America Outdoors Association
America Outdoors Association

April 17, 2013

America Outdoors Association Bulletin

Forest Service Issues Clarification about When Background Checks Are Required 

Requires Fingerprinting of Guides for Children Unaccompanied by Adults

Secretary of Interior Sally Jewell Confirmed by Senate

As expected, last week the Senate voted to confirm Sally Jewell as the next Secretary of the Interior by a vote of 87-11.  Congratulations to Secretary Jewell!

Forest Service Issues Clarification about When Background Checks Are Required.  Requires Fingerprinting of Guides for Children Unaccompanied by Adults.

If you serve Boy Scout Troops or youth as part of your permitted services in National Forests, the new Forest Service background check requirement will also require you to fingerprint your guides and employees who serve youth unaccompanied by their parents.  The documentation of background checks will be subject to inspection for permit compliance.  If you do not serve unaccompanied youth, you will be required to document in some manner that your employees did not serve unaccompanied youth to avoid violation of the background check requirement.

AOA believes the fingerprint requirement is inappropriate. Fingerprinting seasonal guides will add unnecessary time and expense to clearing employees. While it may be a good idea to perform background checks for employees serving youth, getting law enforcement agencies to fingerprint guides in time for the season may be next to impossible. The FBI fingerprint Customer Service line, which is one resource the Forest Service suggested for fingerprint cards and training is 304-625-5590. 

We suggest contacting your member of Congress (Congressional switchboard is 202-224-3121 for the U.S. House of Representatives and 202-225-3121 for the Senate) about the fingerprinting requirement for guides under permit in National Forests, since this requirement is too much to expect on such a short notice.  The requirement for fingerprinting is probably unworkable for seasonal operations.

The Forest Service recently issued a Q&A on the new background check requirement for outfitters, camps and other permit holders serving children and youth.  While the recent Q&A provides some clarification, questions still remain, such as what kind of background check is required (all county, nationwide or local).

AOA does have a low cost background check service available to members, but you should ensure that you understand how to conduct background checks before initiating them with your employees.  Consult appropriate legal counsel.  Contact dbrown@americaoutdoors.org for a source for background checks.

Here are excerpts from the Forest Service document.  We suggest you read the entire document, which is direction to field staff, if you are a Forest Service permittee.

Pursuant to the Crime Control Act of 1990 (CCA), the Agency identified the health and welfare of children under the age of 18 engaged in certain activities on National Forest System lands as a public safety standard that should be included in the inspection criteria. 

When does the CCA apply to special use permits?

The CCA applies to special use permits authorizing activities or facilities that involve the provision of child care services as defined in the CCA to children under the age of 18, including but not limited to day care facilities, organizational camps, schools for children, outfitting and guiding for children, and commercial filming and still photography involving children.

Criminal background checks are required for holders, holder’s employees, or holder’s agents who provide child care services to children under the age of 18.  For example, when a youth organization such as the Boy Scouts of America contracts with a holder to provide child care services for children under the age of 18, the providers of those services are subject to CCA requirements.

Criminal background checks are not required for holders, holders’ employees, or holders’ agents who do not provide child care services to children under the age of 18, such as food service employees and ski lift operators.  Holders, holders’ employees, or holders’ agents who provide educational or recreational programs for children under the age of 18 who are always accompanied by a parent or legal guardian are not providing child care services for purposes of the CCA. These children are under the parent’s or legal guardian’s supervision and are therefore not being provided child care services by the holders, holders’ employees, or holders’ agents.  Therefore, clause C-14 or C-15 does not apply to authorized educational or recreational programs for children under the age of 18 if the holder documents that they are always accompanied by a parent or legal guardian.

Are fingerprints required?

Yes. The CCA requires the use of fingerprints for conducting criminal background checks.  Furthermore, the CCA requires that fingerprinting checks be conducted through the U.S. Federal Bureau of Investigation (FBI) and the criminal history records for each state in which an employee lists a current or former residence. Fingerprinting services are provided by state and local law enforcement agencies. The FBI also provides this service for a small fee. A Forest Service inspector should ask the holder to identify the positions that involve provision of child care services to children under the age of 18 and the names of employees in those positions. The inspector can also ask to review documentation that establishes criminal background checks have been conducted for those employees.

May 7th Hearing to Focus on Resolving Barriers to Outfitting on Public Lands and Other Recreation Issues

The House Committee on Public Lands and Environmental Regulation, chaired by Rep. Rob Bishop, (R-UT) will hold a hearing on issues impacting public land access for outfitters on May 7th. 

David Brown, AOA’s executive director and other outfitters are expected to testify. Recreation capacity and barriers to outfitting on public lands will be among the subjects of the hearing. 

  • The need to streamline permit analyses and documentation and limit cost recovery, which exceeds the financial capability of most outfitters to pay for environmental assessments and environmental impact statements.
  • The importance of reauthorizing the authority under which BLM and Forest Service permits are issued, which expires in 2014. Amendments are needed to that authority, which is contained in the Federal Lands Recreation Enhancement Act.
  • The new BLM National Landscape Conservation System manuals de-emphasize recreation except in areas designated as Recreation Management Zones. Historical use is only recognized in Extensive Recreation Management Zones, which must be designated in the management plan. Since the NLCS includes all congressionally designated areas, many management plans may be out of date or out of compliance with the manuals although this should not stop current activities.  Recreation may still be allowed if it does not conflict with the other purposes for the area or if recreation is a purpose of the designated area.  How much commercial recreation will be allowed is a key question since the focus of recreation management for National Monuments and National Conservations Areas is on youth, non profits and veterans.  A science plan is required for NLCS Monuments and National Conservation Areas.  All areas much have as science strategy.
  • New strategies are necessary to maintain roads and trails. Roads and secondary trails are being closed in many areas due to lack of adequate funding for trail maintenance. 

Please let us know of any issues you are facing with permit issuance, fees, closures, insurance requirements or other matters pertinent to your access on public lands.  Send an email to dbrown@americaoutdoors.org

The Forest Service and BLM Are NOT Planning to Increase Insurance Requirements in the Near Future

You may have heard recently that the Forest Service and other agencies are planning to increase insurance requirements.  We recently inquired about the Forest Service’s intention regarding their insurance requirements.  We received this response on April 16th:

“Attached is the FSM 2713.1, Exhibit 01 that specifies the minimum required liability issuance coverage per use type.  Those requirements are effective as of December 2012.  At this time there are no changes anticipated to this current direction.”

The BLM also advised us that the agency is not revising its requirements.

The current Forest Service requirements for outfitting activities are listed below. 

Outfitting and Guiding    

Aerial Activities - 1 person
2 or more people
25/500/1000
25/500/2000
1000
2000
Backpacking25/300/300300
Bicycling25/500/500500
Bus, Van, Four-Wheel Drive Tours, ATV25/500/500500
Hunting25/500/500500
Nature Hikes25/300/300300 
Nordic Skiing25/300/300300 
Pack & Saddle Stock, Equestrian25/500/500500 

Rafting and Boating
Class IV-V 
Class I-III

 
25/500/1000
25/500/500

1000 
500
Rock Climbing25/500/500 500 
Running and Walking Events 25/300/300 300
Snowmobiling25/500/500  500

There have been issues in the past with insurance requirements. NPS recently retreated on liability insurance requirements for float tips in Grand Teton National Park, reducing the requirements there from $5 million to $2 million.There are still some legitimate concerns about the potential for unrealistic requirements in National Parks, since the reductions did not apply to all activities in Grand Teton. NPS evaluates the insurance requirements for each contract. The agency is also expected to extend their requirements to CUA holders, so we will have to remain vigilant.

 AOA Hiring Firm to Write White Paper on Compliance with Affordable Care Act

Even if you are not a large employer under the Patient Protection and Affordable Care Act, you will have obligations to maintain employment records and provide information on coverage options to your employer.  Some larger outfitters are in a quandary over how to count part-time and seasonal workers to determine if they are a large employer.  AOA is hiring a firm to write a whitepaper to answer a variety of questions using examples for various outfitters’ payrolls.  Among the goals for the whitepaper:

1.       How does an employer with seasonal employees factor in part time and variable hour employees when determining if they a large employer?

2.       What needs to be done to comply with the PPACA requirements in 2013?  Issues include the establishment of measurement periods for larger employers, hourly record keeping, requirements for providing information to employees and reporting to the IRS.

3.       What needs to be done in 2014 to comply?

4.       What are the obligations of a owners who have a stake in more than one business?

5.       When does an offer of coverage need to be provided to employees factoring in the 90 day administrative period?  Who is responsible for paying for coverage once a seasonal employee is terminated for the year?

6.       The paper will use examples from outfitters’ payrolls to outline the computations necessary to determine if the company is a large employer or a small employer.  The paper will also cover the obligations of companies to provide coverage or pay penalties factoring in the 90-day administrative period and the 12 month look-back provision for seasonal employees.

Benchmarking Report for 2012 Financials to Be Announced Soon

Last year's highly acclaimed benchmarking study will be repeated this year.  AOA is expected to announce the program next week and companies who subscribe to receive individual customized reports comparing their performance to industry averages will be able to input their 2012 financial data within a couple of weeks.  Industry Insights will help input the data for you if you need help categorizing revenues and expenses.  A compensation component will be added to this year's report.  The fee to participate and receive a customized industry report is expected to be around $200 per company.

 

 

America Outdoors Association
PO Box 10847
Knoxville, TN 37939

Phone: 1-800-524-4814
americaoutdoors.org

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America Outdoors
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David L. Brown
Robin Brown
Chrystal Graham
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