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America Outdoors [folder 1] [2]
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Records of the Domestic Policy Council (Clinton Administration)
Brian Burke's Files
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Withdrawal/Redaction Sheet
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
001. memo
To: Brian Burke, From: Hope Schmeltzer, Re: Environmental
March 11,
P6/b(6)
Landscape Meeting [partial] (1 page)
1994
002. fax
To: Cookie Walden, From David L. Brown, Re: Meeting with Brian
2-28-94
P6/b(6)
Burke [partial] (1 page)
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Brian Burke
OA/Box Number: 4430
FOLDER TITLE:
America Outdoors [folder 1] [2]
2013-1074-S
sb45
RESTRICTION CODES
Presidential Records Act - [44 U.S.C. 2204(a)]
Freedom of Information Act - [5 U.S.C. 552(b)]
P1 National Security Classified Information |(a)(1) of the PRA]
b(1) National security classified information |(b)(1) of the FOIA]
P2 Relating to the appointment to Federal office |(a)(2) of the PRA]
b(2) Release would disclose internal personnel rules and practices of
P3 Release would violate a Federal statute [(a)(3) of the PRA]
an agency [(b)(2) of the FOIA]
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate a Federal statute [(b)(3) of the FOIA]
financial information |(a)(4) of the PRA]
b(4) Release would disclose trade secrets or confidential or financial
P5 Release would disclose confidential advice between the President
information |(b)(4) of the FOIA]
and his advisors, or between such advisors |a)(5) of the PRA
b(6) Release would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
personal privacy |(b)(6) of the FOIA]
personal privacy [(a)(6) of the PRA]
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
b(8) Release would disclose information concerning the regulation of
of gift.
financial institutions [(b)(8) of the FOIA]
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
2201(3).
concerning wells [(b)(9) of the FOIA]
RR. Document will be reviewed upon request.
Recommenations Abstract
Department of the Interior
Draft Concessions Management Task Force Report
(April 17, 1992)
1. A common set of data reporting procedures should be
established to be used by each agency (within Interior) with
concession operations. This common data system should
include a single set of definitions of concession elements
to be used by each agency. The agencies could supplement
these common data sets with additional information, if
required.
2. An Interior Interagency Concessions Management Coordinating
Group consisting of agency program managers and appropriate
Departmental policy officials should be established to
review concession management operations.
3. Additional efforts should be made to review the types of use
authorizations adopted by the agencies and develop more
consistent authorizations for the same types of use.
Similar authorizations should contain similar terms and
conditions of use and equity, thus establishing similar
returns to the Federal Government.
4. All Interior Bureaus should also implement a combination of
systematic, consistent, and higher franchise fees, taking
account of "nonfee" or "in kind" payments in lieu of
franchise fees, to assure equitable returns to the Federal
Government and the taxpayer.
5. All agencies' concession agreements should provide an
equitable return to the government regardless of the legal
instrument used to effect the agreement. If an agency
issues a permit to operate a business that produces
significant revenues, the calculation of the franchise fee
needs to recognize that fact.
6. An accurate valuation system should be developed and applied
to cases where "nonfee" returns and "in-kind payments" in
lieu of franchise fees are proposed to determine when the
public interest calls for their approval.
7. Targeted thresholds of total returns should be developed to
evaluate the optimal combination of payments to seek in
advertisements, Requests for Proposals, and renegotiations.
Such a system should utilize comparable market data for the
industry and regional economy to assess levels that would
deliver more equitable returns to the Federal government and
the taxpayer.
1/3
8. The administrative costs of agencies' concession management
programs should be recouped through fees assessed.
9. The Department should explore the option of establishing an
office under the Assistant Secretary - Policy, Management
and Budget, staffed with sufficient expertise and able to
utilize outside consulting contracts when necessary, to
recommend fees for all bureaus and negotiate major
agreements.
10. Where State and local governments have been given the
responsibility to manage Federal lands, require in all
future such agreements that private concessions approved by
the State and local governments must pay a concessions fee
that at least equals the fee that would have been charged
the same concession by the Federal agency involved. The
Federal government should get its fair share of total
returns (from concessions operating on Federal lands managed
by State or local governments).
11. Limit the length of new concession agreements to the
shortest period practical, with a normal maximum of 15
years. Exceptions would require financial justification that
is shown to be in the public interest.
12. Establishment of subconcessions and sales or transfers of
concession agreements should require agency review and
approval. Agency agreements should stipulate that certain
provisions, including the setting of franchise fees, are
completely renegotiable at such junctures.
13. Agencies should widely advertise all opportunities for
concession agreement proposals, including renewals, through
public resources such as the Commerce Business Daily and
local media.
14. Agencies should avoid granting preferential right of renewal
in concession contracts and permits, unless it is determined
to be in the public interest and consistent with legislative
authority.
15. The other agencies should adopt limitations (similar to
existing NPS limitations) in granting any preferential right
to provide additional services in all concession agreements
and permits.
16. Placement of a possessory interest provision in a concession
agreement should require a finding that circumstances
warrant that it is in the public interest.
2/3
When other contract terms are improved in order to offset of
compensate the concessioner's loss of possessory interest,
there must be clear documented method for assuring that the
value of the offset is approximately equal to the value of
the benefits to the government (in "extinguishing"
outstanding possessory interest). The particular formulas
used would logically be a part of each agency's overall
franchise fee calculation process.
17. All agencies should implement systematic concession program
evaluation processes.
18. Responsibility for reviewing and approving/disapproving
major concession agreements should be elevated to agency
headquarters. An annual gross revenue "threshold" should be
established to define what a "major" concession agreement
would be.
19. Agencies should review their regulations and assure that
they have proper authority to guard against improper pricing
practices.
20. Specific steps should be taken to build a process designed
to establish and maintain a group of employees who are
skilled in performing their present jobs and who are
cognizant of new developments in the concession field and
prepared for advancement into positions of increased
responsibility.
21. Agencies should develop cooperative procedures to facilitate
cross-boundary (concessionaire and permittee) uses.
3/3
Name
Organization
Phone #
Brian Burke
Domeshic Policy Covncil
456-7753
Steve Deitemuyer
USDA- Forest Service
205-1155
lisa Guide
Bof Reclamatim
208 4662
Michele Altemus
Dol - FWS
(202)208-4717
thike Swemey
DOI-
I
2084203
mike. Boylan
FWS
8(703) 358-1786
HAL Spencer
Laurie Shafter
NPS
202 343-1560
NPS
202 343 1560
Julie Faltner
DOI-BLM
202-208-7120
America Outdoors
American Recreation Coalition- - Derrick Crandall
National Forst Recreation Association
March 18, 1994
Mike Boylan
? FANDY AdellaBackiel
MEMORANDUM FOR JULIE FALKNER
(FWS)
(FS) -Depty
MICHELLE ALTEMUS
703-358-1786
SUSIE TREES
Janna Sidley 208 4501 or 4291 Lisa Guide
Lsp.ass't to Dir. of Reclamation
FROM:
BRIAN BURKE, HOPE SCHMELTZER
SP.GSS4
208-4662
SUBJECT:
PERMITTING PROCEDURES FOR CONCESSIONERS ON PUBLIC
LANDS -- MEETING PROPOSED FOR 9:30 AM, MARCH 25
It has come to our attention that permitting procedures for
concessioners on public lands are in flux at the Forest Service,
the National Parks Service and at the Bureau of Reclamation. We
would like to seize this opportunity to unify the permitting
procedures among all the bureaus insofar as possible. Of
particular concern are the issues of permit length and
renewability. We would like to meet on March 25, 1994 at 9:30 am
at the Old Executive Office Building to discuss these issues.
Senate Bill 208 (attached and summarized) addresses these
matters for the National Parks Service. Senator Bumpers of
Arkansas sponsored the legislation and is opening it up for
debate on the Senate floor on Monday, March 21. A vote could
take place as early as Tuesday. Any comments you have on the
strategy proposed therein, its application to your agency or
alternatives are welcomed and encouraged for discussion.
Please contact us as soon as possible to confirm your
availability for this meeting. If necessary, we will reschedule
to ensure your participation. We look forward to working with
you.
Lisa Guide: @ 3 visitor's centers; receive 100% of the profits
encl.
David Brown - 3/21 - called
Park Sice disc. this morn.
360 - outfitters notes C-U license
NPKS
Today, toldin they're being elim -will be converted
to to concessions K's - directive this week
Laurie Schaeffer in concessions of ce b/c
too manu
in DC
given out
a
lot of resource
1150 C-U licenses overall
impacts - as resource
plans go outs prob. be
elim.
Nat'l Outdoor leadership sch in canyon lands
= 7% of Use for bakpacking in
- -reduced liuses to 2053 - dured guided
which have much less impact than enguided
Doesn't know how this will effect AO members
Susie Trees:
Nothing's been decided ateventially want to
elim. ortside outfitters who don't have licenses
NPS will require more stringest req.5 than other fed
lands agencies but could be some univ features
THE WHITE HOUSE
WASHINGTON
March 22, 1994
MEMORANDUM FOR JULIE FALKNER, DOI-BLM
MICHELLE ALTEMUS, DOI-FWS
SUSIE TREES, DOI-NPS
ADELLA BACKIEL, USDA-FS
LISA GUIDE, DOI-BOR
FROM:
BRIAN BURKE, WHITE HOUSE DOMESTIC POLICY COUNCIL
HOPE SCHMELTZER, WHITE HOUSE DOMESTIC POLICY COUNCIL
SUBJECT:
PERMITTING PROCEDURES FOR CONCESSIONERS ON PUBLIC
LANDS
It has come to our attention that permitting procedures for
concessioners on public lands are in flux at the Forest Service,
the National Parks Service and at the Bureau of Reclamation. We
would like to seize this opportunity to review the permitting
procedures among all the bureaus and encourage unification where
possible, while recognizing individual agency needs. Of
particular concern are the issues of permit length and
renewability. We would like to meet on Monday, March 28, 1994,
at 4:30 pm in the Old Executive Office Building to discuss these
issues.
Senate Bill 208 (attached and summarized) addresses these
matters for the National Parks Service. Senator Bumpers of
Arkansas sponsored the legislation and opened it up for debate on
the Senate floor on Monday, March 21. Any comments you have on
the strategy proposed therein are welcome.
Please contact us as soon as possible at 456-5573 to confirm
your availability for this meeting, and to arrange for clearance
into the complex. We look forward to working with you.
encl.
SENATE BILL 208
The following summarizes the key provisions of Senate Bill 208 to reform the concessions
policies of the National Parks Service (NPS), sponsored by Senator Dale Bumpers, and
introduced on the Senate floor on Monday, March 21, 1994.
Competitive Selection Process established for concessions contracts through
NPS regulations to be promulgated within 180 days after enactment of the Act.
NPS will solicit proposals by publishing a prospectus for the contract. The
prospectus will incorporate the terms and conditions of the existing concessions
contract, the facilities or services to be provided by the contract and the public
services to be offered by NPS.
Temporary Contracts may be approved by NPS to prevent service interruption.
Minimum Requirements to win the selection process require NPS determination
that the bidder will provide satisfactory services, protect and preserve the parks,
pay the minimum acceptable franchise fees and provide needed capital
investment. NPS may impose additional requirements.
Preferential Right of Renewal will be granted only to outfitters and similar
service providers who obtain no property interest in any park improvement and
who operate satisfactorily during the previous contract term. There will be no
preferential right to provide new or additional services.
Contract Lengths will be set by NPS, not to exceed ten years generally, but up
to twenty years if NPS deems it necessary. Temporary contracts may not
exceed two years.
Contract Transfers must be approved by NPS based on a determination that the
transferee will satisfy all contract conditions, and protect and preserve the
parks. In addition, the relevant House and Senate committees must be notified.
II
Calendar No. 360
103D CONGRESS
2D SESSION
S. 208
[Report No. 103-226]
To reform the concessions policies of the National Park Service, and for
other purposes.
IN THE SENATE OF THE UNITED STATES
JANUARY 26 (legislative day, JANUARY 5), 1993
Mr. BUMPERS (for himself, Mr. PRYOR, Mr. AKAKA, Mr. METZENBAUM, Mr.
SARBANES, Mr. BOND, Mr. PELL, Mr. EXON, Mr. LIEBERMAN, Mr.
LEAHY, Mr. SIMON, Mr. DASCHLE, Mrs. KASSEBAUM, Mr. CHAFEE, Mr.
KOHL, Mr. DANFORTH, Mr. DORGAN, Mr. JEFFORDS, Mr. KERRY, Mr.
BRADLEY, and Mr. COCHRAN) introduced the following bill; which was
read twice and referred to the Committee on Energy and Natural Re-
sources
FEBRUARY 11 (legislative day, JANUARY 25), 1994
Reported by Mr. JOHNSTON, with an amendment
[Strike out all after the enacting clause and insert the part printed in italic]
A BILL
To reform the concessions policies of the National Park
Service, and for other purposes.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
17
1 SEC. 16. EXEMPTION FROM CERTAIN LEASE REQUIRE-
2
MENTS.
3
The provisions of section 321 of the Act of June 30,
4 1932 (47 Stat. 412; 40 U.S.C. 303b), relating to the leas-
5 ing of buildings and properties of the United States, shall
6 not apply to contracts awarded by the Secretary pursuant
7 to this Act.
8 SEC. 17. CONFORMING AMENDMENT.
9
Subsection (h) of section 2 of the Act of August 21,
10 1935, the Historical Sites, Buildings and Antiquities Act
11 (49 Stat. 666, 16 U.S.C. 462(h)), is amended by striking
12 out the proviso therein.
13 SECTION 1. SHORT TITLE.
14
This Act may be cited as the "National Park Service
15 Concessions Policy Reform Act of 1994".
16 SEC. 2. FINDINGS AND POLICY.
17
(a) FINDINGS.-In furtherance of the Act of August 25,
18 1916 (39 Stat. 535), as amended (16 U.S.C. 1, 2-4), which
19 directs the Secretary of the Interior to administer areas of
20 the National Park System in accordance with the fun-
21 damental purpose of preserving their scenery, wildlife, nat-
22 ural and historic objects, and providing for their enjoyment
23 in a manner that will leave them unimpaired for the enjoy-
24 ment of future generations, the Congress finds that the pres-
25 ervation and conservation of park resources and values re-
26 quires that such public accommodations, facilities, and
S 208 RS --- 3
18
1 services as the Secretary determines are necessary and ap-
2 propriate in accordance with this Act-
3
(1) should be provided only under carefully con-
4
trolled safeguards against unregulated and indis-
5
criminate use so that visitation will not unduly im-
6
pair these values; and
7
(2) should be limited to locations and designs
8
consistent to the highest practicable degree with the
9
preservation and conservation of park resources and
10
values.
11
(b) POLICY.-It is the policy of the Congress that-
12
(1) development within a park shall be limited
13
to those facilities and services that the Secretary de-
14
termines are necessary and appropriate for public use
15
and enjoyment of the park in which such facilities
16
and services are located;
17
(2) development within a park should be consist-
18
ent to the highest practicable degree with the preserva-
19
tion and conservation of the park's resources and val-
20
ues;
21
(3) such facilities and services should be provided
22
by private persons, corporations, or other entities, ex-
23
cept when no private interest is qualified and willing
24
to provide such facilities and services;
S 208 RS
19
1
(4) if the Secretary determines that development
2
should be provided within a park, such development
3
shall be designed, located, and operated in a manner
4
that is consistent with the purposes for which such
5
park was established;
6
(5) such facilities and services should be awarded
7
to the person, corporation, or entity submitting the
8
best proposal through a competitive selection process;
9
and
10
(6) such facilities or services should be provided
11
to the public at reasonable rates.
12 SEC. 3. DEFINITIONS.
13
As used in this Act, the term-
14
(1) "concessioner" means a person, corporation,
15
or other entity to whom a concessions contract has
16
been awarded;
17
(2) "concessions contract" means a contract, in-
18
cluding permits, to provide facilities or services, or
19
both, at a park;
20
(3) "facilities" means improvements to real
21
property within parks used to provide accommoda-
22
tions, facilities, or services to park visitors;
23
(4) "park" means a unit of the National Park
24
System;
S 208 RS
20
1
(5) "proposal" means the complete proposal for
2
a concessions contract offered by a potential or exist-
3
ing concessioner in response to the minimum require-
4
ments for the contract established by the Secretary;
5
and
6
(6) "Secretary" means the Secretary of the Inte-
7
rior.
8 SEC. 4. REPEAL OF CONCESSIONS POLICY ACT OF 1965.
9
The Act of October 9, 1965, Public Law 89-249 (79
10 Stat. 969, 16 U.S.C. 20-20g), entitled "An Act relating to
11 the establishment of concession policies administered in the
12 areas administered by the National Park Service and for
13 other purposes", is hereby repealed. The repeal of such Act
14 shall not affect the validity of any contract entered into
15 under such Act, but the provisions of this Act shall apply
16 to any such contract except to the extent such provisions
17 are inconsistent with the express terms and conditions of
18 the contract.
19 SEC. 5. CONCESSIONS POLICY.
20
Subject to the findings and policy stated in section 2
21 of this Act, and upon a determination by the Secretary that
22 facilities or services are necessary and appropriate for the
23 accommodation of visitors at a park, the Secretary shall,
24 consistent with the provisions of this Act, laws relating gen-
25 erally to the administration and management of units of
S 208 RS
21
1 the National Park System, and the park's general manage-
2 ment plan, concessions plan, or other applicable plans, au-
3 thorize private persons, corporations, or other entities to
4 provide and operate such facilities or services as the Sec-
5 retary deems necessary and appropriate.
6 SEC. 6. COMPETITIVE SELECTION PROCESS.
7
(a) IN GENERAL.-(1) Except as provided in sub-
8 section (b), and consistent with the provisions of subsection
9 (g), any concessions contract entered into pursuant to this
10 Act shall be awarded to the person submitting the best pro-
11 posal as determined by the Secretary, through a competitive
12 selection process.
13
(2) Within 180 days after the date of enactment of this
14 Act, the Secretary shall promulgate appropriate regulations
15 establishing such process. The regulations shall include pro-
16 visions for establishing a method or procedure for the resolu-
17 tion of disputes between the Secretary and a concessioner
18 in those instances where the Secretary has been unable to
19 meet conditions or requirements or provide such services,
20 if any, as set forth in a prospectus pursuant to sections
21 6(c)(2) (D) and (E).
22
(b) TEMPORARY CONTRACT.-Notwithstanding the
23 provisions of subsection (a), the Secretary may award a
24 temporary concessions contract in order to avoid interrup-
25 tion of services to the public at a park.
8 208 RS
22
1
(c) PROSPECTUS.-(1) Prior to soliciting proposals for
2 a concessions contract at a park, the Secretary shall publish
3 a notice of availability for a prospectus soliciting proposals
4 at least once in local or national newspapers or trade publi-
5 cations, as appropriate, and shall make such prospectus
6 available upon request to all interested parties.
7
(2) The prospectus shall include, but need not be lim-
8 ited to, the following information:
9
(A) The minimum requirements for such con-
10
tract, as set forth in subsection (d).
11
(B) The terms and conditions of the existing con-
12
cessions contract awarded for such park, if any, in-
13
cluding all fees and other forms of compensation pro-
14
vided to the United States by the concessioner.
15
(C) Other authorized facilities or services which
16
may be provided in a proposal.
17
(D) Facilities and services to be provided by the
18
Secretary to the concessioner, if any, including but
19
not limited to, public access, utilities, and buildings.
20
(E) Minimum public services to be offered within
21
a park by the Secretary, including but not limited to,
22
interpretive programs, campsites, and visitor centers.
23
(F) Such other information related to the pro-
24
posed concessions operation which is not privileged or
25
otherwise exempt from disclosure under Federal law
S 208 RS
23
1
as the Secretary determines is necessary to allow for
2
the submission of competitive proposals.
3
(d) MINIMUM PROPOSAL REQUIREMENTS.-(1) No
4 proposal shall be considered which fails to meet the mini-
5 mum requirements as determined by the Secretary. Such
6 minimum requirements shall include, but need not be lim-
7 ited to, the minimum acceptable franchise fee, the duration
8 of the contract, facilities, services, or capital investment re-
9 quired to be provided by the concessioner, and measures
10 needed to ensure the protection and preservation of park
11 resources.
12
(2) The Secretary may reject any proposal, notwith-
13 standing the amount of franchise fee offered, if the Secretary
14 determines that the person, corporation, or entity is not
15 qualified, is likely to provide unsatisfactory service, or that
16 the proposal is not responsive to the objectives of protecting
17 and preserving park resources and of providing necessary
18 and appropriate facilities or services to the public at rea-
19 sonable rates.
20
(3) If all proposals submitted to the Secretary either
21 fail to meet the minimum requirements or are rejected by
22 the Secretary, the Secretary shall establish new minimum
23 contract requirements and re-initiate the competitive selec-
24 tion process pursuant to this section.
S 208 RS
24
1
(e) SELECTION OF BEST PROPOSAL.-(1) In selecting
2 the best proposal, the Secretary shall consider the following
3 principal factors:
4
(A) The responsiveness of the proposal to the ob-
5
jectives of protecting and preserving park resources
6
and of providing necessary and appropriate facilities
7
and services to the public at reasonable rates.
8
(B) The experience and related background of the
9
person, corporation, or entity submitting the pro-
10
posal, including but not limited to, the past perform-
11
ance and expertise of such person, corporation, or en-
12
tity in providing the same or similar facilities or
13
services.
14
(C) The financial capability of the person, cor-
15
poration, or entity submitting the proposal.
16
(D) The proposed franchise fee: Provided, That
17
consideration of revenue to the United States shall be
18
subordinate to the objectives of protecting and preserv-
19
ing park resources and of providing necessary and
20
appropriate facilities or services to the public at rea-
21
sonable rates.
22
(2) The Secretary may also consider such secondary
23 factors as the Secretary deems appropriate.
24
(f) CONGRESSIONAL NOTIFICATION.-(1) The Sec-
25 retary shall submit any proposed concessions contract with
S 208 RS
25
1 anticipated annual gross receipts in excess of $5,000,000
2 (indexed to 1993 constant dollars) or a duration of ten or
3 more years to the Committee on Energy and Natural Re-
4 sources of the United States Senate and the Committee on
5 Natural Resources of the United States House of Represent-
6 atives.
7
(2) The Secretary shall not ratify any such proposed
8 contract until at least 60 days subsequent to the notification
9 of both Committees.
10
(g) No PREFERENTIAL RIGHT OF RENEWAL.-(1) Ex-
11 cept as provided in paragraph (2), the Secretary shall not
12 grant a preferential right to a concessioner to renew a con-
13 cessions contract executed pursuant to this Act.
14
(2)(A) Notwithstanding the provisions of paragraph
15 (1), the Secretary shall grant a preferential right of renewal
16 to a concessioner-
17
(i) for a concessions contract which-
18
(I) primarily authorizes a concessioner to
19
provide outfitting, guide, river running, or other
20
similar services within a park; and
21
(II) does not grant the concessioner any in-
22
terest in any structure, fixture, or improvement
23
pursuant to section 11 of this Act; or
S 208 RS
26
1
(III) the Secretary estimates will have an-
2
nual gross revenues of no more than $500,000;
3
and
4
(ii) where the Secretary determines that the con-
5
cessioner has operated satisfactorily during the term
6
of the previous contract; and
7
(iii) where the Secretary determines that the con-
8
cessioner submits a responsive proposal for the new
9
contract which satisfies the minimum requirements
10
established by the Secretary.
11
(B) For the purposes of paragraph (2), the term "pref-
12 erential right of renewal" means that the Secretary shall
13 allow a concessioner satisfying the requirements of subpara-
14 graph (A) the opportunity to match the terms and condi-
15 tions of any competing proposal which the Secretary deter-
16 mines to be the best offer.
17
(h) No PREFERENTIAL RIGHT To ADDITIONAL SERV-
18 ICES.-The Secretary shall not grant a preferential right
19 to a concessioner to provide new or additional services at
20 a park.
21 SEC. 7. FRANCHISE FEES.
22
(a) IN GENERAL-Franchise fees, however, stated,
23 shall not be less than the minimum fee established by the
24 Secretary for each contract. The minimum fee shall be de-
25 termined in a manner that will provide the concessioner
S 208 RS
27
1 with a reasonable opportunity to realize a profit on the op-
2 eration as a whole, commensurate with the capital invested
3 and the obligations assumed.
4
(b) MULTIPLE CONTRACTS WITHIN A PARK.-If mul-
5 tiple concessions contracts are awarded to authorize conces-
6 sioners to provide the same or similar outfitting, guide,
7 river running, or other similar services at the same approx-
8 imate location or resource within a specific park, the Sec-
9 retary shall establish an identical franchise fee for all such
10 contracts. Such fee shall reflect fair market value, as deter-
11 mined by the Secretary.
12 SEC. 8. USE OF FRANCHISE FEES.
13
(a) SPECIAL ACCOUNT.-Except as provided in sub-
14 section (b), all receipts collected pursuant to this Act shall
15 be covered into a special account established in the Treasury
16 of the United States. Amounts covered into such account
17 in a fiscal year shall be available for expenditure, subject
18 to appropriation, solely as follows:
19
(1) 50 percent shall be allocated among the units
20
of the National Park System in the same proportion
21
as franchise fees collected from a specific unit bears
22
to the total amount covered into the account for each
23
fiscal year, to be used for resource management and
24
protection, maintenance activities, interpretation,
25
and research.
S 208 RS
28
1
(2) 50 percent shall be allocated among the units
2
of the National Park System on the basis of need, in
3
a manner to be determined by the Secretary, to be
4
used for resource management and protection, main-
5
tenance activities, interpretation, and research.
6
(b) PARK IMPROVEMENT FUND.-(1) In lieu of collect-
7 ing all or a portion of the franchise fees that would other-
8 wise be collected pursuant to the concessions contract, the
9 Secretary shall, where the Secretary determines it. to be
10 practicable, require a concessioner to establish a Park Im-
11 provement Fund (hereinafter in this section referred to as
12 the "fund"), in which the concessioner shall deposit the
13. franchise fees that would otherwise be required by the con-
14 tract.
15
(2) The fund shall be maintained by the concessioner
16 in an interest bearing account in a Federally-insured fi-
17 nancial institution. The concessioner shall maintain the
18 fund separately from any other funds or accounts and shall
19 not co-mingle the monies in the fund with any other monies.
20 The Secretary may establish such other terms, conditions,
21 or requirements as the Secretary determines to be necessary
22 to ensure the financial integrity of such fund.
23
(3) Monies from the fund, including interest, shall be
24 expended by the concessioner solely as directed by the Sec-
25 retary for activities and projects within the park which are
S 208 RS
29
1 consistent with the park's general management plan, con-
2 cessions plan, and other applicable plans, and which the
3 Secretary determines will enhance public use, safety, and
4 enjoyment of the park, including but not limited to projects
5 which directly or indirectly support concession facilities or
6 services required by the concessions contract. Projects paid
7 for from the fund shall not include routine, operational
8 maintenance of facilities. A concessioner shall not be al-
9 lowed to make any advances or credits to the fund.
10
(4) A concessioner shall not be granted any interest
11 in improvements made from fund expenditures, including
12 any interest granted pursuant to section 11 of this Act.
13
(5) Nothing in this subsection shall affect the obliga-
14 tion of a concessioner to insure, maintain, and repair any
15 structure, fixture, or improvement assigned to such conces-
16 sioner and to insure that such structure, fixture, or im-
17 provement fully complies with applicable safety and health
18 laws and regulations.
19
(6) The concessioner shall maintain proper records for
20 all expenditures made from the fund. Such records shall in-
21 clude, but not be limited to invoices, bank statements, can-
22 celed checks, and such other information as the Secretary
23 determines to be necessary.
24
(7) The concessioner shall annually submit to the Sec-
25 retary a statement reflecting total activity in the fund for
S 208 RS
30
1 the preceding financial year. The statement shall reflect
2 monthly deposits, expenditures by project, interest earned,
3 and such other information as the Secretary requires.
4
(8) Upon the termination of a concessions contract, or
5 upon the sale or transfer of such contract, any remaining
6 balance in the fund shall be transferred by the concessioner
7 to the successor concessioner, to be used solely as set forth
8 in this subsection. In the event there is not a successor con-
9 cessioner, the fund balance shall be deposited into the spe-
10 cial account established in subsection (a).
11 SEC. 9. DURATION OF CONTRACT.
12
(a) MAXIMUM TERM.-A concessions contract entered
13 into pursuant to this Act shall be awarded for a term not
14 to exceed ten years: Provided, however, That the Secretary
15 may award a contract for a term not to exceed twenty years
16 if the Secretary determines that the contract terms and con-
17 ditions necessitate a longer term.
18
(b) TEMPORARY CONTRACT.-A temporary concessions
19 contract awarded on a non-competitive basis pursuant to
20 section 6(b) of this Act shall be for a term not to exceed
21 two years.
22 SEC. 10. TRANSFER OF CONTRACT.
23
(a) IN GENERAL-(1) No concessions contract may be
24 transferred, assigned, sold, or otherwise conveyed by a con-
S 208 RS
31
1 cessioner without prior written notification to, and ap-
2 proval of the Secretary.
3
(2) The Secretary shall not approve the transfer of a
4 concessions contract to any individual, corporation or other
5 entity if the Secretary determines that-
6
(A) such individual, corporation or entity is, or
7
is likely to be, unable to completely satisfy all of the
8
requirements, terms, and conditions of the contract; or
9
(B) such transfer, assignment, sale or conveyance
10
is not consistent with the objectives of protecting and
11
preserving park resources, and of providing necessary
12
and appropriate facilities or services to the public at
13
reasonable rates: Provided, That such approval shall
14
not be unreasonably withheld.
15
(b) CONGRESSIONAL NOTIFICATION.-Within thirty
16 days after receiving a proposal to transfer, assign, sell, or
17 otherwise convey a concessions contract, the Secretary shall
18 notify the Committee on Energy and Natural Resources of
19 the United States Senate and the Committee on Natural
20 Resources of the United States House of Representatives of
21 such proposal. Approval of such proposal, if granted by the
22 Secretary, shall not take effect until sixty days after the
23 date of notification of both Committees.
S 208 RS
32
1 SEC. 11. PROTECTION OF CONCESSIONER INVESTMENT.
2
(a) EXISTING STRUCTURES.-(1) A concessioner who
3 before the date of the enactment of this Act has acquired
4 or constructed, or is required under an existing concessions
5 contract to commence acquisition or construction of any
6 structure, fixture, or improvement upon land owned by the
7. United States within a park, pursuant to a concessions con-
8 tract, shall have a possessory interest therein, to the extent
9 provided by such contract.
10
(2) The provisions of this subsection shall not apply
11 to a concessioner whose contract in effect on the date of en-
12 actment of this Act does not include recognition of a
13 possessory interest.
14
(3) With respect to a concessions contract entered into
15 on or after the date of enactment of this Act, the provisions
16 of subsection (b) shall apply to any existing structure, fix-
17 ture, or improvement as defined in paragraph (a)(1), except
18 that the actual original cost of such structure, fixture, or
19 improvement shall be deemed to be the value of the
20 possessory interest as of the termination date of the previous
21 concessions contract.
22.
(b) NEW STRUCTURES.-(1) On or after the date of
23 enactment of this Act, a concessioner who constructs or ac-
24 quires a new, additional, or replacement structure, fixture,
25 or improvement upon land owned by the United States
26 within a park, pursuant to a concessions contract, shall
S 208 RS
33
1 have an interest in such structure, fixture, or improvement
2 equivalent to the actual original cost of acquiring or con-
3 structing such structure, fixture, or improvement, less
4 straight line depreciation over the estimated useful life of
5 the asset according to Generally Accepted Accounting Prin-
6 ciples: Provided, That in no event shall the estimated useful
7 life of such asset exceed the depreciation period used for such
8 asset for Federal income tax purposes.
9
(2) In the event that the contract expires or is termi-
10 nated prior to the recovery of such costs, the concessioner
11 shall be entitled to receive from the United States or the
12 successor concessioner payment equal to the value of the con-
13 cessioner's interest in such structure, fixture, or improve-
14 ment. A successor concessioner may not revalue the interest
15 in such structure, fixture, or improvement, the method of
16 depreciation, or the estimated useful life of the asset.
17
(3) Title to any such structure, fixture, or improve-
18 ment shall be vested in the United States.
19
(c) INSURANCE, MAINTENANCE AND REPAIR.-Nothing
20 in this section shall affect the obligation of a concessioner
21 to insure, maintain, and repair any structure, fixture, or
22 improvement assigned to such concessioner and to insure
23 that such structure, fixture, or improvement fully complies
24 with applicable safety and health laws and regulations.
S 208 RS
34
1 SEC. 12. RATES AND CHARGES TO PUBLIC.
2
The reasonableness of a concessioner's rates and
3 charges to the public shall, unless otherwise provided in the
4 bid specifications and contract, be judged primarily by
5 comparison with those rates and charges for facilities and
6 services of comparable character under similar conditions,
7 with due consideration for length of season, seasonal vari-
8 ance, average percentage of occupancy, accessibility, avail-
9 ability and costs of labor and materials, type of patronage,
10 and other factors deemed significant by the Secretary.
11 SEC. 13. CONCESSIONER PERFORMANCE EVALUATION.
12
(a) REGULATIONS.-Within one hundred and eighty
13 days after the date of enactment of this Act, the Secretary
14 shall publish, after an appropriate period for public com-
15 ment, regulations establishing standards and criteria for
16 evaluating the performance of concessions operating within
17 parks.
18
(b) PERIODIC EVALUATION.-(1) The Secretary shall
19 periodically conduct an evaluation of each concessioner op-
20 erating under a concessions contract pursuant to this Act,
21 as appropriate, to determine whether such concessioner has
22 performed satisfactorily. In evaluating a concessioner's per-
23 formance, the Secretary shall seek and consider applicable
24 reports and comments from appropriate Federal, State, and
25 local regulatory agencies. If the Secretary's performance
26 evaluation results in an unsatisfactory rating of the conces-
S 208 RS
35
1 sioner's overall operation, the Secretary shall provide the
2 concessioner with a list of the minimum requirements nec-
3 essary for the operation to be rated satisfactory, and shall
4 so notify the concessioner in writing.
5
(2) The Secretary may terminate a concessions con-
6 tract if the concessioner fails to meet the minimum oper-
7 ational requirements identified by the Secretary within the
8 time limitations established by the Secretary at the time
9 notice of the unsatisfactory rating is provided to the conces-
10 sioner.
11
(3) If the Secretary terminates a concessions contract
12 pursuant to this section, the Secretary shall solicit propos-
13 als for a new contract consistent with the provisions of this
14 Act.
15
(c) CONGRESSIONAL NOTIFICATION.-The Secretary
16 shall notify the Committee on Energy and Natural Re-
17 sources of the United States Senate and the Committee on
18 Natural Resources of the United States House of Represent-
19 atives of each unsatisfactory rating and of each concessions
20 contract terminated pursuant to this section.
21 SEC. 14. RECORDKEEPING REQUIREMENTS.
22
Each concessioner shall keep such records as the Sec-
23 retary may prescribe to enable the Secretary to determine
24 that all terms of the concessioner's contract have been, and
25 are being faithfully performed, and the Secretary or any
S 208 RS
36
1 of the Secretary's duly authorized representatives shall, for
2 the purpose of audit and examination, have access to such
3 records and to other books, documents and papers of the
4 concessioner pertinent to the contract and all the terms and
5 conditions thereof as the Secretary deems necessary.
6 SEC. 15. EXEMPTION FROM CERTAIN LEASE REQUIRE-
7
MENTS.
8
The provisions of section 321 of the Act of June 30,
9 1932 (47 Stat. 412; 40 U.S.C. 303b), relating to the leasing
10 of buildings and properties of the United States, shall not
11 apply to contracts awarded by the Secretary pursuant to
12 this Act.
13 SEC. 16. NO EFFECT ON ANILCA PROVISIONS.
14
Nothing in this Act shall be construed to amend, super-
15 sede, or otherwise affect any provision of the Alaska Na-
16 tional Interest Lands Conservation Act (16 U.S.C. 3101 et
17 seq.).
S 208 RS
THE WHITE HOUSE
WASHINGTON
March 22, 1994
MEMORANDUM FOR JULIE FALKNER, DOI-BLM
MICHELLE ALTEMUS, DOI-FWS
SUSIE TREES, DOI-NPS
ADELLA BACKIEL, USDA-FS
LISA GUIDE, DOI-BOR
FROM:
BRIAN BURKE, WHITE HOUSE DOMESTIC POLICY COUNCIL
HOPE SCHMELTZER, WHITE HOUSE DOMESTIC POLICY COUNCIL
SUBJECT:
PERMITTING PROCEDURES FOR CONCESSIONERS ON PUBLIC
LANDS
It has come to our attention that permitting procedures for
concessioners on public lands are in flux at the Forest Service,
the National Parks Service and at the Bureau of Reclamation. We
would like to seize this opportunity to review the permitting
procedures among all the bureaus and encourage unification where
possible, while recognizing individual agency needs. Of
particular concern are the issues of permit length and
renewability. We would like to meet on Monday, March 28, 1994,
at 4:30 pm in the Old Executive Office Building to discuss these
issues.
Senate Bill 208 (attached and summarized) addresses these
matters for the National Parks Service. Senator Bumpers of
Arkansas sponsored the legislation and opened it up for debate on
the Senate floor on Monday, March 21. Any comments you have on
the strategy proposed therein are welcome.
Please contact us as soon as possible at 456-5573 to confirm
your availability for this meeting, and to arrange for clearance
into the complex. We look forward to working with you.
encl.
SENATE BILL 208
The following summarizes the key provisions of Senate Bill 208 to reform the concessions
policies of the National Parks Service (NPS), sponsored by Senator Dale Bumpers, and
introduced on the Senate floor on Monday, March 21, 1994.
Competitive Selection Process established for concessions contracts through
NPS regulations to be promulgated within 180 days after enactment of the Act.
NPS will solicit proposals by publishing a prospectus for the contract. The
prospectus will incorporate the terms and conditions of the existing concessions
contract, the facilities or services to be provided by the contract and the public
services to be offered by NPS.
Temporary Contracts may be approved by NPS to prevent service interruption.
Minimum Requirements to win the selection process require NPS determination
that the bidder will provide satisfactory services, protect and preserve the parks,
pay the minimum acceptable franchise fees and provide needed capital
investment. NPS may impose additional requirements.
Preferential Right of Renewal will be granted only to outfitters and similar
service providers who obtain no property interest in any park improvement and
who operate satisfactorily during the previous contract term. There will be no
preferential right to provide new or additional services.
Contract Lengths will be set by NPS, not to exceed ten years generally, but up
to twenty years if NPS deems it necessary. Temporary contracts may not
exceed two years.
Contract Transfers must be approved by NPS based on a determination that the
transferee will satisfy all contract conditions, and protect and preserve the
parks. In addition, the relevant House and Senate committees must be notified.
Crom:
David
Executive
2
22
04
n 2 of 12
AMERICA
OUTDOORS
February 22, 1994
Mr. Brian Burke
Domestic Policy Council
Executive Office of the President
Washington, D.C. 20500
Dear Mr. Burke:
Mike Mills of Ponca, Arkansas recently talked with you regarding an appointment to discuss an
issue related to rural economic development and the use of public lands. Permitting policies of
the federal agencies appear to be in disarray, creating uncertainty and instability among thousands
of recreation businesses.
For example, the Forest Service is attempting to make significant changes in terms and conditions
of its recreation special use permit for outfitters and guides. These changes may eliminate a long
-standing policy of giving preferences in permit renewal for companies, who, having risked the
what
investment, have operated through the five-year term in a satisfactory manner. In fact, the Forest
Service maintains that these permits are not renewable and that a new permit must be issued. We
maintain that outfitters who have been evaluated satisfactorily and met the terms of their permit,
which may include standards for low impact techniques, quality service, and environmental
education, should be allowed to renew.
permits renewable for are
The Park Service, on the other hand, appears poised to eliminate many backcountry guiding
services throughout units of the National Park system. This is occurring in a number of ways,
foremost of which is elimination of the Commercial Use Licenses without a replacement means of
permitting outfitted recreation opportunities for the public.
The immediate impact will be upon hundreds of small businesses in rural areas. Banks and
lending institutions do not accept this situation as a favorable condition upon which to base loans
to small businesses. Many examine permits prior to providing loans. GAO has determined that
over 9,000 permits (they use the term concessions) are issued for activities on federal lands.
Many arc recreation service providers who opcrate on lands managed by the USDA Forcst
Service, the Bureau of Land Management, the National Parks Service and other agencies, such as
the US Fish and Wildlife Agency. Many businesses are at risk.
P.O. Box 1348, Knoxville, TN 37901
615-524-4814
From: David Brown, Executive Director
2-22-94 7:01pm p. 3 of 12
ramilies and international visitors who do not possess the skills to visit many of these areas on
their own will lose the opportunity if outfitters, guides and other service providers are eliminated.
We understand the need for the agencies to eliminate those who are not doing a good job and are
fully willing to accept fair evaluations as part of the permitting process to identify those with a
commitment to quality, service and resource stewardship.
We are asking the administration to develop a policy that is recognized by all agencies -- one that
takes into account the needs for viable business terms, as well as, the goals of the resource
management plan and the need to protect the public's health and safety. Enclosed is a briefing on
the need for a policy decision on this issue. In the absence of an overarching administration
policy, cach agency sccms to bc going its own way on this issue. Wc arc requesting a meeting
with you on Friday, March 4, 1994 to further discuss this matter.
Those who will be attending the meeting include:
Mike Mills
Doug Tims
Wann Brown
Midwest Regional Chairman
President
Vice President -- West
America Outdoors
America Outdoors
America Outdoors
Buffalo Outdoor Center
Northwest River Co.
All 'Round Ranch
P.O. Box 1
P.O. Box 403
P.O. Box 153
Ponca, AR 72760
Boise, ID 83701
Jensen, UT 84035
501-861-5514
208-344-7119
801-789-7626
David Brown
Bruce Green
Executive Director
President, Oregon Guides and Packers
America Outdoors
Wilderness River Outfitters
P.O. Box 1348
1567 Main Street
Knoxville, TN 37901
Springfield, OR 97477
615-524-4814
503-726-9471
Please advise me about the time of the appointment. Ms. Pankonin is coordinating our overall
meeting and will work with you on the details.
Thank you for giving this matter your attention.
Sincerely,
David L. Brown
Executive Director
From: Uavid Brown, Executive Director
2-22-94
7:02pm
p. 4 of 12
The Standardization of Permitting Policies Among Federal Agencies for
Outfitters, Guides and Similar Recreation Service Providers
by David L. Brown
America Outdoors
Overview
The pace of change and reform in permitting and concessions management is creating
confusion and disarray among the federal resource managers and recreation service providers.
Concessions reform is moving through Congress.¹,² Commercial Use Licenses (CUL's), issued
routinely in units of the National Park Service for some outfitting and guiding and other recreation
related services, have been criticized by the General Accounting Office.3 As a result, some Parks
are eliminating CUL's and attempting to replace them with more burdensome concessions
contracts that require high levels of bureaucratic overhead. In some areas recreation opportunities
are being eliminated.⁴ An increasingly frequent justification is the absence in resource
management plans of a demonstrated public "need" for such services.
The Forest Service and Bureau of Land Management are operating under long established
policies that provide a fair rate of return to the government, although some improvements in
administration of the policy arc desirable. Both agencies have historically used special use
permits to manage services provided by outfitters and guides on public lands. The core language
1
S. 208, National Park Service Concessions Policy Reform Act, ordered reported February
2, 1994, by Scnate Committee on Energy and Natural Resources.
2
H.R. 1493, National Park Service Concessions Policy Reform Act of 1993 (see also H.R.
473 and H.R. 2146).
3
United States General Accounting Office, Report to the Chairman, Committee on
Environment, Energy, and Natural Resources Subcommittee, Committee on Government
Operations. Federal Lands: Improvements Needed in Managing Short-Term Concessioners,
U.S. House of Representatives, Washington, D.C.: 1993. p.p. 12.
4
Lancaster, John O. (Superintendent, Glen Canyon National Recreation Area), letter to
Wilderness Inquiry. Page, Arizona: November 1993, p. 3.
5
America Outdoors Action Alert on Canyonlands National Recreation Area Resource
Management Plan. Knoxville, TN.: February, 1994.
10: Burke, Brian
From: Uavid Brown, Executive Virector
2-22-94
7:02pm
p. 5 of 12
in these permits is also issued for gas lines and other special uscs across National Forcsts⁶. The
strict liability terms included in these permits are not appropriate for outdoor recreation'.
Therefore, the Forest Service is considering a separate permit for outfitters and guides.
We believe these issues reflect the need for a specific policy for recreation service
providers on federal lands that takes into account the need for resource protection, business
viability, and public health and safety.
Need for a Standardized Permitting Policy for Outfitting and Guiding on Public Lands
Outfitters, guides, and similar companies provide access to the backcountry for relatively
inexperienced recreationists for whitewater rafting trips, cross country skiing, canoeing, kayaking,
hiking, horseback riding, mountain biking, fishing, hunting and other types of recreation services.
Without outfitters and guides, or an expensive federal replacement, many of these experiences and
much federal land would be inaccessible to the average taxpayer.
Wc believe the need for outfitters and guides to aid the taxpayers' enjoyment of public
lands is well established. The majority of families and individuals seeking backcountry recreation
opportunities on federal lands do not possess the first aid training, equipment, or knowledge of
low impact techniques important to many recreation activities in backcountry settings.
Recreationists may simply not have the time to develop the logistical expertise necessary to
operate in the areas. Individuals with special needs also deserve recreation opportunities that are
available through outfitters. Additionally, the public may prefer the interpretive or educational
component of a trip led by an outfitter or guide.
6
Conversation with John Shilling, USDA Forest Service, Washington, D.C. October 20,
1993.
7
Catherine Hansen, Holland and Hart, Legal analysis of liability issues in Forest Service
special use permit for America Outdoors. Cheyenne, Wyoming: January 1994.
To: Burke. Brian
From: David Brown, Executive Director
2-22-94 7:03pm p. 6 of 12
The competitive opcrating environment, the origination of services from facilities outside
federal boundaries, the relatively short term of permits, and the significant levels of investment
required for many of these operations, are among the factors that call for a separate, distinct policy
for outfitters and guides. We believe this policy is an important component of a rural economic
development strategy, especially where federal lands are predominant.
A significant distinction between outfitter and guide services and hospitality concessions
exists. This distinction was recently made in S. 208, approved by the Senate Energy and Natural
Resources Committee by a vote of 16 to 4.⁸ For hospitality concessions, an exclusive, long term
contract for twenty years or more is awarded to one company. Hospitality concessions generally
are awarded to a company for services to the public from facilities inside federally managed lands.
On the other hand, services provided to customers by outfitters and guides generally
originate from bases or facilities outside federal and public lands and the activities are low impact.
Multiple competitors compete for the same market. There is a misconception among some in the
federal government that the investment requirements for recreation service providers are quite low.
The General Accounting Office has mistakenly informed Congress, "Short term agreements (5
years or less) are for services requiring little or no investment in facilities."
To the contrary, over time, the investment and financing requirements for many outfitters
and guides operating under five year permits have increased significantly. The Nantahala Outdoor
Center, for example, has retail facilities, two restaurants, and lodging established to service their
customers, who utilize National Forcsts for recreation. Many outfitters operating on the Colorado
8
See exemption language and permitting terms for outfitters in S. 208, op. cit.
9
Keith O. Fultz, Recreation Concessioners Operating On Federal Lands, published
testimony United States General Accounting Office, Environment, Energy, and Natural Resources
Subcommittee, Committee on Government Operations, United State House of Representatives,
Washington, D.C.: March 21, 1991, p.p. 5.
To: Burke, Brian
From: David Brown, Executive Director
2-22-94 7:03pm
p. 7 of 12
River through the Grand Canyon have warchouses, kitchens, and office facilitics, financed with
loans whose terms are for fifteen years. Financial institutions often examine permits to
determine their term and whether the business has renewal rights. Eliminating stability by
reducing renewal options for permittees who have met the terms of their permit will reduce
investment in facilities, diminish service, and damage rural economies.
A permitting policy for outfitters and guides should be more streamlined and less costly to
issue and manage than the concessions contracts of the National Park Service, for example. There
are an estimated 9,000 permits or concessions agreements¹⁰. To provide an NPS style
concessions contract to all these concessions would be too costly. Clearly, some other form of
permitting other than NPS type concessions contracts should be implemented for short term
concessions and it should be standardized among all agencies.
Goals of a Standardized Permitting Policy for Recreation Service Providers
The goals of a permitting policy for outfitters and guides should bc to provide
1. the incentive for investment in the resources necessary to create and sustain successful
small businesses capable of meeting the goals set by resource management;
2. a cost-effective method of selecting those individuals and companies with a business ethic
that reflects resource stewardship and a commitment to quality service;
3. a fair return to the government for the privilege of operating on public lands;
4. annual performance evaluation criteria, which reasonably assures public health, safety,
quality services and environmentally sensitive usc of natural resources, and which serves
as the basis for permit "renewal";
10
United States General Accounting Office, Report to the Chairman, Environment, Energy,
and Natural Resources Subcommittee, Committee on Government Operations, United States
House of Representatives, l'ederal Lands: Improvements Needed in Managing Concessioners,
Washington, D.C.: 1991, p.p. 2.
To: Burke, Brian
From: David Brown, Executive Director
2-22-94 7:04pm p. 8 of 12
5. the potential for growth of small businesses who contribute to economic development in
rural America.
Essential Elements of a Standardized Permitting Policy for Recreation Service Providers
To achieve the goals listed above, several key elements of a permitting policy are required.
1. Award new permits based on experience, qualifications, and stewardship not fee
bidding. Agencies should base the award of new permits on proposals for operations
that reflect the experience of the permittee, their qualifications, demonstrated business
skills, quality service, and commitment to resource protection. Fee bidding for permits
subverts stewardship and potentially undermines the quality of service. Regardless of
mandates to consider other qualifications, in the era of deficit reduction and high levels of
scrutiny, agency personnel will tend to select the highest fee bid at the expense of other
qualifications, such as service or stewardship. Variable fee burdens will result among
competitors that undermine the ability of some companies to compete on quality and
resource stewardship.
For these reasons, fees should be standardized for each type of service within a
resource arca or unit and should bc based on fair market value. These terms arc reflected
in S. 208. 11 Some credit should be given to non-compensated services provided to the
government by recreation service providers either as part of the evaluation or in lieu of
fees.
2. Provide renewal rights upon expiration. If the terms of the permit have been met, the
resource protected, and quality service provided to the customer then permittees should be
granted rights to renew their permit. Adequate investment in services, the procurement
11
See section on standardization of fees for outfitting and guiding in S. 208, op. cit.
To: Burke; Brian
From: David Brown, Executive Director
2-22-94
7:04pm
p. 9 of 12
and maintenance of cquipment, the training of quality guides and staff, and the marketing
of recreation services, requires a planning horizon that extends beyond the expiration of a
five year permit. Companies who are in the third or fourth year of a five year permit may
need to acquire equipment, improve facilities, and enter into marketing arrangements,
whose life naturally extends beyond the expiration of the permit. If however, upon the
expiration of the permit renewal is not an option for a satisfactory permittee or if the
award of that permit is subject to a bid, those investments will not be made. It is unlikely
that any significant investments in quality services or facilities will ever he made for
permits with terms of five years that are subject to a bid from competitors regardless of
performance by the existing permit holder.
The goal of the policy should be to select individuals or companies with a
commitment to quality, stewardship and with the business skills to succeed and to retain
those opcrators as long as they mcct the terms of the permit. Turnover for the sake of
turnover or a policy intent on providing business opportunities to an unlimited number of
entrants will not serve the resource or the public well. A high level of turnover will also
result in higher operating overhead for the agencies and a "cash cow" mentality for
permittees. The net effect for a permittee operating in this environment will be to transfer
cash from their permitted operation to more secure investments. With the decline of
investment in resources, training, and facilities, service to the public and resource
stewardship will decline.
3. Adequate evaluation of permittees ensures quality service and resource stewardship.
Adequate annual evaluation of the permittees' operations will ensure the delivery of
quality service. Rights to renew should be based on the permittees' ability to provide
To: Burke, Brian
From: David Brown, Executive Director
2-22-94 7:04pm p. 10 of 12
satisfactory service and compliance with other terms of the permit. The policy of retaining
renewal rights for permittees who are not probationary for two consccutive evaluation
periods or who are not probationary or unsatisfactory in the final year of their permit is an
appropriate policy. S. 208 reflects the intent to retain "satisfactory" outfitters.¹²
Improvements should also made in the administration of this policy by developing
a standardized format for permittees' operation plans and well defined evaluations.
Operation plans then become part of the permit and compliance with the operation plan is
one measure of the permittees' performance in annual evaluations. Practices to minimize
impacts and meet other resource management objectives can be specified in the operating
plan. Other elements of the evaluation should measure quality service and the ability to
meet the financial obligations to the government. Training permit holders and
administrators in requirements and responsibilities of the permit are important components
of an adequately implemented policy.
The evaluation should not focus on compliance with administrative procedures or
deadlines that do not comply with standard business practices. Evaluations should bc
developed in cooperation with service providers who are experts in their disciplines. The
evaluators should be adequately trained in the administration of the policy and the
evaluation.
An appeals process should be established that allows for impartial review of
appeals of a probationary or unsatisfactory rating. That process should be fair and easily
understood by both parties.
12
See exemption language and permitting terms for outfitters in S. 208, op. cit.
,To: Burke, Brian
From: David Brown, Executive Director
2-22-94 7:05pm p. 11 of 12
4. Transferability of the permit with the sale of the business. As with any business, the
incentive to risk and invest is based partially on the potential to establish and build equity
value in the business and property. Many outfitters, for example, work many years at low
salaries to cstablish their businesses. Most do not have retirement plans. Their retirement
is based on the ability to sell a successful business. The greater the success the greater is
the reward.
A permitting policy should allow the transfer of a permit with the sale of the
business to a buyer judged to be qualified by the agency. Agencies should have the
authority to deny transfer of the permit if the sale price exceeds a reasonable value and
jeopardizes the viability of the business or quality service to the public. Transfers should
also bc prohibited if the sale price includes any valuation of the permit. Permit
administrators should, however, recognize that the value of a business is equal to more
than the sum of the value of the assets. The public's demand for the services of an outfitter
is based on years of work, ingenuity, quality service, innovation, and technical skill. It is
appropriate for the sale price to reflect these values.
5. Permit terms should not create liability exposure to permittees for the inherent risks
of the activity. Strict liability clauses in some permits have required outfitters and other
permittees to accept liability regardless of negligence or prohibited assumption of risk
agreements. These are not appropriate for recreation service permits and will ultimately
impair permittees' ability to obtain affordable insurance. Permittees should be responsible
for their own negligence, but not for the negligence of the customer or for the inherent
risks of the activity, provided that the customer has received reasonable warning about the
apparent risks.
To: Burke, Brian
From: David Brown, Executive Director
2-22-94 7:05pm p. 12 of 12
:
DATE:
TIME:
THE WHITE HOUSE
WASHINGTON
FAX COVER SHEET
TO:
JULIE FALKNER
PHONE: ( )
FAX:
208 - 5902
(
)
BRIAN BURKE
FROM:
2995
PHONE: (202) 456-
PAGES FOLLOWING COVER SHEET:
12
5.208-
Competitive Selection Process for concessions K.
(temp K's OK to prevent service interpretation)
-prospectus minimums soliciting proposals minimums
including auth. facilities or SNCS to be provided,
berms + conditions of existing concessions contacts, min.
public svces offered by NPS
Minimum Requirements. can't win selection process was w/o
proving qualifications to provide suces to NPS NPS determin
that bidder will provide satisfactory svee
that protects & preserves the park
Preferential right of renewal only for outfitters
4
similar service providers who obtain no property interest
in any park improvement and who operated Satisfactori
during the previous, term.
4458
new or
- No preferential rt to provide, additional suces.
Franchise fees + u.se of fees. allocated among pk
Contract Lengths- Sec'y can set terms up to 10yB
lenger gen'lly or up to 20 ys if needed. Temp.
K'S for no longer than 2 yrs.
Contract Transfers - NPS approval meded based on determinatis
that transferee will satisfy all contract conditions
and protect a preserve the parks.
Bumpers Office Rich Glick - 224 4843
Tracey crowley-
Snate Floore on Monday for debate
doubt vote till Tues.
Kristne
Gebby's office - name of person who can
review Pres directive by NSC on population contr
global popilation
Andrew Barrer
March 11, 1994
MEMORANDUM FOR BRIAN BURKE
FROM:
HOPE SCHMELTZER
SUBJECT:
ENVIRONMENTAL LANDSCAPING MEETING
The proposed environmental landscaping executive order will
direct agencies to create outdoor, in-ground demonstrations of
environmental landscaping by 1996. Environmental landscaping
refers to reducing the use of water and pesticides in landscaping
by selecting plants that are better adapted to a particular
climate, using efficient irrigation and mulching, and through
practical planning and design. It encourages the use of native
plants¹ on all new landscapes and environmental techniques
wherever possible because native plants are more likely to thrive
on natural rainfall and have immunity to local pests. Pesticide
contamination of groundwater is a major problem in some areas,
and these techniques endeavor to reduce their use. In addition,
these gardening procedures conserve water. Agencies may exercise
discretion when selecting the magnitude and location of the
demonstration projects. The executive order does not mandate
relandscaping areas which are already designed, although agencies
could do so if they chose. One member said, for instance, that
no one was suggesting replacing the White House lawn with
wildflowers or other plants. The National Performance Review
suggested this initiative as a pollution reduction technique.
The Federal Environmental Executive² at EPA will coordinate a
working group which will provide agencies with guidance for the
demonstration projects, by Spring, 1995.
There is no current law requiring any particular methods of
gardening or of plant selection. Problems occur when landscape
¹There is a large debate over what the term "native plants"
includes. Some include cultivated versions of native plants in
the definition while others argue only plants occuring naturally
in a region before human encroachment should be included. Steve
Warnath suggested that the group abstain from defining terms in
the Order to avoid controversies.
2The Federal Environmental Executive is a new position at
EPA. The NPR designated OEP to coordinate this project but the
OEP representative at the meeting believed the Environmental
Executive would be a more appropriate coordinator. This person
hired for this position has not started working yet.
PHOTOCOPY
PRESERVATION
Withdrawal/Redaction Marker
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
001. memo
To: Brian Burke, From: Hope Schmeltzer, Re: Environmental
March 11,
P6/b(6)
Landscape Meeting [partial] (1 page)
1994
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Brian Burke
OA/Box Number: 4430
FOLDER TITLE:
America Outdoors [folder 1] [2]
2013-1074-S
sb45
RESTRICTION CODES
Presidential Records Act - |44 U.S.C. 2204(a)]
Freedom of Information Act - 15 U.S.C. 552(b)]
P1 National Security Classified Information [(a)(1) of the PRA
b(1) National security classified information |(b)(1) of the FOIA]
P2 Relating to the appointment to Federal office [(a)(2) of the PRA|
b(2) Release would disclose internal personnel rules and practices of
P3 Release would violate a Federal statute |(a)(3) of the PRA]
an agency [(b)(2) of the FOIA]
P4 Release would disclose trade secrets or confidential commercial or
b(3) Release would violate a Federal statute |(b)(3) of the FOIA]
financial information [(a)(4) of the PRA
b(4) Release would disclose trade secrets or confidential or financial
P5 Release would disclose confidential advice between the President
information |(b)(4) of the FOIA]
and his advisors, or between such advisors [a)(5) of the PRAJ
b(6) Release would constitute a clearly unwarranted invasion of
P6 Release would constitute a clearly unwarranted invasion of
personal privacy |(b)(6) of the FOIA]
personal privacy |(a)(6) of the PRAJ
b(7) Release would disclose information compiled for law enforcement
purposes [(b)(7) of the FOIA]
C. Closed in accordance with restrictions contained in donor's deed
b(8) Release would disclose information concerning the regulation of
of gift.
financial institutions |(b)(8) of the FOIA]
PRM. Personal record misfile defined in accordance with 44 U.S.C.
b(9) Release would disclose geological or geophysical information
2201(3).
concerning wells |(b)(9) of the FOIA]
RR. Document will be reviewed upon request.
PHOTOCOPY
PRESERVATION
America Outdoors
879-1286
W Call Julie F. @ BLM
2 Get Mike Schmidt's info or tourism conf.
X - Talk to Marion Berry re: forest Svce.
) Rich
Glick
Michelle in fits & starts who understands basics-appt to speck
Denise is anoire of it, likes the idea
to her.
\ PS otline of www permitting process works to BB
rext wk.
Does BB want to send something over-where do you reint
initiative tocome
FLUS, NPS, BLM r fs - permitting process
from:
type
Oil + gas nell # - still getting then - estimates - approx. 20%
Nn.2
abandoned ]
NPS
Susie Trees, - 208-3855
Michelle Altemus - FWS-208-47
Julie Falkner - BLM - - 208 - 7120 77
(b)(6)
Still need: FS + BReclamation
Clinton Presidential Records
Digital Records Marker
This is not a presidential record. This is used as an administrative
marker by the William J. Clinton Presidential Library Staff.
This marker identifies the place of a publication.
Publications have not been scanned in their entirety for the purpose
of digitization. To see the full publication please search online or
visit the Clinton Presidential Library's Research Room.
II
Calendar No. 360
103D CONGRESS
2D SESSION
S. 208
[Report No. 103-226]
To reform the concessions policies of the National Park Service, and for
other purposes.
IN THE SENATE OF THE UNITED STATES
JANUARY 26 (legislative day, JANUARY 5), 1993
Mr. BUMPERS (for himself, Mr. PRYOR, Mr. AKAKA, Mr. METZENBAUM, Mr.
SARBANES, Mr. BOND, Mr. PELL, Mr. EXON, Mr. LIEBERMAN, Mr.
LEAHY, Mr. SIMON, Mr. DASCHLE, Mrs. KASSEBAUM, Mr. CHAFEE, Mr.
KOHL, Mr. DANFORTH, Mr. DORGAN, Mr. JEFFORDS, Mr. KERRY, Mr.
BRADLEY, and Mr. COCHRAN) introduced the following bill; which was
read twice and referred to the Committee on Energy and Natural Re-
sources
FEBRUARY 11 (legislative day, JANUARY 25), 1994
Reported by Mr. JOHNSTON, with an amendment
[Strike out all after the enacting clause and insert the part printed in italic]
A
BILL
To reform the concessions policies of the National Park
Service, and for other purposes.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
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ENERGY & NAT.RES DOM. POL
001
J. BENNETT JOHNSTON Louisiens, Chairmen
DALE BUMPERS.
MALCOLM WALLOP, Wyoming
WENDELL M. FORD. Remucky
MARK o. MATELELD, Oregan
BILL BRADLEY, New Jurney
PETE V. DOMENICI, New Mexico
JEFF BINGAMAN, New Mexico
FRANK M, MURKOWSKI Aleaka
DANIEL K. AKAKA. Keweii
DON NICKLES. Chisherne
RICHARD C. SHELBY, Alabama
LARRY E CRAIG. Idaha
PAUL WELLSTONE Minnesota
ROBERT F. BENNETT. Utah
Hnited States Senate
BEN NIGHTHORSE CAMPBELL Colorado
ARLEN SPECTER Pennsylvania
MARLAN MATHEWS. Tennessee
TRENT LOTT, Mississippi
BYRON L DORGAN. North Dekote
COMMITTEE ON
BENJAMIN $ COOPER, STAFF DIRECTOR
ENERGY AND NATURAL RESOURCES
D. MICHAEL NARVEY. CHIEF COUNSEL
a. ROBERT WALLACE STAFF DIXECTOR FOR THE MINORITY
GARY G. ELLSWORTH. CHIEF COUNSEL FOR THE MINORITY
WASHINGTON, DC 20510-6150
FAX COVER SHEET
TO:
Hope Schmettzer
FAX TELEPHONE NUMBER: 456-7028
FROM:
Jason Dilg
Subcommittee on Public Lands, National Parks and Forests
COMMENTS:
Pages (Including Cover Sheet)
If you do not receive all pages, please call (202) 224- 8115
03/18/94
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ENERGY & NAT. RES DOM. POL
002
II
Calendar No. 360
103D CONGRESS
2D SESSION
S. 208
[Report No. 103-226]
To reform the concessions policies of the National Park Service, and for
other purposes.
IN THE SENATE OF THE UNITED STATES
JANUARY 26 (legislative day, JANUARY 5), 1993
Mr. BUMPERS (for himself, Mr. PRYOR, Mr. AKAKA, Mr. METZENBAUM, Mr.
SARBANES, Mr. BOND, Mr. PELL, Mr. EXON, Mr. LIEBERMAN, Mr.
LEAHY, Mr. SIMON, Mr. DASCHLE, Mrs. KASSEBAUM, Mr. CHAFEE, Mr.
KOHL, Mr. DANFORTH, Mr. DORGAN, Mr. JEFFORDS, Mr. KERRY. Mr.
BRADLEY, and Mr. COCHRAN) introduced the following bill; which was
read twice and referred to the Committee on Energy and Natural Re-
sources
FEBRUARY 11 (legislative day, JANUARY 25), 1994
Reported by Mr. JOHNSTON, with an amendment
{Strike out all after the enacting clause and insert the part printed in italic]
A
BILL
To reform the concessions policies of the National Park
Service, and for other purposes.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
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ENERGY & NAT.RES +++ DOM. POL
4
003
17
1 SEC. 16 EXEMPTION FROM CERTAIN LEASE REQUIRE-
2
MENTS.
3
The provisions of section 321 of the Act of June 30,
4 1932 (47 Stat. 412; 40 U.S.C. 303b), relating to the leas-
5 ing of buildings and properties of the United States, shall
6 not apply to contracts awarded by the Secretary pursuant
7 to this Act.
8 SEC. 17 CONFORMING AMENDMENT.
9
Subsection (h) of section 2 of the Act of August 31,
10 1935, the Historical Sites, Buildings and Antiquities Act
11 (40 Stat. 666, 16 U.S.C. 462(h)), is amended by striking
12 out the provise therein.
13 SECTION 1. SHORT TITLE.
14
This Act may be cited as the "National Park Service
15 Concessions Policy Reform Act of 1994".
16 SEC. 2. FINDINGS AND POLICY.
17
(a) FINDINGS.-In furtherance of the Act of August 25,
18 1916 (39 Stat. 535), as amended (16 U.S.C. 1, 2-4), which
19 directs the Secretary of the Interior to administer areas of
20 the National Park System in accordance with the fun-
21 damental purpose of preserving their scenery, wildlife, nat-
22 ural and historic objects, and providing for their enjoyment
23 in a manner that will leave them unimpaired for the enjoy-
24 ment of future generations, the Congress finds that the pres-
25 ervation and conservation of park resources and values re-
26 quires that such public accommodations, facilities, and
S 208 RS ... 3
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18
1 services as the Secretary determines are necessary and ap-
2 propriate in accordance with this Act
3
(1) should be provided only under carefully con-
4
trolled safeguards against unregulated and indis-
5
criminate use 30 that visitation will not unduly im-
6
pair these values; and
7
(2) should be limited to locations and designs
8
consistent to the highest practicable degree with the
9
preservation and conservation of park resources and
10
values.
11
(b) POLICY.-It is the policy of the Congress that—
12
(1) development within a park shall be limited
13
to those facilities and services that the Secretary de-
14
termines are necessary and appropriate for public use
15
and enjoyment of the park in which such facilities
16
and services are located;
17
(2) development within a park should be consist-
18
ent to the highest practicable degree with the preserva-
19
tion and conservation of the park's resources and val-
20
ues;
21
(3) such facilities and services should be provided
22
by private persons, corporations, or other entities, eg
23
cept when no private interest is qualified and willing
24
to provide such facilities and services;
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DOM. POL
4
005
19
1
(4) if the Secretary determines that development
2
should be provided within a park, such development
3
shall be designed, located, and operated in a manner
4
that is consistent with the purposes for which such
S
park was established;
6
(5) such facilities and services should be awarded
7
to the person, corporation, or entity submitting the
8
best proposal through a competitive selection process;
9
and
10
(6) such facilities or services should be provided
11
to the public at reasonable rates.
12 SEC. 3. DEFINITIONS.
13
As used in this Act, the term-
14
(1) "concessioner" means a person, corporation,
15
or other entity to whom a concessions contract has
16
been awarded;
17
(2) "concessions contract" means a contract, in-
18
cluding permits, to provide facilities or services, or
19
both, at a park;
20
(3) "facilities" means improvements to real
21
property within parks used to provide accommoda-
22
tions, facilities, or services to park visitors;
23
(4) "park" means a unit of the National Park
24
System;
as
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006
20
1
(5) "proposal" means the complete proposal for
2
a concessions contract offered by a potential or exist-
3
ing concessioner in response to the minimum require-
4
ments for the contract established by the Secretary;
5
and
6
(6) "Secretary" means the Secretary of the Inte-
7
rior.
8 SEC. 4. REPEAL OF CONCESSIONS POLICY ACT OF 1965.
9
The Act of October 9, 1965, Public Law 89-249 (79
10 Stat. 969, 16 U.S.C. 20-20g), entitled "An Act relating to
11 the establishment of concession policies administered in the
12 areas administered by the National Park Service and for
13 other purposes", is hereby repealed. The repeal of such Act
14 shall not affect the validity of any contract entered into
15 under such Act, but the provisions of this Act shall apply
16 to any such contract except to the extent such provisions
17 are inconsistent with the express terms and conditions of
18 the contract.
19 SEC. 5. CONCESSIONS POLICY.
20
Subject to the findings and policy stated in section 2
21 of this Act, and upon a determination by the Secretary that
22 facilities or services are necessary and appropriate for the
23 accommodation of visitors at a park, the Secretary shall,
24 consistent with the provisions of this Act, laws relating gen-
25 erally to the administration and management of units of
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21
1 the National Park System, and the park's general manage-
2 ment plan, concessions plan, or other applicable plans, au-
3 thorize private persons, corporations, or other entities to
4 provide and operate such facilities or services as the Sec-
5 retary deems necessary and appropriate.
6 SEC. 6. COMPETITIVE SELECTION PROCESS.
7
(a) IN GENERAL.-(1) Except as provided in sub-
8 section (b), and consistent with the provisions of subsection
9 (g), any concessions contract entered into pursuant to this
10 Act shall be awarded to the person submitting the best pro-
11 posal as determined by the Secretary, through a competitive
12 selection process.
13
(2) Within 180 days after the date of enactment of this
14 Act, the Secretary shall promulgate appropriate regulations
15 establishing such process. The regulations shall include pro-
16 visions for establishing a method or procedure for the resolu-
17 tion of disputes between the Secretary and a concessioner
18 in those instances where the Secretary has been unable to
19 meet conditions or requirements or provide such services,
20 if any, as set forth in a prospectus pursuant to sections
21 6(c)(2) (D) and (E).
22
(b) TEMPORARY CONTRACT.-Notwithstanding the
23 provisions of subsection (a), the Secretary may award a
24 temporary concessions contract in order to avoid interrup-
25 tion of services to the public at a park.
200
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4
008
22
1
(c) PROSPECTUS.-(1) Prior to soliciting proposals for
2 a concessions contract at a park, the Secretary shall publish
3 a notice of availability for a prospectus soliciting proposals
4 at least once in local or national newspapers or trade publi-
5 cations, as appropriate, and shall make such prospectus
6 available upon request to all interested parties.
7
(2) The prespectus shall include, but need not be lim-
8 ited to, the following information:
9
(A) The minimum requirements for such con-
10
tract, as set forth in subsection (d).
11
(B) The terms and conditions of the existing con-
12
cessions contract awarded for such park, if any, in-
13
cluding all fees and other forms of compensation pro-
14
vided to the United States by the concessioner.
15
(C) Other authorized facilities or services which
16
may be provided in a proposal.
17
(D) Facilities and services to be provided by the
18
Secretary to the concessioner, if any, including but
19
not limited to, public access, utilities, and buildings.
20
(E) Minimum public services to be offered within
21
a park by the Secretary, including but not limited to,
22
interpretive programs, campsites, and visitor centers.
23
(F) Such other information related to the pro-
24
posed concessions operation which is not privileged or
25
otherwise exempt from disclosure under Federal law
I
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23
1
as the Secretary determines is necessary to allow for
2
the submission of competitive proposals
3
(d) MINIMUM PROPOSAL REQUIREMENTS.-(1) No
4 proposal shall be considered which fails to meet the mini-
5 mum requirements as determined by the Secretary. Such
6 minimum requirements shall include, but need not be lim-
7 ited to, the minimum acceptable franchise fee, the duration
8 of the contract, facilities, services, or capital investment re-
9 quired to be provided by the concessioner, and measures
10 needed to ensure the protection and preservation of park
11 resources.
12
(2) The Secretary may reject any proposal, notwith-
13 standing the amount of franchise fee offered, if the Secretary
14 determines that the person, corporation, or entity is not
15 qualified, is likely to provide unsatisfactory service, or that
16 the proposal is not responsive to the objectives of protecting
17 and preserving park resources and of providing necessary
18 and appropriate facilities or services to the public at rea-
19 sonable rates.
20
(3) If all proposals submitted to the Secretary either
21 fail to meet the minimum requirements or are rejected by
22 the Secretary, the Secretary shall establish new minimum
23 contract requirements and re-initiate the competitive selec-
24 tion process pursuant to this section.
8 205 M
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010
24
1
(e) SELECTION OF BEST PROPOSAL.-(1) In selecting
2 the best proposal, the Secretary shall consider the following
3 principal factors:
4
(A) The responsiveness of the proposal to the ob-
5
jectives of protecting and preserving park resources
6
and of providing necessary and appropriate facilities
7
and services to the public at reasonable rates.
8
(B) The experience and related background of the
9
person, corporation, or entity submitting the pro-
10
posal, including but not limited to, the past perform-
11
ance and expertise of such person, corporation, or en-
12
tity in providing the same or similar facilities or
13
services.
14
(C) The financial capability of the person, cor-
15
poration, or entity submitting the proposal.
16
(D) The proposed franchise fee: Provided, That
17
consideration of revenue to the United States shall be
18
subordinate to the objectives of protecting and preserv-
19
ing park resources and of providing necessary and
20
appropriate facilities or services to the public at rea-
21
sonable rates.
22
(2) The Secretary may also consider such secondary
23 factors as the Secretary deems appropriate.
24
(f) CONGRESSIONAL NOTIFICATION.-(1) The Sec-
25 retary shall submit any proposed concessions contract with
S
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25
1 anticipated annual gross receipts in excess of $5,000,000
2 (indered to 1993 constant dollars) or a duration of ten or
3 more years to the Committee on Energy and Natural Re-
4 sources of the United States Senate and the Committee on
5 Natural Resources of the United States House of Represent-
6 atives.
7
(2) The Secretary shall not ratify any such proposed
8 contract until at least 60 days subsequent to the notification
9 of both Committees.
10
(g) No PREFERENTIAL RIGHT OF RENEWAL.-(1) Ex-
11 cept as provided in paragraph (2), the Secretary shall not
12 grant a preferential right to a concessioner to renew a. con-
13 cessions contract executed pursuant to this Act.
14
(2)(A) Notwithstanding the provisions of paragraph
15 (1), the Secretary shall grant a preferential right of renewal
16 to a concessioner-
17
(i) for a concessions contract which-
18
(I) primarily authorizes a concessioner to
19
provide outfitting, guide, river running, or other
20
similar services within a park; and
21
(II) does not grant the concessioner any in-
22
terest in any structure, future, or improvement
23
pursuant to section 11 of this Act; or
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012
26
1
(III) the Secretary estimates will have an-
2
nual gross revenues of no more than $500,000;
3
and
4
(ii) where the Secretary determines that the con-
5
cessioner has operated satisfactorily during the term
6
of the previous contract; and
7
(iii) where the Secretary determines that the con-
8
cessioner submits a responsive proposal for the new
9
contract which satisfies the minimum requirements
10
established by the Secretary.
11
(B) For the purposes of paragraph (2), the term "pref-
12 erential right of renewal" means that the Secretary shall
13 allow a concessioner satisfying the requirements of subpara-
14 graph (A) the opportunity to match the terms and condi-
15 tions of any competing proposal which the Secretary deter-
16 mines to be the best offer.
17
(h) No PREFERENTIAL RIGHT To ADDITIONAL SERV-
18 ICES.-The Secretary shall not grant a preferential right
19 to a concessioner to provide new or additional services at
20 a park
21 SEC. 7. FRANCHISE FEES.
22
(a) IN GENERAL-Franchise fees, however, stated,
23 shall not be less than the minimum fee established by the
24 Secretary for each contract. The minimum fee shall be de-
25 termined in a manner that will provide the concessioner
8 200 RS
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27
1 with a reasonable opportunity to realize a profit on the op-
2 eration as a whole, commensurate with the capital invested
3 and the obligations assumed.
4
(b) MULTIPLE CONTRACTS WITHIN A PARK.-If mul-
5 tiple concessions contracts are awarded to authorize conces-
6 sioners to provide the same or similar outfitting, guide,
7 river running, or other similar services at the same appror-
8 imate location or resource within a specific park, the Sec-
9 retary shall establish an identical franchise fee for all such
10 contracts. Such fee shall reflect fair market value, as deter-
11 mined by the Secretary.
12 SEC. & USE OF FRANCHISE FEES.
13
(a) SPECIAL ACCOUNT.-Except as provided in sub-
14 section (b), all receipts collected pursuant to this Act shall
15 be covered into a special account established in the Treasury
16 of the United States. Amounts covered into such account
17 in a fiscal year shall be available for expenditure, subject
18 to appropriation, solely as follows:
19
(1) 50 percent shall be allocated among the units
20
of the National Park System in the same proportion
21
as franchise fees collected from a specific unit bears
22
to the total amount covered into the account for each
23
fiscal year, to be used for resource management and
24
protection, maintenance activities, interpretation,
25
and research.
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1
(2) 50 percent shall be allocated among the units
2
of the National Park System on the basis of need, in
3
a manner to be determined by the Secretary, to be
4
used for resource management and protection, main-
5
tenance activities, interpretation, and research.
6
(b) PARK IMPROVEMENT FUND.-(1) In lieu of collect-
7. ing all or a portion of the franchise fees that would other-
8 wise be collected pursuant to the concessions contract, the
9 Secretary shall, where the Secretary determines it to be
10 practicable, require a concessioner to establish a Park Im-
11 provement Fund (hereinafter in this section referred to as
12 the "fund"), in which the concessioner shall deposit the
13 franchise fees that would otherwise be required by the con-
14 tract.
15
(2) The fund shall be maintained by the concessioner
16 in an interest bearing account in a Federally-insured for
17 nancial institution. The concessioner shall maintain the
18 fund separately from any other funds or accounts and shall
19 not co-mingle the monies in the fund with any other monies.
20 The Secretary may establish such other terms, conditions,
21 or requirements as the Secretary determines to be necessary
22 to ensure the financial integrity of such fund.
23
(3) Monies from the fund, including interest, shall be
24 expended by the concessioner solely as directed by the Sec-
25 retary for activities and projects within the park which are
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1 consistent with the park's general management plan, con-
2 cessions plan, and other applicable plans, and which the
3 Secretary determines will enhance public use, safety, and
4 enjoyment of the park, including but not limited to projects
5 which directly or indirectly support concession facilities or
6 services required by the concessions contract. Projects paid
7 for from the fund shall not include routine, operational
8 maintenance of facilities. A concessioner shall not be al-
9 lowed to make any advances or credits to the fund.
10
(4) A concessioner shall not be granted any interest
11 in improvements made from fund expenditures, including
12 any interest granted pursuant to section 11 of this Act.
13
(5) Nothing in this subsection shall affect the obliga-
14 tion of a concessioner to insure, maintain, and repair any
15 structure, future, or improvement assigned to such conces-
16 sioner and to insure that such structure, future, or im-
17 provement fully complies with applicable safety and health
18 laws and regulations.
19
(6) The concessioner shall maintain proper records for
20 all expenditures made from the fund. Such records shall in-
21 clude, but not be limited to invoices, bank statements, can-
22 celed checks, and such other information as the Secretary
23 determines to be necessary.
24
(7) The concessioner shall annually submit to the Sec-
25 retary a statement reflecting total activity in the fund for
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1 the preceding financial year. The statement shall reflect
2 monthly deposits, expenditures by project, interest earned,
3 and such other information as the Secretary requires.
4
(8) Upon the termination of a concessions contract, or
5 upon the sale or transfer of such contract, any remaining
6 balance in the fund shall be transferred by the concessioner
7 to the successor concessioner, to be used solely as set forth
8 in this subsection. In the event there is not a successor con-
9 cessioner, the fund balance shall be deposited into the spe-
10 cial account established in subsection (a).
11 SEC. 9. DURATION OF CONTRACT.
12
(a) MAXIMUM TERM-A concessions contract entered
13 into pursuant to this Act shall be awarded for a term not
14 to exceed ten years: Provided, however, That the Secretary
15 may award a contract for a term not to exceed twenty years
16 if the Secretary determines that the contract terms and con-
17 ditions necessitate a longer term.
18
(b) TEMPORARY CONTRACT.-A temporary concessions
19 contract awarded on a non-competitive basis pursuant to
20 section 6(b) of this Act shall be for a term not to exceed
21 two years.
22 SEC. 10. TRANSFER OF CONTRACT.
23
(a) IN GENERAL.-(1) No concessions contract may be
24 transferred, assigned, sold, or otherwise conveyed by a con-
8 206 as
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1 cessioner without prior written notification to, and ap-
2 proval of the Secretary.
3
(2) The Secretary shall not approve the transfer of a
4 concessions contract to any individual, corporation or other
5 entity if the Secretary determines that-
6
(A) such individual, corporation or entity is, or
7
is likely to be, unable to completely satisfy all of the
8
requirements, terms, and conditions of the contract; or
9
(B) such transfer, assignment, sale or conveyance
10
is not consistent with the objectives of protecting and
11
preserving park resources, and of providing necessary
12
and appropriate facilities or services to the public at
13
reasonable rates: Provided, That such approval shall
14
not be unreasonably withheld.
15
(b) CONGRESSIONAL NOTIFICATION-Within thirty
16 days after receiving a proposal to transfer, assign, sell, or
17 otherwise convey a concessions contract, the Secretary shall
18 notify the Committee on Energy and Natural Resources of
19 the United States Senate and the Committee on Natural
20 Resources of the United States House of Representatives of
21 such proposal. Approval of such proposal, if granted by the
22 Secretary, shall not take effect until sixty days after the
23 date of notification of both Committees.
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1 SEC. 11. PROTECTION OF CONCESSIONER INVESTMENT.
2
(a) EXISTING STRUCTURES.-(1) A concessioner who
3 before the date of the enactment of this Act has acquired
4 or constructed, or is required under an existing concessions
5 contract to commence acquisition or construction of any
6 structure, fixture, or improvement upon land owned by the
7 United States within a park, pursuant to a concessions con-
8 tract, shall have a possessory interest therein, to the extent
9 provided by such contract.
10
(2) The provisions of this subsection shall not apply
11 to a concessioner whose contract in effect on the date of en-
12 actment of this Act does not include recognition of a
13 possessory interest.
14
(3) With respect to a concessions contract entered into
15 on or after the date of enactment of this Act, the provisions
16 of subsection (b) shall apply to any existing structure, fue-
17 ture, or improvement as defined in paragraph (a)(1), except
18 that the actual original cost of such structure, future, or
19 improvement shall be deemed to be the value of the
20 possessory interest as of the termination date of the previous
21 concessions contract.
22
(b) NEW STRUCTURES.-(1) On or after the date of
23 enactment of this Act, a concessioner who constructs or ac-
24 quires a new, additional, or replacement structure, future,
25 or improvement upon land owned by the United States
26 within a park, pursuant to a concessions contract, shall
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1 have an interest in such structure, fixture, or improvement
2 equivalent to the actual original cost of acquiring or con-
3 structing such structure, fixture, or improvement, less
4 straight line depreciation over the estimated useful life of
5 the asset according to Generally Accepted Accounting Prin-
6 ciples: Provided, That in no event shall the estimated useful
7 life of such asset exceed the depreciation period used for such
8 asset for Federal income tax purposes.
9
(2) In the event that the contract expires or is termi-
10 nated prior to the recovery of such costs, the concessioner
11 shall be entitled to receive from the United States or the
12 successor concessioner payment equal to the value of the con-
13 cessioner's interest in such structure, fixture, or improve-
14 ment. A successor concessioner may not revalue the interest
15 in such structure, fixture, or improvement, the method of
16 depreciation, or the estimated useful life of the asset.
17
(3) Title to any such structure, future, or improve-
18 ment shall be vested in the United States.
19
(c) INSURANCE, MAINTENANCE AND REPAIR.-Nothing
20 in this section shall affect the obligation of a concessioner
21 to insure, maintain, and repair any structure, fixture, or
22 improvement assigned to such concessioner and to insure
23 that such structure, future, or improvement fully complies
24 with applicable safety and health laws and regulations.
I
205
as
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1 SEC. 12. RATES AND CHARGES TO PUBLIC.
2
The reasonableness of a concessioner's rates and
3 charges to the public shall, unless otherwise provided in the
4 bid specifications and contract, be judged primarily by
5 comparison with those rates and charges for facilities and
6 services of comparable character under similar conditions,
7 with due consideration for length of season, seasonal vari-
8 ance, average percentage of occupancy, accessibility, avail-
9 ability and costs of labor and materials, type of patronage,
10 and other factors deemed significant by the Secretary.
11 SEC. 13. CONCESSIONER PERFORMANCE EVALUATION.
12
(a) REGULATIONS.-Within one hundred and eighty
13 days after the date of enactment of this Act, the Secretary
14 shall publish, after an appropriate period for public com-
15 ment, regulations establishing standards and criteria for
16 evaluating the performance of concessions operating within
17. parks.
18
(b) PERIODIC EVALUATION.-(1) The Secretary shall
19 periodically conduct an evaluation of each concessioner op-
20 erating under a concessions contract pursuant to this Act,
21 as appropriate, to determine whether such concessioner has
22 performed satisfactorily. In evaluating a concessioner's per-
23 formance, the Secretary shall seek and consider applicable
24 reports and comments from appropriate Federal, State, and
25 local regulatory agencies. If the Secretary's performance
26 evaluation results in unsatisfactory rating of the conces-
8
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35
1 sioner's overall operation, the Secretary shall provide the
2 concessioner with a list of the minimum requirements nec-
3 essary for the operation to be rated satisfactory, and shall
4 so notify the concessioner in writing.
5
(2) The Secretary may terminate a concessions con-
6 tract if the concessioner fails to meet the minimum oper-
7 ational requirements identified by the Secretary within the
8 time limitations established by the Secretary at the time
9 notice of the unsatisfactory rating is provided to the conces-
10 sioner.
11
(3) If the Secretary terminates a concessions contract
12 pursuant to this section, the Secretary shall solicit propos-
13 als for a new contract consistent with the provisions of this
14 Act.
15
(c) CONGRESSIONAL NOTIFICATION.-The Secretary
16 shall notify the Committee on Energy and Natural Re-
17 sources of the United States Senate and the Committee on
18 Natural Resources of the United States House of Represent-
19 atives of each unsatisfactory rating and of each concessions
20 contract terminated pursuant to this section.
21 SEC. 14. RECORDEREPING REQUIREMENTS.
22
Each concessioner shall keep such records as the Sec-
23 retary may prescribe to enable the Secretary to determine
24 that all terms of the concessioner's contract have been, and
25 are being faithfully performed, and the Secretary or any
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36
1 of the Secretary's duly authorized representatives shall, for
2 the purpose of audit and examination, have access to such
3 records and to other books, documents and papers of the
4 concessioner pertinent to the contract and all the terms and
5 conditions thereof as the Secretary deems necessary.
6 SEC. 15. EXEMPTION FROM CERTAIN LEASE REQUIRE-
7
MENTS.
8
The provisions of section 321 of the Act of June 30,
9 1932 (47 Stat. 412; 40 U.S.C. 303b), relating to the leasing
10 of buildings and properties of the United States, shall not
11 apply to contracts awarded by the Secretary pursuant to
12 this Act.
13 SEC. 16. NO EFFECT ON ANILCA PROVISIONS.
14
Nothing in this Act shall be construed to amend, super-
15 sede, or otherwise affect any provision of the Alaska Na-
16 tional Interest Lands Conservation Act (16 U.S.C. 3101 et
17 seq.).
8 200 as
Clinton Presidential Records
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This is not a presidential record. This is used as an administrative
marker by the William J. Clinton Presidential Library Staff.
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of digitization. To see the full publication please search online or
visit the Clinton Presidential Library's Research Room.
II
Calendar No. 360
103D CONGRESS
2D SESSION
S.208
[Report No. 103-226]
To reform the concessions policies of the National Park Service, and for
other purposes.
IN THE SENATE OF THE UNITED STATES
JANUARY 26 (legislative day, JANUARY 5), 1993
Mr. BUMPERS (for himself, Mr. PRYOR, Mr. AKAKA, Mr. METZENBAUM, Mr.
SARBANES, Mr. BOND, Mr. PELL, Mr. EXON, Mr. LIEBERMAN, Mr.
LEAHY, Mr. SIMON, Mr. DASCHLE, Mrs. KASSEBAUM, Mr. CHAFEE, Mr.
KOHL, Mr. DANFORTH, Mr. DORGAN, Mr. JEFFORDS, Mr. KERRY, Mr.
BRADLEY, and Mr. COCHRAN) introduced the following bill; which was
read twice and referred to the Committee on Energy and Natural Re-
sources
FEBRUARY 11 (legislative day, JANUARY 25), 1994
Reported by Mr. JOHNSTON, with an amendment
[Strike out all after the enacting clause and insert the part printed in italic]
A
BILL
To reform the concessions policies of the National Park
Service, and for other purposes.
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
Clinton Presidential Records
Digital Records Marker
This is not a presidential record. This is used as an administrative
marker by the William J. Clinton Presidential Library Staff.
This marker identifies the place of a publication.
Publications have not been scanned in their entirety for the purpose
of digitization. To see the full publication please search online or
visit the Clinton Presidential Library's Research Room.
RS
Grazing
Monday. March 7. 1994
Star-Tribune Casper. Wyo.-
Continued from Al
Officials react
the group not to have power would
The base fee of $1.92 per ani-
be the one from the environmental
mal unit month - the amount of
or scientific community.
forage consumed by one cow and
Secretary Babbitt has used
her caif or five sheep in one month
the term local control very loose-
to grazing
- fluctuates on a market-based
ly in the past year. and I'm afraid
formula and is now at $1.98. ac-
what we have now IS a group of
cording to Truman Julian. presi-
people. broadly defined as local
dent of the Wyoming Public Lands
who will comment on range man-
reform draft
Council and a sheep rancher.
agement plans. Thomas said
The new fee would be phased
in the draft. however. Babbitt
in over three years. topping off at
argues that power will lie in the
$3.96 per AUM. according to of-
hands of local members of the
ficials who have scen the draft.
By MEREDITH COHN
ranching industry, environmental
However. if the Clinton adminis-
States News Service
groups and business sector.
tration has not developed an in-
"Our focus is on shifting more
centive fee system after two years.
WASHINGTON - Although Interior Secretary Bruce
management decisions to a place
the fee would freeze at $3.50.
closer 10 the land.' he wrote
Babbitt has not officially released a plan to reform grazing
practices on federal lands. a draft that has surfaced has
Julian said a study done in
"Any plan developed in Wash-
drawn fire from both sides of the debate.
Wyoming showed that sheep
ington. without significant local
The draft calls for
ranchers cannot make a profit if
input. will have trouble succeed-
the reformation of lo-
the fee is more than $2.57 per
ing on the ground out West and
cal advisory boards, de-
AUM. We just can't take this.
that's where It matters.
velopment of regional
especially since the wool (sub-
The standards. Babbitt said.
'It's time to end the
sidy) has been phased out." he
will have to meet four national re-
land management stan-
trauma.
said.
dards and a hike in
quirements:
But Sierra Club spokeswoman
Grazing practices must en-
grazing fees.
- Sen. Malcolm Wallop. on
Melanie Griffin said the ranchers
But both ranchers
hance or maintain properly fune-
the grazing reform process
and environmentalists
have been given special treatment
noning ecosystems.
for decades.
They must enhance or main-
agree they are tired of
"We'd prefer to see the fee go
tain properly functioning ripart-
the tug-of-war that has
closer to fair market. the same as
an systems. An Environmental
ensued since Babbitt
what those who graze on private
Protection Agency study shows
began his crusade to reform land use policies last fall.
land have to pay,' she said. re-
these areas are in their worst con-
Wyoming Republican Sen. Malcolm Wallop said. ''It's
ferring to the $4.28 Babbitt had
dition in history. the draft reports.
time to end the trauma" created by the reform process.
originally proposed.
Management practices mus
"For the last year. we have spent thousands of taxpayer
Neither side claimed victory in
be implemented to protect public
dollars. summoned people to West-wide meetings. and
the national environmental stan-
health and welfare. and mus
generally created a high level of anxiety about the future of
dards category, either.
maintain. restore. or enhance wa
Westerners." Wallop said. 'As a result Western land val-
The draft proposal calls for lo-
ter quality.
ues are dropping. people are having trouble getting operating
cal advisory boards comprised of
Grazing practices must assis
loans and our apprehension has never been greater.
15 people from the industry and
in the maintenance, restoration c
But Wyoming GOP Sen. Alan Simpson said Babbitt's re-
environmental groups. They
enhancement of habitat for threat
form plan has good points. especially the incentives for
would make recommendations and
ened or endangered species.
better range management.
shape regional environmental
These criteria were derived
"We knew the fees were going to go up. but they'l be
standards. There would also be an
from four federal laws - the Tay-
phased in. and credits will be given to good stewards of the
appeal process if the Interior De-
lor Grazing Act, the Federal Lands
land and that's fair.' he said. "The people in Wyoming do
partment - which would retain
Policy and Management Act. the
a wonderful job caring for the land.'
veto power over proposed stan-
Endangered Species Act and the
Simpson said adding other elements of the community to
dards - does not follow their rec-
Clean Water Act.
the historically all-rancher advisory boards will also work
ommendations.
National guidelines will be de-
well for the state "that respects its natural resources."
Wyoming Republican Rep.
veloped for regions where guide-
One of the greatest sources of contention has been the
Craig Thomas, Wallop and Julian
lines are not produced within 18
monthly grazing iees charged to public land users.
said they feared the councils
months. the draft reports.
Please see GRAZING. A6
would be little more than advisors
The Interior Department plans
with no real power to manage their
to unveil the plan at a press con-
own land. while the Sierra Club's
ference next week.
Griffin said the only member of
National park system
on verge of overhaul
By SCOTT SHEPARD
the American public,' the secre-
Cox News writer
tary said.
The Interior Department is still
WASHINGTON - The White
drafting the legislation that would
House and Congress are on the
raise the admission fees at nation-
verge of overhauling the national
al parks, so few details are avail-
park system through higher ad-
able. But the budget the Clinton
mission fees for visitors and more
administration submitted to
Tribune, Casper, Wyo.
revenue from private vendors who
Congress last month anticipates
run concessions at the parks.
$35 million in new revenue from
The record numbers of Ameri-
higher admission fees. which have
cans flocking to national parks and
not been raised since 1987.
monuments are driving the over-
Congressional leaders expect
haul effort. which 18 designed to
the new fees will mirror those
make more money available for
which were briefly proposed by
maintenance and expanding the
the administration last year and
park system.
ultimately withdrawn in the face of
Because of the federal budget
congressional opposition.
deficit. however. the only politi-
Currently, 136 units of the na-
Monday, March 7. 1994
cally acceptable sources of money
tional park system charge entrance
for the improvements are higher
fees. The maximum is $10 per ve-
admission fees and raising the per-
hicle at Grand Teton. Yellowstone
centage private vendors must pay
and Grand Canyon National Parks
for concession rights.
and $5 or $3 per vehicle at the oth-
And the success of the proposed
er park units.
changes will depend largely on
It is widely anticipated in
whether the White House and
Congress that the administration's
Congress can resolve the long-
bill will raise the $10 and $5 caps
standing controversy over raising
to $11 at some parks. $8 at oth-
the relatively low fees ranchers and
ers. and eventually to $16 in sev-
miners pay for the use of govern-
eral years.
ment-owned land in Western states.
In addition to the $35 million
Congress is willing to "call on
from higher admission fees, the
all users of the public lands to sac
administration calculates that it
rifice in a mutual effort" to trim
could net at least another $40 mil-
the budget deficit and improve the
lion a year by making park con-
management of natural resources,
cession contracts more competi-
said Rep. Bruce Vento. D-Minn.,
tive through the removal of bid-
chairman of the House subcom-
ding procedures that favor current
mittee that oversees national parks
vendors.
and public lands.
Accordingly, the administration
But it is unwilling to "raise
has thrown its support behind a
recreation fees on the American
bill sponsored by Sen. Dale
people while giving a free ride to
Bumpers, D-Ark., to overhaul the
commercial enterprises, many of
law that has governed park con-
which degrade the natural resources
cessions since 1965. Bumpers'
of the public lands." Vento said.
bill, the first of its kind to emerge
Interior Secretary Bruce Bab-
from a congressional committee. is
bitt, who is nearing an end to ne-
expected to win a Senate floor vote
gotiating higher grazing, logging
later this month.
and mineral fees for Western com-
In 1992, the latest year for
mercial interests. is about to turn
which figures are available, park
his attention to the national park
visitors paid an estimated $650
system. In a speech this spring,
million to concessionaires for ev-
Babbitt will "lay out our vision
erything from hot dogs to horse-
of where we want to take the na-
back riding at federal parks and
tional parks in the next three
monuments.
years." the secretary said during a
But critics complain that while
recent interview.
these attractions are the country's
Babbitt admitted that visitors to
national treasures. the federal gov-
national parks are "unanimously
ernment has received less than 3
opposed to higher fees if they go to
cents for every dollar paid by vis-
the federal treasury. But he sug-
itors.
gested that park visitors would be
In 1992, of the $650 million in
willing to pay higher fees if the
gross receipts, the National Park
money is used to improve parks
Service received only $17.1 mil-
and c:
d the sy:
or 2.6 percent, cording to
fair offer from
the Interior Depart
THE WHITE HOUSE
WASHINGTON
February 15, 1994
MEMORANDUM FOR DAVID GERGEN
GEORGE STEPHANOPOULOS
PHIL LADER
MARK GEARAN
RICKI SEIDMAN
RE
CAR
THROUGH:
ROBERT RUBIN & CAROL RASCO
FROM:
PETER YU/& MIKE SCHMIDT
SUBJECT:
WHITE HOUSE CONFERENCE ON TRAVEL & TOURISM
Several weeks ago, the President decided to hold a White House Conference on Travel
and Tourism. This memorandum outlines a proposal for the Conference and highlights one
issue--concerning timing of the National Conference-that requires your decision.
PURPOSE AND OBJECTIVE
Proposal: The purpose of the Conference would be to develop a national strategy for travel and
tourism promotion. The strategy would address issues of interstate cooperation and coordination,
and issues of federal tourism-promotion policy.
Discussion: A singular focus on generating recommendations for federal policy could raise
unrealistic expectations of federal action.
PARTICIPATION
Proposal: The Conference would involve as large a group as manageable and as diverse a group
as possible, including representatives of different components of the industry: e.g., ecotourism,
historic trusts, and the transportation and amenity industries. Some delegates would be selected
at state conferences; others by the White House, Governors, and Members of Congress.
Discussion: For comparison purposes, the White House Conference on Small Business will
involve 1,800 delegates.
FUNDING
Proposal: The Conference would be funded through a redirection of funds from existing
tourism-promotion programs, with Commerce and Agriculture as the primary contributors. To
the extent permitted by law, Commerce would secure in-kind support from the industry.
Discussion: For comparison purposes, the appropriation for the White House Conference on
Small Business is $5 million.
-2-
MANAGEMENT
Proposal: The Conference would be managed by a small Steering Committee consisting of
White House offices, Commerce, and Agriculture, and chaired by NEC and DPC. The
Committee would, as appropriate, consult with Members of Congress.
Discussion: Unless we charter a formal advisory committee, the Federal Advisory Committee
Act limits ongoing participation by state and local officials or industry representatives.
CONFERENCE STRUCTURE
Proposal: The Conference would build on the work of existing state-level conferences, asking
those conferences to draft portions of the strategy and to select delegates for a National
Conference.
Discussion: While the Conference on Small Business will hold six regional conferences, given
the limited purpose of the Conference on Travel and Tourism, regional conferences seem
unnecessary.
TIMING OF THE NATIONAL CONFERENCE--DECISION REQUIRED
Proposal:
The Conference would be announced this spring (perhaps at the industry's national
convention later this month).
Between now and June 1994, the Steering Committee would develop a workplan for the
Conference (including the role of the state conferences, rules for delegate selection, and
an outline of the national strategy).
Beginning June 1994, state conferences (already planned by state tourism boards) would
elect delegates and contribute issue papers and recommendations for the national strategy.
A National Conference would be held in Washington, DC, in autumn 1995.
Discussion: The timing of the National Conference is open. Autumn 1995 would appear to be
a politically quiet time, but may be a logistically difficult time: The White House Conference
on Small Business will hold its National Conference in June 1995, and the White House
Conference on Aging is also tentatively scheduled for 1995. Proximity to the elections are, of
course, a consideration as well. At this point, we seek guidance on your general preference for
the timing of the National Conference.
Before autumn 1995
Autumn 1995
After autumn 1995
With resolution of this timing issue and with your approval in principle to this proposal,
we will establish the Steering Committee and provide the Committee with general guidance.
Please feel free to call if you have any questions.
BUFFALO OUTDOOR CENTER
(501) 861-5514
(501) 439-2244
Post Office Box 1
Rt. 1, Box 56
Ponca, Arkansas 72670
St. Joe, Arkansas 73675
3/7/94
BRIAN BURKE
OLD EXECUTIVE OFFICE BUILDING
1600 PENNSYLVANIA AVE., S.W., ROOM 211
WASHINGTON, D. C. 20500
DEAR BRIAN,
THANK YOU, THANK YOU, THANK YOU! IF ALL OF CLINTON'S STAFF IS AS
CAPABLE OF SIZING UP A SITUATION AND REACTING TO IT AS QUICKLY AS
YOU
WELL, AMERICANS WILL TRULY SEE A REFORMED GOVERNMENT. I
CAN ASSURE YOU THAT THERE ARE FIVE SMALL BUSINESSES THAT ARE BACK
IN THERE HOME TOWNS TELLING THERE FRIENDS AND FAMILIES THAT WE
FOUND "COMMON SENSE" AT THE WHITE HOUSE.
I WAS ABLE TO VISIT WITH THE PRESIDENT ON SATURDAY FOLLOWING OUR
MEETING. I GAVE HIM A COPY OF OUR DOCUMENT AND MENTIONED YOUR NAME
IN THE ABOVE CONTEXT. I CAN ONLY ASSUME THAT HE WILL PASS THAT
ALONG TO CAROL.
AMERICA OUTDOORS IS PREPARING YOUR FOLLOW UP REQUEST AND DAVID
BROWN WILL BE RETURNING THAT INFORMATION SOON.
BRIAN, YOU MADE A DIFFERENCE
THANKS AGAIN.
SINCERELY,
MIKE MILLS
BUFFALO OUTDOOR CENTER
CC: CAROL RASCO, WHITE HOUSE
DAVID BROWN, AMERICA OUTDOORS
Open America Octdors
3/4
Why haven't outfilless been sep- fr. concessionaires?
Bumpers intro-ed & authored 5.208
Permits have been renewable -FS & BLM prog.
working well. FS recently took position that
not A renevable - sd no stay with but CFR says
OK
Over 5,000 permits ml most $ made by 5%
Curry Co @ Yosemite/Hellowstone etc - prompted the
reforms Not enough going back to govt,
Very diff Es Sm soot ops.
Sm bus got lumped in b/c NPS didn't have resoures
to set up diff aparates. Comm.-Use license
created - open to anyone n/o a possessory interest.
Permits + liab: not asking for regl. waiver bit asking for haves
for inherent risks.
Ag.
FS - Lyle Lamberti, Steve Neidermares, ofce Gen Can. toe
Bonnie Cohin
permitting policy expiredin &
7/93
(Ellen Hosnstein)
&
Adele. too Vacio
no policy in use now Open Am. is OK Wexisting
policy if they want to continue it.
No procedural framework for stakeholder particip.
FS says not ent pur to weed out bad apples To revise
existing policy, will have to go thru RM but if
just admin better then no RM & can work
w/stakeholders.
1 AG in past for concessions policy - this is about outfilless
ops out side boundaries bit bring people on to lands
Tied this in ultimber conf. in OR last year - Pres sd
won't let people hanging.
Primary
Contarns
fS, then NPS i not advocating reinstating C-U license,
but need a replacement.
Insurance policies - at permits not recog- insur realities
BB:
insur policy should be disassed @ conf next yr(except
for the permit terms ][?]
Openton
ID A's, types of agreements, etc.
swilling to do legwork
Bob Nash - rra! D devel.
Marion Berry
Add to memo: Julie falkner a, BLM attended
Supposts S.208
To
Ideal: standard permit process for all agencies
(BLM, NPS, FWS, fS, etc.)
THE WHITE HOUSE
WASHINGTON
March 9, 1994
MEMORANDUM FOR CAROL RASCO
FROM:
BRIAN BURKE
SUBJECT:
AMERICA OUTDOORS MEETING, MARCH 4, 1994
On Friday, March 4, we met with the following
representatives from America Outdoors (AO): Mike Mills, Doug
Timms, Wann Brown, David Brown and Bruce Green. Julie Falkner
from DOI's Bureau of land Management (BLM) also attended the
meeting. AO is the trade association for professional outfitters
and guides who operate under permits on federal lands.
Outfitters are small family-owned enterprises which make-up an
important sector of many rural areas. (In this regard, I plan to
speak with Bob Nash about AO's concerns). In short, AO requested
a meeting to discuss permitting and insurance issues.
UNIFORM PERMITTING
AO members conduct most of their outfitting and guide
operations on public lands. Consequently, they must obtain
permits from the federal land owner/manager agencies which
include BLM, the Forest Service (FS), the Fish and Wildlife
Service (FWS), and the National Parks Service (NPS). The problem
AO members face is that there is no uniform permitting process
for there activities and they therefore are faced with long-term
planning and financing problems.
Most permits have a five-year life, after which the agency
can renew or terminate the permit. Generally, agencies terminate
permits only when the outfitter violates the terms of the permit
and violates a probationary period. During the summer of 1993,
the Forest Service (FS) took the position that permits were not
renewable. In addition, the National Park Service (NPS)
eliminated Commercial-Use licenses.¹ These specific policies,
and the lack of permit uniformity in general, create a hardship
for AO members, most of whom are small businesses. As a criteria
for obtaining financing, banks require outfitters to provide the
terms of their permits before they will approve loans. As a
business matter, Banks will be less likely to loan money to small
outfitters who cannot guarantee that their permits and thus their
business ventures will continue for more than five years. The
¹NPS calls its permits Commercial-Use licenses.
effect is that without funding, many outfitters can not upgrade
their equipment and can not remain viable. Typical expenditures
for outfitters and guides include vans or buses for transporting
visitors to and from the natural resource, equipment such as
canoes, tents, river rafts and bicycles, first aid supplies and
warehouse facilities.
Another permit related problem concerns the NPS which
recently concluded that large concessionaires² at national parks
were not paying a fair return to the government.³ As a result,
NPS has suspended Commercial-Use licensing to insure greater
returns. AO believes its members are unintentionally and
unfairly harmed by this policy which is intended for large
restaurant and food service concessions.
Ideally, AO would like to see all agencies (e.g. BLM, NPS,
FWS, FS) adopt uniform permit systems. Most importantly,
however, their primary concern is to see that the FS permit
process gets back on track before its members lose permit
privileges for the summer season. AO supports reinstating the
former FS policy, or enacting a new policy with strengthened
terms, so long as permittees retain a right of renewal and of
review for instances where the agency finds that the terms were
violated. AO does not advocate reinstating the Commercial-Use
license. Instead, they want a replacement which distinguishes
between concessionaires and outfitters. Many of their concerns
seem to be addressed in S.208, introduced by Senator Bumpers,
which AO supports.
Insurance Coverage Issues
AO's also raised concerns about uniformity and the terms of
certain liability provisions in their insurance policies. AO
claims the permitting requirements do not recognize insurance
realities which result in their being required to obtain coverage
which insurance companies do not offer. For instance, the permit
held by Mike Mills' company required $1.5 million in insurance,
however that particular type of insurance is only offered by
insurance companies in $1 million or $2 million policy amounts.
Consequently, the company had to pay for an additional $500,000
in coverage. Additionally, with respect to liability, the
insurance policies are often draconian.
Regarding the insurance contracts, I stated that such an
issue would be best addressed in the context of the upcoming
conference on tourism which I understand will be a comprehensive
focus on a variety of private sector/tourism related issues and
2
Outfitter operate from outside of public lands and
bring people in. Concessionaires operate on public lands.
3
The NPS permits do not distinguish between
concessionaires and outfitters.
may focus on insurance coverage issues. I further explained that
the conference was in the early stages of development. Mike
Schmidt (not the Philadelphia Phillies all-star) met and spoke
with Mike Mills about the upcoming conference.
Regarding unifying the permitting process, this seems to me
to be an issue that is wholly consistent with Reinventing
Government. At first glance AO's concerns seem to be very common
sensical. I have spoken with BLM and FWS and we will be meeting
with the NPS to discuss some of the issues raised by AO. One
point raised in the meeting is that the outfitters are largely
family owned, rural businesses and that the President is on
record as having committed to help develop such industry,
particularly in the northwest timber country were jobs are
getting scarce. I will discuss this further with Bob Nash.
After my initial review with BLM, FWS, NPS and Bob Nash, I
will provide you with an update.
CC: Mike Schmidt
Brian Burke
Pressurent
- per EMail
THE PRESIDENT HAS SEEN 3/7
Zasco
The Standardization of Permitting Policies Among Federal
Agencies for Outfitters, Guides and Similar Recreation Service
Providers
If
501 761 5514
David L. Brown
Executive Director
America Outdoors
America Outdoors
P.O. Box 1348, Knoxville, Tennessee 37901
615-524-4814
Overview
The pace of change and reform in permitting and concessions management is creating
confusion and disarray among the federal resource managers and recreation service providers.
Concessions reform is moving through Congress.¹.² Commercial Use Licenses (CUL's), issued
routinely in units of the National Park Service for some outfitting and guiding and other
recreation related services, have been criticized by the General Accounting Office.³ As a result,
some Parks are eliminating CUL's and attempting to replace them with more burdensome
concessions contracts that require high levels of bureaucratic overhead. In some areas recreation
opportunities are being eliminated.⁴⁵ An increasingly frequent justification is the absence in
resource management plans of a demonstrated public "need" for such services
The Forest Service and Bureau of Land Management are operating under long established
policies that provide a fair rate of return to the government, although some improvements in
administration of the policy are desirable. Both agencies have historically used special use permits
to manage services provided by outfitters and guides on public lands. The core language in these
permits is also issued for gas lines and other special uses across National Forests⁶. The strict
1
S. 208, National Park Service Concessions Policy Reform Act, ordered reported February
2, 1994, by Senate Committee on Energy and Natural Resources.
2
H.R. 1493, National Park Service Concessions Policy Reform Act of 1993 (see also H.R.
473 and H.R. 2146).
3
United States General Accounting Office, Report to the Chairman, Committee on
Environment, Energy, and Natural Resources Subcommittee, Committee on Government
Operations. Federal Lands: Improvements Needed in Managing Short-Term Concessioners,
U.S. House of Representatives, Washington, D.C.: 1993. p.p. 12.
4
Lancaster, John O. (Superintendent, Glen Canyon National Recreation Area), letter to
Wilderness Inquiry. Page, Arizona: November 1993, p. 3.
5
America Outdoors Action Alert on Canyonlands National Recreation Area Resource
Management Plan. Knoxville, TN.: February, 1994.
6
Conversation with John Shilling, USDA Forest Service, Washington, D.C., October 20,
1993.
liability terms included in these permits are not appropriate for outdoor recreation⁷. Therefore,
the Forest Service is considering a separate permit for outfitters and guides.
We believe these issues reflect the need for a specific policy for recreation service
providers on federal lands that takes into account the need for resource protection, business
viability, and public health and safety.
Need for a Standardized Permitting Policy for Outfitting and Guiding on Public Lands
Outfitters, guides, and similar companies provide access to the backcountry for relatively
inexperienced recreationists for whitewater rafting trips, cross country skiing, canoeing, kayaking,
hiking, horseback riding, mountain biking, fishing, hunting and other types of recreation services.
Without outfitters and guides, or an expensive federal replacement, many of these experiences and
much federal land would be inaccessible to the average taxpayer.
We believe the need for outfitters and guides to aid the taxpayers' enjoyment of public
lands is well established. The majority of families and individuals seeking backcountry recreation
opportunities on federal lands do not possess the first aid training, equipment, or knowledge of
low impact techniques important to many recreation activities in backcountry settings.
Recreationists may simply not have the time to develop the logistical expertise necessary to
operate in the areas. Individuals with special needs also deserve recreation opportunities that are
available through outfitters. Additionally, the public may prefer the interpretive or educational
component of a trip led by an outfitter or guide.
The competitive operating environment, the origination of services from facilities outside
federal boundaries, the relatively short term of permits, and the significant levels of investment
7
Catherine Hansen, Holland and Hart, Legal analysis of liability issues in Forest Service
special use permit for America Outdoors. Cheyenne, Wyoming: January 1994.
required for many of these operations, are among the factors that call for a separate, distinct
policy for outfitters and guides. We believe this policy is an important component of a rural
economic development strategy, especially where federal lands are predominant.
A significant distinction between outfitter and guide services and hospitality concessions
exists. This distinction was recently made in S. 208, approved by the Senate Energy and Natural
Resources Committee by a vote of 16 to 4.⁸ For hospitality concessions, an exclusive, long term
contract for twenty years or more is awarded to one company. Hospitality concessions generally
are awarded to a company for services to the public from facilities inside federally managed lands.
On the other hand, services provided to customers by outfitters and guides generally
originate from bases or facilities outside federal and public lands and the activities are low impact.
Multiple competitors compete for the same market. There is a misconception among some in the
federal government that the investment requirements for recreation service providers are quite
low. The General Accounting Office has mistakenly informed Congress, "Short term agreements
(5 years or less) are for services requiring little or no investment in facilities.
To the contrary, over time, the investment and financing requirements for many outfitters
and guides operating under five year permits have increased significantly. The Nantahala Outdoor
Center, for example, has retail facilities, two restaurants, and lodging established to service their
customers, who utilize National Forests for recreation. Many outfitters operating on the
Colorado River through the Grand Canyon have warehouses, kitchens, and office facilities,
financed with loans whose terms are for fifteen years. Financial institutions often examine
8
See exemption language and permitting terms for outfitters in S. 208, op. cit.
9
Keith O. Fultz, Recreation Concessioners Operating On Federal Lands, published
testimony United States General Accounting Office, Environment, Energy, and Natural Resources
Subcommittee, Committee on Government Operations, United State House of Representatives,
Washington, D.C.: March 21, 1991, p.p. 5.
permits to determine their term and whether the business has renewal rights. Eliminating stability
by reducing renewal options for permittees who have met the terms of their permit will reduce
investment in facilities, diminish service, and damage rural economies.
A permitting policy for outfitters and guides should be more streamlined and less costly to
issue and manage than the concessions contracts of the National Park Service, for example.
There are an estimated 9,000 permits or concessions agreements¹⁰. To provide an NPS style
concessions contract to all these concessions would be too costly. Clearly, some other form of
permitting other than NPS type concessions contracts should be implemented for short term
concessions and it should be standardized among all agencies.
Goals of a Standardized Permitting Policy for Recreation Service Providers
The goals of 2 permitting policy for outfitters and guides should be to provide
1. the incentive for investment in the resources necessary to create and sustain successful
small businesses capable of meeting the goals set by resource management;
2. a cost-effective method of selecting those individuals and companies with a business ethic
that reflects resource stewardship and a commitment to quality service;
3. a fair return to the government for the privilege of operating on public lands;
4. annual performance evaluation criteria, which reasonably assures public health, safety,
quality services and environmentally sensitive use of natural resources, and which serves
as the basis for permit "renewal";
10
United States General Accounting Office, Report to the Chairman, Environment, Energy,
and Natural Resources Subcommittee, Committee on Government Operations, United States
House of Representatives, Federal Lands: Improvements Needed in Managing Concessioners,
Washington, D.C.: 1991, p.p. 2.
5. the potential for growth of small businesses who contribute to economic development in
rural America.
Essential Elements of a Standardized Permitting Policy for Recreation Service Providers
To achieve the goals listed above, several key elements of a permitting policy are required.
1. Award new permits based on experience, qualifications, and stewardship not fee
bidding. Agencies should base the award of new permits on proposals for operations
that reflect the experience of the permittee, their qualifications, demonstrated business
skills, quality service, and commitment to resource protection. Fee bidding for permits
subverts stewardship and potentially undermines the quality of service. Regardless of
mandates to consider other qualifications, in the era of deficit reduction and high levels of
scrutiny, agency personnel will tend to select the highest fee bid at the expense of other
qualifications, such as service or stewardship. Variable fee burdens will result among
competitors that undermine the ability of some companies to compete on quality and
resource stewardship.
For these reasons, fees should be standardized for each type of service within a
resource area or unit and should be based on fair market value. These terms are reflected
in S. 208. 11 Some credit should be given to non-compensated services provided to the
government by recreation service providers either as part of the evaluation or in lieu of
fees.
2. Provide renewal rights upon expiration. If the terms of the permit have been met, the
resource protected, and quality service provided to the customer then permittees should be
granted rights to renew their permit. Adequate investment in services, the procurement
11
See section on standardization of fees for outfitting and guiding in S. 208, op. cit.
and maintenance of equipment, the training of quality guides and staff, and the marketing
of recreation services, requires a planning horizon that extends beyond the expiration of a
five year permit. Companies who are in the third or fourth year of a five year permit may
need to acquire equipment, improve facilities, and enter into marketing arrangements,
whose life naturally extends beyond the expiration of the permit. If however, upon the
expiration of the permit renewal is not an option for a satisfactory permittee or if the
award of that permit is subject to a bid, those investments will not be made. It is unlikely
that any significant investments in quality services or facilities will ever be made for
permits with terms of five years that are subject to a bid from competitors regardless of
performance by the existing permit holder.
The goal of the policy should be to select individuals or companies with a
commitment to quality, stewardship and with the business skills to succeed and to retain
those operators as long as they meet the terms of the permit. Turnover for the sake of
turnover or a policy intent on providing business opportunities to an unlimited number of
entrants will not serve the resource or the public well. A high level of turnover will also
result in higher operating overhead for the agencies and a "cash cow" mentality for
permittees. The net effect for a permittee operating in this environment will be to transfer
cash from their permitted operation to more secure investments. With the decline of
investment in resources, training, and facilities, service to the public and resource
stewardship will decline.
3. Adequate evaluation of permittees ensures quality service and resource stewardship.
Adequate annual evaluation of the permittees' operations will ensure the delivery
of quality service. Rights to renew should be based on the permittees' ability to provide
satisfactory service and compliance with other terms of the permit. The policy of retaining
renewal rights for permittees who are not probationary for two consecutive evaluation
periods or who are not probationary or unsatisfactory in the final year of their permit is an
appropriate policy. S. 208 reflects the intent to retain "satisfactory" outfitters. 12
Improvements should also made in the administration of this policy by developing
a standardized format for permittees' operation plans and well defined evaluations.
Operation plans then become part of the permit and compliance with the operation plan is
one measure of the permittees' performance in annual evaluations. Practices to minimize
impacts and meet other resource management objectives can be specified in the operating
plan. Other elements of the evaluation should measure quality service and the ability C
meet the financial obligations to the government. Training permit holders and
administrators in requirements and responsibilities of the permit are important components
of an adequately implemented policy.
The evaluation should not focus on compliance with administrative procedures or
deadlines that do not comply with standard business practices. Evaluations should be
developed in cooperation with service providers who are experts in their disciplines. The
evaluators should be adequately trained in the administration of the policy and the
evaluation.
An appeals process should be established that allows for impartial review of
appeals of a probationary or unsatisfactory rating. That process should be fair and easily
understood by both parties.
12
See exemption language and permitting terms for outfitters in S. 208, op. cit.
4. Transferability of the permit with the sale of the business. As with any business, the
incentive to risk and invest is based partially on the potential to establish and build equity
value in the business and property. Many outfitters, for example, work many years at low
salaries to establish their businesses. Most do not have retirement plans. Their retirement
is based on the ability to sell a successful business. The greater the success the greater is
the reward.
A permitting policy should allow the transfer of a permit with the sale of the
business to a buyer judged to be qualified by the agency. Agencies should have the
authority to deny transfer of the permit if the sale price exceeds a reasonable value and
jeopardizes the viability of the business or quality service to the public. Transfers should
also be prohibited if the sale price includes any valuation of the permit Permit
administrators should, however, recognize that the value of a business is equal to more
than the sum of the value of the assets. The public's demand for the services of an
outfitter is based on years of work, ingenuity, quality service, innovation, and technical
skill. It is appropriate for the sale price to reflect these values.
5. Permit terms should not create liability exposure to permittees for the inherent risks
of the activity. Strict liability clauses in some permits have required outfitters and other
permittees to accept liability regardless of negligence or prohibited assumption of risk
agreements. These are not appropriate for recreation service permits and will ultimately
impair permittees' ability to obtain affordable insurance. Permittees should be responsible
for their own negligence, but not for the negligence of the customer or for the inherent
risks of the activity, provided that the customer has received reasonable warning about the
apparent risks
6. Allocation of use to outfitters. Providing outfitters with a stable allocation of user days
during the term of the permit is an essential element of an outfitter and guide permitting
policy. In a regulated environment, where use is fixed by the agency for resource
protection, outfitters must be given a specific allocation of that use as a basis for
budgeting, financing operations, investing in equipment, and training the appropriate
number of guides and support personnel. So called "Freedom of Choice Allocation"
scenarios that lump all use (self-guided and outfitted) into a common pool and require the
public to obtain a permit from the agency before contacting a guide or outfitter will
undermine investment and quality of service. Even if the public demands an outfitter's
services, there is no certainty that the customer will be able to obtain a permit from the
agency. Allocations may be adjusted upon renewal of the permit to reflect actual use
levels if a permittee has been unable to utilize assigned use, except when drought,
economic factors, or other extenuating circumstances have resulted in uncontrollable
hardship.
of To: Walden, Cookie
From: David Brown, Executive Director
2-28-94 10:57am P. 1 of 2
To: Walden, Cookie
Date: 2-28-94
From: David Brown, Executive Director
Page 1 of 2
Withdrawal/Redaction Marker
Clinton Library
DOCUMENT NO.
SUBJECT/TITLE
DATE
RESTRICTION
AND TYPE
002. fax
To: Cookie Walden, From David L. Brown, Re: Meeting with Brian
2-28-94
P6/b(6)
Burke [partial] (1 page)
COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Brian Burke
OA/Box Number: 4430
FOLDER TITLE:
America Outdoors [folder 1] [2]
2013-1074-S
sb45
RESTRICTION CODES
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P2 Relating to the appointment to Federal office |(a)(2) of the PRA|
b(2) Release would disclose internal personnel rules and practices of
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an agency |(b)(2) of the FOIA)
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financial information [(a)(4) of the PRA]
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and his advisors, or between such advisors [a)(5) of the PRA
b(6) Release would constitute a clearly unwarranted invasion of
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personal privacy |(b)(6) of the FOIA]
personal privacy |(a)(6) of the PRA]
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financial institutions [(b)(8) of the FOIA]
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concerning wells [(b)(9) of the FOIA]
RR. Document will be reviewed upon request.
To: Walden, Cookie
From: David Brown, Executive Director
2-28-94 10:57am
p. 2 of 2
AMERICA
OUTDOORS
The national voice of the outfitting industry.
Fascimile Transmission
February 28, 1994
To:
Ms. Cookie Walden, 202-546-7028
From: David L. Brown, Executive Director, America Outdoors
Subject: Meeting with Mr. Brian Burke, Senior Policy Analyst, Domestic Policy Council.
The persons attending the meeting with Mr. Burke at 1:00 pm on Friday, March 4, 1994, are as
follows:
car
Mike Mills
Doug Tims
Wann Brown
Midwest Regional Chairman
President
Vice President -- West
America Outdoors
America Outdoors
America Outdoors
Buffalo Outdoor Contor
Northwest River Co.
All 'Round Ranch
P.O. Box 1
P.O. Box 403
P.O. Box 153
Ponca, AR 72760
Boise, ID 83701
Jensen, UT 84035
501-861-5514
208-344-7119
801-789-7626
(b)(6)
(b)(6)
(b)(6)
David Brown
Bruce Greene
Executive Director
President, Oregon Guides and Packers
America Outdoors
Wilderness River Outfitters
P.O. Box 1348
1567 Main Street
Knoxville, TN 37901
Springfield, OR 97477
615-524-4814
503-726-9471
(b)(6)
(b)(6)
Mr. Mills has previously provided you with his date of birth. Please call me if you need
additional information. Ms. Scootch Pankonin, 202-546-1808, is coordinating our appointment
schedule. Thank you.
National headquarters, P.O. Box 1348, Knoxville, TN 37901. 615-524-4814 Fax 615-525-4765
Washington office, 308 Constitution Ave, NE, Washington, D.C. 20002. 202-546-1808 Fax 202-543-6870
03/01/94
14:37
208 334 2175
GOVERNOR-IDAHO
4.
001/003
p. 1 of 3
GREAT SEAL OF
THE ATERLOF TE ONES
OFFICE OF THE GOVERNOR
STATE CAPITOL
BOISE, IDAHO 83720-1000
CECIL D. ANDRUS
(208) 334-2100
GOVERNOR
THIS FAX IS FOR THE ATTENTION OF:
Brian Burke
OFFICE OF DOMESTIC POLICY
THE WHITE HOUSE
FAX NUMBER:
202/456-7028
PHONE:
202/456-2995
FROM:
Cecil D. Andrus
Governor of Idaho
PHONE:
208/334-2100
03/01/94
14:37
208 334 2175
GOVERNOR-IDAHO
002/003
Faxed 3/1/94
Original mailed
OR
OFFICE OF THE GOVERNOR
STATE CAPITOL
BOISE 83720-1000
(208) 334-2100
CECIL D. ANDRUS
GOVERNOR
March 1, 1994
The Honorable William J. Clinton
Office of the President
The White House
Washington, DC 20500
Dear Mr. President:
Officials of your Office of Domestic Policy will meet this coming
Friday with representatives of America Outdoors (AO), the national
trade association for professional outfitters and guides. That
meeting has been arranged by your former colleague in Arkansas state
government, Mr. Mike Mills, a canoe livery operator on the Buffalo
River near Ponca, Arkansas and a director on the board of America
Outdoors.
I would like to add my own voice in recommending the importance
of the information that America Outdoors will present to the White
House. Outfitters and guides are struggling with inconsistency and
turmoil in federal land management agencies' administration of their
permits and operations.
In Idaho, as well as in most other western, southern, and
New England states, outfitters and guides are a key component of
sustainable rural economic development. Other traditional uses of
resources are being challenged. Although recreation cannot be
considered a full replacement for these revenues, outfitters have
proven themselves as critical "value-added" factors in rural
communities as they work together to achieve responsible shared use.
That delegation will be led by Mr. Doug Tims of Idaho, AO's new
national president. Doug's earlier leadership as president of the
Idaho Outfitters and Guides Association over the last half decade has
produced one of Idaho's great success stories- an effective partner-
ship to revitalize the economies of rural communities throughout my
state. My experience with the owners of these small outfitting and
guide businesses causes me to recognize and salute their solid
commitment to quality service to the public and to increasingly high
standards of professionalism in the work they do.
In learning to be good stewards of Idaho's natural resources,
they've become statewide leaders in environmental education, in
development of low impact recreation techniques, and in fostering an
ethic of "sustainable uses", one that is rapidly spreading to
landowners and the non-outfitted recreation public.
03/01/94
14:37
208 334 2175
GOVERNOR-IDAHO
003/003
The Honorable Bill Clinton
Page 2
March 1, 1994
I have been encouraged by this extraordinary progress.
The measure of that progress. responsible stewardship, customer
satisfaction-- is reflected by Idaho's growing edge in the very
competitive western and international tourism industries. A 67%
growth has occurred in revenues generated by our outfitters and
guides since 1983. Last year, the Idaho economy was boosted by some
$60 million attracted to our state by outfitters, largely benefiting
small towns and rural areas.
In order to keep doing that job, outfitters need a stable
relationship with federal land management agencies and policies that
encourage investment in recreation services. These needs include
renewability for those who have met the terms of their permits. It
demands the sense of partnership between agencies and outfitters, a
partnership that has worked so effectively for Idahoans.
This Administration needs a process by which it formally
recognizes and acknowledges its need for recreation service partners.
Most Americans and certainly our international visitors lack the
skill, equipment, experience, or time to undertake a trip into remote
areas of parks, national forests, or public lands on their own. Their
choices are simple: 1) using high-quality recreation services from
outfitters and guides, or 2) asking federal field employees to make
the investment and take the risk of conducting trips, or 3) being
denied access to public lands altogether.
An indication of concern from you would move us quickly toward
some rather simple solutions to the sudden turmoil in the admini-
stration of outfitter and guide policy. Few problems with which you
are confronted can be resolved at relatively no cost, but this one can
be. I hope America Outdoors, the national voice for outfitters and
guides, will have your assistance.
Louil D. Sincerely Andrew
Cecil D. Andrus
Governor
CDA:y
CC: Mr. Brian Burke
Office of Domestic Policy Office, The White House
Dr. Jack Ward Thomas
Chief, U.S. Forest Service
The Honorable Bob Armstrong
Assistant Secretary for Land and Minerals Management,
U.S. Department of the Interior
Mr. Tom Curtis
National Governors' Association
HOLLAND & HART
ATTORNEYS AT LAW
DENVER
SUITE 310
TELEPHONE (202) 638-5500
DENVER TECH CENTER
1001 PENNSYLVANIA AVENUE N.W.
FACSIMILE (202) 737-8998
COLORADO SPRINGS
WASHINGTON, D.C. 20004-2505
ASPEN
BILLINGS
BOISE
CHEYENNE
JACKSON
March 2, 1994
WASHINGTON, D.C.
Mr. David Brown, Executive Director
America Outdoors
P.O. Box 1348
Knoxville, TN 37901
RE: Forest Service Permit Renewal
Dear David:
With respect to the referenced matter, it is our
understanding that you have been advised that the United States
Forest Service ("USFS") is proposing a policy change on special
use permit renewals. Apparently the USFS intends to take the
position that it does not have the legal authority to renew
special use permits issued to outfitters and guides. It further
intends to require all permittees to go through the process to
obtain a new permit, and perhaps, without sufficient regard for
its past status as a permittee.
The legal issue that this proposed change raises is as
follows: upon expiration of the term stated in a special use
permit does the USFS have the legal authority to renew the permit
or does the permit expire, resulting in the need to go through
the process for the issuance of a new permit? You have asked for
our assessment of this legal issue. By way of conclusion, there
is express authority in the governing federal regulations for the
renewal of special use permits.
LEGAL ANALYSIS
Title 36, Section 251, Subpart B of the Code of Federal
Regulations ("CFR") addresses Special Uses of Land and the
permits required for those uses. Section 251.52 states as
follows:
"Special use authorizations shall be issued,
granted, amended, renewed, suspended, terminated,
or revoked by the Chief, or through delegation,
by the Regional Forester, Forest Supervisor,
District Ranger or other forest officer, and
shall be in such form and contain such terms,
stipulations, conditions, and agreements as may
be required by the Regulations of the Secretary
HOLLAND & HART
ATTORNEYS AT LAW
Mr. David Brown
March 2, 1994
Page 2
and the instructions of the Chief." (emphasis
added.)
Special use permits for guides and outfitters are issued and
governed by this Section. It is our understanding that the
special use permit is the form by which the special use
authorization referenced in this Section is implemented.
The validity of regulations is based upon the regulations
being within the scope of the enabling legislation that
authorized the promulgation of the regulations. Review of the
United States Code's ("USC") statutory provisions leads us to
conclude that the CFR Section 251.52 quoted above is consistent
with the enabling statute and it has the force and effect of law.
Title 16, Sections 472, 497 (b), 551, 1134, 3210, Title 30,
Section 185 and Title 43, Sections 1740, 1761-1771 of the USC are
cited in 36 CFR 251 Subpart B, as the legal authority for the
regulations relating to special use authorizations including
without limitation Section 251.52.
The language of these enabling statutes does not expressly
address the authorization or prohibition of renewals of the
subject permits. However, the CFR provisions promulgated under
this statute expressly provide for renewals. For example,
Section 251.64 of the CFR which addresses renewal of special use
permits states as follows:
(a) When a special use authorization provides
for renewal, the authorized officer shall renew
it where such renewal is authorized by law, if
the project or facility is still being used for
the purpose (s) previously authorized and is being
operated and maintained in accordance with all
the provisions of the authorization. In making
such renewal, the authorized officer may modify
the terms, conditions, and special stipulations
to reflect any new requirements imposed by
current Federal and State land use plans, laws,
regulations or other management decisions.
(b) When a special use authorization does not
provide for renewal, it is discretionary with the
authorized officer, upon request from the holder
and prior to its expiration, whether or not the
authorization shall be renewed. A renewal
pursuant to this section shall comply with the
HOLLAND & HART
ATTORNEYS AT LAW
Mr. David Brown
March 2, 1994
Page 3
same provisions contained in paragraph (a) of this
section.
Simply put, USC Section 551 and 36 CFR Sections 251.52
and 251.64 clearly give the USFS authority to renew special use
authorizations which include special use permits.
We have researched the status of these CFR sections and have
not found anything to indicate that they have been overruled or
revised. The Forest Service appears to be ignoring clear
regulatory authorization to justify its dramatic departure from
its prior practices and the plain meaning of the language of the
applicable statutes and regulations.
POLICY DISCUSSION
In light of this conclusion, the proposed USFS policy
tinkering with the special use permit renewal issue appears to be
an inappropriate approach to addressing whatever problems it may
perceive with the special use permitting program. As a matter of
policy the USFS appears to want the flexibility to not renew
permittees who may be a problem. This approach to the non-
renewal of problem permittees is the equivalent of fixing a watch
with a sledge hammer. Clearly, the USFS can take an approach
that addresses its concerns without forcing the many fine
permittees through the proposed new permitting process.
The process for the administration of permits is set forth
at Title 2700 of the Forest Service Manual ("FSM"), see e.g. §
2716 Administration of Permits. The Forest Service Handbook
("FSH") provides specificity for the FSM process of
administration of the permits at § 2709.11, Chapter 40.
This language already provides a mechanism for evaluation of
permittees. This existing process provides the USFS the tool to
deal with problem permittees, and affords quality permittees a
system of fair review. Nevertheless, we understand that there
are two major difficulties with the FSH provisions, that is, that
while this process may be sufficient to assure fairness to the
permittee in administration and renewal of its permit, (1) this
FSH provision expired in July of 1993, and (2) the language of
the expired FSH provision was not uniformly or consistently
applied by USFS personnel, perhaps due to inadequate training or
understanding of the process.
In summary, adherence to an evaluation process, like the
expired FSH provisions, would allow the USFS to achieve its
HOLLAND & HART
ATTORNEYS AT LAW
Mr. David Brown
March 2, 1994
Page 4
policy goals regarding problem permittees without adversely
impacting or jeopardizing the majority of permittees who provide
good quality services and opportunities to users of the national
forests. We also believe America Outdoors could play an
important role in suggesting improvements to the evaluation
process that will protect the substantial investments and
reasonable return of investment expectations of quality
permittees.
Certainly, Congress and the USFS have recognized a process
that protects the investment of ski area permittees while
retaining the flexibility of the USFS to terminate, suspend or
revoke the permits of problem permittees (36 CFR $251.56 (b) (2) )
Suffice it to say, the investments of a river guide in equipment,
in defining and providing its quality recreation services, in
marketing those recreation services, in training and retaining
personnel to deliver quality recreation services and in incurring
the expenses to obtain and retain governmental permits, deserve
protection consistent with the concepts that drove the Government
to grant ski area permittees 40 years between "renewals."
Please let us know if you desire more information. Thank
you for this opportunity to be of service.
Sincerely,
I/A Afther Fergusen
Arthur B. Ferguson, Jr.
for Holland & Hart
ABF/bb
3793.