[Federal Register Volume 70, Number 71 (Thursday, April 14, 2005)]
[Notices]
[Pages 19727-19730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7488]
-----------------------------------------------------------------------
DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AC23
Maximum Term for Outfitter and Guide Special Use Permits on
National Forest System Lands
AGENCY: Forest Service, USDA.
ACTION: Final directive.
-----------------------------------------------------------------------
SUMMARY: The Forest Service is revising direction governing special use
permits for outfitting and guiding conducted on National Forest System
lands by increasing the maximum term for these permits from five to ten
years. The revised directive would provide for greater business
continuity for outfitters and guides who furnish services to visitors
on National Forest System lands and would make the Forest Service's
policy on the maximum permit term for outfitting and guiding permits
consistent with the policy of the National Park Service and the Bureau
of Land Management.
DATES: This directive is effective April 14, 2005.
ADDRESSES: The administrative record for this final directive is
available for inspection and copying at the office of the Director,
Recreation and Heritage Resources Staff, USDA Forest Service, 4th Floor
Central, Sidney R. Yates Federal Building, 1400 Independence Avenue,
SW., Washington, DC, from 8:30 a.m. to 4 p.m., Monday through Friday,
except holidays. Those wishing to inspect the administrative record are
encouraged to call Carolyn Holbrook at (202) 205-1399 beforehand to
facilitate access to the building.
[[Page 19728]]
A copy of the directive (Amendment 2709.11-2005-1) is available
from the Forest Service via the World Wide Web at http://www.fs.fed.us/im/directives.
FOR FURTHER INFORMATION CONTACT: Carolyn Holbrook, Recreation, and
Heritage Resources Staff, (202) 205-1399.
SUPPLEMENTARY INFORMATION:
1. Background and Need for the Directive
Supporting Small Businesses.
The Forest Service regulates occupancy and use of National Forest
System (NFS) lands by outfitters and guides through issuance of special
use permits. Outfitters and guides provide the knowledge, skills, and
equipment for recreating on NFS lands to those who might not otherwise
have them, as well as information and education to the public about the
National Forests. Outfitters and guides thus play an important role in
meeting the Forest Service's recreational and educational objectives.
Currently, special use permits for outfitters and guides are issued
for a period of up to five years. The maximum five-year term has been a
concern in recent years to outfitters and guides who perceive this
timeframe as a barrier to building and maintaining a sustainable small
business. For example, the five-year term may hamper outfitters' and
guides' ability to secure financing from lenders if business equipment
cannot be fully amortized within the permit term. The five-year term
also is not conducive to long-term business planning. Customer service
suffers when outfitters and guides cannot invest in needed equipment or
conduct long-term business planning. Revising the maximum term of their
special use permit from five to ten years will provide outfitters and
guides with the potential for greater business continuity for planning
and investing.
Special Uses Streamlining.
This directive will decrease administrative costs to the Forest
Service and outfitters and guides by reducing the analysis and
processing required by more frequent permit issuance. This practice
supports the Department's special uses streamlining regulations
promulgated November 30, 1998, at 36 CFR part 251, subpart B (63 FR
65949).
Interagency Consistency.
This directive will make Forest Service policy on permit terms for
outfitters and guides consistent with the policy of the Bureau of Land
Management, adopted on February 6, 2004 (69 FR 5702), and the National
Park Service as provided for in Title IV of the National Parks Omnibus
Management Act of 1998 (16 U.S.C. 5953). Consistency in the permitting
process is important, since many outfitters and guides operate on lands
administered by all three agencies.
2. Public Comments on the Proposed Directive To Increase the Maximum
Term for Outfitter and Guide Special Use Permits and the Forest
Service's Responses
Overview.
On August 13, 2004, the Forest Service published a proposed
directive in the Federal Register (69 FR 50160) asking for public
comment on a proposal to increase the maximum term for an outfitter and
guide permit from five to ten years. Comments could be submitted by
either mail, facsimile, or electronically. During the 60-day comment
period (ending on October 12, 2004), the agency received 46 responses.
Of those 46 responses, 8 responses were identical, and counted as one
response; and 6 responses had two signatories, and were handled as a
single response with two separate comments. Each response was
identified as coming from one of the following entities:
Outfitter/Guide Permit Holder: 38 (83%).
Individual (unaffiliated or unidentifiable): 4 (9%).
Outfitter/Guide Organization: 2 (4%).
State Government: 2 (4%).
The majority of respondents were holders of Forest Service
outfitter and guide special use permits or were from an outfitter and
guide organization. All 40 respondents represented by this grouping
supported the directive; 30 of these respondents recommended additional
language.
Two States that regulate outfitting and guiding, Idaho and New
Mexico, commented on the proposed directive. Idaho supported the
directive, while New Mexico opposed it. New Mexico is concerned that
increasing the permit term for outfitting and guiding from five to ten
years will reduce competition in the industry and may stifle the
ability of small businesses to engage in outfitting and guiding.
Along with New Mexico, two individuals opposed the proposed
directive. One believes a longer term allows for more abuse by the
permit holder. The second believes that commercial operators on NFS
lands are profiteers and therefore should not be given longer periods
to operate.
Response to Comments.
Comment. Several respondents suggested allowing for permittee
initiated administrative review after five years that would allow
reasonable revisions to permit terms and conditions deemed necessary to
enable the outfitter to make adjustments to improve service to the
outfitted public.
Response. Current Forest Service policy allows for a holder of a
special use authorization to request an amendment to the authorization
at any time. This amendment can contain proposed changes to authorized
operations that would benefit the outfitted public. The agency does not
see a need to amend current policy in response to this comment. No
changes were made to the proposed policy in response to this comment.
Comment. Many respondents believed that the language in section
41.53h, paragraph 2(a), of the proposed directive represents a change
in current agency policy as reflected in the Outfitter and Guide Permit
Administration Guidebook. They also believed that this language
negatively affects many businesses that have had a downturn in travel
during the economic recession and wars overseas and would like it
changed to allow for more flexibility in the allocation of use.
Response. This directive does not alter agency policy with respect
to allocation of use. Current policy in Forest Service Handbook (FSH)
2709.11, section 41.53h, paragraph 2(a), states: ``Use may be based on
the average of the highest two years of actual use authorized, which
was actually used during the previous five years.'' This directive
merely changes the period of use from ``the previous five years'' to
``the previous permit term'' to accommodate the increase to a ten-year
term and five-year permits that exist, but will be phased out over
time. The referenced guidebook is not agency direction as defined at 36
CFR 200.4, but rather a compendium of agency direction, with examples
for administration of outfitter and guide permits. To the extent there
is any inconsistency between the directive and the Guidebook, the
directive, which was adopted through public notice and comment, takes
precedence over the Guidebook, which was not.
The request to amend current direction on allocation of use for
outfitting and guiding is outside the scope of this directive and would
require additional public notice and comment. The Forest Service has
discussed this issue with the outfitter and guide industry and plans to
address this concern at a future date. No changes were made to the
proposed directive in response to this comment.
Comment. Two respondents were concerned that extending the permit
[[Page 19729]]
term would prevent healthy competition for allocation of use for
outfitted and guided hunting on NFS lands in New Mexico and probably
elsewhere. These respondents believed that a longer permit term would
severely restrict the ability of outfitters and guides licensed by the
State to conduct their activities on NFS lands. One respondent
requested that the Forest Service remove the implication in the
agency's directives that outfitting and guiding permits may be held for
long periods and transferred.
Response. The Forest Service disagrees with the assertion that
competition will be severely restricted by this directive. In 2004,
almost 4,700 Forest Service outfitter and guide special use permits
were in effect, authorizing a broad range of recreational and
educational opportunities. New applications for outfitting and guiding
may be granted, provided the proposed services further the mission of
the Forest Service, there is public demand for them, and there is
capacity in the area requested. Current policy provides that outfitter
and guide permits may be issued when (1) an increased allocation,
capacity, or public need is identified through the forest planning
process; (2) an existing permit is revoked; (3) a reduction of service
days for an existing holder or holders makes additional service days
available; (4) 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 land management plans; (5) 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 (6) an existing permit
terminates. In the first four scenarios, the agency solicits applicants
by issuing a prospectus and contacting all parties who have expressed
an interest. In the fifth scenario, the agency documents the
determination of no competitive interest and issues a permit to
qualified applicants (FSH 2709.11, sec. 41.53f, para. 2). This
directive does not change this policy. In addition, outfitter and guide
businesses change ownership regularly, thereby providing outfitting and
guiding business opportunities to more people. There is no implication
in current policy that outfitting and guiding permits may be held for
long periods and transferred. Under current policy, the maximum term is
five years, and permits are not transferable (FSH 2709.11, sec. 41.53c
and 41.53f). No changes were made to the proposed policy in response to
this comment.
Comment. One respondent proposed that any allocation of use for
outfitting and guiding in any State be made only after consultation
with and specific recommendation from the State agency that licenses
outfitters and guides. These respondents believed that to do otherwise
would run counter to the joint authority of States and the Forest
Service to regulate outfitting and guiding.
Response. The National Forest Management Act (NFMA) and the
National Environmental Policy Act (NEPA) require the Forest Service to
seek public input, including input from State and local governments,
when making land use decisions, especially when the Forest Service is
developing a land management plan or wilderness management plan. Within
these plans, the agency may establish criteria and capacities for the
issuance of outfitter and guide permits. To determine these criteria
and capacities, the agency must confer with State agencies, such as
departments of game and fish, to understand the effects these decisions
may have on the program of a particular State.
The agency disagrees that consultation with and a recommendation
from the State agency that licenses outfitters and guides should be
required before allocation of use for outfitting and guiding on NFS
lands within that State. There is no requirement for this type of
consultation and recommendation under Federal law. The States and the
Forest Service have concurrent jurisdiction to regulate outfitting and
guiding on NFS lands. The regulatory authority of the Forest Service is
separate and distinct from the authority of the States. No changes were
made to the proposed policy in response to this comment.
Comment. Respondents were concerned that there would be less
monitoring under a longer-term permit, and noted that monitoring occurs
infrequently.
Response. The agency disagrees with this comment. Current policy
requires annual performance reviews, and this directive does not change
that requirement. No changes were made to the proposed policy in
response to this comment.
Comment. One respondent believed that the maximum term for
outfitter and guide permits should be five years. This respondent
stated that outfitters and guides would take lifelong permits if they
could get them.
Response. The agency disagrees with this comment based on the
reasons provided in the section, ``Background and Need for this
Directive.'' No changes were made to the proposed policy in response to
this comment.
3. Regulatory Requirements
Environmental Impact.
This directive will revise national policy governing administration
of special use permits for outfitting and guiding. Section 31b of
Forest Service Handbook 1909.15 (57 FR 43180, September 18, 1992)
excludes from documentation in an environmental assessment or
environmental impact statement ``rules, regulations, or policies to
establish Service-wide administrative procedures, program processes, or
instructions.'' The agency's conclusion is that this directive falls
within this category of actions and that no extraordinary circumstances
exist which would require preparation of an environmental assessment or
environmental impact statement.
Regulatory Impact.
This directive 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 directive. This directive
will not have an annual effect of $100 million or more on the economy,
nor will it adversely affect productivity, competition, jobs, the
environment, public health and safety, or State or local governments.
This directive will not interfere with an action taken or planned by
another agency, nor will it raise new legal or policy issues. Finally,
this directive will not alter the budgetary impact of entitlement,
grant, user fee, or loan programs or the rights and obligations of
beneficiaries of such programs. Accordingly, this directive is not
subject to Office of Management and Budget review under Executive Order
12866.
Moreover, this directive has been considered in light of the
Regulatory Flexibility Act (5 U.S.C. 602 et seq.). It has been
determined that this directive will not have a significant economic
impact on a substantial number of small entities as defined by the act
because the directive will not impose record-keeping requirements on
them; it will not affect their competitive position in relation to
large entities; and it will not significantly affect their cash flow,
liquidity, or ability to remain in the market. To the contrary, the
efficiencies and consistency to be achieved by this directive should
benefit small businesses that seek to use and occupy NFS lands by
providing the potential for greater business continuity for outfitters
and guides and by reducing the frequency of time-consuming and
sometimes costly processing of special use applications. The benefits
cannot be
[[Page 19730]]
quantified and are not likely substantially to alter costs to small
businesses.
No Takings Implications.
This directive has been analyzed in accordance with the principles
and criteria contained in Executive Order 12630, and it has been
determined that the directive will not pose the risk of a taking of
private property.
Civil Justice Reform.
This directive has been reviewed under Executive Order 12988 on
civil justice reform. If this directive were adopted, (1) all State and
local laws and regulations that are in conflict with this directive or
that would impede its full implementation will be preempted; (2) no
retroactive effect will be given to this directive; and (3) it will not
require administrative proceedings before parties may file suit in
court challenging its provisions.
Federalism and Consultation and Coordination with Indian
Tribal Governments.
The agency has considered this directive under the requirements of
Executive Order 13132 on federalism, and has made an assessment that
the directive conforms with the federalism principles set out in this
executive order; will not impose any compliance costs on the States;
and will not have substantial direct effects on the States, the
relationship between the Federal Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, the agency has determined that no further
assessment of federalism implications is necessary at this time.
Moreover, this directive does not have tribal implications as
defined by Executive Order 13175, entitled ``Consultation and
Coordination With Indian Tribal Governments,'' and therefore advance
consultation with Tribes is not required.
Energy Effects.
This directive has been reviewed under Executive Order 13211,
entitled ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.'' It has been determined that this
directive does not constitute a significant energy action as defined in
the executive order.
Unfunded Mandates.
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), which the President signed into law on March 22,
1995, the agency has assessed the effects of this directive on State,
local, and Tribal governments and the private sector. This directive
will not compel the expenditure of $100 million or more by any State,
local, or Tribal government or anyone in the private sector. Therefore,
a statement under section 202 of the act is not required.
Controlling Paperwork Burdens on the Public.
This directive does not contain any recordkeeping or reporting
requirements or other information collection requirements as defined in
5 U.S.C. part 1320 that are not already required by law or not already
approved for use. Any information collected from the public as a result
of this action has been approved by the Office of Management and Budget
under control number 0596-0082. Accordingly, the review provisions of
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its
implementing regulations at 5 CFR part 1320 do not apply.
Dated: March 31, 2005.
Dale N. Bosworth,
Chief.
4. Directive Changes for Outfitter and Guides
Note: The Forest Service organizes its directive system by
alphanumeric codes and subject headings. Only those sections of the
Forest Service Handbook that are the subject of this notice are set
out here. The intended audience for this direction is Forest Service
employees charged with issuing and administrating outfitter and
guide special use permits.
Forest Service Handbook
2709.11-Special Uses Handbook
Chapter 40-Special Uses Administration
* * * * *
41.53 Outfitters and Guides
* * * * *
41.53c Definitions
* * * * *
Priority Use. Authorization of use for a period not to exceed ten
years. The amount of use is based on the holder's past use and
performance and on land management plan allocations. Except as provided
for in Title 36, Code of Federal Regulations, part 251, subpart E,
authorizations providing for priority use are subject to renewal (sec.
41.53f).
* * * * *
41.53h--Assignment and Management of Priority Use
* * * * *
2. * * *
a. Use may be based on the average of the highest two years of
actual use during the previous permit term.
* * * * *
41.53j--Permit Terms and Conditions
1. For new applicants, authorize use for up to one year. For
holders assigned priority use, use may be authorized for up to ten
years.
* * * * *
[FR Doc. 05-7488 Filed 4-13-05; 8:45 am]
BILLING CODE 3410-11-P