Outfitting and Guiding Permit Administration and Fees

DEPARTMENT OF AGRICULTURE

Forest Service

RIN 0596-AB53

Outfitting and Guiding Permit Administration and Fees

AGENCY: Forest Service, USDA.

ACTION: Notice; adoption of final policy.

-----------------------------------------------------------------------

SUMMARY: The Forest Service is adopting final policy and procedures for

issuing and administering permits and assessing fees for outfitting and

guiding activities on National Forest System lands. This policy has

been revised to respond to comments on the proposed and interim

policies previously published in the Federal Register and to address

recommendations in several General [[Page 30831]] Accounting Office

reports on administration of Federal concessions. This policy will

ensure consistency in outfitter and guide program administration and

fees throughout Forest Service units. The text of this policy, which

has also been edited and reorganized for clarity, is set forth at the

end of this notice.

EFFECTIVE DATE: The final policy is effective June 19, 1995.

FOR FURTHER INFORMATION CONTACT:

John Shilling, (202) 205-1426, Recreation, Heritage, and Wilderness

Resources Management Staff (2340), Forest Service, USDA, P.O. Box

96090, Washington, D.C. 20090-6090.

SUPPLEMENTARY INFORMATION:

Background

Outfitting and guiding includes a wide range of activities, such as

river rafting, horseback trips, guided wildlife photography excursions,

and mountain-bike tours. Annually, some 2,800 special use permits are

in effect for outfitting and guiding on National Forest System lands.

The majority of these are for commercial operations. Fees are generally

three percent of the revenue generated from the use of National Forest

System lands.

On April 8, 1983, the Forest service published a proposed policy

for notice and comment on issuance and administration of permits and

assessment of fees for outfitting and guiding activities on National

Forest System lands (48 FR 15296, Apr. 8, 1983). On February 15, 1984,

the agency gave notice of adoption of a final policy as an interim

directive to the Forest Service Manual which addressed issues raised in

comments received on the proposed policy (49 FR 5782, Feb. 15, 1984).

The same interim directive was reissued without change in 1988.

When that interim directive could no longer be reissued, the Forest

Service published a notice of interim direction and request for

comments on April 18, 1990 (55 FR 14445, Apr. 18, 1990). With only

minor differences, the April 18, 1990, interim directive continued the

direction contained in the 1983 proposed policy, the 1984 interim

directive, and the 1988 interim directive which it replaced. The 1990

interim directive has been reissued several times and cannot be

reissued again pursuant to agency directive policy.

Since April 1990, commercial recreation concessions on Federal

lands have been the subject of several General Accounting Office (GAO)

studies. In June 1991, GAO released a report, ``Federal Lands:

Improvements Needed in Managing Concessioners'' (GAO/RCED-91-163, June

11, 1991), that directed the Federal land-management agencies to

develop policies that achieve greater consistency in the management of

concession programs and authorizing instruments. A subsequent report

issued by GAO, ``Federal Lands: Improvement Needed in Managing Short-

Term Concessioners'' GAO/RCED-93-177, Sept. 14, 1993), made further

recommendations for improving administration of Federal concessions.

The 1993 report specifically addressed short-term concessions,

including outfitting and guiding.

The address the concerns expressed in these reports, to address the

comments received on the previously published proposed policy and

interim directive, and to improve consistency in program

administration, the Forest Service is adopting final policy and

procedures governing administration of outfitting and guiding permits

and calculation of fees. This policy is being issued as amendments to

chapters 30 and 40 of Forest Service Handbook (FSH) 2709.11, Special

Uses Handbook. The text of these amendments is set out at the end of

the notice.

This final policy makes substantive changes to the direction

previously issued in the 1990 interim directive. This final policy also

differs in certain nonsubstantive ways from the 1990 interim directive.

The agency has reorganized, clarified, and edited the 1990 interim

directive to conform with current agency requirements for the content,

format, and style of Forest Service directives.

In response to a lawsuit, Wilderness Watch v. Robertson, No. 92-

0740 (D.D.C, Apr. 8, 1993) and in accordance with the court's 1993

order in the case, this final policy revises terminology and clarifies

and expands policy on the kinds of structures, improvements, or

installations that may be authorized for use in outfitting and guiding

operations.

The agency has also clarified its direction on permit renewal. At

this time, where outfitting and guiding services have been previously

authorized and the authorization is expiring, the agency favors

noncompetitive reissuance of special use authorizations to outfitters

and guides who have a history of satisfactory performance over

providing new competitive opportunities (see sec. 41.53f, para. 3 of

the policy set out at the end of this notice). In the future, however,

the agency may publish for notice and comment a proposed policy

providing for competition for outfitting and guiding permits.

The 1990 interim directive defined ``priority use'' as ``a Forest

Service commitment to the holder of a permit for outfitting and guiding

to give priority consideration to granting the holder a specific amount

of available future use.'' The Forest Service has redefined ``priority

use'' in this final policy to reflect more accurately the duration of

the authorized use, factors determining the amount of use, and

renewability of permits providing for priority use. Priority use is now

defined in section 41.53c as: ``Authorization of use for a period not

to exceed five years. The amount of use is based on the holder's past

use and performance and on forest land and resource management plan

allocations. Authorizations providing for priority use are subject to

renewal.'' Under the final policy, outfitting and guiding permits may

be renewed without competition when the holder has performed

satisfactorily (sec. 41.53f, para. 3). Renewal will be at the sole

discretion of the authorized officer. This final policy is consistent

with applicable Federal regulations and continues direction contained

in the 1983 draft policy, the 1984 interim directive, and the 1990

interim directive.

Further, the final policy in section 41.53f provides that an

authorized officer may issue a permit without competition to the party

who acquires ownership of or a controlling interest in an outfitting

and guiding business entity, if the authorized officer determines that

the prospective holder meets requirements under Forest Service

regulations (36 CFR 251.54).

Summary of Key Revisions

The Forest Service received nine comments on the 1990 interim

directive within the specified comment period: three from outfitter and

guide associations; three from outfitters and guides; two from State

outfitter and guide licensing boards; and one from an individual.

The following is a section-by-section analysis of the final policy

in chapters 30 and 40 of FSH 2709.11 and the Forest Service's response

to the comments received on the 1990 interim directive, relevant court

rulings, and recommendations from GAO reports.

Chapter 30--Fee Determination

Sections 37 to 37.24--Outfitter and Guide Fees

In Wilderness Watch v. Robertson, plaintiffs contended that certain

outfitting and guiding activities as authorized under special use

permit and administered by the Forest Service in [[Page 30832]] the

Frank Church River of No Return Wilderness (Frank Church Wilderness),

located in the Boise, Challis, Payette, Salmon, Bitterroot, and Nez

Perce National Forests in Idaho, violated the Wilderness Act of 1964

(16 U.S.C. 1131 et seq.). The court ruled in favor of plaintiffs on

several issues, including authorization of permanent structures and

installations (such as caches and water transmission systems) in the

Frank Church Wilderness and continuing, exclusive use of campsites

reserved by outfitters and guides in the Frank Church Wilderness. The

court ordered the parties to confer and submit a joint remedial plan to

ensure compliance with applicable provisions of the Wilderness Act and

Forest Service regulations.

The 1990 interim directive included caches as acceptable

installations and included the term ``reserved site.'' In accordance

with the holding in Wilderness Watch and the requirements of the

Wilderness Act, the final policy does not authorize permanent

structures in wilderness areas. The agency has replaced the term

``reserved site'' with the term ``assigned site,'' which is defined as

a site that is designated and authorized for occupancy and use by a

holder who is providing a recreation service to the public during the

period of occupancy (sec. 37.05). In addition, the agency has revised

the administrative practice of reserving sites for use by outfitters

and guides under special use permits. Under the final policy, the

authorized officer must specify and describe the proposed use of

specific assigned sites in operating plans and annual itineraries (sec.

41.53j).

Section 37.01--Authority. The agency has added this section to

include cross-references to other sections of the Forest Service

Handbook (FSH) and Forest Service Manual (FSM) that provide direction

on laws, regulations, and other authorities for administration of

special uses programs (including outfitting and guiding) and fees on

NFS lands.

Section 37.03--Policy. The agency has added this section to provide

direction and cross-references to other FSH and FSM sections that

provide additional direction. The section includes direction on the use

of the graduated rate fee system (GRFS) to determine fees for

outfitting and guiding activities authorized in connection with a

commercial service site under permit. This direction originally

appeared in a different section of the 1990 interim directive, and the

agency has determined that this direction is more appropriately coded

to the policy section.

Section 37.04--Responsibility. The agency has added this section to

provide a cross-reference to an FSM section that provides related

direction and to add the responsibility of the Director of Recreation,

Heritage, and Wilderness Resources Management for adjusting the minimum

fee and the assigned campsite fee every three years with 1993 as the

base year, based on the Gross Domestic Product--Implicit Price Deflator

Index.

Section 37.05--Definitions. The agency has added definitions for

``adjustment for use off National Forest System lands,'' ``assigned

site,'' ``client days'' (including ``National Forest System client

days'' and ``total client days''), ``non-use,'' ``revenue additions,''

``revenue exclusions,'' ``short-stop fee,'' and ``unapproved non-use.''

The agency has revised definitions for ``adjusted gross revenue,''

``gross revenue,'' ``service day,'' and ``duration of the outfitted or

guided trip.'' ``Average adjusted service day client charge'' is

retitled ``average client-day charge.''

``Reserved site'' is replaced with ``assigned site,'' which is

defined as a site that is designated and authorized for occupancy and

use by a holder who is providing a recreation service to the public

during the authorized period of occupancy.

``Adjustment for use off National Forest System lands'' is defined

as the reduction in the fee for commercial use to account for the

portion of the outfitted or guided trip that occurs off National Forest

System lands.

``Client days'' is defined as either ``National Forest System

client days'' or ``total client days.'' ``National Forest System client

days'' is defined as the number of service days (that is, days on the

National Forest System) for the duration of the outfitted or guided

trip multiplied by the number of clients on the trip. ``Total client

days,'' which applies where there is use both on and off National

Forest System lands, is defined as the total number of days for the

duration of the outfitted or guided trip multiplied by the number of

clients on the trip. Client days are used to calculate the average

client-day charge and the adjustment for use off National Forest System

lands in determining the fee for commercial use.

``Non-use'' was previously undefined, although the term was used in

final fee calculation. Lack of a definition for ``non-use'' has

resulted in inconsistent fee assessments and miscalculations in various

Forest Service units. Consequently, the agency has defined ``non-use''

in the final policy as authorized use the holder did not use. In

addition, the agency has defined ``unapproved non-use'' as authorized

use the holder did not use and for which the holder has not properly

requested and received a waiver. Under the final policy, the holder

must pay for unapproved non-use. See the direction in section 37.21g

set forth at the end of this document.

To conform with agency policy on fiscal management and accounting,

including generally accepted accounting principles or other

comprehensive basis of accounting, and to improve consistency in fee

calculation when fees are based on gross revenue, the agency has added

the definition of ``revenue additions,'' which is defined as the value

of gratuities and sales of certain kinds of goods and services;

specified which items are excluded from gross revenue; and included a

definition for ``revenue exclusions.''

The new term ``short-stop fee'' refers to a fee established by

Regional Foresters for trips with two service days or less spent on

National Forest System lands. (An example would be an Alaskan tour

which stops for one day or less at a National Forest System site.)

Under the 1990 interim directive, Regional Foresters were allowed to

establish additional discounts for use off National Forest System

lands. The Alaska Region of the Forest Service has suggested the short-

stop fee for use in that Region. Since the short-stop fee may have

applicability in other Regions, the agency has provided for its

Servicewide use in the final policy (sec. 37.21c, para. 3).

The revised definition for ``gross revenue'' is revenue from goods

or services provided during the outfitted or guided trip; revenue

received for scheduling or booking the trip; and revenue provided off

National Forest System lands, unless specifically excluded.

The term ``adjusted gross revenue'' is defined as gross revenue and

revenue additions less applicable exclusions. ``Revenue exclusions'' is

defined as revenue derived on private land from the sale of items not

directly related to the outfitting or guiding operation conducted on

National Forest System lands; revenue conveyed to the State for hunting

and fishing licenses; and revenue from the sale of operating equipment.

The agency has edited the definitions for ``service day'' and

``duration of outfitted or guided trip'' for clarity and format.

Section 37.21--Fees. To clarify direction on fee calculation, the

agency has reordered the sequence of topics in this section (including

sections 37.21 to 37.21j) covering fees to be collected for

[[Page 30833]] specific uses associated with outfitting and guiding

activities.

Section 37.21a--Minimum fee. For 1993-96, the agency has

established a minimum annual fee of $70 per permit. Using 1993 as a

base year, the agency will adjust the minimum annual fee per permit

every three years based on the Gross Domestic Product--Implicit Price

Deflator Index. In addition, the agency has edited this section to

conform with Forest Service directive format and style.

Section 37.21b--Fee for Incidental Use for Temporary Special-Use

Permits. To provide clarity and to ensure consistency in fee

collection, the agency has added direction on collecting a minimum fee

when commercial outfitting and guiding is authorized by a temporary

permit. Form FS-2700-25, Temporary Special-Use Permit.

Section 37.21c--Fee for Commercial Use. Portions of the direction

in this section previously appeared in a section entitled ``Final

Fee.'' The agency has included this section to ensure consistent fee

calculation and collection for commercial outfitting and guiding

activities on National Forest System lands. Further, to provide clear

direction and to ensure consistent fee calculation, the agency has

expanded this section to include examples of fee calculations for

option A, option B, and the short-stop fee. Option A establishes a fee

based on an average client-day charge. Option B establishes the fee as

three percent of the adjusted gross revenue. A short-stop fee is

established for activities of short duration (two service days or

less).

Section 37.21d--Determining Service Days.

Comment: Three respondents objected to the definition for ``service

day,'' but did not offer alternative wording.

Response: The agency believes that the revised definition for

``service day'' (previously discussed under section 37.05) is clearer

and will make fee calculations easier to perform and more accurate.

Comment: One respondent suggested a method for calculating service

days for drop-off services that would account for the complete number

of days a holder is providing goods or services to a client. The

respondent recommended that all drop-off and packing days be counted as

service days. Another respondent concurred with this view, observing

that all full or fractional days on which supply, spot, dunnage, or

drop-off services are provided by an outfitter or guide should be

counted as service days.

Response: The agency with these comments. Under the final policy

the agency counts service days in three drop-off situations. In the

first situation, a holder guides a client to a specific drop-off site

on National Forest System lands; the holder neither retrieves the

client, nor returns to the drop-off site to guide the client. In the

second situation, the holder guides the client to a specific drop-off

site on National Forest System lands and returns to pack the client

out. In the third situation, the holder guides the client to a specific

drop-off site on National Forest System lands, the client occupies the

holder's assigned site, and the holder packs the client out.

In the first situation, the agency would count one full service day

for fee purposes. In the second situation, the agency would count one

full service day for drop-off services and one full service day for

pick-up services. In the third situation, the agency would count one

full service day for drop-off services, one full service day for pick-

up services, and one service day for each day in between.

The agency has expanded this section to include direction on the

three situations to clarify counting of service days for fee

calculation when drop-off and pick-up services are provided. To conform

to Forest Service directive organization, the agency has removed the

definition for ``service day'' that formerly appeared in this section

of the 1990 interim directive and has included the definition in

section 37.05, Definitions.

Section 37.21e--Adjustment for Use Off National Forest System

Lands. The agency has edited this section to conform with Forest

Service directive format and style.

Section 37.21f--Fee for Additional Use. The agency has edited this

section to conform with Forest Service directive format and style.

Section 37.21g--Payment for Unapproved Non-Use. To ensure

consistency in fee collection, the agency has clarified the direction

to charge the holder for unapproved non-use when the holder has not

properly requested and received a waiver for authorized non-use.

Section 37.21h--Fee for Assigned Sites. In accordance with the curt

order is Wilderness Watch and the requirements of the Wilderness Act,

the agency has replaced the term ``reserved site'' with the term

``assigned site.'' For 1993-96, the agency has established an annual

fee of $140 for the use of each assigned site. Using 1993 as a base

year, the agency will adjust the minimum annual fee for each assigned

site every three years based on the Gross Domestic Product--Implicit

Price Deflator Index.

Section 37.21i--Fee for Grazing Livestock. The agency has edited

this section to conform with Forest Service directive format and style.

Section 37.21j--Fee for Nonprofit Organizations. To ensure

consistency in fee calculation, the agency has stated that the fee for

nonprofit organizations is three percent of annual adjusted gross

revenue. The 1990 interim directive did not clearly state that

nonprofit organizations pay a fee based on a percentage of annual

adjusted gross revenue.

Section 37.21k--Fee for Educational Institutions. To ensure

consistency in fee calculation, the agency has stated that the fee for

educational institutions is three percent of annual adjusted gross

revenue. The 1990 interim directive did not clearly state that

educational institutions pay a fee based on a percentage of annual

adjusted gross revenue.

Section 37.22--Estimated Fee. To ensure consistency in fee

collection, the agency has clarified direction on collecting a portion

or all of the fee in advance.

Section 37.23--Final Fee. To ensure consistency in fee calculation,

the agency has clarified direction on calculating the final fee.

Section 27.24--Billing and Refunds. Related direction in section

41.53f of the final policy, Applications and Issuance of Permits,

directs the authorized officer to collect fees for outfitting and

guiding under the authority of the Land and Water Conservation Fund

(LWCF) Act of 1964. This is an administrative change; previously, fees

were deposited into the general receipts of the Treasury. Fees

collected under the LWCF Act are deposited into the LWCF. Once

appropriated by Congress, LWCF monies many be used for management of

Federal outdoor recreational resources and facilities.

Chpater 40--Special Uses Administration

Sections 41.53 to 41.531--Outfitters and Guides

Comment: Two respondents commented generally on the administrative

topics of assignment and management of temporary use, applications and

issuance of permits, reductions, and permits for institutional and

semi-public outfitting and guiding. These respondents were

representatives of State outfitter and guide licensing boards who

expressed general concern about the policy but did not specify wording

changes in the sections covering these topics. [[Page 30834]]

The respondents requested exception for their States (Wyoming and

Idaho) from certain sections of the policy, specifically: Assignment

and Management of Temporary Use; Applications and Issuance of Permits;

Reductions; and Permit Administration, including Performance

Evaluation. They contended that their respective State laws, State

outfitting and guiding rules and regulations, and memoranda of

understanding with local Forest Service offices exempt them from

Federal law and national policy.

Response: Forest Service Regional Offices in Missoula, Montana,

Portland, Oregon, and Ogden, Utah have memoranda of understanding that

were executed in 1985 with the States of Wyoming and Idaho. The

memoranda describe local coordination and implementation procedures as

agreed upon between those Regional Offices and the States of Wyoming

and Idaho in the context of State laws and regulations. These memoranda

do not provide any basis, however, for exempting these States from the

requirements of Forest Service regulations or national policy for

issuing and administering permits and assessing fees for outfitting and

guiding activities; These requirements ensure consistency in program

administration throughout the National Forest System units.

Applicable Federal regulations (36 CFR 251.50) require a special

use authorization for commercial use and occupancy of National Forest

System lands, including outfitting and guiding activities. The Forest

Service further implements its delegated land-management authority by

issuing national policy in the Forest Service Manual and Handbooks,

including policy on outfitting and guiding activities. These

regulations and policies cannot be waived by Regional memoranda of

understanding. The final policy maintains the longstanding Forest

Service policy that permit holders must agree to comply with all

applicable State laws. Applicable State laws, including those enforced

by State outfitter and guide licensing boards and game-management

agencies, apply to holders of permits authorizing the use of National

Forest System lands for outfitting and guiding activities.

Section 41.53a--Objectives. The agency has added the objective that

outfitting and guiding activities be conducted in a manner that

protects environmental resources.

Section 41.53b--Policy.

Comment: One respondent recommended that the term for outfitters

and guides who are operating without a permit be changed from

``pirate'' to ``illegal.''

Response: applicable Federal regulations, commercial use and

occupancy of National Forest System lands requires a special use

authorization. Commercial use and occupancy of National Forest System

lands without a special use authorization is defined as

``unauthorized.'' Therefore, the agency has replaced the term ``pirate

outfitters'' with the term ``unauthorized outfitting and guiding

activities'' in paragraph 4.

In accordance with the holding in Wilderness Watch and the

requirements of the Wilderness Act as described previously in the

discussion of sections 37 to 37.24, the final policy in paragraphs 2

and 3 does not authorize permanent structures in wilderness. The agency

has replaced the term ``reserved site'' with the term ``assigned

site,'' which is defined in section 27.05. In addition, the proposed

use of specific assigned sites must be specified and described in

operating plans and annual itineraries (sec. 41.53j).

To ensure consistency in permit administration, the agency has

included in paragraph 5 of this section direction not to issue a

separate special use authorization for commercial service sites (such

as a lodge or resort) that have outfitting and guiding activities as

part of the authorized operation. (Section 37.03, Policy, provides

direction on the use of the Graduated Rate Fee System to determine fees

for outfitting and guiding activities authorized in connection with a

commercial service site under permit.)

Also, the agency has added ``hitching posts'' to the list in

paragraph 2 of structures or improvements with negligible value and has

moved ``pack stations'' from the list of structures or improvements

with negligible value to the list of commercial public service sites in

paragraph 5. This change more accurately acknowledges the value of pack

station facilities.

Section 41.53c--Definitions.--The agency has made the following

revisions to this section: adds definitions for ``incidental use'' and

``renewal'' and revises the definitions for ``priority use,''

``temporary use,'' and ``transportation livestock.'' The definitions

for ``guiding'' and ``outfitting'' have been edited for clarity.

``Incidental use'' was previously undefined, although the term was

used in direction to allow the authorized officer to waive permit

requirements. The lack of a definition for ``incidental use'' has

created discrepancies in determining impacts on the environment and on

the quality of services provided to the public. The agency has defined

``incidental use'' and has added it to this section.

The agency has clarified the definition for ``priority use'' in

conformance with Forest Service directive style; included the five-year

maximum term specified in earlier interim directives; provided for

determination of use based on the holder's past use and performance and

on forest land and resource management plan allocations; and provided

for renewal subject to certain conditions.

This policy is consistent with applicable Federal regulations (36

CFR 251.64) and with direction contained in the 1983 draft policy, the

1984 interim directive, and the 1990 interim directive. These earlier

directives provided for a five-year maximum term for priority use;

reductions in priority use assignments and the number of permit holders

based on forest land and resource management plan allocations;

reductions in priority use assignments for reasons in the public

interest, such as protection of forest resources and public health and

safety; and changes in priority use assignments based on past use and

performance.

The agency has edited the definitions for ``temporary use'' and

``transportation livestock'' to conform with Forest Service directive

format and style.

Section 41.53d--When Permits Are Required. The agency has revised

this section to conform with Forest Service directive format and style.

In addition, the agency has clarified that a permit is not needed when

services are being provided to Forest Service contractors or Federal

officials in the course of their official duties.

Section 41.53e--Incidental Use. The agency has expanded and

clarified this section by providing direction on authorizing incidental

use. As defined in 41.53c, use is incidental when the proposed annual

use is 50 service days or less and is anticipated to have little or no

impact on public health and safety, the environment, or other

authorized uses and activities.

The agency developed Form FS-2700-25, Temporary Special-Use Permit,

in June 1992 for authorizing use that is seasonal or of short duration

and that involves minimal improvements or investment. The agency has

included direction in the final policy on use of Form FS-2700-25. The

agency has also included direction on use of Form FS-2700-4, Special-

Use Permit, rather than Form FS-2700-25, when the incidental use

involves the following activities: white water travel, use of firearms,

livestock or aircraft, or all-terrain or off-highway vehicle travel.

[[Page 30835]]

Section 41.53f--Applications and Issuance of Permits.--The agency

has added this section to clarify the application process and the

process for issuance of permits under applicable Federal regulations

(36 CFR 251.54) and Forest Service policy. Paragraph 3 has been added

which addresses renewal of terminating permits. The final policy states

that direction in FSM 2712.2 on issuance of prospectuses applies to new

outfitting and guiding opportunities.

The final policy directs the authorized officer to collect fees for

outfitting and guiding under the authority of the LWCF Act of 1965.

(Further discussion of this policy appears earlier in this notice under

section 37.24.)

The agency also has revised this section to include direction in

paragraph 4 on change of ownership or control of the business entity.

The agency has added the term ``business entity'' to distinguish this

change in ownership from change in ownership of personal or real

property. The agency also has expanded and edited this section to

conform with direction in FSM 2716, Change of Ownership.

Section 41.53q--Assignment and Management of Temporary Use. The

agency has edited this section to conform with Forest Service directive

format and style.

Section 41.53h--Assignment and Management of Priority Use. To

ensure consistency in administration and compliance with standards and

guidelines in forest land and resource management plans, the agency has

added that assignment of priority use and the amount of priority use

shall be at the discretion of the authorized officer and shall be

consistent with direction in forest land and resource management plans.

To ensure consistency in administration, the agency has revised

direction on reduction in the amount of priority use. The final policy

(para. 3b) requires reduction in the amount of priority use if the

holder has utilized less than 70 percent of the assigned amount for

three consecutive years. The 1990 interim directive required reduction

in the amount of priority use if the holder had used less than 70

percent of the assigned amount in at least two of the past five years.

This direction has been subject to broad interpretation and

misapplication. The agency believes that a period of three consecutive

years of under-utilization is easier to quantify and demonstrates a

trend of lack of business due to a decrease in customer demand for

services.

Section 41.53i--Reduction of Use or Service Days. The agency has

added direction that prior to reassigning use that may be available

after a reduction, the authorized officer must solicit applications

from current holders assigned priority use and base assignment of use

on services proposed and performance.

Section 41.53j--Permit Terms and Conditions. The agency has edited

this section of the final policy to conform with Forest Service

directive format and style and with standard terms and conditions in

special use permits.

Section 41.53k--Permit Administration. For clarity, the agency has

put direction on performance standards and performance ratings of

holders in separate paragraphs and provided more detailed direction,

such as mid-season review and evaluation for all holders. This

procedural direction is needed to meet due process requirements under

Federal law for giving holders notice and the opportunity to comply. In

addition, the section in the 1990 interim directive entitled

``Subletting of Use'' has been retitled ``Assignment of Use'' as

paragraph 2 in this section of the final policy.

Section 41.521--Permits for Institutional and Semi-Public

Outfitting and Guiding. This section now states that permits must be

consistent with forest land and resource management plan direction.

Regulatory Impact

This final policy has been reviewed under USDA procedures and

Executive Order 12866 on Regulatory Planning and Review. It has been

determined that this is not a significant policy. The final policy does

not have an effect of $100 million or more on the economy;

substantially increase prices or costs for consumers, industry, or

State or local governments; or adversely affect competition,

employment, investment, productivity, innovation, or the ability of

domestic companies to compete in foreign markets. The final policy

consists primarily of technical and administrative changes for

authorization of occupancy and use of National Forest System lands.

Moreover, this final policy has been considered in light of the

Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It has been

determined that this final policy will not have a significant economic

impact on a substantial number of small entities because it will not

impose recordkeeping requirements on them; it will not affect their

competitive position in relation to large entities; and it will not

affect their cash flow, liquidity, or ability to remain in the market.

As stated previously, this final policy consists primarily of technical

and administrative changes concerning authorization of occupancy and

use of National Forest System lands.

No Takings Implication

This policy has been reviewed for its impact on private property

rights under Executive Order 12630 of March 15, 1988, as implemented by

the United States Attorney General's Guidelines for the Evaluation of

Risk and Avoidance of Unanticipated Takings. Executive Order 12630 does

not apply to this final policy because it consists primarily of

technical and administrative changes governing authorization of

occupancy and use of National Forest System lands. Forest Service

special use authorizations for outfitting and guiding do not grant any

right, title, or interest in or to lands or resources held by the

United States.

Civil Justice Reform Act

This policy has been reviewed under Executive Order 12778, Civil

Justice Reform. After adoption of this final policy, (1) All State and

local laws and regulations that conflict with this policy or that

impede its full implementation will be preempted; (2) no retroactive

effect will be given to this final policy; and (3) it will not require

administrative proceedings before parties may file suit in court

challenging its provisions.

Controlling Paperwork Burden on the Public

This final policy contains information collection requirements as

defined in 5 CFR 1220 that have been approved by the Office of

Management and Budget and assigned control number 0596-0082. The agency

estimates that the reporting burden for the collection of information

in the policy is 5 to 10 hours per response.

Environmental Impact

This final policy consists primarily of technical and

administrative changes related to the authorization of occupancy and

use of National Forest System lands. Section 31.1b of Forest Service

Handbook 1909.15 (57 FR 43180 Sept. 18, 1992), categorically excludes

from documentation in an environmental assessment (EA) or environmental

impact statement (EIS) ``rules, regulations, or policies to establish

Service-wide administrative procedures, program processes or

instructions.'' Based on the nature and scope of this final policy, the

agency has determined that it falls within this category of actions and

that no extraordinary circumstances exist which [[Page 30836]] would

require preparation of an EA or an EIS.

Dated: May 30, 1995.

Mark A. Reimers,

Acting Chief.

Final Handbook Revision

The Forest Service organizes its directive system by alpha-numeric

codes and subject headings. Only those sections of the Forest Service

Handbook (FSH) 2709.11, Special Uses Handbook, that are the subject of

this notice are set out here. The audience for this direction is Forest

Service employees charged with issuing and administering special use

permits for outfitting and guiding.

CHAPTER 30--FEE DETERMINATION

37--Outfitter and Guide Fees. (For related direction on special

uses administration, see sec. 41.53).

37.01--Authority. (Sec. 30.1; FSM 2701.1).

37.03--Policy. (Sec. 31; FSM 2715.03).

37.03a--Fees for Activities Associated with Commercial Public

Service Site. Use the Graduated Rate Fee System (GRFS) (FSM 2715.11) to

determine fees for outfitter and guide activities (such as cross-

country skiing or horseback riding) authorized by the Forest Service in

connection with an authorized commercial public service site on

National Forest System lands (such as a resort or lodge). Where

applicable, require holders under GRFS to pay additional fees for

assignment of sites (sec. 37.21h) and livestock grazing use (sec.

37.21i).

37.03b--Fees for Activities Not Associated with Commercial Public

Service Site. Require payment of fees according to the direction in

sections 37.21 to 37.24 for outfitter and guide activities authorized

as a distinct activity not associated with a public service site.

37.04--Responsibility. (FSM 2704.13). The Washington Office

Director of Recreation, Heritage, and Wilderness Resources Management

is responsible for adjusting the minimum fee and the assigned site fee

every three years with 1993 as the base year, based on the Gross

Domestic Product-Implicit Price Deflator Index.

37.05--Definitions. See section 41.53c for additional definitions

for ``guiding,'' ``holder,'' ``incidental use,'' ``outfitting,''

``priority use,'' ``renewal,'' ``temporary use,'' and ``transportation

livestock''.

Adjusted Gross Revenue. Gross revenue and revenue additions less

applicable exclusions.

Adjustment for Use Off National Forest System Lands. The reduction

in the fee for commercial use to account for the portion of the

outfitted or guided trip that occurs off National Forest System lands

(sec. 37.21e).

Assigned Site. A site that is designated and authorized for

occupancy and use by a holder who is providing a recreation service to

the public during the authorized period of occupancy. Examples include

but are not limited to base and drop camps, picnic sites, loading

facilities, boat launches, and helispots.

Average Client-Day Charge. Adjusted gross revenue divided by the

total number of client days for the duration of the outfitted or guided

trip.

Client Charge. The outfitter's or guide's charge per client for an

outfitted or guided trip.

Client Days.

1. National Forest System Client Days. The number of service days

(that is, days on National Forest System lands) for the duration of the

outfitted or guided trip multiplied by the number of clients on the

trip. See section 37.21c for related direction.

2. Total Client Days. Where there is use both on and off National

Forest System lands, the total number of days for the duration of the

outfitted or guided trip multiplied by the number of clients on the

trip. See section 37.21c for related direction.

Duration of Outfitted or Guided Trip. The period that begins when

the client first comes under the care and supervision of the outfitter

or guide, including arrival at the holder's headquarters or local

community, and ends when the client is released from the outfitter's or

guide's care and supervision. Duration of the outfitted or guided trip

is used to calculate client days, which in turn are used to determine

the average client-day charge and the adjustment for use off the

National Forest System lands. See section 37.21c for related direction.

Gross Revenue. The total amount of receipts from the sale of goods

or services provided by the holder in connection with the outfitted or

guided trip. These receipts include:

1. Revenue received by the holder from clients for goods or

services provided during the outfitted or guided trip (the client

charge per trip multiplied by the total number of clients on each

trip);

2. Revenue received by the holder or the holder's employees or

agents for scheduling or booking the outfitted or guided trip; and

3. Revenue from goods or services provided off National Forest

System lands, such as lodging and meals, unless specifically excluded.

Non-Use. Authorized use the holder did not use (see also

``Unapproved non-use'').

Revenue Additions. The market value of the following items which

are added to gross revenue:

1. The value of goods and services that are donated or the value of

goods and services that are bartered in exchange for goods and services

received that are directly related to the outfitted or guided trip; and

2. The value of gratuities, which are goods, services, or

privileges that are not available to the general public and that are

donated or provided without charge or at a discount to organizations;

individuals; the holder's employees, owners, or officers; or immediate

family members of the holder's employees, owners, or officers.

Revenue Exclusions. The following items which are excluded from

gross revenue:

1. Revenue derived from goods or services sold on private land that

are not related to outfitting and guiding operations conducted on

National Forest System lands, such as souvenirs, telephone toll

charges, and accident insurance sales;

2. Amounts paid or payable to a State government licensing

authority or recreation administering agency from sales of hunting or

fishing licenses and recreation fee tickets; and

3. Revenue from the sale of operating equipment, rental equipment,

capitalized assets, or other assets used in outfitting and guiding

operations. Examples are horses, tack, watercraft, and rental skis and

boots, which are sold periodically and replaced.

Service Day. A day or any part of a day on National Forest System

lands for which an outfitter or guide provides goods or services,

including transportation, to a client.

Short-Stop Fee. Fees for trips that use National Forest System

lands incidental to the purpose of the trip, such as a bus tour that

takes clients on a sightseeing trip. The rate is established by the

Regional Forester for trips with two service days per client or less

spent on national Forest System lands.

Unapproved Non-Use. Authorized use days the holder has not used and

for which the holder has not properly requested and received a waiver

(see also ``Non-use'').

37.1--Commercial Services Associated with Commercial Public Service

Site. Use the Graduated Rate Fee system to determine outfitter and

guide fees associated with such sites (sec. 37.03a and FSM 2715.11).

37.2--Commercial Services Not Associated with Public Service Site

[[Page 30837]]

37.21--Fees. Fees are assessed against adjusted gross revenue. Fees

are also assessed against all unapproved non-use.

37.21a--Minimum Fee. The minimum fee for outfitting and guiding on

National Forest System lands is $70 annually per permit for 1993-1996.

Using 1993 as a base year, the Washington Office Director of

Recreation, Heritage, and Wilderness Resources Management adjusts the

minimum fee every three years based on the Gross Domestic Product-

Implicit Price Deflator Index.

37.21b--Fee for Temporary Use Permits for Incidental Use. When

commercial outfitting and guiding is authorized by a temporary permit,

use Form FS-2700-25, Temporary Special-Use Permit, to collect the

minimum fee (sec. 3721a). The authorized officer may waive the minimum

fee only if the use meets the criteria listed in 36 CFR 251.57 and

section 31.21k.

37.21c--Fee for Commercial Use. Calculate and collect a fee for

commercial outfitting and guiding occurring on National Forest System

lands. Charge for any commercial use of National Forest System lands

for outfitting or guiding, even if unauthorized.

Upon the authorized officer's approval of the prospective holder's

application for a special use permit, advise the applicant to select

option A or B (para. 1 and 2) to be used in calculating the fee.

Include the selected method as a condition of the permit issued to the

holder, and use that method to calculate the fee for the period

authorized.

1. Option A. The fee is based on an average client-day charge using

the following schedule of rates:

Schedule of Rates

------------------------------------------------------------------------

Average client-day charge (for client days on and

off NFS lands Client-day fee

------------------------------------------------------------------------

Less than $8.00................................... $.25

8.01-20.00........................................ .40

20.01-35.00....................................... .80

35.01-50.00....................................... 1.30

50.01-75.00....................................... 1.90

75.01-100.00...................................... 2.60

100.01-125.00..................................... 3.40

125.01-150.00..................................... 4.10

150.01-175.00..................................... 4.90

175.01-200.00..................................... 5.60

200.01-250.00..................................... 6.75

250.01-300.00..................................... 8.25

300.01-400.00..................................... 10.00

Over 400.00....................................... 3 percent of the

average, client-day

charge.

------------------------------------------------------------------------

Calculate the fee as follows:

a. Client Days (National Forest System and Total). To determine the

number of National Forest System client days, multiply the number of

service days for the duration of the outfitted or guided trip by the

number of clients on each trip. To determine the number of total client

days, multiply the total number of days for the duration of the

outfitted or guided trip by the number of clients on each trip. See

example A-2 in this section for additional direction on determining

total client days.

b. Adjusted Gross Revenue. Multiply the client charge per trip by

the total number of clients on each trip, add any other gross revenue

and applicable revenue additions, and subtract any applicable revenue

exclusions (sec. 37.05). This figure represents adjusted gross revenue

for the duration of the outfitted or guided trip.

c. Average Client-Day Charge. Divide the adjusted gross revenue by

the number of client days (National Forest System or total) for the

duration of the outfitted or guided trip. This figure is the average

client-day charge.

d. Client-Day Fee. Refer to the preceding Schedule of Rates, and

use the average client-day charge to determine the client-day fee.

e. Interim Calculation for Fee for Commercial Use. Where use is

strictly on National Forest System lands, multiply the number of

National Forest System client days by the client-day fee to determine

the fee for commercial use. Where use is both on and off National

Forest System lands, multiply the number of total client days by the

client-day fee to determine the interim calculation for commercial use,

and adjust for use off National Forest System lands under the following

paragraph f.

f. Adjustment for Use off National Forest System Lands. Adjust for

use off National Forest System lands, if applicable, by dividing the

number of National Forest Client days (or hours, miles, and so forth)

by the number of total client days (or hours, miles, and so forth) to

determine the amount of time spent on National Forest System lands.

Refer to the schedule in section 37.21e to determine the appropriate

percentage of fee reduction. See section 37.21e for the use of other

equitable units of measure to determine adjustment for use off National

Forest System lands.

Example A-1: In one operating season, the holder is authorized

to provide two trips, both of which are solely on NFS lands:

July 27-29 for 3 clients @ $450/client

August 18-21 for 7 clients @ $500/client

a. Client Days (all NFS):

3 service days x 3 clients = 9 NFS client days ................................................

4 service days x 7 clients = 28 NFS client days ................................................

----------------------------

37 NFS client days ................................................

b. Adjusted Gross Revenue:

$450 x 3 clients = $1,350 ..............................................................................

$500 x 7 clients = $3,500 ..............................................................................

-----------

$4,850 gross revenue, plus $0 revenue additions and minus $0 revenue exclusions.

c. Average Client-Day Charge (all NFS client days in this

example):

$4,850 adjusted gross revenue

------------------------------------------- = $131

37 NFS client days

d. Client-day Fee (all NFS client days in this example):

$131 average client-day charge from step c corresponds to a

$4.10 client-day fee.

e. Fee for Commercial Use:

37 NFS client days x $4.10 client-day fee = $151.70 fee.

[[Page 30838]] Example A-2: In one operating season, the holder

is authorized to provide two trips. Both Trips include time on and

off NFS lands.

July 4-13 for 8 clients @ $2,000/client

August 10-23 for 7 clients @ $3,000/client

During each trip, 3 of the 10 days are on NFS lands.

a. Client Days (Total):

10 total days x 8 clients = 80 total client days

10 total days x 7 clients = 70 total client days

-----------------------------------

150 total client days

b. Adjusted Gross Revenue:

$2,000 x 8 clients = $16,000

$3,000 x 7 clients = $21,000

------------

$37,000 gross revenue, plus $0 revenue

additions and minus $0 revenue

exclusions.

c. Average Client-Day Charge:

$37,000 adjusted gross revenue

------------------------------------------- = $246.67

150 total client days

d. Client-Day Fee:

$246.67 average client-day charge corresponds to a $6.75 client-

day fee.

e. Interim Calculation for Fee for Commercial Use:

150 total client days x $6.75 client-day fee = $1,012.

f. Adjustment for use off NFS lands:

NFS client days:

3 service days x 8 clients = 24 NFS client days

3 service days x 7 clients = 21 NFS client days

----------------------------

45 NFS client days

45 NFS client days

-------------------------- = 30%

150 total client days

Which corresponds to a 40% fee reduction (sec. 37.21e):

$1,012 x 40% = $404.80

$1,012 - 404.80 = $607.20 fee for commercial use, which can be

rounded to $607.

2. Option B. The fee is 3 percent of the annual adjusted gross

revenue, minus any applicable adjustment for use off National Forest

System lands. Determine the gross revenue, add any applicable revenue

additions, and subtract any applicable revenue exclusions to determine

the adjusted gross revenue. Multiply the adjusted gross revenue by 3

percent; then adjust, if applicable, for use off National Forest System

lands to determine the fee for commercial use (sec. 37.05; 37.21c,

para. 1.b, and 37.21e).

Example B-2: For one year, the holder had an annual adjusted

gross revenue of $4,850 and used all 100 authorized use days.

$4850 x 0.03 = $145.50 fee for actual commercial use.

Example B-2: For one year, the holder had an annual adjusted

gross revenue of $4,650 and used 90 days of 100 authorized use days.

Unapproved non-use accounted for 10 days.

$4,650 x 0.03 = $139.50 fee for 90 days of commercial use.

$139.50

----------- = $1.55 per day

90 days

$1.55 per day x 10 days = $15.50 fee for 10 days of unapproved

non-use.

$139.50 + $15.50 = $155 fee for commercial use.

Example B-3: An off-road tour outfitter has an adjusted gross

revenue of $250,000. The travel routes used are across NFS lands and

private lands. The time spent on NFS lands is 50 percent of the

duration of the outfitted or guided trips.

$250,000 x 0.3 = $7,500

50 percent duration on NFS lands corresponds to a 40% fee

reduction (sec. 37.21e):

$7,500 x 40% = $3,000

$7,500-$3,000 = $4,500 fee for commercial use.

3. Short-Stop Fee. (Sec. 37.05). Fees are calculated from rates

established by the Regional Forester for situations in which commercial

tours and trips involve only very short stops or visits on National

Forest Systems lands of two service days or less.

Example 1: A float plane company markets fishing trips to the

National Forest, flies anglers to high mountain lakes, drops them

off, and picks them up. The company has 175 passenger trips. In this

example, the Regional Forester has established a short-stop rate of

$2.00 per client for this service.

175 passenger trips x $2.00 = $350 fee for commercial use.

Example 2: A bus company markets fall foliage tours and sends

out 50 bus trips per season with 35 paying passengers. They stop at

a National Forest Visitor Center for an average of 40 minutes. The

Regional Forester [[Page 30839]] has established a short-stop rate

of $2.00 per client.

35 people x 50 buses x $2.00 = $3,500 fee for commercial use.

37.21d--Determining Service Days. Count any full or fractional part

of a day the client receives goods or services as a full service day.

1. When livery, rental, supply, or drop-off service to customers is

provided, count only the day on which the outfitter or guide provides

services or goods.

2. When the outfitter or guide provides drop-off and pick-up

service on two separate days, count one service day for drop-off and

one service day for pick-up.

3. When the outfitter or guide provides drop-off and pick-up

service and the clients occupy an outfitter's assigned site and/or the

outfitter or guide furnishes equipment and supplies, count one service

day for drop-off, one service day for pick-up, and one service day for

each day in between.

37.21e--Adjustment for Use off National Forest System Lands. Reduce

the fee or estimated fee if the outfitter or guide's clients occupy

National Forest System lands for 60 percent or less of the duration of

the outfitted or guided trip according to the schedule in paragraph 1.

When days are the unit of measure, at least one entire day must be off

National Forest System lands to qualify for the adjustment. Other units

of measure besides days may be used where equitable to calculate the

percentage on and off National Forest System lands. For example, trail

distance may be used at Nordic centers.

1. Apply the following schedule in calculating adjustments for use

off National Forest System lands:

Schedule of Fee Reduction for Use Off NFS Lands

------------------------------------------------------------------------

Percentage on NFS Lands Fee reduction

------------------------------------------------------------------------

Less than 5 percent................................... 80 percent.

5 to 60 percent....................................... 40 percent.

Over 60 percent....................................... None.

------------------------------------------------------------------------

Request the holder to provide documentation of the duration of trips,

such as the itineraries for outfitted or guided trips, to support a

request for a fee reduction based on use off National Forest System

lands.

2. When use off National Forest System lands occurs on lands

administered by another Federal agency and the holder is authorized by

that agency, coordinate the fee calculations so that overcharges do not

occur.

Example: An outfitter conducts a 10-day trip with 8 clients; 5

days are spent on NFS lands and 5 on Bureau of Land Management (BLM)

lands. Assume the fee for the trip would be $100 if all 10 days were

on either NFS or BLM lands. Coordinate with the BLM to charge the

outfitter $100, and split the fee equitably between the two

agencies. Do not adjust for use off NFS lands which would result in

a higher fee of $120 ($60 for the Forest Service and $60 for the

BLM).

37.21f--Fee for Additional Use. If the holder requests advance

approval of additional use and if capacity is available, the authorized

officer may approve the request and collect any additional estimated

fees. When option A (sec. 37.21c, para. 1) is used to calculate the fee

for commercial use, use the schedule of rates to calculate the

additional fee. When option B (sec. 37.21c, para. 2) is used to

calculate the fee for commercial use, estimate the additional adjusted

gross revenue associated with the approved additional use, and include

it in the calculation of the estimated and final fees (sec. 37.22 and

37.23). See sections 41.53g and 41.53h for additional direction.

37.21q--Payment for Unapproved Non-Use. Charge the holder for

unapproved non-use when the holder does not properly request and

receive a waiver for authorized use (see sec. 41.53h, para. 4). Add the

amount calculated for unapproved non-use to the final fee total. This

provision applies to calculation of the fee under option A or B.

37.21h--Fee for Assigned Sites.

1. The minimum annual fee for each assigned site is $140.

2. Using 1993 as a base year, the Washington Office Director of

Recreation, Heritage, and Wilderness Resources Management adjusts the

minimum annual fee (in para. 1) that applies to each assigned site

every three years based on the Gross Domestic Product-Implicit Price

Deflator Index (sec. 37.04). The assigned site fee is in addition to

the minimum permit fee and other mandatory fees for commercial

outfitting and guiding (sec. 37.21c).

3. The Regional Forester may establish higher fees if necessary to

obtain fair market value.

4. Authorized officers may not prorate assigned site fees. Apply

the full annual fee for each assigned site.

5. Authorized officers may not authorize refunds or credits for

assigned site fees.

37.21i--Fee for Grazing Livestock. Assess livestock grazing fees

when the Forest Service authorizes the holder to graze animals used for

transport on National Forest System lands. Do not assess a grazing fee

when the animals travel on National Forest System lands but the holder

is not authorized to graze them. Charge grazing fees in accordance with

direction in FSM 2238. Do not authorize refunds or credits for

authorized but unused grazing use.

37.21j--Fee for Nonprofit Organizations. The fee for nonprofit

organizations is three percent of annual adjusted gross revenue (option

B, sec. 37.21c, para. 2). Include the amount of donations and grants as

gross revenue if the holder requires the customer or client to make a

donation or grant as a condition of receiving the service. Do not

consider donations or grants made voluntarily by customers to support

the programs or activities of the holder.

37.21k--Fee for Educational Institutions. The fee is three percent

of annual adjusted gross revenue (option B, sec. 37.21c, para. 2).

1. Credited Programs. Exclude tuition and other payments made by

students which are unrelated to the use of National Forest System lands

authorized for outfitting and guiding purposes if the program provided

under the permit is recognized for credit toward graduation or a degree

in a recognized school system or accredited educational institution.

2. Non-Credited Programs. Include all payments made by students for

authorized outfitting and guiding services if the program provided

under the permit is not recognized for credit toward graduation or a

degree in a recognized school system or accredited educational

institution.

37.22--Estimate Fee.

1. Consult with the applicant or holder to estimate the anticipated

number of service days and adjusted gross revenue. Use financial and

related documents furnished by the applicant or holder, including

records of the previous year's business activity, planned customer rate

schedules, and itineraries. Retain documents used for fee calculations

in the case folder.

2. Based on authorized use, calculate the total estimated annual

fee, including the fee for commercial use, assigned site fee, and

livestock grazing fee, on a fee determination statement (sec. 31.4)

prior to the operating season.

3. Establish payment due dates prior to the start of the operating

season for all payments.

4. Calculate the total estimated fee as a single amount, and

collect the fee from the holder as follows:

a. Collect the total annual estimated fee in advance when it is

less than $500.

b. Collect half of the total annual estimated fee in advance and

the remainder by mid-season when the total [[Page 30840]] is equal to

or greater than $500, but less than $2,500.

c. Collect one-third of the total annual estimated fee in advance

and the remainder in two equal payments by mid-season when the total is

$2,500 or more.

d. Deposit fees collected to the Land and Water Conservation Fund

(FSM 6530).

37.23--Fee for Commercial Use. Record in the holder's operating

plan the date established by the authorized officer and the holder by

which the holder must submit financial records and records of use

required to calculate the fee for commercial use.

In calculating the fee for commercial use, follow the procedure

described in section 37.22, paragraph 1. Use financial records and

records of use appropriate for the fee option selected (sec. 37.21c).

37.24--Billing and Refunds. Calculate the fee for commercial use

and adjust for use off National Forest System lands, if applicable.

Charge the holder for any unapproved non-use. Charge the holder for any

unauthorized use.

1. When the final fee exceeds the paid estimated fee, bill the

holder for the balance due.

2. When the final fee is less than the paid estimated fee and more

than the minimum fee, refund the difference to the holder. If the

holder is authorized to operate with a priority use assignment, at the

holder's request credit the overpayment toward the next year's fee. If

the holder is authorized to operate with a priority use assignment and

the authorization is due to expire that year, refund the difference to

the holder.

Follow billing and refund procedures found in FSH 6509.11k. Under

the authority of the Land and Water Conservation Fund Act of 1964 (16

U.S.C. 4601-6a (c) and (i)(1)), deposit fees into the Land and Water

Conservation Fund (FSM 6530).

Chapter 40--Special Uses Administration

41.53--Outfitters and Guides. (For related authorities, policies

responsibilities, and definitions, see FSM 2340 and FSM 2701-2705.

Direction on fees for outfitters and guides is in section 37 of this

Handbook). Administer permits for outfitters and guides operating on

National Forest System lands in accordance with the direction in

sections 41.53a through 41.531. Outfitting and guiding services include

but are not limited to packing, hunts, float trips, canoe or horse

liveries, ski touring, helicopter skiing, jeep tours, boat tours, and

fishing trips.

41.53a--Objectives.

1. As identified in forest and resource management plans, provide

for commercial outfitting and guiding services that address concerns of

public health and safety and that foster small businesses.

2. Encourage skilled and experienced individuals and entities to

conduct outfitting and guiding activities in a manner that protects

environmental resources and ensures that National Forest visitors

receive high quality services.

41.53b--Policy. (FSM 2340.3, 2703).

1. Authorize only those outfitting and guiding activities that are

consistent with forest land and resource management plans.

2. Do not authorize any development or permanent improvements on

the National Forest System for outfitting and guiding services, except

for temporary structures or improvements or installations with

negligible value, such as hitching posts, corrals, tent frames, and

shelters.

3. Do not authorize any development, improvement, or installation

in wilderness for the purpose of convenience to the holder or the

holder's clients. The authorized officer may authorize temporary

structures, improvements, or installations in wilderness only when

necessary to meet minimum requirements for administration of the area

for the purposes of the Wilderness Act (16 U.S.C. 1121 (note)).

4. Work with other Federal agencies, State and local authorities,

outfitters, and outfitter and guide organizations to ensure that

outfitting and guiding activities are consistent with applicable laws

and regulations and to identify unauthorized outfitting and guiding

activities. Follow procedures in FSM 5300 in investigating and taking

action to prevent the occurrence of unauthorized outfitting and guiding

activities.

5. Do not issue a separate permit for outfitting or guiding

activities (such as cross-country skiing and horseback riding) to a

holder of a permit or term permit for a commercial public service site

(such as a pack station, lodge, or resort) when the outfitting or

guiding operations are part of commercial public service site

operations. Include the outfitting and guiding activities in the

commercial service site's annual operating plan. Attach the annual

operating plan to the commercial service site permit or term permit and

consider it part of the permit or term permit. See section 37.03 for

related direction on fees.

41.53c--Definitions. See section 37.05 for additional related

definitions for ``adjusted gross revenue,'' ``adjustment for use off

National Forest System lands,'' ``assigned site,'' ``average client-day

charge,'' ``client days,'' ``duration of the outfitted or guided

trip,'' ``non-use,'' ``revenue additions,'' ``revenue exclusions,''

``service day,'' ``short-stop fee,'' and ``unapproved non-use.''

Guiding. Providing services or assistance (such as supervision,

protection, education, training, packing, touring, subsistence,

interpretation, or other assistance to individuals or groups in their

pursuit of a natural resource-based outdoor activity) for pecuniary

remuneration or other gain. The term ``guide'' includes the holder's

employees, agents, and instructors.

Holder. An applicant who has received a special use authorization

to conduct outfitting or guiding activities.

Incidental Use. Annual use that is proposed to be 50 service days

or less and is anticipated to have little or no significant impact on

public health and safety, the environment, or other authorized uses and

activities.

Outfitting. Providing through rental or livery any saddle or pack

animal, vehicle or boat, tents or camp gear, or similar supplies or

equipment, for pecuniary remuneration or other gain. The term

``outfitter'' includes the holder's employees, agents, and instructors.

Priority Use. Authorization of use for a period not to exceed five

years. The amount of use is based on the holder's past use and

performance and on forest land and resource management plan

allocations. Authorizations providing for priority use are subject to

renewal (sec. 41.53f).

Renewal. The issuance of a new special use authorization for the

same use to the same holder upon the expiration of the holder's current

authorization.

Temporary Use. An amount of use assigned the holder of a permit

with a period of one season or less.

Transportation Livestock. Pack and saddle animals authorized in

connection with an outfitter or guide permit and expressed in animal

months and by class of animal (FSM 2234.11).

41.53d--When Permits Are Required.

1. Individuals or organizations conducting outfitting or guiding

activities on National Forest System lands must have a permit unless

the authorized officer (FSM 2705) issues a Temporary Special-Use Permit

(Form FS-2700-25) for incidental use (sec. 41.53e).

2. Outfitters based off National Forest System lands who rent and

deliver equipment or livestock to the public on National Forest System

lands must obtain a permit if they, their employees, or agents occupy

or use National Forest [[Page 30841]] System lands or related waters in

connection with their rental programs. For example, a permit is

required if a boat livery operator provides service, including delivery

or pickup of boats, at sites on National Forest System lands. No permit

is necessary nor is a fee charged if an operator's customers transport

rented equipment to and from the National Forest System lands or if an

operation serves Forest Service employees, Forest Service contractors,

or other Federal officials in the course of their official duties.

41.53e--Incidental Use. When the proposed annual use is 50 service

days or less and is expected to have little or no impact on public

health and safety, the environment, or other authorized uses and

activities on National Forest System lands, the use may be authorized

by a temporary permit, Form FS-2700-25, Temporary Special-Use Permit.

The following activities and uses shall not be authorized by a

temporary permit and shall be authorized only by Form FS-2700-4,

Special Use Permit: white water travel, use of firearms, livestock, or

aircraft, or all-terrain and off-highway vehicle travel.

41.53f--Applications and Issuance of Permits.

1. Applications. Provide outfitter and guide applicants with Form

FS-2700-3, Special Use Application and Report, to specify the services

to be performed, the number of service days, the lands to be occupied,

modes of transportation, season of use, scheduling, and other matters

relating to the applicant's operation. Application and authorization

procedures established in 36 CFR 251.54 and FSM 2712 are fully

applicable to outfitter and guide applications. See FSM 2712.2 for

direction regarding prospectuses for new opportunities as described in

paragraphs 2a through 2d of this section.

Conduct environmental analyses for outfitter and guide applications

in accordance with procedures in FSH 1909.15, National Environmental

Policy Act Handbook.

2. Issuance. Outfitting and guiding permits may be issued when one

or more of the following occurs:

a. An increased allocation, capacity, or public need is identified

through the forest planning process;

b. An existing permit is revoked;

c. A reduction of service days by an existing holder or holders

makes additional service days available;

d. Competitive interest in an area, unit, or activity arises where

no previously authorized use exists and where the proposed use is

compatible with objectives in forest land and resource management

plans;

e. An application has been submitted to provide outfitter and guide

services for an area or activity that has not previously been

authorized and for which there is no competitive interest; or

f. An existing permit terminates.

For situations fitting the criteria in the preceding paragraphs 2a

through 2d, solicit applicants by issuing a prospectus and contacting

all parties who have expressed an interest. See FSM 2712.2 for

additional direction on issuing a prospectus.

For an application fitting the criteria in the preceding paragraph

2e, document the determination of no competitive interest and then

issue a permit to the qualified applicant. In issuing the permit,

classify authorized use as temporary use until the holder has performed

acceptably for at least two consecutive years.

When determining the most qualified applicants, consider past

experience and knowledge of the area, financial capability, economic

viability of existing holders, performance record, return to the

Government, and other factors. The authorized officer may classify the

use as priority if the selected applicant has a two-year record of

acceptable performance as a holder of a permit for an outfitting and

guiding operation similar to the proposed use. Process requests to

expand a current holder's operations as an application for temporary

use under section 41.53g. For a selected applicant with no previous

record, classify the use as temporary.

Issue temporary permits and permits under the authority of the Land

and Water Conservation Fund Act of September 3, 1964 (16 U.S.C. 460l-

6a(c)), on Form FS-2700-25, Temporary Special-Use Permit, and on Form

FS-2700-4, Special-Use Permit, respectively.

3. Renewal without Competition. When a permit of a holder assigned

priority use terminates (preceding para. 2f) the permit is subject to

renewal without competition, provided the current holder has performed

satisfactorily as demonstrated by acceptable annual performance

inspections. Renewal shall be at the sole discretion of the authorized

officer and shall be in accordance with 36 CFR 251.64. In renewing the

permit, the authorized officer may modify the terms and conditions of

the permit.

4. Change of Ownership or Control of Business Entity.

a. Upon notification by the holder that a change in ownership of or

a controlling interest in the business entity is being considered, the

authorized officer shall inform the holder of the following:

(1) The permit is a privilege and is not transferable, either upon

the sale of the business entity or the sale of a controlling interest

in the business entity;

(2) Priority use is a privilege acquired by demonstrated acceptable

performance and is not transferable;

(3) The permit is not real property, does not convey any interest

in real property, and may not be used as collateral;

(4) Upon consummation of a change of ownership of or controlling

interest in the business entity, the holder's permit terminates; and

(5) The party who acquires ownership of or a controlling interest

in the business entity may be issued a permit if the authorized officer

determines that the prospective holder meets Forest Service

requirements, including financial and technical capability.

b. The authorized officer shall inform the holder to submit Form

FS-2700-3a, Request for Termination of an Application for Special-Use

Permit, for relinquishment of the permit.

c. The authorized officer shall inform the party who acquires

ownership of or a controlling interest in the business entity to

submit:

(1) An application for a permit on Form FS-2700-3, Special Use

Application and Report; and

(2) Documentation of change of ownership, including properly

executed documents showing a bona fide conveyance of the equipment or

other assets previously used by the business, and for businesses based

on private land, properly executed documents showing a bona fide

conveyance of the real and personal property used by the business; or

(3) Documentation of a change of control, including properly

executed documents showing a bona fide change of a controlling interest

in the business entity.

d. If the change of ownership or control is not consummated and the

original holder has relinquished the permit, the authorized officer may

reissue the permit to the original holder. Prior to reissuance, the

authorized officer must request the original holder to submit

documentation establishing ownership or control of the business entity.

41.53q--Assignment and Management of Temporary Use.

1. Eligibility. All qualified applicants, including institutional

and semi-public entities and holders of permits assigned priority use,

are eligible to receive [[Page 30842]] temporary use assignments.

Current holders assigned priority use and proposing to expand their use

may also submit an application. Approved additional use may be assigned

as temporary use.

2. Assignment of Temporary Use. If capacity is available, temporary

use may be authorized if the need for the use exists and the use is

consistent with the forest land and resource management plans (FSM

1920). If forest land and resource management plans do not address the

use and/or capacity levels, assignments shall be at the discretion of

the authorized officer subject to the requirements of the National

Environmental Policy Act (FSH 1909.15). A temporary use assignment does

not commit the Forest Service to authorizing that use for a similar

number of service days in the future.

3. Conversion to Priority Use. A holder authorized for at least two

years may be eligible for assignment of priority use if it is in the

best interest of the Forest Service and the use is compatible with

forest land and resource management plans. Assignment of priority use

shall be based on documented acceptable performance by the holder for

two consecutive years. The amount of use authorized may be based on the

previous two-year average authorized use which was actually used. See

section 41.53h, paragraph 2, for limitations on assignment of priority

use.

41.53h--Assignment and Management of Priority Use.

1. Eligibility. Previously authorized outfitters or guides who have

made their services available to all members of the public and who have

performed acceptably for the previous two consecutive years may be

eligible for assignment of priority use.

Outfitters or guides who provide services only to private or

restricted clientele are not eligible for assignment of priority use.

See section 41.531 for additional direction on semi-public outfitting

and guiding.

2. Assignment of Priority Use. Assignment of priority use shall be

at the discretion of the authorized officer and shall be consistent

with forest land and resource management plans. Base any assignment of

priority use on the capacity of the area or standards and guidelines as

established in forest land and resource management plans.

a. Use may be based on the average of the highest two years of

actual use authorized use which was actually used during the previous

five years.

b. Record the following on the permit:

(1) The amount of authorized use in terms of service days, season,

months, weeks, people-at-one-time (PAOT), or similar time factors that

may apply;

(2) The nature of the authorized service or activity (such as big

game hunting, white water rafting, or fishing trips);

(3) The resource area (such as wilderness, river, or administrative

unit) within which the service or activity is to be authorized; and

(4) The various modes of transportation to be used and other

factors necessary to define the quality and scope of the activity.

3. Management of Priority Use.

a. Establish use in terms of service days. Where recreation use

levels are planned and managed in terms of launches and people per

launch, camps and people per camp, or trips and people per trip,

specify numbers of launches, campsites, and/or trips authorized for

those service days.

b. When a permit is about to terminate and the holder has applied

for renewal of the permit, the assignment of priority use for the new

permit shall be at the discretion of the authorized officer and shall

be consistent with forest land and resource management plans. Consider

general market and other economic fluctuations, availability of state

hunting licenses, and natural phenomena which may have adversely

affected the ability of the holder to utilize the authorized use fully.

The authorized officer may assign priority use consistent with the

level of use utilized effectively under the former permit. If capacity

is available and environmental analyses have been completed, authorize

the amount of additional use that has been effectively used during the

temporary use period. Base the amount of use recorded in the new permit

as described in the preceding paragraph 2b(2). Reduce the authorized

use if the holder has utilized less than 70 percent of the assigned

amount in each of three consecutive years. Make no reductions in use

assignment if non-use was approved by the authorized officer in

accordance with the following paragraph 4.

4. Approved Non-Use. Prior to allowing the holder to operate, the

authorized officer must review and approve a holder's annual proposed

itinerary and requests for amendments to an operating plan. Any

deviations from the assigned amount of use (referred to as ``approved

non-use'') must be approved by the authorized officer. The authorized

officer must document the basis for approving non-use and provide a

copy to the holder. The holder is not responsible for fee payment on

approved non-use.

Non-use may be approved:

a. To protect natural resources, to address concerns of public

health and safety, or to prevent conflicts with other authorized uses

of National Forest System lands; or

b. When requested by a holder far enough in advance to allow the

authorized officer to reassign the approved non-use to other holders,

if appropriate.

41.53i--Reduction of Use or Service Days. See section 41.53h,

paragraph 3b, for additional direction on calculating reductions.

1. Amendments to or revisions of forest land and resource

management plans may establish a level of outfitting and guiding that

could result in a reduction of a holder's use or service days. When

considering renewal of the permit, the authorized officer has three

options:

a. Request holder(s) to reduce use voluntarily;

b. Proportionally reduce use for holders; or

c. Reassign the amount of use through solicitation of applications

by issuing a prospectus. Limit solicitation to current holders who are

assigned priority use. Base assignment of use on services proposed and

performance. When reassigning use or service days, consider the

holder's performance, experience and knowledge of the area, financial

capability, performance record, return to the Government, economic

viability of other holders, and other appropriate factors.

41.53j--Permit Terms and Conditions.

1. For new applicants, authorize use for periods not to exceed one

year. For holders who are assigned priority use, a period of up to five

years may be authorized. To the extent possible, issue permits with a

length coinciding with time periods in forest land and resource

management plans, as appropriate.

2. For applicants who have a limited record or no record of

performance, a one-year permit subject to a conditional one-year

renewal may be issued to provide a performance evaluation period. Renew

the use and amend the permit term, unless the permit is revoked after

the first year under section 41.53k, paragraph 1e(2).

3. Use the standard mandatory clauses for outfitter and guide

service as defined in section 52. Include standard clauses from section

53 as appropriate.

4. Enter the total number of service days in each use category on

the permit. Specify in the permit, operating plans, and annual

itineraries all of the various modes of transportation authorized.

[[Page 30843]] Show amounts and class of use. If applicable, enter the

number of launches and people per launch, camps and people per camp, or

trips and people per trip associated with the use.

5. Require an annual operating plan for the period of the permit

and approval of an annual itinerary as a provision of the permit.

6. Indicate in the permit the amount of livestock used for

transportation of people and equipment in connection with the activity,

and specify if the livestock may graze. Do not issue a separate

livestock use permit. Include a clause that requires the holder to

record and report the amount of livestock grazing use that will

actually occur with the outfitting or guiding use. Report livestock

grazing use in the Annual Grazing Statistical Report (Report FS-2200-

j). Do not report occupancy by animals that were not authorized to

graze.

7. Specify and describe proposed use of specific assigned sites in

operating plans and annual itineraries.

8. Allow holders to choose one of two alternative fee systems based

on FSH 2709.11, section 37.21c (option A or B).

9. Require holders to provide accurate information through an

actual use report within 30 days of the close of the operating season.

10. Require holders to maintain accounting records in accordance

with generally accepted accounting principles or other comprehensive

bases of accounting, to make those records available to the Forest

Service for review, and to retain them for at least five years.

11. The holder may be required to have public liability insurance

under FSM 2713.32. The holder's insurance must name the United States

Government as an additional insured.

41.54k--Permit Administration.

1. Performance Review and Evaluation. Monitor authorized operations

to verify compliance with permit terms and conditions during the season

of use. Assignment of priority use depends on documentation of

satisfactory performance. More frequent reviews may be necessary to

achieve compliance with the permit terms and conditions. Conduct a mid-

season performance review and evaluation of the holder's operations.

See FSM 2716.5 for additional direction.

a. Performance Standards. Forest Supervisors shall develop specific

performance standards for inclusion in each permit and/or operating

plan in consultation with District Rangers and individual holders,

outfitter and guide licensing agencies, advisory councils, and other

State and Federal land management agencies. At a minimum, Forest

Supervisors shall develop specific standards for the degree of

compliance with terms of the permit and operating plans and

itineraries, customer satisfaction, and protection of natural

resources.

b. Performance Ratings. Evaluate the holder's overall performance

using three performance ratings: Acceptable, Probationary, and

Unacceptable. Base these ratings on the specific performance standards

included in the holder's permit and/or operating plan.

c. Mid-Season Review and Evaluation. Conduct a mid-season review

and evaluation of all holders. Notify the holder in writing of the

results of this mid-season review and evaluation. Include:

(1) Any deficiencies or items of noncompliance; and

(2) A time frame for remedying deficiencies and correcting

noncompliance.

d. Second Review and Evaluation. Conduct a second review and

evaluation at the end of each operating season if the mid-season review

and evaluation disclose deficiencies or items of noncompliance that

would substantiate a rating of Unacceptable, or in the case of holders

assigned priority use, a rating of Unacceptable or Probationary. Notify

the holder in writing of the results of this second review and

evaluation. Include:

(1) Any deficiencies or items of noncompliance identified at mid-

season and not remedied or corrected; and

(2) Any deficiencies or items of noncompliance identified during

the second review.

e. Annual Ratings. Rate every holder at the end of the operating

season. Provide the holder with a copy of the rating, and include

notification of the holder's right to appeal.

(1) Holders Assigned Priority Use.

(a) If a holder receives an annual rating of Probationary at the

end of the permit year, reduce the term of the permit to no more than

one additional year. If at the end of that period the holder receives

an annual rating of Probationary or Unacceptable, the authorized

officer shall not renew the permit and shall allow the permit to

terminate. If at the end of the additional year the holder receives an

annual rating of Acceptable, the holder may again be assigned priority

use, and the permit is subject to renewal under section 41.53f,

paragraph 2f.

(b) If a holder receives an annual rating of Unacceptable, the

permit shall be revoked. In the case of a permit that is about to

expire, it shall be allowed to terminate.

(c) Holders may appeal final ratings of Probationary and

Unacceptable under applicable Federal regulations. Termination of a

permit is not subject to appeal.

(2) Holders Not Assigned Priority Use.

(a) If a holder receives an annual rating of Acceptable at the end

of the permit year, the authorized officer may renew the permit for no

more than one additional year. If at the end of that period the holder

receives an annual rating of Acceptable then the holder may be eligible

for assignment of priority use. See section 41.53g for additional

direction on conversion to priority use.

(b) If a holder receives an annual rating of Unacceptable, the

permit shall be revoked or allowed to terminate.

(c) Holders may appeal an annual rating of Unacceptable under

applicable Federal regulations. Termination of a permit is not subject

to appeal.

2. Assignment of Use. Do not approve requests to assign all or part

of the authorized use to others. If a holder is unable or unwilling to

provide the services authorized by the permit, revoke the permit or

reduce the authorized use. If appropriate, assign the amount of use to

others in accordance with section 41.53h.

41.531--Permits for Institutional and Semi-Public Outfitting and

Guiding. Permits may be issued to institutional and semi-public

outfitting and guiding applicants consistent with forest land and

resource management plan direction for commercial use and group size.

Schedules and services may fluctuate from season to season or year to

year. Applicants may include a variety of membership or limited-

constituency institutions, such as religious, conservation, youth,

fraternal, service club, and social groups; educational institutions,

such as schools, colleges and universities; and similar common interest

organizations and associations. This category may also include

applicants who operate commercially on a limited or intermittent basis

in providing service to selected customer clientele rather than to the

public at large. Outfitting and guiding activities conducted by

institutional or semi-public groups may be authorized regardless of

whether a fee or other consideration is collected from participants.

1. Issue permits when the use furthers the public interest and can

be accommodated without causing unacceptable resource impacts or

conflicts with other authorized users. The authorized activities must

be consistent with applicable laws, regulations, and forest land and

[[Page 30844]] resource management plans. See 36 CFR Part 251, Subpart

B, for additional requirements on when a permit is required.

2. Ensure that applicants demonstrate financial and technical

capability to meet the terms and conditions of the permit.

3. Issue a temporary permit, Form FS-2700-25, Temporary Special-Use

Permit, if the permit period is for one year or less, such as for a

single trip. See section 41.53e for direction on incidental use.

4. Do not assign priority use to holders of permits for

institutional or semi-public outfitting and guiding.

5. Require an operating plan for permits issued for continuing

intermittent use. An operating plan may also be necessary for single-

trip permits to ensure public safety and resource protection, depending

on the nature and scope of the trip.

6. Document performance evaluation as described in section 41.53k

is optional.

7. Determine fees and fee waivers based on chapter 30 of this

Handbook.

[FR Doc. 95-14361 Filed 6-9-95; 8:45 am]

BILLING CODE 3410-11-M