Maximum Term for Outfitter and Guide Special Use Permits on National Forest System Lands

AGENCY:

Forest Service, USDA.

ACTION:

Notice of proposed directive; request for public comment.

SUMMARY:

The Forest Service is proposing changes to direction governing special use permits for outfitting and guiding conducted on National Forest System lands by increasing the maximum term for these authorizations from five to ten years. The proposed directive would provide the potential for greater business continuity for outfitters and guides who furnish services to recreationists 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. Public comment is invited and will be considered in development of a final directive.

DATES:

Comments must be received in writing by October 12, 2004.

ADDRESSES:

Send comments by postal mail to Forest Service, USDA, Attn: Kenneth Karkula, Recreation, Heritage, and Wilderness Resources Staff, (2720), 1400 Independence Ave., Mailstop 1125, Washington, DC 20250-1125 or by e-mail to outfitterpermit@fs.fed.us. Comments also may be submitted by following the instructions at the federal eRulemaking portal at http://www.regulation.gov. If comments are sent by e-mail or facsimile, the public is requested not to send duplicate comments via postal mail. Please confine comments to issues pertinent to the proposed directive, explain the reasons for any recommended changes, and, where possible, reference the specific wording being addressed.

All comments, including names and addresses when provided, will be placed in the record and will be available for public inspection and copying. The public may inspect comments received on this proposed directive in the Office of the Director, Recreation, Heritage, and Wilderness Resources Staff, 4th Floor Central, Sidney R. Yates Federal Building, 14th and Independence Avenue, SW., Washington, DC, on business days between the hours of 8:30 a.m. and 4 p.m. Those wishing to inspect comments are encouraged to call ahead at (202) 205-1426 or (202) 205-1399 to facilitate entry into the building.

FOR FURTHER INFORMATION CONTACT:

Ken Karkula, (202) 205-1426, or Carolyn Holbrook, (202) 205-1399, Recreation, Heritage, and Wilderness Resources Staff.

SUPPLEMENTARY INFORMATION:

1. Background and Need for the Proposed 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 opportunities 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 serve as important partners of the Forest Service in providing public services.

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 it 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 would provide outfitters and guides with the potential for greater business continuity for planning and investing.

Special Uses Streamlining

This directive would 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).

Inter-Agency Consistency

This proposed directive would 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. Regulatory Requirements

Environmental Impact

This proposed directive would 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 proposed 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 proposed 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 proposed directive would not have an annual effect of $100 million or more on the economy, nor would it adversely affect productivity, competition, jobs, the environment, public health and safety, or State or local governments. This proposed directive would not interfere with an action taken or planned by another agency, nor would it raise new legal or policy issues. Finally, this proposed directive would 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 proposed directive is not subject to Office of Management and Budget review under Executive Order 12866.

Moreover, this proposed directive has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 602 et seq.). It has been determined that this proposed directive would not have a significant economic impact on a substantial number of small entities as defined by the act because the proposed directive would not impose record-keeping requirements on them; it would not affect their competitive position in relation to large entities; and it would 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 National Forest System 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 quantified and are not likely substantially to alter costs to small businesses.

No Takings Implications

This proposed directive has been analyzed in accordance with the principles and criteria contained in Executive Order 12630, and it has been determined that the proposed directive would not pose the risk of a taking of private property.

Civil Justice Reform

This proposed directive has been reviewed under Executive Order 12988 on civil justice reform. If this proposed directive were adopted, (1) all State and local laws and regulations that are in conflict with this proposed directive or that would impede its full implementation would be preempted; (2) no retroactive effect would be given to this proposed directive; and (3) it would 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 proposed directive under the requirements of Executive Order 13132 on federalism, and has made an assessment that the proposed directive conforms with the federalism principles set out in this executive order; would not impose any compliance costs on the States; and would 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 proposed 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 proposed 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 proposed 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 proposed directive on State, local, and Tribal governments and the private sector. This proposed directive would 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 proposed rule does not contain any record-keeping 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.

3. Proposed 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.