL RECREATION PROGRAMS.</DELETED>
<DELETED> (a) In General.--The Secretary shall manage the occupancy
and use of Federal land by institutional recreation programs that
conduct outfitted activities under this Act.</DELETED>
<DELETED> (b) Requirements.--In managing an institutional recreation
program authorized under this Act, the Secretary shall require that the
program--</DELETED>
<DELETED> (1) operate in a manner that is not inconsistent
with or incompatible with an approved resource management plan
applicable to the resource area in which the outfitted activity
is conducted;</DELETED>
<DELETED> (2) provide for the health and welfare of members
of the sponsoring organization or affiliated participants;
and</DELETED>
<DELETED> (3) ensure the conservation of
resources.</DELETED>
<DELETED>SEC. 16. CONSISTENCY WITH OTHER LAW AND RIGHTS.</DELETED>
<DELETED> (a) Consistency With Other Law.--Each program of outfitted
activities carried out on Federal land shall be consistent with the
mission of the administering Federal agency and all laws (including
regulations) applicable to the outfitted activities.</DELETED>
<DELETED> (b) Consistency With Rights of United States.--Nothing in
this Act limits or restricts any right, title, or interest of the
United States in or to any land or resource.</DELETED>
<DELETED>SEC. 17. REGULATIONS.</DELETED>
<DELETED> Not later than 2 years after the date of enactment of this
Act, the Secretary shall promulgate such regulations as are appropriate
to carry out this Act.</DELETED>
<DELETED>SEC. 18. RELATIONSHIP TO OTHER LAW.</DELETED>
<DELETED> (a) National Park Omnibus Management Act of 1998.--Nothing
in this Act supersedes or otherwise affects any provision of title IV
of the National Park Omnibus Management Act of 1998 (16 U.S.C. 5951 et
seq.).</DELETED>
<DELETED> (b) State Outfitter Licensing Law.--This Act does not
preempt any outfitter or guide licensing law (including any regulation)
of any State or territory.</DELETED>
<DELETED>SEC. 19. TRANSITION PROVISIONS.</DELETED>
<DELETED> (a) In General.--</DELETED>
<DELETED> (1) Outfitters with satisfactory ratings.--An
outfitter that holds a permit, contract, or other authorization
to conduct commercial outfitted activities (or an extension of
such a permit, contract, or other authorization) in effect on
the date of enactment of this Act shall be entitled, on request
or on expiration of the authorization, to the issuance of an
outfitter permit under this Act if a recent performance
evaluation determined that the outfitter's aggregate
performance under the permit, contract, or other authorization
was good or was the equivalent of good, satisfactory, or
acceptable under a rating system in use before the date of
enactment of this Act.</DELETED>
<DELETED> (2) Outfitters with no ratings.--For the purpose
of paragraph (1), if no recent performance evaluation exists
with respect to an outfitter, the outfitter's aggregate
performance under the permit, contract, or other authorization
shall be deemed to be good.</DELETED>
<DELETED> (b) Effect of Issuance of Outfitter Permit.--The issuance
of an outfitter permit under subsection (a) shall not adversely affect
any right or obligation that existed under the permit, contract, or
other authorization (or an extension of the permit, contract, or other
authorization) on the date of enactment of this Act.</DELETED>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Outfitter Policy Act of 1999''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the experience, skills, trained staff, and investment
in equipment that are provided by authorized outfitters are
necessary for members of the public that need or desire
commercial outfitted activities to facilitate their use and
enjoyment of recreational or educational opportunities on
Federal land;
(2) such activities constitute an important contribution
toward meeting the recreational and educational objectives of
resource management plans approved and administered by agencies
of the Department of Agriculture and the Department of the
Interior;
(3) an effective relationship between those agencies and
authorized outfitters requires implementation of agency
policies and programs that facilitate--
(A) (i) quality outfitting services to the public;
and
(ii) the authorized outfitter having a reasonable
opportunity to engage in a successful business venture;
(B) a return to the United States through
appropriate fees;
(C) renewal of outfitter permits based on a
performance evaluation system that rewards outfitters
that meet required performance standards and withdraws
authorizations for outfitters that fail to meet those
standards; and
(D) transfer of an outfitter permit to the
qualified purchaser of the operation of an authorized
outfitter, an heir or assign, or another qualified
person or entity; and
(4) the provision of opportunities for outfitted visitors
to Federal land to engage in fishing and hunting is best served
by continued recognition that the States retain primary
authority over the taking of fish and wildlife on Federal land.
SEC. 3. PURPOSES.
The purposes of this Act are--
(1) to establish terms and conditions for occupancy and use
of Federal land by an authorized outfitter; and
(2) to establish a stable regulatory climate that
encourages a qualified person or entity to provide, and to
continue to invest in the ability to conduct outfitted
activities on Federal land.
(3) to facilitate opportunities for recreational use of
public lands by that segment of the public that needs or wants
to use the services of outfitters and guides.
SEC. 4. DEFINITIONS.
In this Act:
(1) Actual use.--The term ``actual use'' means the portion
of a principal allocation of outfitter use that an authorized
outfitter uses in conducting commercial outfitted activities
during a period, for a type of use, in an area or based on some
other measurement.
(2) Allocation of use.--
(A) In general.--The term ``allocation of use''
means a measurement of use that--
(i) is granted by the Secretary to an
authorized outfitter for the purpose of
facilitating the occupancy and use of Federal
land by an outfitted visitor;
(ii) takes the form of--
(I) an amount or type of commercial
outfitted activity resulting from an
apportionment of the total recreation
capacity of a resource area; or
(II) in the case of a resource area
for which recreation capacity has not
been apportioned, a type of commercial
outfitted activity conducted in a manner that is not inconsistent with
or incompatible with an approved resource management plan; and
(iii) is calibrated in terms of amount of
use, type of use, or location of a commercial
outfitted activity, including user days or
portions of user days, seasons or other periods
of operation, launch dates, assigned camps,
hunt, gun or fish day or other formulations of
the type or amount of authorized activity.
(B) Inclusion.--The term ``allocation of use''
includes the designation of a geographic area, zone, or
district in which a limited number of authorized
outfitters are authorized to operate.
(3) Authorized outfitter.--The term ``authorized
outfitter'' means a person or entity that conducts a commercial
outfitted activity on Federal land under an outfitter
authorization.
(4) Commercial outfitted activity.--The term ``commercial
outfitted activity'' means an authorized outfitted activity
conducted on Federal lands--
(A) that is available to the public;
(B) that is conducted under the direction of
compensated individuals; and
(C) for which an outfitted visitor is required to
pay more than a strict sharing of actual expenses
(including payment to an authorized outfitter that is a
nonprofit organization).
(5) Federal agency.--The term ``Federal agency'' means--
(A) the Forest Service;
(B) the Bureau of Land Management;
(C) the United States Fish and Wildlife Service;
and
(D) the Bureau of Reclamation.
(6) Federal land.--
(A) In general.--The term ``Federal land'' means
all land and interests in land administered by a
Federal agency.
(B) Exclusion.--The term ``Federal land'' does not
include--
(i) land held in trust by the United States
for the benefit of an Indian tribe or
individual; or
(ii) land held by an Indian tribe or
individual subject to a restriction by the
United States against alienation.
(7) Temporary outfitter authorization.--The term
``temporary outfitter authorization'' means an outfitter
authorization under section 6(f).
(8) Livery.--The term ``livery'' means the dropping off or
picking up of visitors, supplies, or equipment on Federal land.
(9) Outfitted activity.--The term ``outfitted activity''
means an activity--
(A) such as outfitting, guiding, supervision,
education, interpretation, skills training, assistance,
or livery operation conducted for a member of the
public in an outdoor environment; and
(B) that uses the recreational, natural,
historical, or cultural resources of Federal land.
(10) Outfitted visitor.--The term ``outfitted visitor''
means a member of the public that engages an authorized
outfitter to facilitate occupancy and use of Federal land.
(11) Outfitter.--The term ``outfitter'' means a person or
entity that conducts a commercial outfitted activity, including
a person who, by local custom or tradition, is known as a
``guide''.
(12) Outfitter authorization.--The term ``outfitter
authorization'' means--
(A) an outfitter permit;
(B) a temporary outfitter authorization; or
(C) an authorization to use and occupy Federal land
that references this Act as its authority.
(13) Outfitter permit.--The term ``outfitter permit'' means
an outfitter permit under section 6.
(14) Principal allocation of outfitter use.--The term
``principal allocation of outfitter use'' means a grant by the
Secretary in an outfitter permit for an allocation of use to an
authorized outfitter in accordance with section 9.
(15) Resource area.--The term ``resource area'' means a
management unit that is described by or contained within the
boundaries of--
(A) a national forest;
(B) an area of public land;
(C) a wildlife refuge;
(D) a congressionally designated area;
(E) a hunting zone or district; or
(F) any other Federal planning unit (including an
area in which outfitted activities are regulated by
more than one Federal agency).
(16) Secretary.--The term ``Secretary'' means--
(A) with respect to Federal land administered by
the Forest Service, the Secretary of Agriculture,
acting through the Chief of the Forest Service or a
designee;
(B) with respect to Federal land administered by
the Bureau of Land Management, the Secretary of the
Interior, acting through the Director of the Bureau of
Land Management or a designee;
(C) with respect to Federal land administered by
the United States Fish and Wildlife Service, the
Secretary of the Interior, acting through the Director
of the United States Fish and Wildlife Service or a
designee; and
(D) with respect to Federal land administered by
the Bureau of Reclamation, the Secretary of the
Interior, acting through the Commissioner of
Reclamation or a designee.
(17) Temporary allocation of use.--The term ``temporary
allocation of use'' means an allocation of use to an authorized
outfitter in accordance with section 9.
SEC. 5. NONOUTFITTER USE AND ENJOYMENT.
Nothing in this Act is intended to diminish any right or privilege
of occupancy and use of Federal land by the public including the non-
outfitted visitor.
SEC. 6. OUTFITTER AUTHORIZATIONS.
(a) In General.--
(1) Prohibition.--No person or entity, except an authorized
outfitter, shall conduct a commercial outfitted activity on
Federal land.
(2) Conduct of outfitted activity.--An authorized outfitter
shall not conduct an outfitted activity on Federal land except
in accordance with an outfitter authorization.
(3) Special rule for alaska.--With respect to a commercial
outfitted activity conducted in the State of Alaska, the
Secretary shall not establish or impose a limitation on special
access by an authorized outfitter that is inconsistent with the
access ensured under subsections (a) and (b) of section 1110 of
the Alaska National Interest Lands Conservation Act (16 U.S.C.
3170).
(b) Terms and Conditions.--An outfitter authorization shall
specify--
(1) the rights and privileges of the authorized outfitter
and the Secretary; and
(2) other terms and conditions of the authorization.
(c) Criteria for Grant of an Outfitter Permit.--The Secretary shall
establish criteria for grant of an outfitter permit that--
(1) recognize skill, experience, knowledge of the resource
area and financial capability of the persons or entity under
consideration;
(2) consider any or all of the following: safety, quality
recreational experience, educational opportunities and
conservation of resources for the outfitted visitor;
(3) offer a reasonable opportunity for an authorized
outfitter to engage in a successful business venture;
(4) create a stable regulatory climate that encourages an
authorized outfitter to provide and invest in the ability to
provide quality services to the outfitted visitor;
(5) assure revenue paid to the United States provided this
consideration is subordinate to the other criteria of this
subsection.
(d) Grant.--
(1) In general.--The Secretary may grant an outfitter
permit under this Act if--
(A) the commercial outfitted activity to be
authorized is not inconsistent with or incompatible
with an approved resource management plan applicable to
the resource area in which the commercial outfitted
activity is to be considered; and
(B) the authorized outfitter meets the criteria
established under subsection (c)(1).
(2) Use of competitive process.--
(A) In general.--Except as otherwise provided by
this Act, the Secretary shall use a competitive process
to select an authorized outfitter.
(B) Exception for certain activities.--The
Secretary may grant an outfitter permit to an applicant
without conducting a competitive selection process if
the Secretary determines that--
(i) the applicant meets criteria
established by the Secretary under subsection
(c); and
(ii) there is no competitive interest in
the commercial outfitted activity to be
conducted.
(C) Exception for renewals and transfers.--The
Secretary shall grant an outfitter permit to an
applicant without conducting a competitive selection
process if the authorization is a renewal or transfer
of an existing outfitter permit under section 11 or 12.
(e) Provisions of Outfitter Permits.--
(1) In general.--An outfitter permit shall provide for--
(A) the health and welfare of the public;
(B) conservation of resource values;
(C) a return to the United States through an
authorization fee in accordance with section 7;
(D) a term of 10 years except as provided in (3)
below;
(E) the obligation of an authorized outfitter to
defend and indemnify the United States in accordance
with section 8;
(F) a principal allocation of outfitter use, and,
if appropriate, a temporary allocation of use, in
accordance with section 9;
(G) a plan to conduct performance evaluations in
accordance with section 10;
(H) renewal or revocation of an outfitter permit in
accordance with section 11;
(I) transfer of an outfitter permit in accordance
with section 12;
(J) a means of modifying the terms and conditions
of an outfitter permit to reflect material changes in
facts and conditions;
(K) notice of a right of appeal and judicial review
in accordance with section 14; and
(L) such other terms and conditions as the
Secretary may require.
(2) Extensions.--The Secretary may award not more than
three temporary 1-year extensions of an outfitter permit,
unless the Secretary determines that extraordinary
circumstances warrant additional extensions.
(3) Tenure.--The Secretary shall generally issue an
outfitter authorization for 10 years, with an initial probation
period of two years for a new authorized outfitter, except that
he may, in extraordinary circumstances, award an outfitter
permit with a term of less than 10 years when--
(A) foreseeable amendments in resource management
plans will create conditions that would materially
impact and necessitate changes in permit terms and
conditions in less than 10 years;
(B) an authorized outfitter and the Secretary agree
to a permit term of less than 10 years.
(f) Temporary Outfitter Authorizations.--
(1) In general.--The Secretary may issue a temporary
outfitter authorization for the purpose of conducting a
commercial outfitted activity on a limited basis.
(2) Term.--A temporary outfitter authorization shall have a
term not to exceed 2 years.
(3) Renewal.--A temporary outfitter authorization may be
reissued or renewed at the discretion of the Secretary.
SEC. 7. AUTHORIZATION FEES.
(a) Amount of Fee.--
(1) In general.--An outfitter permit shall provide for
payment to the United States of an authorization fee, as
determined by the Secretary.
(2) Fee determination.--In determining the amount of an
authorization fee, the Secretary shall take into
consideration--
(A) the obligations of the outfitter under the
outfitter permit;
(B) the provision of a reasonable opportunity to
engage in a successful business; and
(C) the fair market value of the use and occupancy
granted by the outfitter authorization.
(b) Consistency.--The Federal agencies shall use consistent
methodologies to determine the outfitter authorization fee.
(c) Payment of Outfitter Authorization Fee.--
(1) In general.--The amount of the fee paid to the United
States for the term of an outfitter permit shall be specified
in that outfitter permit.
(2) Requirements.--The amount of the authorization fee--
(A)(i) shall be expressed as--
(I) a simple charge per day of actual use;
or
(II) an annual or seasonable flat fee;
(ii) if calculated as a percentage of revenue,
shall be determined based on adjusted gross receipts;
or
(iii) with respect to a commercial outfitted
activity conducted in the State of Alaska, shall be
based on a simple charge per user day;
(B) shall be subordinate to the objectives of--
(i) conserving resources;
(ii) protecting the health and welfare of
the public; and
(iii) providing reliable, consistent
performance in conducting outfitted activities;
and
(C) shall be required to be paid by an authorized
outfitter to the United States on a reasonable schedule
during the operating season; and
(D) shall set a minimum fee.
(3) Adjusted gross receipts.--For the purpose of paragraph
(2)(A)(ii), the Secretary shall--
(A) take into consideration revenue from the gross
receipts of the authorized outfitter from commercial
outfitted activities conducted on Federal land; and
(B) exclude from consideration any revenue that is
derived from--
(i) fees paid by the authorized outfitter
to any unit of Federal, State, or local
government for--
(I) hunting or fishing licenses;
(II) entrance or recreation fees;
or
(III) other purposes (other than
commercial outfitted activities
conducted on Federal land);
(ii) goods and services sold to outfitted
visitors that are not within the scope of
authorized outfitter activities conducted on
Federal land; or
(iii) operations on non-Federal land.
(4) Substantially similar services in a specific geographic
area.--
(A) In general.--Except as provided in subparagraph
(B), if more than 1 outfitter permit is granted to
conduct the same or similar commercial outfitted
activities in the same resource area, the Secretary
shall establish an identical fee for those outfitter
permits.
(B) Exception.--The terms and conditions of an
existing outfitter permit shall not be subject to
modification or open to renegotiation by the Secretary
because of the grant of a new outfitter permit in the
same resource area for the same or similar commercial
outfitted activities.
(5) Actual use.--
(A) In general.--For the purpose of calculating an
authorization fee for actual use under paragraph
(2)(A)(I)(I)--
(i) multiple outfitted activities with
separate charges shall count as one actual use
day when conducted in one day; and
(ii) an activity conducted across agency
jurisdictions over the course of one day shall
not exceed one actual use day.
(B) Reconsideration of fee.--The authorization fee
may be reconsidered during the term of the outfitter
permit in accordance with paragraph (6) or section
9(c)(3).
(6) Adjustment of fees.--The amount of an authorization
fee--
(A) shall be determined as of the grant date of the
outfitter permit; and
(B) may be modified to reflect--
(i) changes relating to the terms and
conditions of the outfitter permit, including
one or more outfitter permits described in
paragraph (5);
(ii) extraordinary unanticipated changes
affecting operating conditions, such as natural
disasters, economic conditions, or other
material adverse changes from the terms and
conditions specified in the outfitter permit;
(iii) changes affecting operating or
economic conditions determined by other
governing entities, such as the availability of State fish or game
licenses;
(iv) the imposition of new or higher fees
assessed under other law; or
(v) authorized adjustments made to an
allocation of outfitter use.
(d) Establishment of Amount Applicable to a Temporary Outfitter
Authorization.--The Secretary shall determine the amount of an
authorization fee under a temporary outfitter authorization.
(e) Other Fees and Costs.--Fees for processing applications for
outfitter permits or monitoring compliance with permit terms and
conditions shall not seek to recover costs of agency activities that
benefit broadly the general public or are not directly related to or
required for processing of applications or monitoring of an
authorization.
SEC. 8. LIABILITY AND INDEMNIFICATION.
(a) Liability.--An authorized outfitter shall be liable to the
United States for costs and expenses associated with damage to property
of the United States caused by the authorized outfitter's--
(1) negligence,
(2) gross negligence, or
(3) willful and wanton disregard for persons or property,
arising directly out of the authorized outfitter's conduct of a
commercial outfitted activity under an outfitter authorization.
(b) Indemnification.--An authorized outfitter shall defend and
indemnify the United States for costs or expenses associated with
injury, death, or damage to any person or property caused by the
authorized outfitter's--
(1) negligence,
(2) gross negligence, or
(3) willful and wanton disregard for persons or property,
arising proximately from the authorized outfitter's conduct of a
commercial outfitted activity under an outfitter authorization.
(c) No Liability.--An authorized outfitter shall have no
responsibility to pay to or defend or indemnify the United States, or
its agents, employees, or contractors for costs or expenses associated
with injury, death, or damage to any person or property to the extent
the injury, death, or damage was caused by the acts, omissions,
negligence, gross negligence, or willful and wanton misconduct of the
United States, its agents, employees, or contractors; or third parties.
(d) Finding of Liability.--Before presenting any claim for costs
and expenses associated with damage to any property allegedly caused by
the authorized outfitter, the Secretary, after providing due process,
shall make a finding of negligence, gross negligence, or willful and
wanton disregard for persons or property on the part of the authorized
outfitter and present the finding to the authorized outfitter.
(e) Agreements.--An authorized outfitter may enter into agreements
with outfitted visitors, including for (i) assumption or allocation of
risk, and (ii) release or waiver related to inherently dangerous
activities or conditions, if the agreement also runs in favor of the
United States and its agents, employees, or contractors. Copies of any
such agreements shall be provided to the Federal agency before being
presented to outfitted visitors by an authorized outfitter.
SEC. 9. ALLOCATION OF USE.
(a) In General.--
(1) an outfitter permit shall include within its terms and
conditions a principal allocation of outfitter use; and
(2) a temporary outfitter permit may include a principal
allocation of outfitter use.
(b) Renewals, Transfers, and Extensions.--Except as provided in
(d), upon renewal, transfer, or extension of an outfitter permit, the
same principal allocation of use shall be included within the terms and
conditions of the permit.
(c) Waiver.--
(1) In general.--At the request of an authorized outfitter,
the Secretary may waive any obligation of the authorized
outfitter to use all or part of the amount of allocation of use
provided under the outfitter permit, subject to section 7(b),
if the request is made in sufficient time to allow the
Secretary to temporarily reallocate the unused portion of the
allocation of use in that season or calendar year.
(2) Reclaiming of allocation of use.--Unless the Secretary
has reallocated the unused portion of an allocation of use in
accordance with paragraph (1), the authorized outfitter may
reclaim any part of the unused portion in that season or
calendar year.
(3) No fee obligation.--Subject to section 7(b), an
outfitter permit fee may not be charged for any amount of
allocation of use subject to a waiver under paragraph (1).
(d) Adjustment to Allocation of Use.--The Secretary--
(1) may adjust an allocation of use to reflect--
(A) material change arising from approval of an
amendment in the resource management plan for the area
of operation; or
(B) requirements arising under other law; and
(2) shall provide an authorized outfitter with
documentation supporting the basis for any adjustment in the
principal allocation of outfitter use, including new terms and
conditions that result from the adjustment.
(e) Temporary Allocation of Use.--
(1) In general.--A temporary allocation of use may be
provided to an authorized outfitter at the discretion of the
Secretary for a period up to 2 years.
(2) Transfers and extensions.--A temporary allocation of
use may be, transferred, or extended at the discretion of the
Secretary.
SEC. 10. EVALUATION OF PERFORMANCE UNDER OUTFITTER PERMITS.
(a) Evaluation Process.--
(1) In general.--The Secretary shall develop a process for
annual evaluation of the performance of an authorized outfitter
in conducting a commercial outfitted activity under an
outfitter permit.
(2) Evaluation criteria.--Criteria used by the Secretary to
evaluate the performance of an authorized outfitter shall--
(A) be objective, measurable, and attainable; and
(B) include as deemed appropriate by the
Secretary--
(i) standards generally applicable to all
commercial outfitted activities;
(ii) standards specific to a resource area
or an individual outfitter operation; and
(iii) such other terms and conditions of
the outfitter permit.
(3) Requirements.--In evaluating the level of performance
of an authorized outfitter, the Secretary shall--
(A) appropriately account for factors beyond the
control of the authorized outfitter, including
conditions described in section 7(b)(6)(B) and 9(c);
(B) ensure that the effect of any performance
deficiency reflected by the performance rating is
proportionate to the severity of the deficiency,
including any harm that may have resulted from the
deficiency; and
(b) Levels of Performance.--The Secretary shall define 3 levels of
performance, as follows:
(1) Good, indicating a level of performance that fulfills
the terms and conditions of the outfitter permit.
(2) Marginal, indicating a level of performance that, if
not corrected, will result in an unsatisfactory level of
performance.
(3) Unsatisfactory, indicating a level of performance that
fails to fulfill the terms and conditions of the outfitter
permit.
(c) Performance Evaluation.--
(1) Evaluation system.--The Secretary shall establish a
performance evaluation system that assures the public of
continued availability of dependable commercial outfitted
activities and suspends or revoke an authorization for an
authorized outfitter that fails to meet the required standards.
(2) Procedure.--An authorized outfitter shall be entitled--
(A) to be present, or represented, at inspections
of operations or facilities, which inspections shall be
limited to the operations and facilities of the
authorized outfitter located on Federal land;
(B) to receive written notice of any conduct or
condition that, if not corrected, might lead to a
performance evaluation of marginal or unsatisfactory,
which shall include an explanation of needed
corrections and provide a reasonable period in which
the corrections may be made without penalty; and
(C) to receive written notice of the results of the
performance evaluation not later than 60 days after the
conclusion of the authorized outfitter's operating
season, including the level of performance and the
status of corrections that may have been required.
(d) Marginal Performance.--If an authorized outfitter's annual
performance is determined to be marginal, and the authorized outfitter
fails to complete the corrections within the time specified under
subsection (c)(2)(B), the level of performance shall be determined to
be unsatisfactory for the year.
(e) Determination of Eligibility for Renewal.--
(1) In general.--The results of all annual performance
evaluations of an authorized outfitter shall be reviewed by the
Secretary in the year preceding the year in which the outfitter
permit expires to determine whether the authorized outfitter's
overall performance during the term has met the requirements
for renewal under section 11.
(2) Failure to evaluate.--If, in any year of the term of an
outfitter permit, the Secretary fails to evaluate the
performance of the authorized outfitter by the date that is 60
days after the conclusion of the authorized outfitter's
operating season, the performance of the authorized outfitter
in that year shall be considered to have been good.
(3) Notice.--Not later than 60 days after the end of the
year preceding the year in which an outfitter permit expires,
the Secretary shall provide the authorized outfitter with the
cumulative results of performance evaluations conducted under
this subsection during the term of the outfitter permit.
(4) Unsatisfactory performance in final year.--If an
authorized outfitter receives an unsatisfactory performance
rating under subsection (d) in the final year of the term of an
outfitter permit, the review and determination of eligibility
for renewal of the outfitter permit under paragraph (1) shall
be revised to reflect that result.
SEC. 11. RENEWAL REVOCATION OR SUSPENSION OF OUTFITTER PERMITS.
(a) Renewal at Expiration of Term.--
(1) In general.--On expiration of the term of an outfitter
authorization, the Secretary shall renew the authorization in
accordance with paragraph (2).
(2) Determination based on annual performance rating.--The
Secretary shall renew an outfitter authorization under
paragraph (1) at the request of the authorized outfitter and
subject to the requirements of this Act if the Secretary
determines that the authorized outfitter has received not more
than 1 unsatisfactory annual performance rating under section
10 during the term of the outfitter permit.
(b) Revocation.--An outfitter permit may be revoked only if the
Secretary determines that--
(1) the authorized outfitter has failed to correct a
condition for which the authorized outfitter received notice
under section 10(c)(2)(B) and the condition is considered by
the Secretary to be significant with respect to permit terms
and conditions;
(2) the authorized outfitter is in arrears in the payment
of fees under section 7; and
(A) has not entered into a payment plan with the
agency; or
(B) has not sought relief subject to section 14.
(3) the authorized outfitter's conduct demonstrates willful
disregard for--
(A) the health and welfare of outfitted visitors;
or
(B) the conservation of resources on which the
commercial outfitted activities are conducted.
(c) Suspension.--
(1) In general.--All or part of the outfitter permit may be
suspended, subject to findings made under subsection (b).
(2) Administrative review.--Subject to section 17 the
Secretary shall provide for an expedited review of suspension
cases.
SEC. 12. TRANSFERABILITY OF OUTFITTER PERMITS.
(a) In General.--An outfitter permit shall not be transferred
(including assigned or otherwise conveyed or pledged) by the authorized
outfitter without prior written notification to, and approval by, the
Secretary.
(b) Approval.--
(1) In general.--The Secretary shall approve a transfer of
an outfitter permit unless the Secretary finds that the
transferee is not qualified or able to satisfy the terms and
conditions of the outfitter permit.
(2) Qualified transferees.--Subject to section 6(d)(1), the
Secretary shall approve a transfer of an outfitter permit--
(A) to a purchaser of the operation of the
authorized outfitter;
(B) at the request of the authorized outfitter, to
an assignee, partner, or stockholder or other owner of
an interest in the operation of the authorized
outfitter; or
(C) on the death of the authorized outfitter, to an
heir or assign.
(c) Transfer Terms.--The terms and conditions of any outfitter
permit shall not be subject to modification or open to renegotiation by
the Secretary because of a transfer described in subsections (1) and
(b) unless--
(1) it is at the request of the transferee; or
(2) the terms and conditions of the outfitter permit
proposed to be transferred have become inconsistent or
incompatible with an approved resource management plan for the
resource area.
(d) Consideration Period.--
(1) Threshold for automatic approval.--Subject to paragraph
(2), if the Secretary fails to approve or disapprove the
transfer of an outfitter permit within 90 days after receiving
a complete application containing the information required with
respect to the transfer, the transfer shall be deemed approved
unless the transferee requests a modification of terms and
conditions of the outfitter authorization and such
modifications require environmental analysis under the National
Environmental Policy Act.
(2) Extension.--The Secretary and the authorized outfitter
applying for transfer of an outfitter permit may agree to
extend the period for consideration of the application.
(e) Continuance of Outfitter Permit.--If the transfer of an
outfitter permit is not approved by the Secretary or if the transfer is
not subsequently made, the outfitter permit shall remain in effect.
SEC. 13. RECORDKEEPING REQUIREMENTS.
(a) In General.--An authorized outfitter shall keep such reasonable
records as the Secretary may require to enable the Secretary to
determine that all the terms of the outfitter authorization are being
met.
(b) Obligations of the Secretary and Authorized Outfitter.--The
recordkeeping requirements established by the Secretary shall
incorporate simplified procedures that do not impose an undue burden on
an authorized outfitter.
(c) Access to Records.--The Secretary, or an authorized
representative of the Secretary, shall for purposes of audit and
performance evaluation have access to and the right to examine for five
years following the effective date of an outfitter authorization any
books, papers, documents, and records of the authorized outfitter
relating to each outfitter authorization held by the authorized
outfitter during the business year.
SEC. 14. APPEALS AND JUDICIAL REVIEW.
(a) Appeals Procedure.--The Secretary shall by regulation--
(1) grant an authorized outfitter full access to
administrative remedies, and
(2) establish an expedited procedure for consideration of
appeals of Federal agency decisions to deny, suspend, fail to
renew, or revoke an outfitter permit.
(b) Judicial Review.--An authorized outfitter that is adversely
affected by a final decision of the Secretary under this Act may
commence a civil action in United States district court.
SEC. 15. LACK OF EFFECT ON EXISTING RIGHTS OF THE UNITED STATES.
Nothing in this Act limits or restricts any right, title, or
interest of the United States in or to any land or resource.
SEC. 16. REGULATIONS.
Not later than 2 years after the date of enactment of this Act, the
Secretary shall promulgate such regulations as are appropriate to carry
out this Act.
SEC. 17. RELATIONSHIP TO OTHER LAW.
(a) National Park Omnibus Management Act of 1998.--Nothing in this
Act supersedes or otherwise affects any provision of title IV of the
National Park Omnibus Management Act of 1998 (16 U.S.C. 5951 et seq.).
(b) State Outfitter Licensing Law.--This Act does not preempt any
outfitter or guide licensing law (including any regulation) of any
State or territory.
SEC. 18. TRANSITION PROVISIONS.
(a) Outfitters With Satisfactory Rating.--An outfitter that holds a
permit, contract, or other authorization to conduct commercial
outfitted activities (or an extension of such permit, contract, or
other authorization) in effect on the date of promulgation of
implementing regulations under section 16 shall be entitled, on
expiration of the authorization, to the issuance of an outfitter permit
under this Act if the outfitter's aggregate performance under the
permit, contract, or other authorization was good or was the equivalent
of good, satisfactory, or acceptable under a rating system in use
before the date of enactment of this Act.
(b) Outfitters With No Ratings.--For the purpose of subsection (a),
if no recent performance evaluations exist to determine the outfitter's
aggregate performance its aggregate performance shall be deemed to be
good.
(c) Effect of Issuance of Outfitter Permit.--The issuance of an
outfitter permit under subsection (a) shall not adversely affect any
right or obligation that existed under the permit, contract, or other
authorization (or an extension of the permit, contract, or other
authorization) on the date of enactment of this Act.
Calendar No. 940
106th CONGRESS
2d Session
S. 1969
[Report No. 106-491]
_______________________________________________________________________
A BILL
To provide for improved management of, and increased accountability
for, outfitted activities by which the public gains access to and
occupancy and use of Federal land, and for other purposes.
_______________________________________________________________________
October 5 (legislative day, September 22), 2000
Reported with an amendment