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107th Congress Rept 107-752
HOUSE OF REPRESENTATIVES
2d Session Part 1
OUTFITTER POLICY ACT OF 2001
October 15, 2002.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. Hansen, from the Committee on Resources, submitted the following
R E P O R T
[To accompany H.R. 2386]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 2386) to establish terms and conditions for use of
certain Federal lands by outfitters and to facilitate public
opportunities for the recreational use and enjoyment of such
lands, having considered the same, report favorably thereon
without amendment and recommend that the bill do pass.
PURPOSE OF THE BILL
The purpose of H.R. 2386 is to establish terms and
conditions for use of certain Federal lands by outfitters and
to facilitate public opportunities for the recreational use and
enjoyment of such lands.
BACKGROUND AND NEED FOR LEGISLATION
Outfitters and guides provide opportunities for outdoor
recreation for many families and groups who would otherwise
find the backcountry inaccessible. The primary purpose of the
Outfitter Policy Act is to ensure accessibility to Federal
lands by all segments of the population and to ensure quality
recreation services for the public.
Outfitters must comply with inconsistent policies across
the federal land management agencies. Present inconsistent
rules and polices often hinder outfitters from providing
quality services, and these inconsistent rules inadequately
provide for evaluation of guide/outfitter operations to assure
quality services to the public. Congress has established
standards for administering guides/outfitter permits on
National Park Service lands. H.R. 2386 sets similar standards
for the Forest Service, Bureau of Land Management, U.S. Fish
and Wildlife Service, and Bureau of Reclamation.
This bill sets out the criteria for the grant of an
outfitter permit. Criteria for grant of an outfitter permit
include skill, experience, knowledge of the resource area, and
financial capability. Safety, quality recreational experiences,
educational opportunities, and conservation of resources are
The Secretary may grant an outfitter permit if the
outfitted activity is not inconsistent or incompatible with
land and resource management plans for the area and meets the
criteria established by this Act. The grant of an outfitter
permit will be determined competitively if the authorization is
a new opportunity, or if the permittee fails to adhere to the
terms and conditions of the permit.
The bill requires that an outfitter permit provide for the
health and welfare of the public; conservation of resource
values; a return to the United States through an authorization
fee; the obligation of an authorized outfitter to defend and
indemnify the United States; and an appropriate allocation of
an amount of use (such use being subject to adjustment to
reflect the changes in land and resource management plans); and
other terms and conditions. This Act authorizes a term of 10
years unless foreseeable changes in land and resource
management plans or conditions necessitate a term of less than
10 years, or unless the outfitter seeks or agrees to a permit
term of less than 10 years. Permit terms and conditions may be
adjusted by the granting agency during the term of the permit.
A new authorized outfitter will be given a probationary status
during the first two years of a permit. These permits do not
create any property rights.
The bill has been carefully drafted not to prescribe
specific allocations or use levels for outfitters and guides.
Decisions about appropriate levels of outfitted or guided use
in a given unit or area remain within the purview of the
agencies, using other statutory and regulatory principles. This
bill does not alter or change those principles. Instead, it is
directed at the matter of outfitter permit administration after
the agency has decided that outfitted use is appropriate.
To determine the authorization fee, the Secretary will
consider the obligations of the outfitter, a fee amount that
makes it possible to engage in a successful business venture,
and the fair value of the use granted by the outfitter
The fee may be modified to reflect changes to the terms and
conditions of the outfitter permit; to account for
extraordinary unanticipated changes affecting operating
conditions (e.g., natural disasters or economic conditions); to
reflect changes resulting from actions of other government
entities (e.g., availability of State fish and game licenses);
to deal with the imposition of fees assessed under other laws;
or adjustments to an allocation of outfitter use.
This bill makes the outfitter liable to the United States
for all injury, loss, damage, and costs incurred by the United
States arising from an outfitter's negligence, gross
negligence, or willful and wanton disregard for persons or
property associated with the outfitter's conduct of an
outfitted activity under an outfitter authorization. An
outfitter shall defend and indemnify the United States
similarly for all injury, loss, damage, and costs the United
States may incur as a result of judgments, claims, or losses
arising from the outfitter's negligence, gross negligence, or
willful and wanton disregard for persons or property associated
with the outfitter's conduct of an outfitted activity under an
outfitter authorization, except when the United States is
solely responsible for such events. The liability and
indemnification provisions in the bill do not limit any
liability or indemnification obligation an authorized outfitter
may have for environmental contamination, injury to natural
resources, or any other cause of action that arises under other
The act requires the Secretary to develop a process for
annual evaluation of the performance of an authorized outfitter
which defines three levels of performance: good, marginal, and
unsatisfactory. An evaluation shall account for factors beyond
the control of the outfitter and ensure that the effect of any
performance deficiency reflected by the performance rating is
proportionate to the severity of the deficiency. An outfitter
shall receive written notice of any conduct or condition that,
if not corrected, might lead to a marginal or unsatisfactory
performance rating. Failure to correct any marginal or
unsatisfactory conduct or condition will result in an
unsatisfactory rating for that year.
This bill also provides for a performance-based renewal. If
an outfitter has more than one annual unsatisfactory rating,
the outfitter cannot qualify for earned renewal. An outfitter
permit may be suspended or revoked if the outfitter has failed
to correct a condition considered by the Secretary to be
significant, if the outfitter's permit fees are overdue, or if
the outfitter has demonstrated willful disregard for the health
and welfare of the public or the conservation of resources.
Outfitter permits can be transferred only with the approval
of the Secretary, and the Secretary will approve the transfer
unless she determines that the transferee is not a qualified
outfitter. The bill retains the current administrative appeals
process at each agency and it confirms the right of an
outfitter affected by a final decision to commence a civil
action in United States district court.
Outfitters operating under current permits will be granted
a new permit under this bill if the outfitter's aggregate
performance has been good or the equivalent of good,
satisfactory, or acceptable under the current rating system.
H.R. 2386 was introduced on June 28, 2001, by Congressman
James V. Hansen (R-UT). The bill was referred to the Committee
on Resources and in addition to the Committee on Agriculture.
Within the Committee on Resources, H.R. 2386 was referred to
the Subcommittees on National Parks, Recreation and Public
Lands; Forests and Forest Health; and Fisheries Conservation,
Wildlife and Oceans. On July 25, 2002, the Subcommittees held a
joint hearing on the bill. On September 12, 2002, the Full
Resources Committee met to consider the bill and the
Subcommittees were discharged from further consideration of
H.R. 2386. The bill was then ordered favorably reported to the
House of Representatives by voice vote.
Section 1. Short title
This Act may be cited as the ``Outfitter Policy Act.''
Section 2. Findings
The Committee finds that many members of the public need or
desire commercial outfitted activities on Federal land to
facilitate the public use and enjoyment of Federal lands. The
Committee recognizes that authorized outfitters need a stable
regulatory climate in order to operate successfully, that the
United State should receive a return through fees, and that a
performance-based permit renewal system is a strong incentive
to provide quality services to the public.
The Committee does not intend that paragraph (3)(A)(ii) of
section 2 require federal agencies to ensure that an outfitter
granted a permit under this bill will have a successful
business. Instead, the Committee intends to strongly encourage
the agencies to be supportive of outfitting and guiding, as
outfitters further agency missions of public service, and to be
cognizant of agency actions that may create unintended burdens
that would unduly affect an outfitter's ability to provide
quality services to the public. The Committee also wants to
assure that authorized outfitters operate reasonably and in
accordance with permit terms and conditions. The Committee
encourages sound business planning by outfitters and guides.
Section 3. Purposes
This section establishes the terms and conditions for
outfitting. It establishes a stable regulatory climate for
outfitters, and it facilitates recreational opportunities on
Federal lands for the outfitted public.
Section 4. Definitions
This section defines the terms used in this bill. One term
defined in this bill is ``commercial outfitted activity.'' Many
non-profit entities conduct educational programs on Federal
lands. These programs are very similar to those conducted by
for-profit entities and in most circumstances are competing for
the same resources and customers. It is the intent of this Act
to place these non-profit, but clearly commercial, entities
under the authority of this Act.
Programs or activities directly related to academic
activities, courses, or programs provided or offered by
accredited educational institutions are intended to be exempt
from the requirements for a section 6 permit. In cases,
however, where educational entities are offering de facto
commercial services not tied directly to courses for academic
credit, a section 6 permit will be necessary. The Committee
intends to accommodate genuine academic programs, but expects
that when educational institutions effectively go into the
outfitter business by offering quasi-commercial eco-tourism
services, such institutions will be subject to the same
requirements the bill imposes on commercial outfitted
Section 5. Nonoutfitter use and enjoyment
This Act is not intended to enlarge or diminish the rights
or privileges of non-outfitted individuals or user groups to
use or occupy Federal lands.
Section 6. Outfitter authorizations
This section sets out the requirements for the grant of
outfitter permits. One of the selection criterion for grant of
a permit is the financial capability the permit applicant. The
purpose of this criterion is to assure that prospective
permittees have the financial resources and capabilities to
provide quality services to the public. The Committee wants to
encourage good business planning by permittees as a means of
facilitating good services to the public. This criterion is not
to be used by the agencies to encourage fee bidding or to stand
for the proposition that financial capability means the ability
to pay substantial fees to the federal government.
The Committee expects that permit terms and conditions, as
well as permit administration procedures, will not be unduly
burdensome or onerous to such a degree that these primarily
small businesses cannot succeed. The Committee wants to ensure
that the agencies do not erect barriers that make it
effectively impossible to engage in a successful business
venture. There is no intention, however, to guarantee profits
or to ensure success by permittees.
The reference to ``approved resource management plans'' in
section 6(d)(1)(A) is intended to encompass land resource
plans, area resource plans, forest land and resource management
plans, wilderness plans, wild and scenic river plans, and
comprehensiveconservation plans, among others. All these plans
apply to a specific geographic area, make programmatic decisions, and
are developed using agency National Environmental Policy Act
In addition to these broad scale plans, agencies routinely
prepare more specific or subsidiary plans, including public use
management plans, wilderness plans, and transportation plans.
These types of specific plans that are adopted pursuant to
public processes are to be encompassed within the reference to
an approved land and resource management plan.
The fact that land and resource management plans are
pending should not automatically preclude issuance of permits
for ten-year terms. In fact, permit administrators should
generally issue permits for ten-year terms to reduce
administrative overhead and to provide improved financial
planning for permittees. Since the permits are subject to
adjustment to make them consistent with agency land and
resource management plans, the ten-year term should not
preclude adjustments necessary to match land and resource
management plans. If, however, a land and resource management
plan is within a year of being approved and changes in the
permit or amount of outfitted use are anticipated, a shorter
term might be justified.
Issuance of authorizations for a term of less than ten
years should be limited. Such cases should be foreseeable and
clearly warrant a reduced term. For example, a land and
resource management plan has set a date to close an area to
public access. If that date is less than ten years in the
future, the term of outfitter authorizations for that area may
be limited to that date, unless other locations are available
for outfitting and guiding.
Section 7. Authorization fees
In determining the amount of an authorization fee, the
Secretary should consider the obligations of the outfitter
under the permit, the provision of a reasonable opportunity to
engage in a successful business venture, and the fair value of
the use and occupancy granted by the outfitter authorization.
When determining the fee, the Committee does not intend for
the agencies to layer fees on an outfitter and its customers
when agencies have the authority to charge a fee at multiple
locations or for multiple activities. The Committee does not
want the agencies to charge outfitters twice for the same
service or facility, for example, by charging the outfitter's
customers a facility use fee and counting that fee as revenue
collected by the outfitter for purposes of calculation of the
outfitter's permit fee. However, the Committee intends the
agencies to charge outfitters for their use and occupancy of
Federal lands, as well as for their customers' use of
facilities that are made available to the public for a fee
under other authorities. When determining fees pursuant to
subsection (a)(2) of this section, agencies should take into
consideration costs to the government in providing such
facilities for outfitter use.
The reasonable schedule required in section 6(c)(2)(C) may
consist of a payment prior to issuance of an outfitter
authorization or commencement of annual operations and at a
minimum should consider business cash flow, seasonality of the
use, and cost to the federal government to process bills.
Section 8. Liability and indemnification
This section establishes the principles governing liability
and indemnification. It also provides for the outfitted public
to acknowledge the risks associated with outfitted activities,
and, subject to certain conditions, to waive negligence claims
arising out of outfitted activities.
Section 9. Allocation of use
Terms and conditions of an outfitter permit shall provide
for a principal allocation of outfitter use. Upon renewal,
transfer, or extension of an outfitter permit, the same
principal allocation of use shall be included unless an
adjustment is required in accordance with this bill.
The bill does not lock in existing use allocations to
outfitters. The bill specifically authorizes the agencies to
make changes in allocation levels, and to amend allocations
during the term of a permit, when necessary to comply with
changes in material facts and conditions or changes in land and
resource management plans. Extended periods of underutilization
of allocated use, when compared to similar utilization rates of
other permittees providing the same or similar service in the
area, without extenuating circumstances such as drought, fire,
economic recession, and acts of God, may, for example, qualify
as a material fact. This ability to amend use allocations
applies to permits after renewal or following an approved
transfer. Since the provision of quality services and
investments needed for those services require some
understanding of the capacity available to the permittee, where
allocations are provided they should be as stable as possible,
notwithstanding the authority to make changes in allocations
cited above. This provision is not a justification to change
allocations for superfluous reasons.
Section 10. Evaluation of performance
The Secretary shall develop a process for annual evaluation
of performance of an authorized outfitter which defines three
levels of performance: good, marginal, and unsatisfactory. An
evaluation shall appropriately account for factors beyond the
control of the outfitter and ensure that the effect of any
performance deficiency reflected by the performance rating is
proportionate to the severity of the deficiency.
A performance evaluation system shall assure the public of
continued availability of dependable commercial outfitted
activities, and shall provide for suspension or revocation of
the authorization of an outfitter who fails to meet the
Section 11. Renewal, revocation, or suspension of outfitter permits
Section 11 provides for a performance-based renewal. An
outfitter with more than one annual unsatisfactory rating does
not earn a right of renewal. An outfitter permit may be revoked
if the outfitter has failed to correct a condition considered
by the Secretary to be significant, if the outfitter's permit
fees are overdue, or if the outfitter has demonstratedwillful
disregard for the health and welfare of the public or the conservation
of resources. Alternatively, all or part of an outfitter permit may be
suspended if such infractions occur, and under this circumstance, an
expedited administrative review shall be provided at the request of the
Section 12. Transferability of outfitter permits
An outfitter permit shall not be transferred without prior
written approval by the Secretary. A transfer to a purchaser,
heir, or assignee of an interest in the outfitter's operation
shall be approved unless the Secretary determines that the
transferee is not qualified to meet the terms and conditions of
the outfitter permit. If the Secretary doesn't approve or
disapprove a transfer after receipt of a complete application,
the transfer shall be considered to be approved, unless the
transferee requests a modification of terms and conditions
requiring environmental analysis.
Section 13. Recordkeeping requirements
The authorized outfitter shall keep reasonable records
under a simplified procedure, as required by the Secretary. The
Secretary, for purposes of audit and performance evaluation,
shall have access to and the right to examine these records for
five years following the effective date of an outfitter
Section 14. Appeals and judicial review
This section ensures that an agency provide some form of an
administrative appeal process. For example, the Forest Service
presently has an established appeal procedure largely
consistent with this section. The section also provides that an
outfitter may seek judicial review of adverse agency action.
Section 15. Lack of effect on existing rights of the United States
Nothing in this bill limits or restricts any right, title,
or interest of the United States in or to any land or resource.
It is not the Committee's intention for this bill to establish
property rights. The permits authorized by this bill confer
privileges to outfitters that do not give rise to compensable
property rights. It is important, however, to note that
outfitter permits impose mutual obligations on the respective
parties. Outfitters are expected to adhere to the terms and
conditions of any permit granted under this bill. Similarly,
the Committee expects the federal agencies to fulfill the
obligations they have under outfitter permits, as well as those
established in this bill and comply with the letter as well as
the spirit of the measure.
Section 16. Regulations
Regulations shall be promulgated within two years of
enactment of this bill.
Section 17. Relationship to other law
Provisions of this bill will not supersede or otherwise
affect the new National Park Service concession law passed by
Congress in 1998, or preempt any outfitter or guide licensing
law (including any regulation) of any State or territory.
Section 18. Transition provisions
An outfitter authorized to conduct commercial outfitted
activities on the date of promulgation of implementing
regulations under the authority of this bill shall be entitled,
on expiration of the existing authorization, to the issuance of
an outfitter permit if the outfitter's aggregate performance
has been good or the equivalent of good, satisfactory, or
acceptable under the current rating system. If no recent
performance evaluation exists, the outfitter's aggregate
performance shall be deemed to be good.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Resources' oversight findings and recommendations
are reflected in the body of this report.
CONSTITUTIONAL AUTHORITY STATEMENT
Article I, section 8, and Article IV, section 3, of the
Constitution of the United States grant Congress the authority
to enact this bill.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. This bill does
not authorize funding, and therefore clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives does not
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Congressional Budget Office,
Washington, DC, October 2, 2002.
Hon. James V. Hansen,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2386, the
Outfitter Policy Act of 2001.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact for this
estimate is Deborah Reis.
Barry B. Anderson
(For Dan L. Crippen, Director).
H.R. 2386--Outfitter Policy Act of 2001
H.R. 2386 would establish a uniform policy for issuing
permits to outfitters and similar businesses that offer certain
recreational services on public lands. CBO estimates that
implementing this bill would have no significant effect on the
federal budget. H.R. 2386 contains no intergovernmental or
private-sector mandates as defined in the Unfunded Mandates
Reform Act and would have no significant effect on the budgets
of state, local, or tribal governments. Enacting the bill would
have no significant effect on direct spending or revenues.
The legislation would require outfitters to obtain permits
to conduct commercial activities on lands under the
jurisdictions of the Bureau of Land Management, the Forest
Service, the U.S. Fish & Wildlife Service, and the Bureau of
Reclamation. Generally outfitters are small businesses that
provide recreational equipment and act as guides and escorts to
visitors of federal recreational lands. The permits would
usually cover 10 years and would be renewable for companies
that receive satisfactory performance evaluations. The bill
also would provide guidelines for setting fees to be charged to
Based on information provided by the four affected
agencies, CBO estimates that the bill would have little if any
effect on offsetting receipts from outfitter activities. All
four agencies already charge fees to outfitters and have
authority to spend at least some of the amounts they collect.
The bill would not change the way that the agencies establish
such fees or the way they are spent. Currently, offseting
receipts collected from outfitters by the four agencies total
around $5 million annually.
The CBO staff contact for this estimate is Deborah Reis.
The estimate was approved by Peter H. Fontaine, Deputy
Assistant Director for Budget Analysis.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
PREEMPTION OF STATE, LOCAL, OR TRIBAL LAW
This bill is not intended to preempt any State, local, or
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
House of Representatives,
Committee on Resources,
Washington, DC, October 11, 2002.
Hon. Larry Combest,
Chairman, Committee on Agriculture,
Longworth House Office Building, Washington, DC.
Dear Mr. Chairman: On September 12, 2002, the Committee on
Resources ordered favorably reported H.R. 2386, the Outfitter
Policy Act of 2001. This bill was referred primarily to the
Committee on Resources and additionally to the Committee on
Agriculture. Because of the short time remaining before 107th
Congress adjourns, I ask you to not insist on exercising your
referral of the bill and allow the Committee on Agriculture to
be discharged from further consideration of H.R. 2386.
I agree that your decision to forego further action on the
bill will not prejudice the Committee on Agriculture with
respect to its jurisdictional prerogatives on this or similar
legislation, and will support your request for conferees on
those provisions within the Committee on Agriculture's
jurisdiction should they be the subject of a House-Senate
conference. Copies of our correspondence will be made part of
the committee bill report to memorialize our understanding.
Thank you very much for your cooperation and that of your
Chief Counsel, Lance Kotschwar.
James V. Hansen,
House of Representatives,
Committee on Agriculture,
Washington, DC, October 15, 2002.
Hon. James V. Hansen,
Chairman, Committee on Resources,
Longworth House Office Building, Washington, DC.
Dear Mr. Chairman: Thank you for forwarding a draft copy of
H.R. 2386, the Outfitter Policy Act of 2001, as ordered
reported by your Committee on September 12, 2002.
Under clause 1(a) of Rule X, the Committee on Agriculture
has jurisdiction over bills relating to forestry in general and
forest reserves other than those created from the public
domain. In exercising this jurisdiction. The Committee on
Agriculture has worked cooperatively in the past with your
Committee regarding general matters relating to forestry.
Aware of your interest in expediting this legislation, and
after conferring with Chairman Goodlatte of the Subcommittee on
Department Operations, Oversight, Nutrition, and Forestry, I
will be glad to waive further consideration of this measure so
as to allow its timely consideration by the entire House of
Representatives during the remainder of the 107th Congress.
This action is not intended to waive this Committee's
jurisdiction over this matter for all purposes, and in the
event a conference with the Senate is requested, I would
appreciate your support in the naming of members from the
Committee on Agriculture to the conference committee.
Thank you once again for the extraordinary cooperation this
Congress in which our respective Committees have worked
together and I look forward to working with you in the future
on matters of shared jurisdiction.