Public Comments on Proposed Federal Rules
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AI Integrators Council Urges GSA to Refine Proposed Safeguarding Clause for Large Language Model Systems
Carter Struck
WASHINGTON, Aug. 5 -- In response to a federal agency request for information, the following public comment letter was submitted electronically to the regulations.gov site.
August 3, 2026
Ms. Johnie McDowell
1800 F Street NW Washington, DC 20405
Office of Acquisition Policy
General Services Administration
Re: Notice-MVAC-2026-01; Docket No. GSA-GSAR-2026-0331
Dear Ms. McDowell:
The AI Integrators Council (AIIC) welcomes the opportunity to provide input to the General Services Administration (GSA) on its notice and request for comment on proposed GSAR clause "Basic Safeguarding of Data Within ... Show Full Article WASHINGTON, Aug. 5 -- In response to a federal agency request for information, the following public comment letter was submitted electronically to the regulations.gov site. August 3, 2026 Ms. Johnie McDowell 1800 F Street NW Washington, DC 20405 Office of Acquisition Policy General Services Administration Re: Notice-MVAC-2026-01; Docket No. GSA-GSAR-2026-0331 Dear Ms. McDowell: The AI Integrators Council (AIIC) welcomes the opportunity to provide input to the General Services Administration (GSA) on its notice and request for comment on proposed GSAR clause "Basic Safeguarding of Data WithinLarge Language Model Artificial Intelligence Systems (LLMs)."
The AIIC serves as the primary voice for leading companies working to integrate artificial intelligence into systems, platforms, and applications. The AIIC was created to educate policymakers and other essential stakeholders about the complexity of roles, responsibilities, and relationships across the AI ecosystem and to advocate for policies based on an accurate understanding of this ecosystem. We are comprised of leading AI companies including Alteryx, Atlassian, Box, Cognizant, Docusign, Peraton, SAIC, Salesforce, ServiceNow, and Twilio. AIIC members serve as the bridge between the developers of foundation models and the deployers who put AI systems to work by configuring, customizing, and delivering the integrations, workflows, and safeguards that make enterprise AI adoption possible.
GSA's Recognition of the AI Integrator Role
At the outset, the AIIC commends the GSA for expressly recognizing "LLM System Integrator" as a role distinct from "LLM Developer," "LLM System Operator," and "LLM Service Provider" in paragraph (b) of the GSAR clause, and for tailoring the flowdown obligations in the supplemental clause 552.239-7001-3 to the functions integrators actually perform including selecting models, setting system prompts and prompt templates, configuring Retrieval-Augmented Generation (RAG) sources, and establishing guardrails, filters, evaluation criteria, and output constraints.
This is precisely the kind of role-specific recognition that AIIC has urged policymakers to adopt.
As explained in our earlier published white paper1, AI legislation and regulation have too often
relied on a binary distinction between "developers" and "deployers" that does not reflect how AI
is actually built and delivered, leaving integrators to either shoulder obligations designed for
model developers or fall through gaps in accountability. GSA's decision to define the system
integrator role separately - and to map obligations to the NIST AI Risk Management
Framework's2 "AI Design" and "AI Deployment" actor categories - is a meaningful step toward
proportionate, function-based regulation, and a model we encourage GSA and other agencies
to build on.
The comments below are offered in that constructive spirit, with the goal of ensuring that the
obligations assigned to integrators are workable, clear, and consistent with how commercial AI
integration is actually performed.
Comments and Recommendations
AIIC and its members share GSA's goal of protecting Government Data, ensuring accountability
across the LLM supply chain, and enabling agencies to adopt AI responsibly. Several provisions
of the proposed clause, however, do not yet reflect the operational and commercial realities of
AI integration and, if finalized as drafted, could increase costs, discourage participation by
leading commercial AI providers and integrators, and in some cases undermine the very
reliability and security goals the Clause is meant to advance. Consistent with GSA's requested
comment format, the sections below identify the specific paragraph at issue, our concern, and
suggested language.
1. Provide a Phased Transition Period and Equitable Adjustment for Existing Contracts
Location: Clause applicability generally; GSAR 539.71 and 552.239-7001, introductory
paragraphs.
The proposed GSAR clause does not specify how or when it will apply to the many Federal
Supply Schedule contracts, GWACs, and OASIS+ vehicles, and the task and delivery orders
issued under them, that are already in place. GSAR clauses of this kind are typically
incorporated through mass modification, and immediate application here could require
contractors to redesign already-deployed integrations on short notice and without any
adjustment to price or schedule.
Draft Recommendation: GSA should add an implementation section establishing a minimum
180-calendar-day period following final issuance of the clause before flowdown obligations
become mandatory for new task or delivery orders; an option, at the agency's discretion, to
2 National Institute of Standards and Technology, Artificial Intelligence Risk Management Framework (AI
RMF 1.0), NIST AI 100-1 (Gaithersburg, MD: U.S. Department of Commerce, January 2023),
https://doi.org/10.6028/NIST.AI.100-1.
1 AI Integrators Council, AI Integrators Council White Paper: Defining the Role of AI Integrators in the AI
Value Chain (Washington, DC: AI Integrators Council, 2026), https://aiintegratorscouncil.com/white-paper.
apply the clause to existing contracts only at the next option period, renewal, or significant
modification rather than by immediate mass modification; and an equitable-adjustment
mechanism under which a contractor may request adjustment of price, schedule, or other terms
where compliance with the finalized clause requires material re-engineering of systems already
delivered under a pre-existing award.
2. Refine the Definition of "Custom Development" to Preserve Contractor Ownership of
Reusable Integration Assets
Location: Paragraph (b) (definition of "Custom Development"); paragraph (e)(1)(viii) ("Custom
Developments and Model Rights").
As drafted, "custom development" is defined broadly to include "any modifications,
customizations, configurations, or enhancements to LLMs or associated implementations or
workflows...developed specifically for the Government under this contract." This definition can
sweep in system prompts, prompt templates, RAG configurations, evaluation criteria, and
orchestration logic - the same reusable integration techniques that the Clause's own definition
of "LLM system integrator" in paragraph (b) identifies as the integrator's core function.
If these reusable assets are treated as "custom development" under this current definition,
paragraph (e)(1)(viii) would require the contractor to dedicate them, and any resulting
"customized or enhanced models," to the government's exclusive use, treat them as
government confidential information, and refrain from reusing them for any other customer
without written contracting officer authorization. Applied broadly, this would prevent an integrator
from ever reusing its own general-purpose prompt libraries, RAG architectures, or orchestration
frameworks across other government or commercial engagements - effectively converting
standard integration methodology into single-use Government IP on every contract. That
outcome would discourage the reuse-driven efficiencies that make commercial AI integration
affordable, and is inconsistent with the well-established federal practice of distinguishing
background IP from deliverables developed exclusively at government expense.
Draft Recommendation: The AIIC suggest the following addition to the "Custom Development"
definition in paragraph (b): "...Custom Development further excludes general-purpose prompt
libraries, RAG architectures, orchestration workflows, evaluation frameworks, and other
reusable integration assets and methodologies that (i) do not themselves consist of or expose
Government Data or Government-specific business logic, and (ii) are, or could reasonably be,
reused across multiple customers, even where configured or parameterized for use on this
contract." We encourage the adoption of this definition and correspondingly revise paragraph
(e)(1)(viii)(C) to permit the contractor to reuse its general integration methodologies and
non-Government-data-specific configurations, while preserving the Government's ownership of
any Government-specific data, business rules, or content embedded within a particular
deliverable.
3. Replace Subjective "Unbiased AI" Language With Objective, Consensus-Based
Standards
Location: Paragraph (j)(1) ("Unbiased AI principles"); paragraph (j)(2)-(3) (Government
Evaluation Rights and Remediation).
Paragraph (j)(1) requires that an LLM be "truthful," a "neutral, nonpartisan tool that does not
manipulate responses in favor of ideological dogmas," and free of "partisan or ideological
judgments." These terms are not defined and, unlike calibration, factuality, or bias metrics under
recognized frameworks, have no agreed technical meaning or repeatable test. Because
paragraph (j)(2) gives the Government the unilateral right to evaluate the LLM against its own
undisclosed benchmarks, and paragraph (j)(3) ties suspension of use and termination-for-cause
to non-compliance with these undefined principles, contractors face significant,
difficult-to-mitigate risk with no objective standard against which to test or design their systems
in advance.
Draft Recommendation: Supplement paragraph (j)(1) with cross-references to recognized,
consensus-based testing standards - for example, the NIST AI RMF 1.0 and its Generative AI
Profile (NIST AI 600-1), ISO/IEC 42001 (AI management systems), and ISO/IEC TR 24027
(bias in AI systems) - and revise paragraph (j)(2) to require that any Government benchmarks
used to evaluate compliance be based on a recognized methodology, be made available to the
contractor in advance or concurrently with use, and be subject to a defined clarification or
dispute process before triggering the remedies in paragraph (j)(3).
4. Modernize Change Notification Requirements for Continuous-Deployment Commercial
AI
Location: Paragraph (i) (Change Notification); paragraph (b) (definition of "Material Change").
Paragraph (i) requires thirty calendar days' advance notice of any "material change," a 30- or
15-calendar-day evaluation window before discontinuing or replacing a model (major or minor
version, respectively), and seven-day notice of changes that materially affect bias, safety
guardrails, or output performance. "Material Change" itself is defined broadly, as "any
modification that could affect the trustworthiness, security, or operational integrity" of contract
performance.
Commercial foundation-model and AI-platform providers commonly ship model, safety-classifier,
and retrieval-index updates on a continuous or near-continuous basis - often weekly or more
frequently. A uniform 30-day advance-notice-and-hold rule applied to every "material change,"
as currently and broadly defined, could require integrators to withhold routine commercial
updates from Government environments for a month at a time or seek a constant stream of
individualized waivers - leaving Government systems on stale, less secure versions relative to
the commercial baseline, contrary to the security goals the Clause is meant to serve.
Draft Recommendation: Tier the notice requirement by risk and impact rather than applying a
single 30-day rule to all material changes: (i) narrow the "Material Change" definition to exclude
routine commercial updates, minor version increments, and configuration changes that do not
affect Government Data handling or the specific functionality the Government relies on; (ii)
permit routine, lower-risk updates to be disclosed through a standing subscription, changelog, or
dashboard mechanism rather than individualized 30-day advance notice; and (iii) reserve the
30-day advance-notice-and-evaluation process for changes that meet a defined, higher
materiality thresholds.
5. Harmonize the GSAR Clause With Existing DFARS Cybersecurity and Data-Rights
Requirements
Location: Clause as a whole, particularly paragraph (e) (Intellectual Property Rights) and
paragraph (f)(5) (incident reporting).
Many AIIC member companies deliver the same or substantially similar LLM-enabled offerings
under both GSA Schedule contracts and Department of Defense contracts governed by DFARS.
The GSAR clause data-rights and IP framework in paragraph (e), and its 72-hour
incident-notification requirement in paragraph (f)(5), are not harmonized with the analogous and
already well-established DFARS technical data and computer software rights clauses (DFARS
252.227-7013, -7014, -7015) or the DFARS cybersecurity incident-reporting clause
(252.204-7012, generally a 72-hour standard with its own defined process). A contractor
providing functionally identical AI-integration services across a GSA Schedule contract and a
DoD contract could face two separate, non-aligned compliance regimes for the same underlying
system and data, increasing legal and administrative complexity without a commensurate
improvement in security or oversight.
Draft Recommendation: Add a provision confirming that a contractor's compliance with the
analogous DFARS data-rights (252.227-7013/-7014) and cybersecurity incident-reporting
(252.204-7012) requirements, where those requirements independently apply to the same
system or data, will be deemed to satisfy the corresponding requirement of GSAR
552.239-7001. In the alternative, we encourage GSA to convene an interagency working group
with DoD and OMB to harmonize the definitions of "Background Data," "Custom Development,"
and incident-reporting timelines across the GSAR and DFARS frameworks before finalizing this
clause.
6. Modify the "Eyes-Off" Data Handling Requirement to Permit Defined Troubleshooting
and Support Exceptions
Location: Paragraph (d)(4)(ii), Data Handling Procedures.
Paragraph (d)(4)(ii) requires "automated processing systems and operational controls that
prevent human personnel from the Contractor or any Third-party entity from viewing, accessing,
or reviewing Government Data during normal operations," including automated processing
"without human content review" and encryption that renders data "unreadable to human
personnel." Read literally, and without qualification, this would prohibit any human review of
Government Data even where necessary to diagnose a reported system error, triage a
customer-reported bug, confirm proper data segregation or deletion, or perform the
human-in-the-loop review contemplated elsewhere in the Clause's own human-oversight and
traceability requirements (paragraph (f)(4)). An unqualified "eyes-off" rule with no support
exception could, in practice, slow incident response and reduce system reliability - an outcome
at odds with the security objectives the requirement is intended to advance.
Draft Recommendation: Add a narrowly defined exception permitting limited, logged, and
authorized human access to Government Data solely to (i) diagnose and resolve a reported
system error, outage, or security incident, (ii) confirm proper data segregation, retention, or
deletion, or (iii) fulfill any other purpose specifically authorized in writing by the Contracting
Officer - subject in each case to minimum-necessary access, mandatory audit logging of who
accessed what data and why, and time-limited access grants. This exception should layer on top
of, not replace, the existing technical safeguards elsewhere in paragraph (d).
7. Confirm the Scope and Duration of the Government's License Rights in the LLM
Location: Paragraph (e)(2), License Grant to Government.
AIIC appreciates that GSA's June 2026 revision already narrows the Government's license
compared to the January 2026 draft: the current text ties the license to "the duration of the work
defined in the contract or task/delivery order" and limits it to "the specific purposes and scope of
work" of that contract. We ask GSA to confirm this reading explicitly and resolve two remaining
ambiguities. First, the interaction between the word "irrevocable" and the express durational limit
is unclear: it should be confirmed that "irrevocable" means the license cannot be revoked
mid-performance before the stated duration ends, not that it survives or becomes perpetual
beyond the end of the contract or task/delivery order, including after termination for
convenience. Second, the Clause does not state how the license is treated upon early
termination, even though paragraph (e)(1)(vii) already requires deletion of Government Data
and Custom Developments upon completion, termination, or expiration of the contract.
Draft Recommendation: Revise paragraph (e)(2) to state expressly that the license (i)
automatically expires upon the earlier of the stated contract or task/delivery order duration or the
contract's termination or expiration; (ii) does not survive termination for convenience or default,
except to the extent necessary to complete an orderly data-portability transition under
paragraph (h); and (iii) does not extend to any other contract, task order, or Government use
outside the specific scope of work for which it was granted.
Conclusion
AIIC and its members are committed to the responsible, secure integration of AI into
Government missions, and we support GSA's effort to establish clear, enforceable safeguards
for Government Data processed by LLM systems. We commend GSA for recognizing the LLM
System Integrator as a distinct role in the AI value chain, and we believe the recommendations
above will help ensure that the final clause achieves its data-protection and accountability goals
while remaining workable for the commercial AI integrators, including AIIC's members, on whom
Federal agencies increasingly rely to bring advanced AI capability into government use.
We appreciate GSA's consideration of these comments and welcome the opportunity to discuss
them further, including at GSA's public listening session or in a follow-up meeting with Council
members and staff.
Sincerely,
Wes McClelland
Executive Director
AI Integrators Council
*
Original text of letter here: https://www.regulations.gov/comment/GSA-GSAR-2026-0331-0058
August 3, 2026
Ms. Johnie McDowell
1800 F Street NW Washington, DC 20405
Office of Acquisition Policy
General Services Administration
Re: Notice-MVAC-2026-01; Docket No. GSA-GSAR-2026-0331
Dear Ms. McDowell:
The AI Integrators Council (AIIC) welcomes the opportunity to provide input to the General Services Administration (GSA) on its notice and request for comment on proposed GSAR clause "Basic Safeguarding of Data Within ... Show Full Article WASHINGTON, Aug. 5 -- In response to a federal agency request for information, the following public comment letter was submitted electronically to the regulations.gov site. August 3, 2026 Ms. Johnie McDowell 1800 F Street NW Washington, DC 20405 Office of Acquisition Policy General Services Administration Re: Notice-MVAC-2026-01; Docket No. GSA-GSAR-2026-0331 Dear Ms. McDowell: The AI Integrators Council (AIIC) welcomes the opportunity to provide input to the General Services Administration (GSA) on its notice and request for comment on proposed GSAR clause "Basic Safeguarding of Data WithinLarge Language Model Artificial Intelligence Systems (LLMs)."
The AIIC serves as the primary voice for leading companies working to integrate artificial intelligence into systems, platforms, and applications. The AIIC was created to educate policymakers and other essential stakeholders about the complexity of roles, responsibilities, and relationships across the AI ecosystem and to advocate for policies based on an accurate understanding of this ecosystem. We are comprised of leading AI companies including Alteryx, Atlassian, Box, Cognizant, Docusign, Peraton, SAIC, Salesforce, ServiceNow, and Twilio. AIIC members serve as the bridge between the developers of foundation models and the deployers who put AI systems to work by configuring, customizing, and delivering the integrations, workflows, and safeguards that make enterprise AI adoption possible.
GSA's Recognition of the AI Integrator Role
At the outset, the AIIC commends the GSA for expressly recognizing "LLM System Integrator" as a role distinct from "LLM Developer," "LLM System Operator," and "LLM Service Provider" in paragraph (b) of the GSAR clause, and for tailoring the flowdown obligations in the supplemental clause 552.239-7001-3 to the functions integrators actually perform including selecting models, setting system prompts and prompt templates, configuring Retrieval-Augmented Generation (RAG) sources, and establishing guardrails, filters, evaluation criteria, and output constraints.
This is precisely the kind of role-specific recognition that AIIC has urged policymakers to adopt.
As explained in our earlier published white paper1, AI legislation and regulation have too often
relied on a binary distinction between "developers" and "deployers" that does not reflect how AI
is actually built and delivered, leaving integrators to either shoulder obligations designed for
model developers or fall through gaps in accountability. GSA's decision to define the system
integrator role separately - and to map obligations to the NIST AI Risk Management
Framework's2 "AI Design" and "AI Deployment" actor categories - is a meaningful step toward
proportionate, function-based regulation, and a model we encourage GSA and other agencies
to build on.
The comments below are offered in that constructive spirit, with the goal of ensuring that the
obligations assigned to integrators are workable, clear, and consistent with how commercial AI
integration is actually performed.
Comments and Recommendations
AIIC and its members share GSA's goal of protecting Government Data, ensuring accountability
across the LLM supply chain, and enabling agencies to adopt AI responsibly. Several provisions
of the proposed clause, however, do not yet reflect the operational and commercial realities of
AI integration and, if finalized as drafted, could increase costs, discourage participation by
leading commercial AI providers and integrators, and in some cases undermine the very
reliability and security goals the Clause is meant to advance. Consistent with GSA's requested
comment format, the sections below identify the specific paragraph at issue, our concern, and
suggested language.
1. Provide a Phased Transition Period and Equitable Adjustment for Existing Contracts
Location: Clause applicability generally; GSAR 539.71 and 552.239-7001, introductory
paragraphs.
The proposed GSAR clause does not specify how or when it will apply to the many Federal
Supply Schedule contracts, GWACs, and OASIS+ vehicles, and the task and delivery orders
issued under them, that are already in place. GSAR clauses of this kind are typically
incorporated through mass modification, and immediate application here could require
contractors to redesign already-deployed integrations on short notice and without any
adjustment to price or schedule.
Draft Recommendation: GSA should add an implementation section establishing a minimum
180-calendar-day period following final issuance of the clause before flowdown obligations
become mandatory for new task or delivery orders; an option, at the agency's discretion, to
2 National Institute of Standards and Technology, Artificial Intelligence Risk Management Framework (AI
RMF 1.0), NIST AI 100-1 (Gaithersburg, MD: U.S. Department of Commerce, January 2023),
https://doi.org/10.6028/NIST.AI.100-1.
1 AI Integrators Council, AI Integrators Council White Paper: Defining the Role of AI Integrators in the AI
Value Chain (Washington, DC: AI Integrators Council, 2026), https://aiintegratorscouncil.com/white-paper.
apply the clause to existing contracts only at the next option period, renewal, or significant
modification rather than by immediate mass modification; and an equitable-adjustment
mechanism under which a contractor may request adjustment of price, schedule, or other terms
where compliance with the finalized clause requires material re-engineering of systems already
delivered under a pre-existing award.
2. Refine the Definition of "Custom Development" to Preserve Contractor Ownership of
Reusable Integration Assets
Location: Paragraph (b) (definition of "Custom Development"); paragraph (e)(1)(viii) ("Custom
Developments and Model Rights").
As drafted, "custom development" is defined broadly to include "any modifications,
customizations, configurations, or enhancements to LLMs or associated implementations or
workflows...developed specifically for the Government under this contract." This definition can
sweep in system prompts, prompt templates, RAG configurations, evaluation criteria, and
orchestration logic - the same reusable integration techniques that the Clause's own definition
of "LLM system integrator" in paragraph (b) identifies as the integrator's core function.
If these reusable assets are treated as "custom development" under this current definition,
paragraph (e)(1)(viii) would require the contractor to dedicate them, and any resulting
"customized or enhanced models," to the government's exclusive use, treat them as
government confidential information, and refrain from reusing them for any other customer
without written contracting officer authorization. Applied broadly, this would prevent an integrator
from ever reusing its own general-purpose prompt libraries, RAG architectures, or orchestration
frameworks across other government or commercial engagements - effectively converting
standard integration methodology into single-use Government IP on every contract. That
outcome would discourage the reuse-driven efficiencies that make commercial AI integration
affordable, and is inconsistent with the well-established federal practice of distinguishing
background IP from deliverables developed exclusively at government expense.
Draft Recommendation: The AIIC suggest the following addition to the "Custom Development"
definition in paragraph (b): "...Custom Development further excludes general-purpose prompt
libraries, RAG architectures, orchestration workflows, evaluation frameworks, and other
reusable integration assets and methodologies that (i) do not themselves consist of or expose
Government Data or Government-specific business logic, and (ii) are, or could reasonably be,
reused across multiple customers, even where configured or parameterized for use on this
contract." We encourage the adoption of this definition and correspondingly revise paragraph
(e)(1)(viii)(C) to permit the contractor to reuse its general integration methodologies and
non-Government-data-specific configurations, while preserving the Government's ownership of
any Government-specific data, business rules, or content embedded within a particular
deliverable.
3. Replace Subjective "Unbiased AI" Language With Objective, Consensus-Based
Standards
Location: Paragraph (j)(1) ("Unbiased AI principles"); paragraph (j)(2)-(3) (Government
Evaluation Rights and Remediation).
Paragraph (j)(1) requires that an LLM be "truthful," a "neutral, nonpartisan tool that does not
manipulate responses in favor of ideological dogmas," and free of "partisan or ideological
judgments." These terms are not defined and, unlike calibration, factuality, or bias metrics under
recognized frameworks, have no agreed technical meaning or repeatable test. Because
paragraph (j)(2) gives the Government the unilateral right to evaluate the LLM against its own
undisclosed benchmarks, and paragraph (j)(3) ties suspension of use and termination-for-cause
to non-compliance with these undefined principles, contractors face significant,
difficult-to-mitigate risk with no objective standard against which to test or design their systems
in advance.
Draft Recommendation: Supplement paragraph (j)(1) with cross-references to recognized,
consensus-based testing standards - for example, the NIST AI RMF 1.0 and its Generative AI
Profile (NIST AI 600-1), ISO/IEC 42001 (AI management systems), and ISO/IEC TR 24027
(bias in AI systems) - and revise paragraph (j)(2) to require that any Government benchmarks
used to evaluate compliance be based on a recognized methodology, be made available to the
contractor in advance or concurrently with use, and be subject to a defined clarification or
dispute process before triggering the remedies in paragraph (j)(3).
4. Modernize Change Notification Requirements for Continuous-Deployment Commercial
AI
Location: Paragraph (i) (Change Notification); paragraph (b) (definition of "Material Change").
Paragraph (i) requires thirty calendar days' advance notice of any "material change," a 30- or
15-calendar-day evaluation window before discontinuing or replacing a model (major or minor
version, respectively), and seven-day notice of changes that materially affect bias, safety
guardrails, or output performance. "Material Change" itself is defined broadly, as "any
modification that could affect the trustworthiness, security, or operational integrity" of contract
performance.
Commercial foundation-model and AI-platform providers commonly ship model, safety-classifier,
and retrieval-index updates on a continuous or near-continuous basis - often weekly or more
frequently. A uniform 30-day advance-notice-and-hold rule applied to every "material change,"
as currently and broadly defined, could require integrators to withhold routine commercial
updates from Government environments for a month at a time or seek a constant stream of
individualized waivers - leaving Government systems on stale, less secure versions relative to
the commercial baseline, contrary to the security goals the Clause is meant to serve.
Draft Recommendation: Tier the notice requirement by risk and impact rather than applying a
single 30-day rule to all material changes: (i) narrow the "Material Change" definition to exclude
routine commercial updates, minor version increments, and configuration changes that do not
affect Government Data handling or the specific functionality the Government relies on; (ii)
permit routine, lower-risk updates to be disclosed through a standing subscription, changelog, or
dashboard mechanism rather than individualized 30-day advance notice; and (iii) reserve the
30-day advance-notice-and-evaluation process for changes that meet a defined, higher
materiality thresholds.
5. Harmonize the GSAR Clause With Existing DFARS Cybersecurity and Data-Rights
Requirements
Location: Clause as a whole, particularly paragraph (e) (Intellectual Property Rights) and
paragraph (f)(5) (incident reporting).
Many AIIC member companies deliver the same or substantially similar LLM-enabled offerings
under both GSA Schedule contracts and Department of Defense contracts governed by DFARS.
The GSAR clause data-rights and IP framework in paragraph (e), and its 72-hour
incident-notification requirement in paragraph (f)(5), are not harmonized with the analogous and
already well-established DFARS technical data and computer software rights clauses (DFARS
252.227-7013, -7014, -7015) or the DFARS cybersecurity incident-reporting clause
(252.204-7012, generally a 72-hour standard with its own defined process). A contractor
providing functionally identical AI-integration services across a GSA Schedule contract and a
DoD contract could face two separate, non-aligned compliance regimes for the same underlying
system and data, increasing legal and administrative complexity without a commensurate
improvement in security or oversight.
Draft Recommendation: Add a provision confirming that a contractor's compliance with the
analogous DFARS data-rights (252.227-7013/-7014) and cybersecurity incident-reporting
(252.204-7012) requirements, where those requirements independently apply to the same
system or data, will be deemed to satisfy the corresponding requirement of GSAR
552.239-7001. In the alternative, we encourage GSA to convene an interagency working group
with DoD and OMB to harmonize the definitions of "Background Data," "Custom Development,"
and incident-reporting timelines across the GSAR and DFARS frameworks before finalizing this
clause.
6. Modify the "Eyes-Off" Data Handling Requirement to Permit Defined Troubleshooting
and Support Exceptions
Location: Paragraph (d)(4)(ii), Data Handling Procedures.
Paragraph (d)(4)(ii) requires "automated processing systems and operational controls that
prevent human personnel from the Contractor or any Third-party entity from viewing, accessing,
or reviewing Government Data during normal operations," including automated processing
"without human content review" and encryption that renders data "unreadable to human
personnel." Read literally, and without qualification, this would prohibit any human review of
Government Data even where necessary to diagnose a reported system error, triage a
customer-reported bug, confirm proper data segregation or deletion, or perform the
human-in-the-loop review contemplated elsewhere in the Clause's own human-oversight and
traceability requirements (paragraph (f)(4)). An unqualified "eyes-off" rule with no support
exception could, in practice, slow incident response and reduce system reliability - an outcome
at odds with the security objectives the requirement is intended to advance.
Draft Recommendation: Add a narrowly defined exception permitting limited, logged, and
authorized human access to Government Data solely to (i) diagnose and resolve a reported
system error, outage, or security incident, (ii) confirm proper data segregation, retention, or
deletion, or (iii) fulfill any other purpose specifically authorized in writing by the Contracting
Officer - subject in each case to minimum-necessary access, mandatory audit logging of who
accessed what data and why, and time-limited access grants. This exception should layer on top
of, not replace, the existing technical safeguards elsewhere in paragraph (d).
7. Confirm the Scope and Duration of the Government's License Rights in the LLM
Location: Paragraph (e)(2), License Grant to Government.
AIIC appreciates that GSA's June 2026 revision already narrows the Government's license
compared to the January 2026 draft: the current text ties the license to "the duration of the work
defined in the contract or task/delivery order" and limits it to "the specific purposes and scope of
work" of that contract. We ask GSA to confirm this reading explicitly and resolve two remaining
ambiguities. First, the interaction between the word "irrevocable" and the express durational limit
is unclear: it should be confirmed that "irrevocable" means the license cannot be revoked
mid-performance before the stated duration ends, not that it survives or becomes perpetual
beyond the end of the contract or task/delivery order, including after termination for
convenience. Second, the Clause does not state how the license is treated upon early
termination, even though paragraph (e)(1)(vii) already requires deletion of Government Data
and Custom Developments upon completion, termination, or expiration of the contract.
Draft Recommendation: Revise paragraph (e)(2) to state expressly that the license (i)
automatically expires upon the earlier of the stated contract or task/delivery order duration or the
contract's termination or expiration; (ii) does not survive termination for convenience or default,
except to the extent necessary to complete an orderly data-portability transition under
paragraph (h); and (iii) does not extend to any other contract, task order, or Government use
outside the specific scope of work for which it was granted.
Conclusion
AIIC and its members are committed to the responsible, secure integration of AI into
Government missions, and we support GSA's effort to establish clear, enforceable safeguards
for Government Data processed by LLM systems. We commend GSA for recognizing the LLM
System Integrator as a distinct role in the AI value chain, and we believe the recommendations
above will help ensure that the final clause achieves its data-protection and accountability goals
while remaining workable for the commercial AI integrators, including AIIC's members, on whom
Federal agencies increasingly rely to bring advanced AI capability into government use.
We appreciate GSA's consideration of these comments and welcome the opportunity to discuss
them further, including at GSA's public listening session or in a follow-up meeting with Council
members and staff.
Sincerely,
Wes McClelland
Executive Director
AI Integrators Council
*
Original text of letter here: https://www.regulations.gov/comment/GSA-GSAR-2026-0331-0058
19 House Members Oppose ATF's Proposed Rules to Weaken Gun Safety Measures
Carter Struck
WASHINGTON, Aug. 5 -- In response to a federal agency request for information, the following public comment letter was submitted electronically to the regulations.gov site.
July 29, 2026
The Honorable Robert Cekada
Director
Bureau of Alcohol, Tobacco, Firearms and Explosives
99 New York Avenue, NE
Washington, DC 20226
Dear Director Cekada:
As Democratic Members of the House Committee on the Judiciary, we write to express our opposition to the Bureau of Alcohol, Tobacco, Firearms and Explosives' (ATF) dangerous package of proposed rules to roll back commonsense gun safety policies.1 ... Show Full Article WASHINGTON, Aug. 5 -- In response to a federal agency request for information, the following public comment letter was submitted electronically to the regulations.gov site. July 29, 2026 The Honorable Robert Cekada Director Bureau of Alcohol, Tobacco, Firearms and Explosives 99 New York Avenue, NE Washington, DC 20226 Dear Director Cekada: As Democratic Members of the House Committee on the Judiciary, we write to express our opposition to the Bureau of Alcohol, Tobacco, Firearms and Explosives' (ATF) dangerous package of proposed rules to roll back commonsense gun safety policies.1Taken together, these proposals constitute the most sweeping effort in decades to weaken federal firearms safeguards, prevent accountability within the firearms industry, limit law enforcement's oversight of firearms dealers, and make it easier for dangerous individuals to obtain dangerous weapons.
Congress has repeatedly acted-on both a bipartisan and bicameral basis-to strengthen background checks, combat illegal gun trafficking, support crime gun tracing, improve firearms dealer accountability, and prevent firearms from reaching dangerous individuals. Most recently, Congress enacted the Bipartisan Safer Communities Act to enhance our nation's background checks system, close gaps that allow firearms to be acquired without appropriate scrutiny, reduce gun violence, and expand access to mental health services.2 These bipartisan policy changes contributed to a historic drop in violent crime, including a 44% drop in homicide that began in 2022-two years before President Donald Trump began his second term-and continues to this day.3 Your proposed rules would move our country in the opposite direction.
ATF's proposed rules would increase opportunities for prohibited purchasers to obtain
firearms. They make it harder for law enforcement to investigate gun crimes and trace crime
guns. They weaken standards governing who must become a federally licensed firearms dealer.
1 Press Release, DOJ and ATF Announce Regulatory Reforms to Reduce Burdens on Law-Abiding Gun Owners and
Businesses, BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (Apr. 29, 2026),
https://www.atf.gov/news/press-releases/doj-and-atf-announce-regulatory-reforms-to-reduce-burdens-law-abiding-
gun-owners-and-businesses.
2 Pub. L. No. 117-159 (2022).
3 See Current Trends: Violent Crime, CRIME INDEX (last visited July 6, 2026),
https://crimeindex.org/current?topic=crime&stat=violent&geo=us&size=all; Ernesto Lopez & Bobby Boxerman,
Crime Trends in U.S. Cities: Year End 2025 Update, COUNCIL ON CRIM. JUSTICE (Jan. 2026),
https://counciloncj.org/crime-trends-in-u-s-cities-year-end-2025-update/.
The Honorable Robert Cekada
Page 2
They narrow the categories of records that are used to identify prohibited purchasers. They
reduce dealer accountability for violations of federal law. They diminish oversight of particularly
dangerous weapons, such as short-barreled rifles, which are regulated under the National
Firearms Act (NFA). They create new avenues for firearms trafficking and straw purchasing.
They undermine longstanding public safety protections, including at the state and local level.
Several proposed rules are especially troubling. For example, RIN 1140-AB01 would
change the meaning of "engaged in the business" of selling firearms and therefore narrow the set
of gun dealers who must obtain a federal firearms license and conduct background checks.4
When Congress passed the Bipartisan Safer Communities Act, it amended the Gun Control Act's
definition of who is "engaged in the business" of selling firearms to include those who do so
"predominantly to earn a profit."5 ATF then updated its regulations to implement this change.6
The resulting rule adheres to the definitions set forth in the Bipartisan Safer Communities Act
and provides clarity to courts and the public on how the law applies to the modern firearms
marketplace, ensuring that those who deal firearms-whether through online marketplaces,
through social media, or at gun shows-obtain a license and conduct background checks. In
seeking to rescind key parts of the current regulation, the proposed change would reopen
loopholes that make it easier for firearms dealers to deny that they are engaged in the business of
selling firearms and obligated to conduct background checks. This in turn makes it easier for
people who cannot otherwise pass a background check to illegally purchase a firearm from those
individuals. As ATF itself repeatedly acknowledges, this proposed rule could "result in some risk
to public safety from persons who would no longer feel constrained in dealing in firearms
without a license" and increases the risk of firearms being sold to those who may not legally
have them.7
Another proposed rule, RIN 1140-AB05, would allow more firearms to be sold without
the buyer appearing in person,8 opening up significant new avenues for gun trafficking and straw
purchasing. Although these new remote sales would still involve a background check, firearms
dealers would no longer be able to look for clues that a potential buyer intends to immediately
resell the gun in violation of the straw purchasing offense that Congress enacted in the Bipartisan
Safer Communities Act.9 This proposed rule would weaken the ability of licensed firearms
dealers to serve as the first line of defense against illegal gun sales and allow more firearms to be
4 Revising Regulations Defining "Engaged in the Business" as a Dealer in Firearms, 91 Fed. Reg. 24424, RIN 1140-
AB01 (May 6, 2026).
5 Pub. L. No. 117-159, Tit. II, Sec. 12002 (2022).
6 Definition of "Engaged in the Business" as a Dealer in Firearms, 89 Fed. Reg. 28968 (Apr. 19, 2024).
7 91 Fed. Reg. 24424, at 24433 ("it could conversely increase risk from active sellers, who are not licensed, who
resume sales and thus do not conduct background checks to ensure that prohibited persons do not acquire firearms
on the secondary market."); id. at 24432 ("increase in risk to public safety").
8 Revising Non-Over-the-Counter Firearms Transaction Requirements, 91 Fed. Reg. 25216, RIN 1140-AB05 (May
8, 2026).
9 Pub. L. No. 117-159, Tit. II, Sec.12004(a)(1) (2022); 18 U.S.C. Sec. 932.
The Honorable Robert Cekada
Page 3
diverted to the illegal market where they are disproportionately used to commit crimes.10 ATF
estimates that this change would result in nearly 2 million online gun sales per year.11
If the public safety implications of this proposed rule do not move you to reconsider,
please consider its ethical flaws. President Trump's son, Donald Trump Jr., stands to profit from
this rule change. He owns a stake in an online firearms retailer and sits on the company's
board.12 The CEO recently bragged on an investor call that the company is "uniquely positioned"
to profit from this rule and other related proposed rules that the company hopes will enable it to
become the "Amazon of guns."13 If this rule is enacted, Congress will certainly have reason to
believe that millions of Americans were put at risk so that the President's family might profit.
Another proposed rule, RIN 1140-AB04,14 would upend who is prohibited from buying
or possessing a firearm after being "adjudicated as a mental defective" or "committed to a mental
institution," overriding a nearly 30-year-old regulation to allow individuals who might be a
danger to themselves or others to purchase and possess firearms.15 When Congress established
the National Instant Criminal Background Check System (NICS),16 ATF had to further define
longstanding prohibitions on who may buy or possess a gun in order to determine which records
would be entered into NICS.17 To define "adjudicated as a mental defective," ATF examined the
"legislative history of the term, applicable case law," including two Supreme Court precedents,
"and the interpretation of the term by other Federal agencies."18 ATF determined that the
prohibition would include people with severe mental illness as well as those with intellectual
disabilities.19 The proposed rule would disregard this assessment, limit the scope of this
prohibition, and enable individuals who might be a danger to themselves or others to purchase
firearms.20 Once again, ATF concedes that this proposal would endanger the public and that
10 See National Firearms Commerce and Trafficking Assessment (NFCTA): Crime Guns - Volume Two, BUREAU OF
ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (Mar. 27, 2024), https://www.atf.gov/firearms/national-firearms-
commerce-and-trafficking-assessment-nfcta-crime-guns-volume-two.
11 91 Fed. Reg. 25216, at 25224.
12 Perry Stein, Plan to Ease Rules on Mailing Guns Could Help Company Trump Jr. Has Stake In, WASH. POST
(July 2, 2026), https://www.washingtonpost.com/national-security/2026/07/02/trump-jr-plays-key-role-grabagun-
company-hoping-boost-internet-gun-sales/.
13 Id.
14 Revising Definitions of "Adjudicated as a Mental Defective" and "Committed to a Mental Institution," 91 Fed.
Reg. 25166, RIN 1140-AB04 (May 8, 2026).
15 18 U.S.C. Sec. 922(g)(4).
16 Brady Handgun Violence Prevention Act of 1993, Pub. L. No. 103-159.
17 See Definitions for the Categories of Persons Prohibited From Receiving Firearms (95R-051P), 61 Fed. Reg.
47095 (Sept. 6, 1996).
18 Id., at 47097.
19 Id.
20 91 Fed. Reg. 25166, at 25181 ("[T]he proposed rule would raise the threshold for which persons are adjudicated
as mentally deficient or are formally and involuntarily committed to a mental institution. As a result, some portion
of these dangerous persons, although adjudicated or committed, would no longer be prohibited.").
The Honorable Robert Cekada
Page 4
those who would be armed as a result of this change-including veterans21-might die by
suicide22 or other acts of gun violence "up to and including potential mass casualty events."23
Lastly, RIN 1140-AA98 would reopen a loophole that allows people to use a gun
accessory called a stabilizing brace to create a short-barreled rifle,24 circumventing the NFA,
which has regulated short-barreled rifles and other especially dangerous firearms since 1934.25
Short-barreled rifles are uniquely dangerous firearms due to their concealability and lethality.
Mass shooters have used firearms equipped with stabilizing braces to kill nine people outside a
bar in Dayton, Ohio, in 2019; 10 people-including responding police officer Eric Talley-at the
King Soopers grocery store in Boulder, Colorado, in 2021; five people in an LGBTQ nightclub
in Colorado Springs, Colorado, in 2022; and six people-including three 9-year-old children-at
an elementary school in Nashville, Tennessee, in 2023.26
While each of these proposals warrants independent review, we cannot ignore their
collective effect. Together, these proposed rules would severely weaken the federal framework
governing firearm sales, transfers, recordkeeping, trafficking prevention, and public safety
oversight. They would significantly alter how firearms are purchased, sold, transferred, tracked,
and regulated in the United States to the detriment of communities across the country. And they
would fundamentally undermine the ATF. Apart from the lives that will be lost if these rules are
enacted, we are concerned that these proposals would move the agency away from its core
mission to protect the public and enforce federal firearms law.
We urge ATF to immediately withdraw these dangerous proposals. We further request
that ATF provide a detailed public safety impact analysis that explains how these proposals
would cumulatively affect firearm trafficking investigations, crime gun tracing, background
check effectiveness, firearms dealer accountability, domestic violence and suicide prevention
efforts, and youth access to firearms before issuing any final rules.
We trust you will treat this matter with the urgency it demands and look forward to your
prompt response.
21 Id., at 25182 (The proposed rule "could exclude individuals (veterans and non-veterans alike) who are now
captured by that prong and indeed pose a danger to themselves or to others.").
22 Id. ("This public safety cost would be experienced by the general public in addition to members of the affected
population itself (i.e., those who would no longer be subject to the firearms restriction as a result of the proposed
rule)." (emphasis added)).
23 Id.
24 Removing Factoring Criteria for Firearms With Attached "Stabilizing Braces," 91 Fed. Reg. 24453, RIN 1140-
AA98 (May 6, 2026).
25 26 U.S.C. Sec. 5845(a)(3)-(4).
26 Dissenting Views, H.J. Res. 44, Providing for congressional disapproval under chapter 8 of title 5, United States
Code, of the rule submitted by the Bureau of Alcohol, Tobacco, Firearms and Explosives relating to "Factoring
Criteria for Firearms with Attached 'Stabilizing Braces,'" House Report 118-69 (May 17, 2023).
The Honorable Robert Cekada
Very truly yours,
Jamie Raskin, Ranking Member
Lucy McBath, Ranking Member, Subcommittee on Crime and Federal Government Surveillance
Jerrold Nadler, Member of Congress
Zoe Lofgren, Member of Congress
Steve Cohen, Member of Congress
Henry C. "Hank" Johnson, Jr., Member of Congress
Ted W. Lieu, Member of Congress
Pramila Jayapal, Member of Congress
J. Luis Correa, Member of Congress
Mary Gay Scanlon, Member of Congress
Joe Neguse, Member of Congress
Deborah Ross, Member of Congress
Becca Balint, Member of Congress
Jesus G. "Chuy" Garcia, Member of Congress
Sydney Kamlager-Dove, Member of Congress
Jared Moskowitz, Member of Congress
Dan Goldman, Member of Congress
Jasmine Crockett, Member of Congress
Summer Lee, Member of Congress
*
Original text of letter here: https://www.regulations.gov/comment/ATF-2026-0266-2217
July 29, 2026
The Honorable Robert Cekada
Director
Bureau of Alcohol, Tobacco, Firearms and Explosives
99 New York Avenue, NE
Washington, DC 20226
Dear Director Cekada:
As Democratic Members of the House Committee on the Judiciary, we write to express our opposition to the Bureau of Alcohol, Tobacco, Firearms and Explosives' (ATF) dangerous package of proposed rules to roll back commonsense gun safety policies.1 ... Show Full Article WASHINGTON, Aug. 5 -- In response to a federal agency request for information, the following public comment letter was submitted electronically to the regulations.gov site. July 29, 2026 The Honorable Robert Cekada Director Bureau of Alcohol, Tobacco, Firearms and Explosives 99 New York Avenue, NE Washington, DC 20226 Dear Director Cekada: As Democratic Members of the House Committee on the Judiciary, we write to express our opposition to the Bureau of Alcohol, Tobacco, Firearms and Explosives' (ATF) dangerous package of proposed rules to roll back commonsense gun safety policies.1Taken together, these proposals constitute the most sweeping effort in decades to weaken federal firearms safeguards, prevent accountability within the firearms industry, limit law enforcement's oversight of firearms dealers, and make it easier for dangerous individuals to obtain dangerous weapons.
Congress has repeatedly acted-on both a bipartisan and bicameral basis-to strengthen background checks, combat illegal gun trafficking, support crime gun tracing, improve firearms dealer accountability, and prevent firearms from reaching dangerous individuals. Most recently, Congress enacted the Bipartisan Safer Communities Act to enhance our nation's background checks system, close gaps that allow firearms to be acquired without appropriate scrutiny, reduce gun violence, and expand access to mental health services.2 These bipartisan policy changes contributed to a historic drop in violent crime, including a 44% drop in homicide that began in 2022-two years before President Donald Trump began his second term-and continues to this day.3 Your proposed rules would move our country in the opposite direction.
ATF's proposed rules would increase opportunities for prohibited purchasers to obtain
firearms. They make it harder for law enforcement to investigate gun crimes and trace crime
guns. They weaken standards governing who must become a federally licensed firearms dealer.
1 Press Release, DOJ and ATF Announce Regulatory Reforms to Reduce Burdens on Law-Abiding Gun Owners and
Businesses, BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (Apr. 29, 2026),
https://www.atf.gov/news/press-releases/doj-and-atf-announce-regulatory-reforms-to-reduce-burdens-law-abiding-
gun-owners-and-businesses.
2 Pub. L. No. 117-159 (2022).
3 See Current Trends: Violent Crime, CRIME INDEX (last visited July 6, 2026),
https://crimeindex.org/current?topic=crime&stat=violent&geo=us&size=all; Ernesto Lopez & Bobby Boxerman,
Crime Trends in U.S. Cities: Year End 2025 Update, COUNCIL ON CRIM. JUSTICE (Jan. 2026),
https://counciloncj.org/crime-trends-in-u-s-cities-year-end-2025-update/.
The Honorable Robert Cekada
Page 2
They narrow the categories of records that are used to identify prohibited purchasers. They
reduce dealer accountability for violations of federal law. They diminish oversight of particularly
dangerous weapons, such as short-barreled rifles, which are regulated under the National
Firearms Act (NFA). They create new avenues for firearms trafficking and straw purchasing.
They undermine longstanding public safety protections, including at the state and local level.
Several proposed rules are especially troubling. For example, RIN 1140-AB01 would
change the meaning of "engaged in the business" of selling firearms and therefore narrow the set
of gun dealers who must obtain a federal firearms license and conduct background checks.4
When Congress passed the Bipartisan Safer Communities Act, it amended the Gun Control Act's
definition of who is "engaged in the business" of selling firearms to include those who do so
"predominantly to earn a profit."5 ATF then updated its regulations to implement this change.6
The resulting rule adheres to the definitions set forth in the Bipartisan Safer Communities Act
and provides clarity to courts and the public on how the law applies to the modern firearms
marketplace, ensuring that those who deal firearms-whether through online marketplaces,
through social media, or at gun shows-obtain a license and conduct background checks. In
seeking to rescind key parts of the current regulation, the proposed change would reopen
loopholes that make it easier for firearms dealers to deny that they are engaged in the business of
selling firearms and obligated to conduct background checks. This in turn makes it easier for
people who cannot otherwise pass a background check to illegally purchase a firearm from those
individuals. As ATF itself repeatedly acknowledges, this proposed rule could "result in some risk
to public safety from persons who would no longer feel constrained in dealing in firearms
without a license" and increases the risk of firearms being sold to those who may not legally
have them.7
Another proposed rule, RIN 1140-AB05, would allow more firearms to be sold without
the buyer appearing in person,8 opening up significant new avenues for gun trafficking and straw
purchasing. Although these new remote sales would still involve a background check, firearms
dealers would no longer be able to look for clues that a potential buyer intends to immediately
resell the gun in violation of the straw purchasing offense that Congress enacted in the Bipartisan
Safer Communities Act.9 This proposed rule would weaken the ability of licensed firearms
dealers to serve as the first line of defense against illegal gun sales and allow more firearms to be
4 Revising Regulations Defining "Engaged in the Business" as a Dealer in Firearms, 91 Fed. Reg. 24424, RIN 1140-
AB01 (May 6, 2026).
5 Pub. L. No. 117-159, Tit. II, Sec. 12002 (2022).
6 Definition of "Engaged in the Business" as a Dealer in Firearms, 89 Fed. Reg. 28968 (Apr. 19, 2024).
7 91 Fed. Reg. 24424, at 24433 ("it could conversely increase risk from active sellers, who are not licensed, who
resume sales and thus do not conduct background checks to ensure that prohibited persons do not acquire firearms
on the secondary market."); id. at 24432 ("increase in risk to public safety").
8 Revising Non-Over-the-Counter Firearms Transaction Requirements, 91 Fed. Reg. 25216, RIN 1140-AB05 (May
8, 2026).
9 Pub. L. No. 117-159, Tit. II, Sec.12004(a)(1) (2022); 18 U.S.C. Sec. 932.
The Honorable Robert Cekada
Page 3
diverted to the illegal market where they are disproportionately used to commit crimes.10 ATF
estimates that this change would result in nearly 2 million online gun sales per year.11
If the public safety implications of this proposed rule do not move you to reconsider,
please consider its ethical flaws. President Trump's son, Donald Trump Jr., stands to profit from
this rule change. He owns a stake in an online firearms retailer and sits on the company's
board.12 The CEO recently bragged on an investor call that the company is "uniquely positioned"
to profit from this rule and other related proposed rules that the company hopes will enable it to
become the "Amazon of guns."13 If this rule is enacted, Congress will certainly have reason to
believe that millions of Americans were put at risk so that the President's family might profit.
Another proposed rule, RIN 1140-AB04,14 would upend who is prohibited from buying
or possessing a firearm after being "adjudicated as a mental defective" or "committed to a mental
institution," overriding a nearly 30-year-old regulation to allow individuals who might be a
danger to themselves or others to purchase and possess firearms.15 When Congress established
the National Instant Criminal Background Check System (NICS),16 ATF had to further define
longstanding prohibitions on who may buy or possess a gun in order to determine which records
would be entered into NICS.17 To define "adjudicated as a mental defective," ATF examined the
"legislative history of the term, applicable case law," including two Supreme Court precedents,
"and the interpretation of the term by other Federal agencies."18 ATF determined that the
prohibition would include people with severe mental illness as well as those with intellectual
disabilities.19 The proposed rule would disregard this assessment, limit the scope of this
prohibition, and enable individuals who might be a danger to themselves or others to purchase
firearms.20 Once again, ATF concedes that this proposal would endanger the public and that
10 See National Firearms Commerce and Trafficking Assessment (NFCTA): Crime Guns - Volume Two, BUREAU OF
ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES (Mar. 27, 2024), https://www.atf.gov/firearms/national-firearms-
commerce-and-trafficking-assessment-nfcta-crime-guns-volume-two.
11 91 Fed. Reg. 25216, at 25224.
12 Perry Stein, Plan to Ease Rules on Mailing Guns Could Help Company Trump Jr. Has Stake In, WASH. POST
(July 2, 2026), https://www.washingtonpost.com/national-security/2026/07/02/trump-jr-plays-key-role-grabagun-
company-hoping-boost-internet-gun-sales/.
13 Id.
14 Revising Definitions of "Adjudicated as a Mental Defective" and "Committed to a Mental Institution," 91 Fed.
Reg. 25166, RIN 1140-AB04 (May 8, 2026).
15 18 U.S.C. Sec. 922(g)(4).
16 Brady Handgun Violence Prevention Act of 1993, Pub. L. No. 103-159.
17 See Definitions for the Categories of Persons Prohibited From Receiving Firearms (95R-051P), 61 Fed. Reg.
47095 (Sept. 6, 1996).
18 Id., at 47097.
19 Id.
20 91 Fed. Reg. 25166, at 25181 ("[T]he proposed rule would raise the threshold for which persons are adjudicated
as mentally deficient or are formally and involuntarily committed to a mental institution. As a result, some portion
of these dangerous persons, although adjudicated or committed, would no longer be prohibited.").
The Honorable Robert Cekada
Page 4
those who would be armed as a result of this change-including veterans21-might die by
suicide22 or other acts of gun violence "up to and including potential mass casualty events."23
Lastly, RIN 1140-AA98 would reopen a loophole that allows people to use a gun
accessory called a stabilizing brace to create a short-barreled rifle,24 circumventing the NFA,
which has regulated short-barreled rifles and other especially dangerous firearms since 1934.25
Short-barreled rifles are uniquely dangerous firearms due to their concealability and lethality.
Mass shooters have used firearms equipped with stabilizing braces to kill nine people outside a
bar in Dayton, Ohio, in 2019; 10 people-including responding police officer Eric Talley-at the
King Soopers grocery store in Boulder, Colorado, in 2021; five people in an LGBTQ nightclub
in Colorado Springs, Colorado, in 2022; and six people-including three 9-year-old children-at
an elementary school in Nashville, Tennessee, in 2023.26
While each of these proposals warrants independent review, we cannot ignore their
collective effect. Together, these proposed rules would severely weaken the federal framework
governing firearm sales, transfers, recordkeeping, trafficking prevention, and public safety
oversight. They would significantly alter how firearms are purchased, sold, transferred, tracked,
and regulated in the United States to the detriment of communities across the country. And they
would fundamentally undermine the ATF. Apart from the lives that will be lost if these rules are
enacted, we are concerned that these proposals would move the agency away from its core
mission to protect the public and enforce federal firearms law.
We urge ATF to immediately withdraw these dangerous proposals. We further request
that ATF provide a detailed public safety impact analysis that explains how these proposals
would cumulatively affect firearm trafficking investigations, crime gun tracing, background
check effectiveness, firearms dealer accountability, domestic violence and suicide prevention
efforts, and youth access to firearms before issuing any final rules.
We trust you will treat this matter with the urgency it demands and look forward to your
prompt response.
21 Id., at 25182 (The proposed rule "could exclude individuals (veterans and non-veterans alike) who are now
captured by that prong and indeed pose a danger to themselves or to others.").
22 Id. ("This public safety cost would be experienced by the general public in addition to members of the affected
population itself (i.e., those who would no longer be subject to the firearms restriction as a result of the proposed
rule)." (emphasis added)).
23 Id.
24 Removing Factoring Criteria for Firearms With Attached "Stabilizing Braces," 91 Fed. Reg. 24453, RIN 1140-
AA98 (May 6, 2026).
25 26 U.S.C. Sec. 5845(a)(3)-(4).
26 Dissenting Views, H.J. Res. 44, Providing for congressional disapproval under chapter 8 of title 5, United States
Code, of the rule submitted by the Bureau of Alcohol, Tobacco, Firearms and Explosives relating to "Factoring
Criteria for Firearms with Attached 'Stabilizing Braces,'" House Report 118-69 (May 17, 2023).
The Honorable Robert Cekada
Very truly yours,
Jamie Raskin, Ranking Member
Lucy McBath, Ranking Member, Subcommittee on Crime and Federal Government Surveillance
Jerrold Nadler, Member of Congress
Zoe Lofgren, Member of Congress
Steve Cohen, Member of Congress
Henry C. "Hank" Johnson, Jr., Member of Congress
Ted W. Lieu, Member of Congress
Pramila Jayapal, Member of Congress
J. Luis Correa, Member of Congress
Mary Gay Scanlon, Member of Congress
Joe Neguse, Member of Congress
Deborah Ross, Member of Congress
Becca Balint, Member of Congress
Jesus G. "Chuy" Garcia, Member of Congress
Sydney Kamlager-Dove, Member of Congress
Jared Moskowitz, Member of Congress
Dan Goldman, Member of Congress
Jasmine Crockett, Member of Congress
Summer Lee, Member of Congress
*
Original text of letter here: https://www.regulations.gov/comment/ATF-2026-0266-2217
Association of Public & Land-grant Universities Urges Replacement Framework to Preserve Core Expertise Amid Proposed Recission of International Education Regulations
Carter Struck
WASHINGTON, Aug. 5 -- In response to a federal agency request for information, the following public comment letter was submitted electronically to the regulations.gov site.
July 31, 2026
The Honorable David Barker
Assistant Secretary, Office of Postsecondary Education
U.S. Department of Education
400 Maryland Avenue SW
Washington, DC 20202
Dear Assistant Secretary Barker,
RE: International Education Programs and Fulbright-Hays Program; Proposed Recission of Regulations. Docket ID, ED-2026-OPE-0991
On behalf of the Association of Public and Land-grant Universities (APLU), we appreciate ... Show Full Article WASHINGTON, Aug. 5 -- In response to a federal agency request for information, the following public comment letter was submitted electronically to the regulations.gov site. July 31, 2026 The Honorable David Barker Assistant Secretary, Office of Postsecondary Education U.S. Department of Education 400 Maryland Avenue SW Washington, DC 20202 Dear Assistant Secretary Barker, RE: International Education Programs and Fulbright-Hays Program; Proposed Recission of Regulations. Docket ID, ED-2026-OPE-0991 On behalf of the Association of Public and Land-grant Universities (APLU), we appreciatethe opportunity to provide feedback on the notice of proposed rulemaking entitled, "International Education Programs and Fulbright-Hays Program; Recission of Regulations," published by the U.S. Department of Education on July 1, 2026.
While periodic review of federal programs and regulations is an important and healthy component of good governance, and it is appropriate to assess whether programs continue to meet evolving national priorities, APLU is concerned about a wholesale rescission without a replacement regulatory regime in place to guide programs of such vital importance to the nation. If the Department moves forward with a rescission of regulations, APLU encourages it to establish a clear replacement framework that preserves the programs' core statutory mission of developing the deep language and area expertise necessary to serve the nation's interests. APLU welcomes opportunities to work collaboratively with the Department to ensure Title VI and Fulbright Hays programs can resume operations in a manner consistent with congressional intent, fulfill key administration priorities, and are responsive to the national needs they were designed to address.
APLU's U.S. membership consists of more than 240 land-grant institutions, public research universities,
and state university systems spanning all 50 states, the District of Columbia, and six U.S. territories. For
decades, many of these institutions have been trusted partners with the federal government through the
Title VI International Education Programs and the Fulbright-Hays Program by building capacity in the
critical languages, area studies expertise, and international business knowledge necessary to advance
U.S. interests at home and abroad. Through this work, APLU member institutions have prepared a
reliable pipeline of students for service in government, education, and industry while sustaining the deep
pool of international experts and researchers that are a backbone of domestic capacity.
Congress established and funds these programs because the "security, stability, and economic vitality of
the United States in a complex global era depend upon American experts in and citizens knowledgeable
about world regions, foreign languages, and international affairs, as well as upon a strong research base
in these areas.i" A clear and predictable framework is necessary to sustain the talent required to fulfill
this purpose.
A regulatory framework to operationalize the programs should provide institutions with the guidance
and predictability needed to make sustained and long-term decisions in international expertise. To serve
2
as effective partners, institutions must recruit and retain specialized faculty, develop academic programs
that cultivate deep language, regional, and international business knowledge, and build student cohorts
prepared to meet national needs. Predictability also enables institutions to be stronger partners with the
federal government by allowing them to anticipate competitions, plan to apply individually or by
assembling consortiums, and thoughtfully develop proposals that reflect federal priorities. Recent
changes in program priorities and the limited application timeline for the Centers Aligned with Areas for
National Need (CAANN) competition have underscored the importance of a framework that supports
institutional planning and collaboration.
A distinguishing strength of Title VI has been its sustained investment in developing deep expertise.
Achieving advanced proficiency in strategically important languages and acquiring a meaningful
understanding of world regions requires sustained academic study, mentorship by expert faculty,
immersive learning opportunities, and interdisciplinary coursework developed over the course of an
undergraduate education and often continued through graduate study. This comprehensive preparation
enables graduates to understand complex global issues and apply their expertise in support of U.S.
interests. The resulting expertise has long been recognized as a defining strength of the Title VI programs
that prepare graduates to serve as leaders in government, academia, and industry.
While some national needs in language and areas are predictable, others are not. It is the sustained
investment and continuity of programs that ensures the U.S. has the capacity to fulfill current needs and
is prepared for the needs yet unknown. As an example, at the University of North Carolina at Chapel Hill,
the Carolina Asia Center has built a multi-year training partnership with Fort Bragg, one of the world's
largest military bases, located just an hour from campus. Center faculty and staff have provided language
and cultural training to special operations forces studying Indonesian, delivered lectures on the base for
civil affairs units preparing for engagement in Asia, and hosted soldiers on campus to practice language
skills with native speakers. This work-which also includes supporting military-affiliated students at
UNC preparing for national security careers-exists only because sustained Title VI investment enables
area studies centers to maintain the deep regional expertise our armed forces cannot generate on their
own. Sustained investments in Title VI build the capacity necessary to respond to national needs as they
arrive.
Accordingly, we encourage the Department to ensure that any replacement framework preserves the core
focus of these programs that is aligned with congressional intent: to address national needs for expertise
in world languages, international affairs, and global economic engagement. APLU appreciates the
Department's consideration of these comments and encourages establishing a regulatory framework that
provides the clarity and predictability necessary for institutions to sustain the deep expertise needed to
continue serving national priorities.
Please consider APLU a partner in advancing shared goals in serving students and national interests. We
are eager to be a resource as the Department considers its next steps.
Respectfully submitted,
Waded Cruzado
President, Association of Public and Land-grant Universities (APLU)
i Section 601 of the Higher Education Act of 1965, as amended (20 U.S.C. Sec. 1121)
*
Original text of letter here: https://www.regulations.gov/comment/ED-2026-OPE-0991-0159
July 31, 2026
The Honorable David Barker
Assistant Secretary, Office of Postsecondary Education
U.S. Department of Education
400 Maryland Avenue SW
Washington, DC 20202
Dear Assistant Secretary Barker,
RE: International Education Programs and Fulbright-Hays Program; Proposed Recission of Regulations. Docket ID, ED-2026-OPE-0991
On behalf of the Association of Public and Land-grant Universities (APLU), we appreciate ... Show Full Article WASHINGTON, Aug. 5 -- In response to a federal agency request for information, the following public comment letter was submitted electronically to the regulations.gov site. July 31, 2026 The Honorable David Barker Assistant Secretary, Office of Postsecondary Education U.S. Department of Education 400 Maryland Avenue SW Washington, DC 20202 Dear Assistant Secretary Barker, RE: International Education Programs and Fulbright-Hays Program; Proposed Recission of Regulations. Docket ID, ED-2026-OPE-0991 On behalf of the Association of Public and Land-grant Universities (APLU), we appreciatethe opportunity to provide feedback on the notice of proposed rulemaking entitled, "International Education Programs and Fulbright-Hays Program; Recission of Regulations," published by the U.S. Department of Education on July 1, 2026.
While periodic review of federal programs and regulations is an important and healthy component of good governance, and it is appropriate to assess whether programs continue to meet evolving national priorities, APLU is concerned about a wholesale rescission without a replacement regulatory regime in place to guide programs of such vital importance to the nation. If the Department moves forward with a rescission of regulations, APLU encourages it to establish a clear replacement framework that preserves the programs' core statutory mission of developing the deep language and area expertise necessary to serve the nation's interests. APLU welcomes opportunities to work collaboratively with the Department to ensure Title VI and Fulbright Hays programs can resume operations in a manner consistent with congressional intent, fulfill key administration priorities, and are responsive to the national needs they were designed to address.
APLU's U.S. membership consists of more than 240 land-grant institutions, public research universities,
and state university systems spanning all 50 states, the District of Columbia, and six U.S. territories. For
decades, many of these institutions have been trusted partners with the federal government through the
Title VI International Education Programs and the Fulbright-Hays Program by building capacity in the
critical languages, area studies expertise, and international business knowledge necessary to advance
U.S. interests at home and abroad. Through this work, APLU member institutions have prepared a
reliable pipeline of students for service in government, education, and industry while sustaining the deep
pool of international experts and researchers that are a backbone of domestic capacity.
Congress established and funds these programs because the "security, stability, and economic vitality of
the United States in a complex global era depend upon American experts in and citizens knowledgeable
about world regions, foreign languages, and international affairs, as well as upon a strong research base
in these areas.i" A clear and predictable framework is necessary to sustain the talent required to fulfill
this purpose.
A regulatory framework to operationalize the programs should provide institutions with the guidance
and predictability needed to make sustained and long-term decisions in international expertise. To serve
2
as effective partners, institutions must recruit and retain specialized faculty, develop academic programs
that cultivate deep language, regional, and international business knowledge, and build student cohorts
prepared to meet national needs. Predictability also enables institutions to be stronger partners with the
federal government by allowing them to anticipate competitions, plan to apply individually or by
assembling consortiums, and thoughtfully develop proposals that reflect federal priorities. Recent
changes in program priorities and the limited application timeline for the Centers Aligned with Areas for
National Need (CAANN) competition have underscored the importance of a framework that supports
institutional planning and collaboration.
A distinguishing strength of Title VI has been its sustained investment in developing deep expertise.
Achieving advanced proficiency in strategically important languages and acquiring a meaningful
understanding of world regions requires sustained academic study, mentorship by expert faculty,
immersive learning opportunities, and interdisciplinary coursework developed over the course of an
undergraduate education and often continued through graduate study. This comprehensive preparation
enables graduates to understand complex global issues and apply their expertise in support of U.S.
interests. The resulting expertise has long been recognized as a defining strength of the Title VI programs
that prepare graduates to serve as leaders in government, academia, and industry.
While some national needs in language and areas are predictable, others are not. It is the sustained
investment and continuity of programs that ensures the U.S. has the capacity to fulfill current needs and
is prepared for the needs yet unknown. As an example, at the University of North Carolina at Chapel Hill,
the Carolina Asia Center has built a multi-year training partnership with Fort Bragg, one of the world's
largest military bases, located just an hour from campus. Center faculty and staff have provided language
and cultural training to special operations forces studying Indonesian, delivered lectures on the base for
civil affairs units preparing for engagement in Asia, and hosted soldiers on campus to practice language
skills with native speakers. This work-which also includes supporting military-affiliated students at
UNC preparing for national security careers-exists only because sustained Title VI investment enables
area studies centers to maintain the deep regional expertise our armed forces cannot generate on their
own. Sustained investments in Title VI build the capacity necessary to respond to national needs as they
arrive.
Accordingly, we encourage the Department to ensure that any replacement framework preserves the core
focus of these programs that is aligned with congressional intent: to address national needs for expertise
in world languages, international affairs, and global economic engagement. APLU appreciates the
Department's consideration of these comments and encourages establishing a regulatory framework that
provides the clarity and predictability necessary for institutions to sustain the deep expertise needed to
continue serving national priorities.
Please consider APLU a partner in advancing shared goals in serving students and national interests. We
are eager to be a resource as the Department considers its next steps.
Respectfully submitted,
Waded Cruzado
President, Association of Public and Land-grant Universities (APLU)
i Section 601 of the Higher Education Act of 1965, as amended (20 U.S.C. Sec. 1121)
*
Original text of letter here: https://www.regulations.gov/comment/ED-2026-OPE-0991-0159
APSA Opposes Rescission of Regulations Governing International Education and Fulbright-Hays Programs
Carter Struck
WASHINGTON, Aug. 5 -- In response to a federal agency request for information, the following public comment letter was submitted electronically to the regulations.gov site.
July 30, 2026
Linda E. McMahon
Secretary of Education
U.S. Department of Education
400 Maryland Ave, SW
Washington, DC 20202
Re: ED-2026-OPE-0991, International Education Programs and Fulbright-Hays Program; Recission of Regulations
Dear Secretary McMahon,
The American Political Science Association (APSA) is writing to submit a comment to the proposed rescission of the regulatory structure overseeing international education ... Show Full Article WASHINGTON, Aug. 5 -- In response to a federal agency request for information, the following public comment letter was submitted electronically to the regulations.gov site. July 30, 2026 Linda E. McMahon Secretary of Education U.S. Department of Education 400 Maryland Ave, SW Washington, DC 20202 Re: ED-2026-OPE-0991, International Education Programs and Fulbright-Hays Program; Recission of Regulations Dear Secretary McMahon, The American Political Science Association (APSA) is writing to submit a comment to the proposed rescission of the regulatory structure overseeing international educationand foreign language studies programs at the Department of Education - the Title VI Program and Fulbright-Hays Program - announced by the Department on July 1, 2026. APSA expresses strong opposition to the proposed rescission of several regulations within Title 34 of the Code of Federal Regulations, specifically all provisions from 34 CFR Part 655 through 34 CFR Part 669.
APSA is a professional organization with more than 11,000 members. APSA's core mission is to promote scholarly understanding of political ideas, behaviors, and institutions to inform public choices about government, politics, and public policy; and to enhance the capacity of political scientists to conduct research, improve teaching, and communicate their findings to wider publics.
The preamble of the proposed rule claims the regulatory structure overseeing the Title VI and Fulbright-Hays programs imposes inflexibility of administering the grants, creates excessive administrative burden for grantees, and contradicts the intended purpose of the programs. In actuality, dismantling these regulations will introduce uncertainty and instability to a well-established and codified system that has helped scholars access funding for decades. APSA urges the Department to maintain the current system of regulations for the Title VI and Fulbright-Hays Programs that will continue to advance the U.S. expertise and competitive edge on strategic regions and languages.
Rescission of Program Regulations
APSA strongly disagrees with the rescission of the general provisions set forth in 34 CFR Part 655. The
proposed rule claims that the Education Department General Administrative Regulations (EDGAR) are
sufficient for administering international education programs and that additional regulations are
unnecessary. However, there are several crucial provisions in 34 CFR Part 655 that provide clarity and
structure to the purpose and processes of the international education programs that do not exist in EDGAR.
Subpart A of the general provisions provides the framework for international education programs, including
foundations such as definitions of terms, purposes of the programs, and which regulations are applicable to
these programs. Subpart B provides clarifications for the kind of projects the Department should fund
through the programs. Subpart D provides guidance to the Department on the procedures of evaluating
applications and selecting awardees. The proposed rule erroneously claims that there is little flexibility in the
current regulations afforded to the Department in selecting awards deemed to be in service of national
priorities, and claims that the regulation is far stricter than the language included in the Higher Education Act
establishing these programs. The existing language provides ample flexibility for the Department to make
award selections based on certain strategic priorities in line with the statutory purpose of the International
Education programs.
The proposed rule further claims that rescission of these regulations would remove burdens for grantees.
These guidelines have been well-tested and only revised occasionally over decades of the programs'
duration. Prospective award grantees and their institutions that support them are accustomed to these
requirements. Removing this structure of regulation would do little to clarify or simplify the proposal
process; rather, it would likely have the opposite effect by requiring far more administrative time to
understanding how to tailor their applications to the EDGAR guidelines. This added burden would be more
pronounced for applicants with weaker institutional support, especially applicants from smaller institutions.
The rule calls for the full rescission of the regulation rather than replacing or reforming existing regulations
to better suit the needs of the programs. Subparts A of 34 CFR Part 656, 657, and 669 and Subparts B of 34
CFR Part 658, 660 and 661 all provide specific definitions for terminology relevant to the programs as well as
eligibility requirements, and general selection criteria for each program. A full rescission of these basic
provisions would leave the programs without any defining characteristics, clear guidance or consistent
expectations for applicants to follow, and may have the result of changing the eligibility and criteria for these
programs entirely. It also would remove any sort of guardrails to hold the Department accountable to make
awards to grant proposals that align with the purpose of these programs as stated in Title VI of the Higher
Education Act of 1961, potentially reducing relevance or merit compared with the programs' intended
purpose. The recission risks watering down the peer review process in making awards. Despite the rule's
claims that the regulations impose "unnecessary administrative burden and reduce institutional flexibility,"
the rule fails to provide evidence showing this to be the case. APSA encourages the Department to document
specific examples of how the regulatory structure acts as an administrative burden before engaging in
substantial deregulation, if such data exists.
Regulatory Impact Analysis
APSA strongly disagrees with the conclusions made in the Regulatory Impact Analysis. The proposed rule
cites adherence to Executive Orders 14192, 12866, and 13563 as justifications for the program recissions
guiding the implementation of international education and Fulbright-Hays programs despite numerous legal
challenges that have been levied at these executive actions. Furthermore, the determination that the removal
of the regulation would not adversely affect any sector of the economy in a material way is simplistic. Several
universities and fields of academic study, in particular disciplines focused on the politics, socioeconomics,
and language of specific regions and cultures rely on these programs for funding. Furthermore, the proposed
rule would remove the regulations administering the Business and International Education Program, a
program intended to develop talent pipelines from institutions of higher education to businesses aiming at
engaging in international business activities. Blanket repeal of these regulations could alter grant eligibility
and criteria, undermine the economic viability of some academic disciplines, and shrink the talent pool
available to businesses pursuing international opportunities.
Sincerely,
The American Political Science Association (APSA)
*
Original text of letter here: https://www.regulations.gov/comment/ED-2026-OPE-0991-0106
July 30, 2026
Linda E. McMahon
Secretary of Education
U.S. Department of Education
400 Maryland Ave, SW
Washington, DC 20202
Re: ED-2026-OPE-0991, International Education Programs and Fulbright-Hays Program; Recission of Regulations
Dear Secretary McMahon,
The American Political Science Association (APSA) is writing to submit a comment to the proposed rescission of the regulatory structure overseeing international education ... Show Full Article WASHINGTON, Aug. 5 -- In response to a federal agency request for information, the following public comment letter was submitted electronically to the regulations.gov site. July 30, 2026 Linda E. McMahon Secretary of Education U.S. Department of Education 400 Maryland Ave, SW Washington, DC 20202 Re: ED-2026-OPE-0991, International Education Programs and Fulbright-Hays Program; Recission of Regulations Dear Secretary McMahon, The American Political Science Association (APSA) is writing to submit a comment to the proposed rescission of the regulatory structure overseeing international educationand foreign language studies programs at the Department of Education - the Title VI Program and Fulbright-Hays Program - announced by the Department on July 1, 2026. APSA expresses strong opposition to the proposed rescission of several regulations within Title 34 of the Code of Federal Regulations, specifically all provisions from 34 CFR Part 655 through 34 CFR Part 669.
APSA is a professional organization with more than 11,000 members. APSA's core mission is to promote scholarly understanding of political ideas, behaviors, and institutions to inform public choices about government, politics, and public policy; and to enhance the capacity of political scientists to conduct research, improve teaching, and communicate their findings to wider publics.
The preamble of the proposed rule claims the regulatory structure overseeing the Title VI and Fulbright-Hays programs imposes inflexibility of administering the grants, creates excessive administrative burden for grantees, and contradicts the intended purpose of the programs. In actuality, dismantling these regulations will introduce uncertainty and instability to a well-established and codified system that has helped scholars access funding for decades. APSA urges the Department to maintain the current system of regulations for the Title VI and Fulbright-Hays Programs that will continue to advance the U.S. expertise and competitive edge on strategic regions and languages.
Rescission of Program Regulations
APSA strongly disagrees with the rescission of the general provisions set forth in 34 CFR Part 655. The
proposed rule claims that the Education Department General Administrative Regulations (EDGAR) are
sufficient for administering international education programs and that additional regulations are
unnecessary. However, there are several crucial provisions in 34 CFR Part 655 that provide clarity and
structure to the purpose and processes of the international education programs that do not exist in EDGAR.
Subpart A of the general provisions provides the framework for international education programs, including
foundations such as definitions of terms, purposes of the programs, and which regulations are applicable to
these programs. Subpart B provides clarifications for the kind of projects the Department should fund
through the programs. Subpart D provides guidance to the Department on the procedures of evaluating
applications and selecting awardees. The proposed rule erroneously claims that there is little flexibility in the
current regulations afforded to the Department in selecting awards deemed to be in service of national
priorities, and claims that the regulation is far stricter than the language included in the Higher Education Act
establishing these programs. The existing language provides ample flexibility for the Department to make
award selections based on certain strategic priorities in line with the statutory purpose of the International
Education programs.
The proposed rule further claims that rescission of these regulations would remove burdens for grantees.
These guidelines have been well-tested and only revised occasionally over decades of the programs'
duration. Prospective award grantees and their institutions that support them are accustomed to these
requirements. Removing this structure of regulation would do little to clarify or simplify the proposal
process; rather, it would likely have the opposite effect by requiring far more administrative time to
understanding how to tailor their applications to the EDGAR guidelines. This added burden would be more
pronounced for applicants with weaker institutional support, especially applicants from smaller institutions.
The rule calls for the full rescission of the regulation rather than replacing or reforming existing regulations
to better suit the needs of the programs. Subparts A of 34 CFR Part 656, 657, and 669 and Subparts B of 34
CFR Part 658, 660 and 661 all provide specific definitions for terminology relevant to the programs as well as
eligibility requirements, and general selection criteria for each program. A full rescission of these basic
provisions would leave the programs without any defining characteristics, clear guidance or consistent
expectations for applicants to follow, and may have the result of changing the eligibility and criteria for these
programs entirely. It also would remove any sort of guardrails to hold the Department accountable to make
awards to grant proposals that align with the purpose of these programs as stated in Title VI of the Higher
Education Act of 1961, potentially reducing relevance or merit compared with the programs' intended
purpose. The recission risks watering down the peer review process in making awards. Despite the rule's
claims that the regulations impose "unnecessary administrative burden and reduce institutional flexibility,"
the rule fails to provide evidence showing this to be the case. APSA encourages the Department to document
specific examples of how the regulatory structure acts as an administrative burden before engaging in
substantial deregulation, if such data exists.
Regulatory Impact Analysis
APSA strongly disagrees with the conclusions made in the Regulatory Impact Analysis. The proposed rule
cites adherence to Executive Orders 14192, 12866, and 13563 as justifications for the program recissions
guiding the implementation of international education and Fulbright-Hays programs despite numerous legal
challenges that have been levied at these executive actions. Furthermore, the determination that the removal
of the regulation would not adversely affect any sector of the economy in a material way is simplistic. Several
universities and fields of academic study, in particular disciplines focused on the politics, socioeconomics,
and language of specific regions and cultures rely on these programs for funding. Furthermore, the proposed
rule would remove the regulations administering the Business and International Education Program, a
program intended to develop talent pipelines from institutions of higher education to businesses aiming at
engaging in international business activities. Blanket repeal of these regulations could alter grant eligibility
and criteria, undermine the economic viability of some academic disciplines, and shrink the talent pool
available to businesses pursuing international opportunities.
Sincerely,
The American Political Science Association (APSA)
*
Original text of letter here: https://www.regulations.gov/comment/ED-2026-OPE-0991-0106
American Academy of Religion Opposes Rescission of International Education Program Regulations
Carter Struck
WASHINGTON, Aug. 5 -- In response to a federal agency request for information, the following public comment letter was submitted electronically to the regulations.gov site.
To: Department of Education
Re: International Education Programs and Fulbright-Hays Program; Recission of Regulations [Docket ID ED-2026-OPE-0991]
July 31, 2026
The American Academy of Religion (AAR) submits this comment on the proposed rule International Education Programs and Fulbright-Hays Program; Recission of Regulations (Docket ID ED-2026-OPE-0991), published July 1, 2026. The AAR is the world's largest association ... Show Full Article WASHINGTON, Aug. 5 -- In response to a federal agency request for information, the following public comment letter was submitted electronically to the regulations.gov site. To: Department of Education Re: International Education Programs and Fulbright-Hays Program; Recission of Regulations [Docket ID ED-2026-OPE-0991] July 31, 2026 The American Academy of Religion (AAR) submits this comment on the proposed rule International Education Programs and Fulbright-Hays Program; Recission of Regulations (Docket ID ED-2026-OPE-0991), published July 1, 2026. The AAR is the world's largest associationof religious studies professionals, representing more than 6,000 members across all 50 US states and territories, including scholars employed in colleges and universities, seminaries, K-12 schools, museums, archives, libraries, government agencies, and other institutions.
Our members as well as students in the institutions our members serve have long benefited from and contributed to Title VI International Education Programs and the Fulbright-Hays Programs, which strengthen the nation's capacity in foreign languages, area studies, international research, and global engagement. The AAR is concerned that the proposal could weaken the long-term stability of programs that support the nation's research enterprise and the development of international expertise.
Title VI and Fulbright-Hays programs provide critical support for humanities disciplines through foreign
language instruction and educational exchanges that enable scholars to conduct research. These programs
are essential to research, teaching, and public scholarship in many areas, including religious studies. The
proposed change would eliminate legally binding procedural safeguards that, in many instances, provide
the sole guarantee that proposals and applications will be assessed on their merits and with input from
academic specialists. The rule would reduce scholars' ability to produce the evidence-based scholarship
that informs education, public policy, cultural institutions, and public understanding of religion and
culture.
The Department has not demonstrated that rescinding the regulations governing the Title VI International
Education Programs and Fulbright-Hays Programs would improve program administration or better fulfill
the statutory purposes established by Congress. Instead, the proposal would eliminate longstanding
regulations that promote transparency, fair competition, and accountability while creating significant
uncertainty for institutions that rely on these programs to develop the nation's international expertise.
While the Notice of Proposed Rulemaking argues that the current regulations are more prescriptive than
the underlying statutes and that eliminating them would provide greater flexibility for both the
department and grantees, the proposal provides little evidence that the existing regulations have
prevented the department from adapting these programs to changing priorities or emerging national
needs. Nor does it identify specific regulatory provisions that have imposed significant administrative
burdens or explain why targeted revisions would be insufficient.
In fact, the department has long exercised substantial flexibility within the existing regulatory framework.
Through Notices Inviting Applications, the department has established priorities, identified languages and
world regions of national need, refined selection criteria, and responded to changing geopolitical and
educational circumstances. These competition-specific priorities have allowed the department to
encourage innovation while maintaining a stable, transparent regulatory structure. The department,
therefore, already has significant discretion to shape program implementation without eliminating the
regulations entirely.
The existing regulations also provide common expectations for applicants, reviewers, and grantees
regarding program purposes, allowable activities, application requirements, and grant administration. As
these expectations remain fairly constant over time, they allow institutions to make longer-range plans
and investments in faculty, language instruction, international partnerships and related administrative
capacities. Removing the regulations without replacing them with a revised framework renders the future
uncertain and makes longer term planning significantly more difficult. While some flexibility is to be
welcomed and indeed currently exists, it should not override consistent fair and transparent
administration that is essential to protect the integrity of these programs.
While the department states the recission would reduce administrative burden, it includes little evidence
of what burdens or how they would be eliminated. In the absence of an analysis that discusses cost-
benefit or indicates other measurable costs or administrative burdens, the recission does not appear
prudent, as recission of all regulations would result in lack of transparency and reduced clarity and fairness
for applicants.
In sum, the proposal would eliminate longstanding regulations that provide transparency, consistency,
and accountability without adequately explaining how their removal would improve program
administration. For these reasons, AAR respectfully urges the department to withdraw the proposed
wholesale rescission of Parts 655 through 664 and 669. Thank you for considering these comments.
*
Original text of letter here: https://www.regulations.gov/comment/ED-2026-OPE-0991-0154
To: Department of Education
Re: International Education Programs and Fulbright-Hays Program; Recission of Regulations [Docket ID ED-2026-OPE-0991]
July 31, 2026
The American Academy of Religion (AAR) submits this comment on the proposed rule International Education Programs and Fulbright-Hays Program; Recission of Regulations (Docket ID ED-2026-OPE-0991), published July 1, 2026. The AAR is the world's largest association ... Show Full Article WASHINGTON, Aug. 5 -- In response to a federal agency request for information, the following public comment letter was submitted electronically to the regulations.gov site. To: Department of Education Re: International Education Programs and Fulbright-Hays Program; Recission of Regulations [Docket ID ED-2026-OPE-0991] July 31, 2026 The American Academy of Religion (AAR) submits this comment on the proposed rule International Education Programs and Fulbright-Hays Program; Recission of Regulations (Docket ID ED-2026-OPE-0991), published July 1, 2026. The AAR is the world's largest associationof religious studies professionals, representing more than 6,000 members across all 50 US states and territories, including scholars employed in colleges and universities, seminaries, K-12 schools, museums, archives, libraries, government agencies, and other institutions.
Our members as well as students in the institutions our members serve have long benefited from and contributed to Title VI International Education Programs and the Fulbright-Hays Programs, which strengthen the nation's capacity in foreign languages, area studies, international research, and global engagement. The AAR is concerned that the proposal could weaken the long-term stability of programs that support the nation's research enterprise and the development of international expertise.
Title VI and Fulbright-Hays programs provide critical support for humanities disciplines through foreign
language instruction and educational exchanges that enable scholars to conduct research. These programs
are essential to research, teaching, and public scholarship in many areas, including religious studies. The
proposed change would eliminate legally binding procedural safeguards that, in many instances, provide
the sole guarantee that proposals and applications will be assessed on their merits and with input from
academic specialists. The rule would reduce scholars' ability to produce the evidence-based scholarship
that informs education, public policy, cultural institutions, and public understanding of religion and
culture.
The Department has not demonstrated that rescinding the regulations governing the Title VI International
Education Programs and Fulbright-Hays Programs would improve program administration or better fulfill
the statutory purposes established by Congress. Instead, the proposal would eliminate longstanding
regulations that promote transparency, fair competition, and accountability while creating significant
uncertainty for institutions that rely on these programs to develop the nation's international expertise.
While the Notice of Proposed Rulemaking argues that the current regulations are more prescriptive than
the underlying statutes and that eliminating them would provide greater flexibility for both the
department and grantees, the proposal provides little evidence that the existing regulations have
prevented the department from adapting these programs to changing priorities or emerging national
needs. Nor does it identify specific regulatory provisions that have imposed significant administrative
burdens or explain why targeted revisions would be insufficient.
In fact, the department has long exercised substantial flexibility within the existing regulatory framework.
Through Notices Inviting Applications, the department has established priorities, identified languages and
world regions of national need, refined selection criteria, and responded to changing geopolitical and
educational circumstances. These competition-specific priorities have allowed the department to
encourage innovation while maintaining a stable, transparent regulatory structure. The department,
therefore, already has significant discretion to shape program implementation without eliminating the
regulations entirely.
The existing regulations also provide common expectations for applicants, reviewers, and grantees
regarding program purposes, allowable activities, application requirements, and grant administration. As
these expectations remain fairly constant over time, they allow institutions to make longer-range plans
and investments in faculty, language instruction, international partnerships and related administrative
capacities. Removing the regulations without replacing them with a revised framework renders the future
uncertain and makes longer term planning significantly more difficult. While some flexibility is to be
welcomed and indeed currently exists, it should not override consistent fair and transparent
administration that is essential to protect the integrity of these programs.
While the department states the recission would reduce administrative burden, it includes little evidence
of what burdens or how they would be eliminated. In the absence of an analysis that discusses cost-
benefit or indicates other measurable costs or administrative burdens, the recission does not appear
prudent, as recission of all regulations would result in lack of transparency and reduced clarity and fairness
for applicants.
In sum, the proposal would eliminate longstanding regulations that provide transparency, consistency,
and accountability without adequately explaining how their removal would improve program
administration. For these reasons, AAR respectfully urges the department to withdraw the proposed
wholesale rescission of Parts 655 through 664 and 669. Thank you for considering these comments.
*
Original text of letter here: https://www.regulations.gov/comment/ED-2026-OPE-0991-0154
America Outdoors Association Urges Codification of Binding Forest Service Permit Provisions to Ensure Stability and Compliance
Carter Struck
WASHINGTON, Aug. 5 -- In response to a federal agency request for information, the following public comment letter was submitted electronically to the regulations.gov site.
July 31, 2026
Submitted via the Federal eRulemaking Portal (www.regulations.gov)
Re: Comments of America Outdoors Association and the Undersigned Outfitter and Guide Organizations on the Proposed Rule, "Organization, Functions, and Procedures; Public Notice and Comment for Standards, Criteria, and Guidance Applicable to Forest Service Programs," RIN 0596-AD74, Document No. 2026-13281, 91 Fed. Reg. 39948 (July 1, 2026)
I. ... Show Full Article WASHINGTON, Aug. 5 -- In response to a federal agency request for information, the following public comment letter was submitted electronically to the regulations.gov site. July 31, 2026 Submitted via the Federal eRulemaking Portal (www.regulations.gov) Re: Comments of America Outdoors Association and the Undersigned Outfitter and Guide Organizations on the Proposed Rule, "Organization, Functions, and Procedures; Public Notice and Comment for Standards, Criteria, and Guidance Applicable to Forest Service Programs," RIN 0596-AD74, Document No. 2026-13281, 91 Fed. Reg. 39948 (July 1, 2026) I.Introduction: Our Members' Stake in the Directive System
America Outdoors Association (AOA) is the national trade association for the outfitting and guided outdoor recreation industry. Founded in 1982, we serve as the industry's primary advocate at the federal level while providing the policy frameworks and coordination needed to support state and regional partners on the ground. Our members-professional outfitters ranging from rafting companies and fishing lodges to dude ranches, hunting outfitters and climbing guides, aerial adventure parks, and multi-day tour operators-introduce millions of visitors to America's public lands and waterways each year. Guided and outfitted travel contributes tens of billions of dollars annually to rural economies, and the lion's share of that activity runs through the trails, campgrounds, boat ramps, and access points our members maintain and depend on.
These comments are submitted by AOA together with fifteen national, State, and regional outfitter and guide organizations whose members hold and operate under Forest Service special use permits: the Alaska Professional Hunters Association (APHA), the Colorado Outfitters Association (COA), the Colorado River Outfitters Association (CROA), the Dude Ranchers' Association (DRA), the Heli-Ski U.S. Association (HSUS), the Idaho Outfitters and Guides Association (IOGA), the Middle Fork Outfitters Association (MFOA), the Montana Outfitters and Guides Association (MOGA), the Nevada Outfitters and Guides Association (NOGA), the New Mexico Council of Outfitters and Guides (NMCOG), the Oregon Outfitters and Guides Association (OOGA), Professional Outfitters and Guides of America (POGA), the Salmon River Outfitters Association (SROA), the Wild Rogue Outfitters Association (WROA), and the Wyoming Outfitters and Guides Association (WYOGA).
AOA and the co-signing organizations are referred to together in these comments as the Outfitter and Guide Coalition
("OGC"). The OGC's members include associations founded as early as 1926 and a national alliance of eleven State and
provincial associations; collectively they represent licensed outfitters, guides, and guest ranches operating across the
country, with organizational members with particular geographic focuses in Alaska, Colorado, Idaho, Montana, Nevada,
New Mexico, Oregon, Utah, Washington, and Wyoming, across rafting, hunting, fishing, packing and horseback operations,
guest and dude ranching, climbing, skiing and helicopter skiing, and other guided recreation on National Forest System
lands. A description of each organization appears at Annex A.
A large share of that outfitted activity takes place on National Forest System lands under U.S. Forest Service special use
permits, and rests on one of the most unheralded success stories in the Federal government: a Forest Service outfitter
and guide permitting policy, and the special use framework that implements it, that has for decades delivered the public
a wide array of high-quality recreation services while sustaining the rural communities where outfitters are based.
Preserving the stability of that policy-and the benefits it delivers to rural economies and the recreating public-is what
is at stake in this rulemaking.
The Forest Service Handbooks currently play a critical role in setting forth the operating rules for our members who
operate on these lands. When a priority use permit comes up for renewal, the standard the permittee must meet can be
found at FSH 2709.14, chapter 50, section 53.1m. When the annual land use fee is calculated, the rate, the fee base, and
1
the method for counting service days are found at FSH 2709.11, chapter 30, sections 36.21c and 36.21d. When a forest
decides how much commercial use a river corridor or wilderness area can sustain, and how that capacity is divided among
outfitters, the methodology is found at FSH 2709.14, chapter 50, section 53.1f. And when a district ranger reviews an
outfitter's performance-the review that gates both renewal and any reduction in allocated use-the required frequency
and standard can be found at section 53.1q. Outfitters price their seasons, book client, buy insurance, and borrow against
their businesses on the predictability and effect of these provisions, e.g., on the expectation that the renewal standard
and expectations in the Handbook means what it says. These provisions provide more than internal "advisory and
informational guidance" and, in the event this rule moves forward, will need to be moved out of the Handbooks.
Transparency, clarity, and consistency in the key agency requirements governing our members' operations are essential
to their continued ability to serve visitors to our National Forests.
AOA submits this comment on behalf of the OGC for two purposes. First, we respond directly to the Department's
invitation to identify specific Handbook provisions that should be retained and moved into the Code of Federal
Regulations, and we do so in the vocabulary the Notice requests: provisions essential to promote safety, ensure
compliance with law, or prevent waste or misuse of public funds. Second, we respectfully note that the proposed rule's
Regulatory Flexibility Act analysis understates the rule's direct effects on the many small outfitter and guide businesses
that make up our membership, and we ask the Department to revisit that assessment on the record we provide here.
II. The Proposed Rule and Our Core Concerns
The proposed rule would restructure the Forest Service Directive System in three ways that matter to our members.
First, it would redefine the Forest Service Manual as "the sole source of continuing, mandatory direction" for the Agency,
and redefine the Forest Service Handbooks as "advisory and informational guidance that Agency employees may deviate
from without documenting or justifying alternate actions."1 The Notice states that the directives "do not hold the force of
law and are not enforceable against non-Agency parties," and that the Handbooks therefore "cannot contain legislative
rules" subject to the Administrative Procedure Act's notice-and-comment requirements.2
Second, the Department proposes to amend 36 CFR 216.1(b) to state that the removal or rescission of Forest Service
directives is not "formulation" of standards, criteria, or guidelines and therefore is not subject to notice and comment;
and, after an initial round of Handbook revisions taken through comment under 16 U.S.C. 1612(a), subsequent Handbook
changes would not be subject to notice and comment at all.3
Third, the Notice expressly invites comments "identifying any provisions of the Forest Service Handbooks that the public
believe should be retained and moved into the Code of Federal Regulations," and specifically requests comments on "which
provisions are essential to promote safety, ensure compliance with law, or prevent waste or misuse of public funds."4
The Notice lists certain Handbook titles "most likely" to contain provisions warranting review, including FSH 2709.11
(Special Uses).5 The outfitting and guiding provisions at FSH 2709.14, chapter 50, were not separately enumerated, but
they fall squarely within the substantive categories the Notice identifies: specific criteria for permit renewal, fee
1 91 Fed. Reg. 39948, 39948-49 (July 1, 2026).
2 91 Fed. Reg. at 39949.
3 91 Fed. Reg. at 39949.
4 91 Fed. Reg. at 39949
5 91 Fed. Reg. at 39949.
2
structures for the receipt of permits, and definitions of key terms that affect the scope of a regulation. The OGC
addresses this by providing the analysis the Notice invites.
The proposed rule creates asymmetry in departure standards (i.e., where agency employees may deviate) from the
Manual and Handbooks. Under the restructured system, Manual departures require that alternate actions are in the
public interest and consistent with law, and that the justification is promptly documented. Handbook departures require
nothing: employees "may deviate from [them] without documenting or justifying alternate actions."6 Because certain
standards delegated by regulation to Forest Service directives-for instance, the renewal standard at 36 CFR 251.64(b),
the fee methodology, and the scope definitions-are currently set forth in the Handbooks, the proposed rule would
relegate binding standards to the one category of agency direction an employee can depart from with zero
documentation and zero justification. That is not a stable footing for standards that underpin business continuity, fee
collection, and permit scope.
The Notice acknowledges that the current Handbooks may contain legislative rules, stating that "if commenters do
identify legislative rules in the current Forest Service Handbooks, the Agency would consider conducting a subsequent
rulemaking to rescind those provisions or recodify them in the CFR."7 The nine provisions identified below are the OGC's
answer to precisely that question: these are outfitting and guiding Handbook provisions that, in practice, operate as
binding, rule-like standards for permittees and line officers and that the Agency has asked commenters to identify for
potential rescission or recodification in the CFR.
The proposed rule's premise is that truly binding direction no longer belongs in the Handbooks, which should be limited
only to genuinely flexible material. The nine provisions the OGC identifies below are binding by function: among other
things, permittees are required to pay money under them, and eligibility for the permit system turns on them.
Anchoring that narrow set in the CFR or Manual keeps the essential standards in binding effect, exactly as the
Department proposes, and leaves the remaining Handbook detail free to serve as the flexible implementation guidance
the modernization appears designed to create.
One practical point frames all three requests. Binding text does little good if the people governed by it never see it. Line
officers administering the special recreation permit program, and the outfitters and guides subject to it, work from the
directives, not from Title 36 of the Code of Federal Regulations. A permittee planning a season, or a district employee
processing a renewal, consults the Handbook and the Manual. The restructuring compounds this: with the operative
standards distributed across statute, regulation, the Manual, and the Handbooks, a staff member must consult four
separate sources to determine how to administer a single program, and a permittee must do the same to determine what
is required of it. For most of the provisions that follow, the OGC therefore asks for both homes rather than one.
Codification in the CFR is what makes a standard binding and gives the public a right to be heard before it changes; parallel
mandatory direction in the Manual is what makes that standard findable and usable by the people who apply it.
Our comments make three requests, each developed in the parts that follow.
1. In Part III, we answer the Department's invitation with a concrete, ranked list of nine Handbook provisions that
function as binding today and should be recodified into the CFR sections and Manual chapters we identify.
2. In Part IV, we explain the delegation gap that makes recodification of the renewal standard particularly
appropriate/urgent, and we ask for a narrow, voluntary procedural commitment covering only the nine
enumerated provisions.
6 91 Fed. Reg. at 39948
7 91 Fed. Reg. at 39949.
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3. In Part V, we document why the Regulatory Flexibility Act certification's conclusion that the rule "would not have
any direct effect on small entities" does not hold for our members, and we respectfully ask the Department to
revisit it.
III. Provisions That Should Be Recodified: Our Response to the Department's Invitation
Many of these permitting standards have been in place for decades and were published in the Federal Register, creating
settled expectations on which outfitters have built their businesses. The Department should memorialize them as binding
direction-codified in the Code of Federal Regulations and carried as mandatory direction in the Forest Service Manual.
Given the breadth of the policy in question-developed over decades across thousands of pages of Handbook and related
guidance-and the compressed comment period, the OGC has not been able to inventory every operative provision that
should be retained as binding direction. Key elements of the program that currently reside only in policy include, for
example:
procedures and criteria for authorizing new outfitter and guide activities;
standards for when competitive award of a permit is required and when a permit may be issued without
competition;
performance-rating categories, including "less than satisfactory," and the consequences attached to them; and
the timing and process for surrender of allocated visitor-use days that enables credits or adjustments on the
permit.
The provisions set out below are the prioritized subset we were able to identify and analyze within the comment period;
substantive responses to the Notice that also exemplify the kinds of standards that should not be left to guidance revisable
without public process.
The nine provisions below were selected from a 21-row gap analysis of the outfitting and guiding directives. We
excluded provisions already protected in the CFR (such as the revocation and appeal provisions at 36 CFR 251.60) and
provisions partially anchored in the Manual. Each of the nine provisions is exposed under the proposed restructuring of
the Directive System: key implementation details currently reside in outfitting and guiding Handbooks that the rule
would reclassify as advisory guidance, even though those details operationalize obligations grounded in statute
(including the EXPLORE Act) and existing regulations. The nine also fall squarely within the categories the Notice itself
identifies as most likely to warrant recodification: "specific criteria for the issuance, renewal, denial, or termination of
permits or licenses"; "fee structures for thereceipt or renewal of permits"; and "definitions of key terms that affect the
scope of a statute or regulation."8
Provision Citation Requested home
Priority-use renewal-without-competition standard FSH 2709.14, ch. 50, Sec. 36 CFR 251.64 + FSM
53.1m(1)-(4) 2720
Service-day counting methodology FSH 2709.11, ch. 30, FSM 2715 (possibly 36
Sec.36.21d CFR 251.57)
Pre-determined fee / percentage-of-AGR fee election FSH 2709.11, ch. 30, 36 CFR 251.57 + FSM
Sec.36.21c(1)-(2) 2715
8 91 Fed. Reg. at 39949.
4
Two AGR calculation methods and "base trip payment" FSH 2709.11, ch. 30, 36 CFR 251.57 + FSM
Sec.36.21c(2) 2715
Core scope definitions (outfitting, guiding, priority use, temporary FSH 2709.14, ch. 50, 36 CFR 251.51 + FSM
use, service day, quota, use area, allocation of use) Sec.53 (definitions) 2720
Reviews & adjustment of allocated service days (5-yr; 125% FSH 2709.14, ch. 50, FSM 2720 + 36 CFR
restoration) (100/125 formula statutory at 16 U.S.C. 8547; Sec.53.1n(4) 251.64
implementation layer Handbook-only)
Resource-capacity analysis and allocation of use FSH 2709.14, ch. 50, FSM 2720 (possibly 36
Sec.53.1f CFR 251.64)
Definition of "satisfactory performance" and review-renewal FSH 2709.14, ch. 50, FSM 2720 + 36 CFR
linkage (review frequency codified at 16 U.S.C. 8546(a)) Sec.53.1q(1) 251.64
Short-Stop Fee (flat per-service-day rate for short-stop commercial FSH 2709.11, ch. 30, Sec. 36 CFR 251.57 + FSM
trips) 36.21c(3) 2715
1. Priority-use renewal/reissuance without competition standard
Provision and citation.
FSH 2709.14, chapter 50, Sec.53.1m(1)-(4) (Amend. 2026-1). The governing regulation, 36 CFR 251.64(b), delegates the
"renewal without competition" standard to "applicable Forest Service directives."
Requested home.
Codify the renewal-without-competition standard-term length, the performance-based extension, and the non-renewal
criteria-directly in 36 CFR 251.64, and carry the same standard as mandatory direction in the Forest Service Manual (FSM
2720).
Operational impact.
These renewal provisions provide outfitters and guides with the long-term business certainty needed to invest in
equipment, employees, safety programs, and stewardship of Forest Service lands. Preserving these provisions recognizes
the substantial investments outfitting and guiding permit holders make in their operations to ensure continuing high-
quality recreation services and strong partnerships that benefit the public and the National Forest System. Removing the
standard or relegating it something entirely non-binding would eliminate the longer-term certainty that makes these
investments feasible. 36 CFR 251.64(d) separately authorizes the authorized officer to modify permit terms during
reauthorization to reflect new legal or management requirements, but that modification authority does not supply the
standard against which renewal itself is measured. This provision and request touches essentially every established priority
use outfitter and guide on National Forest System lands.
Why it is essential under the Notice's criteria.
This provision is essential for the reasons explained above as well as to ensure compliance with law. Section 251.64(b)
delegates the substantive renewal standard to the directives; if those directives are advisory, the regulation delegates the
standard to a document that no longer binds, and there is no enforceable rule against which to measure a renewal or non-
5
renewal decision. Codifying the standard in 36 CFR 251.64 closes that gap so the CFR commands a rule that actually
governs.
2. Counting visitor-use days: the service-day methodology
Provision and citation. FSH 2709.11, chapter 30, sec. 36.21d establishes how the Forest Service counts service days for
drop-off, pick-up, and livery services. The operative unit is statutory: EXPLORE denominates both recreation fees and
authorized use in visitor-use days, and leaves the Secretary to select and define the metric by which one is measured. The
Forest Service's chosen metric is the "service day"-the administrative unit of measurement it uses to calculate recreation
fees and authorized use under special recreation permits. It is the agency's operational implementation of the "visitor-use
day," which Congress defined in the EXPLORE Act (codified at 16 U.S.C. 8531(5)) and directed the Secretary to implement.
The statute defines "visitor-use day" broadly as "a visitor-use day, user day, launch, or other metric used by the Secretary
concerned for purposes of authorizing use under a special recreation permit."9 Congress therefore fixed the unit of
account-the visitor-use day-but delegated its measurement, and did not specify what constitutes a day of use. Section
36.21d is where that delegated measurement is exercised: it does not merely prescribe an accounting method, it
determines how many visitor-use days a given trip consumes, and therefore both what the operator owes and how quickly
its allocation is drawn down. That measurement rule exists only in the Handbook. The proposed rule would strip it of any
binding effect. Because the statutory unit and the agency's metric carry different names, this letter uses "visitor-use day"
when referring to the unit Congress fixed and the entitlement measured in it, and "service day" when referring to the
Forest Service's metric for measuring one, including where the Handbook's own text and section titles use that term.
Requested home. Rather than codify Sec. 36.21d as written, the OGC recommends that the Forest Service adopt, as
mandatory direction in the Forest Service Manual, a binding counting principle: a single trip may not be counted more
than once, and the counting methodology must ensure that fees are commensurate with the benefits and services
provided.10 That principle is the same interpretive layer that feeds the Adjusted Gross Receipts (AGR) calculation methods
addressed in provision 4 of this Part, and it should be bound once, here, so the rule that gives content to the statutory
charge unit cannot be altered by advisory guidance. Because this principle determines how the statutory visitor-use-day
metric is translated into the service-day counts that drive both fees and permit allocations, it belongs in binding direction
rather than advisory guidance. We do not ask that Sec. 36.21d be recodified as written because its operative text is activity-
specific counting mechanics-drop-off, pick-up, livery-that the agency should retain room to adjust; because Congress
has already fixed the unit of account by statute, what is missing here is binding force for the counting principle, not a new
anchor for the mechanics. Codification of that principle in 36 CFR 251.57 may ultimately be appropriate as well.
Operational impact. The fee is charged per visitor-use day,11 and the Handbook administers that charge through service-
day counting, so the service-day count is the multiplier that fixes both what an operator owes in recreation fees and how
fast it exhausts its authorized visitor-use allocation. The fee statute (16 U.S.C. 6802(h)(2)(B), in Chapter 87) and the
allocation statute (16 U.S.C. 8546-8547, in Chapter 103, Subchapter III) are distinct statutory architectures, but the
Handbook's "service day" is the administrative proxy for both. Because a single administrative count feeds both, changing
the service-day counting methodology directly changes both an operator's fee liability and the pace at which it exhausts
its allocation, even though neither the governing statutes nor the permit itself has changed and neither statutory process
is engaged. Separately, an operator's allocation is measured in visitor-use days under a distinct statutory regime,12 so a
more expansive count of drop-off, pick-up, or livery activity both raises the effective fee and accelerates exhaustion of
9 16 U.S.C. 6802(b)(1).
10 16 U.S.C. 6802(b)(1).
11 16 U.S.C. 6802(h)(2)(B)(ii)(II), (iii)(IV).
12 16 U.S.C. 8546, 8547.
6
allocated visitor-use days, with no permit amendment. It reaches every per-visitor-use-day fee payer and every operator
whose allocation is measured in visitor-use days.
Why it is essential under the Notice's criteria. It is essential to prevent waste or misuse of public funds. The count is an
advisory input that moves the public's fee revenue in either direction, yet under FSH sec. 32.4 a change to the count is
neither a notice-and-comment revision of a fee schedule nor an inflation adjustment under an established schedule-the
two categories sec. 32.4 makes non-appealable-while it still changes the operator's bill as a rate change would. Binding
the count in rule closes that gap. It is also essential to ensure compliance with law: the counting methodology is what
gives operational content to the statutory per-visitor-use-day fee13 and to the statutory allocation unit [of
measurement].14 Because Congress defined the unit and delegated only the metric, fixing the count in a binding rule is
what conforms the guidance to the statute. Section 6803(a)-(b) requires public participation and notice for any change to
a recreation fee.15 If the fee-determining methodology (i.e., how use days are defined and consequently calculated) lives
in advisory Handbooks, a change to that methodology is not formally a "fee change"; it is a reinterpretation of guidance,
and therefore bypasses the public participation the statute requires. Binding the counting principle in rule closes that gap
between what the statute requires and what the proposed rule would allow.
3. Pre-Determined Fee / percentage-of-AGR land-use fee election
Provision and citation. FSH 2709.11, chapter 30, Sec. 36.21c(1)-(2) (Amend. 2026-1): the holder's election, before permit
issuance, of either the pre-determined fee ([currently] $6 per visitor-use day) or 3 percent of AGR.
Requested home. Recodify the rate structure-pre-determined, AGR percentage, and minimum fee-into 36 CFR 251.57;
at minimum, mandatory Manual direction in FSM 2715. 36 CFR 251.57(a)(1) still bases special use fees on "the fair market
value of the rights and privileges authorized," a standard the FLREA/EXPLORE Act superseded for special recreation
permits when it fixed a fee standard "commensurate with the benefits and services provided" (16 U.S.C. 6802(b)(1)). The
regulation should be updated to reflect that statutory change, and the Handbook's outfitter and guide fee provisions
should be incorporated into the revised Sec. 251.57 as part of that same regulatory update.
Operational impact. The election between a pre-determined fee and a percentage of AGR, and the 3% ceiling on that
percentage, are codified at 16 U.S.C. Sec.6802(h)(2)(E); the $6 per visitor-use day figure is a statutory fallback that applies
only from January 4, 2027, and only where the Secretaries have not first established a predetermined fee under
Sec.6802(h)(2)(B)(iii)(I)-(III); and because a special recreation permit fee is a "recreation fee,"16 Sec.6803(a)-(b) require public
participation and notice for any change to it. The fee system is in a transition period between the prior FLREA framework
and the new EXPLORE Act fee architecture. Binding the fee methodology in the CFR now-before the statutory default
takes effect and the agency begins establishing its predetermined fee schedules under the new framework-is the point
at which durable certainty is cheapest to secure.
Why it is essential under the Notice's criteria. This provision is essential to prevent waste or misuse of public funds as
well as to provide certainty for recreation service providers: the fee is the public's compensation for commercial use of
public land, and a rate that can be moved-to some degree, albeit indirectly-administratively in either direction risks
either under-collection of the public's return or arbitrary over-collection from permittees, with the fee-schedule and
inflation-adjustment categories in FSH 2709.11 Sec.32.4 already foreclosed from appeal. It is equally essential to ensure
13 16 U.S.C. 6802(h)(2)(B).
14 16 U.S.C. 8531(5).
15 16 U.S.C. 6803(a)-(b).
16 16 U.S.C. Sec. 6801(7).
7
compliance with law: FLREA Sec.803, as amended by the EXPLORE Act, requires recreation fees commensurate with the
benefits and services provided to the visitor,17 and codifying the rate structure in 36 CFR 251.57 ties the fee mechanism
to the governing statute rather than leaving it to float in advisory text.
4. The two AGR calculation methods and the definition of "base trip payment"
Provision and citation. FSH 2709.11, chapter 30, Sec.36.21c.2(2) (Methods 1 and 2), together with the corresponding chapter
50 permit clause (Amend. 2026-1).
Requested home. Recodify the AGR definition and both calculation methods into the CFR fee provisions at 36 CFR 251.57,
and as mandatory direction in the Forest Service Manual (FSM 2715).
Operational impact. The two alternative methods that permit holders may elect for calculating fees for temporary use
and priority use permits based on defined adjusted gross receipts ("AGR"), including certain exclusions from AGR for
purposes of those calculations, and the holder's right to elect between them, are codified at 16 U.S.C. Sec.6802(h)(2)(F),
including the exclusion of goods, gear, food, and off-site services. Congress fixed the formulas; it did not fix the inputs
those formulas run on. What the Handbook still controls is how a day of use on NFS lands is counted under Sec.36.21d-and
because the fee is that count multiplied by the rate, moving the count moves the fee even though both the formula and
the rate are set by statute. Recodification should target that interpretive layer and conform the Handbook's Methods 1
and 2 to the statutory text, not restate a formula Congress has already fixed.
Why it is essential under the Notice's criteria. It is essential to prevent waste or misuse of public funds because an
administratively movable service-day count lets the effective fee drift away from a charge commensurate with the benefits
and services provided even when the published rate and the AGR methods are fixed, defeating faithful collection of the
public's return. It is essential to ensure compliance with law because a fee commensurate with the benefits and services
provided depends on a stable, rule-bound method for counting the service days and measuring the revenue the formulas
reach. It is, not least, essential to provide predictability for permit holders.
5. Core scope-defining definitions
Provision and citation. FSH 2709.14, chapter 50, Sec.53.1e (definitions of "Outfitting," "Guiding," "Priority Use," "Temporary
Use," "Service Day," "Quota," "Use Area," and "Allocation of Use"). 36 CFR 251.51 already defines "outfitting" and
"guiding," but Subpart B contains no definition of "service day"-the term that measures both the fee and the allocation-
nor of the other allocation terms ("Priority Use," "Temporary Use," "Quota," "Use Area," and "Allocation of Use"). Section
251.51 also already defines "Holder" as an individual or entity that holds a valid special use authorization. The result is
that six terms that determine who needs a permit and how much use a permit authorizes have no home in the CFR at all;
they exist only in the Handbook: "service day" (the Forest Service's metric for the statutory visitor-use day), "priority use,"
"temporary use," "quota," "use area," and "allocation of use."
Requested home. Recodify the allocation terms-"priority use," "temporary use," "quota," "use area," and "allocation of
use"-into 36 CFR 251.51, alongside the "outfitting" and "guiding" definitions Subpart B already contains, and carry the
same definitions as mandatory direction in the Forest Service Manual (FSM 2720). As to the unit of use itself, the OGC
does not ask the Department to codify the Handbook's "service day" definition. Section 251.51 should instead adopt the
statutory "visitor-use day" (16 U.S.C. 8531(5)) as the operative unit and state that the Forest Service measures that unit
17 16 U.S.C. Sec. 6802(b)(1).
8
through its service-day methodology, with the binding counting principle AOA requests in Provision 2 above supplying the
measurement rule.
Operational impact. These terms decide who needs a permit at all and how allocation and fees are measured. Narrowing
or broadening "guiding" changes who is subject to the entire permit system-pulling operators in or pushing them out-
with no rulemaking. This reaches the entire permitted population plus all would-be applicants .
Why it is essential under the Notice's criteria. Codifying these definitions is essential to ensure compliance with law: the
Notice itself lists "definitions of key terms that affect the scope of a statute or regulation" as a category warranting
codification, and scope set by advisory definition inappropriately makes the reach of the permit requirement an
unreviewable, interpretive line call. Codifying these definitions also promotes safety. Which operators must hold an
authorization-and are therefore bound by its operating, insurance, and qualification conditions-is already fixed by the
"outfitting" and "guiding" definitions at 36 CFR 251.51, and the OGC does not ask to disturb them. That is precisely why
the remaining exposure matters: it runs through "service day," the term that sets how much use each permit authorizes.
Because that term lives only in the Handbook, an administratively shifted count can change the intensity of commercial
use at a site-and the congestion and resource pressure that come with it-without rulemaking.
6. Reviews for priority use permits and adjustment of allocated service days
Provision and citation. FSH 2709.14, chapter 50, Sec.53.1n, retitled by the April 28, 2026 Amendment to "Reviews for Priority
Use Permits and Adjustment of Allocated Service Days." This provision implements sections 317 and 318 of the EXPLORE
Act, codified at 16 U.S.C. 8547. As directed by statute, the Handbook provides that During the fifth year of a priority use
permit, the Authorized Officer is to review actual use and adjusts the allocation. Where performance is satisfactory, the
allocation is set at 125 percent of the service days used in the holder's highest-use year of the review period, capped at
the level originally allocated; where performance is less than satisfactory, the allocation is to be set at no more than 100
percent of that highest-use year. The 100/125 formula is codified at 16 U.S.C. 8547; Sec.53.1n implements it.
Requested home. Because the 100/125 formula is already statutory,18 what remains exposed is not the formula but the
two inputs that drive it: how visitor-use days are counted for the five-year review, and what counts as "satisfactory"
performance. Neither is defined in any binding authority. The OGC asks that both be made binding-as mandatory
direction in FSM 2720 and codified at 36 CFR 251.64-so that the restoration buffer Congress created operates the same
way for every holder. AOA notes that 16 U.S.C. 8546(b)(3) already specifies the crediting rule for surrendered visitor-use
days-a surrendered unused day counts as one-half of a used day, or one full day if the Secretary determines the use was
prevented by circumstances beyond the provider's control-so the crediting ratio itself is statutory and AOA does not ask
to recodify it. The surrender process that produces those credits, however, is specified nowhere; not in the statute, and
not in the directives. How and when a holder notifies the agency of an inability to use allocated days, what documentation
is required, and how the agency determines that use was prevented by circumstances beyond the provider's control are
all unaddressed-even though 16 U.S.C. 8542(c)(2) contemplates that a provider may request, before surrendering a day,
a determination of whether that day would be credited as one prevented by circumstances beyond its control. This request
therefore differs in kind from the others in Part III: it is not a request to relocate binding Handbook text, but to supply a
process the statute presumes and that neither the regulations nor the directives provide. AOA asks that the process be
established as mandatory direction in FSM 2720 and codified in 36 CFR 251.64 alongside the other inputs to the five-year
review. In supplying that process, the OGC asks the Department to make clear that the circumstances Congress had in
mind include the ones that actually interrupt outfitted seasons, including but not limited to: wildfire and smoke, area and
18 16 U.S.C. 8547.
9
road closures, avalanche hazard, high or low water, and other extreme weather events that render allocated days
unusable. Naming those categories does not expand the statutory crediting rule, which AOA does not ask to disturb; it
tells holders and authorized officers alike what a request under 16 U.S.C. 8542(c)(2) is meant to address, which is the
difference between a process that functions and one that exists only on paper.
Operational impact. A holder's allocation is effectively in its business capacity. The 125-percent tier is a restoration buffer:
a satisfactory performer's allocation is reset to 125 percent of its highest-use year (capped at the original allocation), so
reduced-use in a slow year does not silently erase capacity, historically one of the industry's most consistent permit-
management concerns. What is exposed is not the statutory formula but the discretionary inputs that drive it: the count
of visitor-use days used in the review, the undefined "satisfactory" trigger, and the process, documentation, and timing
by which surrendered days are credited. This reaches all priority use holders subject to review.
Why it is essential under the Notice's criteria. Codifying these inputs is essential to ensure compliance with law because
the mechanism they feed is itself statutory. Congress set the restoration-and-adjustment formula at 16 U.S.C. 8547, but
that formula turns on a "satisfactory" finding and a service-day count that no binding authority defines. Making clear that
the counting inputs and the "satisfactory" trigger are binding standards, directed by statute, holds both the holder and
the agency to a fixed rule and keeps the restoration buffer Congress created from being eroded through discretionary
inputs.
7. Resource-capacity analysis and allocation of use
Provision and citation. FSH 2709.14, chapter 50, Sec.53.1f (Amend. 2026): the analysis of how much commercial use an area
can sustain and its allocation between outfitted and non-outfitted use and between priority and temporary use in certain
areas.
Requested home. Rather than bind the capacity-limiting methodology itself-which would risk entrenching a ceiling on
outfitter access in areas where capacity analyses are performed-elevate to FSM 2720 as mandatory direction the
procedural protections around capacity decisions: a transparent, documented analysis available to affected holders; a
functioning route for review; and no reduction in allocated capacity without a written record. These protections warrant
binding treatment because Sec.53.1f is what determines whether allocated capacity exists at all: where an analysis sets the
ceiling and the allocation divides it, the number of priority use permits available follows from that decision, and an
operator seeking new or additional allocated use in that area has nothing to apply for unless the analysis leaves capacity
unassigned. Codifying those procedural protections in the CFR (for example, 36 CFR 251.64) may ultimately be appropriate
as well; the OGC asks in the first instance for mandatory Manual direction. The OGC also asks that this direction supply
what is missing on the other side of the same decision: a procedure by which a holder or applicant may request an
allocation of unassigned capacity under 16 U.S.C. 8547(c), and by which surrendered visitor-use days temporarily
reassigned under 16 U.S.C. 8547(b) are accounted for in later capacity and allocation reviews. Congress authorized both
movements. Neither has a procedural home in the regulations or the directives, and without one the dynamic system
Congress designed operates only when the agency chooses to initiate it.
Operational impact. This provision sets the ceiling every other allocation rule operates under: how many permits exist
and who can even apply. It reaches all outfitters and potential permit applicants in capacity-constrained areas-including
certain rivers, trails, and wilderness-plus applicants .
Resource-Capacity analysis and allocation of use: The Forest Service's 1997 Guidebook on Outfitting and Guiding
framed these same allocation decisions in terms of partnership and balance:
10
"The recreating public continues to ask for a diversity of experiences, settings and opportunities on the National
Forests. Many are capable of total self-sufficiency, but those selecting an outfitter want and need help They
don't have the skill and equipment to be successful in remote and challenging environments But the public
lands belong to them, just as much as they belong to the residents living at the mouths of the canyons....An
appropriate balance between the outfitted and non-outfitted use must always be found, based on the resource
and social capability to sustain a certain level of total use. Allocation of use should recognize the value of both
without denying the public who need and seek the assistance of an outfitter guide to realize the most from the
few opportunities they have to experience the wild lands."19
Why it is essential under the Notice's criteria. Binding these procedural protections is essential to promote safety and to
protect public access to recreation on National Forest System lands. Where the agency does conduct a capacity analysis
and allocate use, that analysis governs congestion at put-ins, portages, and trailheads-bearing directly on visitor safety
and resource protection-and it determines how much guided access remains available to members of the public who
depend on an outfitter to reach those places safely. The OGC does not ask that capacity analysis be conducted everywhere;
many areas have never been allocated and do not need to be. The request is narrower: where the agency does allocate,
the procedural discipline around that decision should be binding. The OGC understands that other national outfitter and
guide associations commenting in this docket take the same position, and for the same reason: a capacity methodology
fixed in regulation could entrench a ceiling on outfitted access as readily as it could protect it. It is not the outfitting
community's position that capacity numbers be locked in. It is that the decisions setting them be transparent,
documented, and reviewable. It is also essential to ensure compliance with law: the Handbook's historical cross-reference
for capacity-allocation decisions runs to 36 CFR Part 215, which is currently reserved and empty. 36 CFR Part 215 was
repealed effective July 31, 201420 and is currently reserved on the eCFR. The current administrative review processes that
succeeded Part 215 are found at 36 CFR Part 214 (post-decisional administrative review) and 36 CFR Part 218 (pre-
decisional administrative review of projects implementing land management plans). Section 53.1f's continued cross-
reference to the repealed Part 215-without update to reflect Parts 214 and 218-is concrete evidence that the review
route for capacity-allocation decisions is outdated and should be updated, with binding standards to be set forth in the
Manual. This strengthens the case for a mandatory home. Congress anticipated a dynamic allocation system: 16 U.S.C.
8547(b) allows the Secretary to temporarily reassign unused visitor-use days to other existing or potential recreation
service providers, and 16 U.S.C. 8547(c) allows the Secretary to amend a permit at any time to allocate additional visitor-
use days if unallocated capacity is available. If the system is designed for dynamic reallocation between providers, the
procedural discipline around capacity decisions-transparency, a functioning review route, and no reduction without a
written record-becomes even more critical, because those decisions may shift use between operators.
These protections are also essential because commercial outfitters and guides are themselves a safety and public-service
mechanism in the Forest Service's recreation program. As the agency's own permitting materials explain, "These Forest
Service partners operate under special use permits and help visitors safely enjoy the Forest," and "[t]he role of commercial
outfitters and guides is to provide specialized knowledge, skills, experience and equipment that general recreationists
might not otherwise possess [which] contributes to high quality opportunities for people to recreate on public lands
regardless of their skill level or prior experience." When capacity and allocation decisions under Sec. section 53.1f shift use
between outfitted and non-outfitted segments, they therefore affect not just business opportunities but the availability
19 U.S. Department of Agriculture, Forest Service, Northern Region, Guidebook on Outfitting and Guiding, R1-97-23 (Feb. 1997).
20 79 FR 44153.
11
of guided services that address "public health and safety" concerns and ensure visitors receive high-quality, well-managed
experiences on National Forest System lands.21
8. Performance-review frequency and the definition of "satisfactory performance"
Provision and citation. FSH 2709.14, chapter 50, Sec.53.1q(1) (Amend. 2026) sets reviews annually for temporary use and at
least every two years for priority use. The OGC notes that Congress has already codified this review frequency: 16 U.S.C.
8546(a)(1) requires review "not less than annually" for temporary special recreation permits, and 16 U.S.C. 8546(a)(2)
requires review "not less than once every 2 years" for long-term permits. The review frequency is therefore statutory, not
Handbook-only. What remains exposed is the undefined "satisfactory performance" standard that the statutory review
turns on, and the procedural link between the performance review and the renewal and reduction decisions it gates.
Requested home. Elevate to FSM 2720 as mandatory direction the definition of "satisfactory performance" and the
procedural linkage between performance review findings and renewal or allocation-reduction decisions, and codify that
definition and linkage in 36 CFR 251.64. The review frequency itself is already fixed at 16 U.S.C. 8546(a) and is not part of
the OGC's request.
Proposed definition. The OGC proposes that "satisfactory performance" be defined as follows, adapted from the Bureau
of Land Management's interim EXPLORE Act guidance: a permittee has performed satisfactorily where, in all material
respects, it has complied with the terms and conditions of its permit, satisfied its reporting obligations, and met
applicable resource-protection and safety requirements. Isolated or promptly corrected departures that cause no
resource or safety harm do not render performance unsatisfactory. The qualifier "where present" reflects that not all
permittees operate under a set allocation of visitor-use days.
Operational impact. The undefined "satisfactory" standard determines how much discretion to find fault precedes a
renewal or reduction decision. With the review frequency fixed by statute but the performance benchmark left to advisory
guidance, the critical exposure is the standard against which a holder's performance is measured. It reaches all priority
use and temporary holders.
Why it is essential under the Notice's criteria. Defining the standard in binding direction is essential to ensure compliance
with law: an undefined "satisfactory performance" standard, once advisory, hands broad discretion into the two most
consequential decisions a permittee faces-renewal and use reduction-with no rule against which to measure the
decision against. It also promotes safety: the performance review is the mechanism by which the agency verifies that a
holder is meeting its operating and safety obligations, and a mandatory standard for what constitutes satisfactory
performance keeps that safety oversight rule-based rather than discretionary.
9. The Short-Stop Fee
Provision and citation. FSH 2709.11, Chapter 30, section 36.21c (as amended in 2026) establishes the Short-Stop fee: a
flat per-service-day rate, historically set by the Regional Forester, for commercial trips involving only short stops on
21 U.S. Forest Service, Medicine Bow-Routt National Forests, "Outfitters and Guides - Permits,"
https://www.fs.usda.gov/r02/mbrtb/permits/outfitters-and-guides (accessed July 23, 2026).
U.S. Forest Service, Arapaho & Roosevelt National Forests, "Permits - Outfitter-Guide,"
https://www.fs.usda.gov/r02/arp/permits/outfitter-guide (accessed July 23, 2026).
U.S. Forest Service, "Outfitting and Guiding on National Forest System Lands," https://www.fs.usda.gov/media/55670 (accessed July
23, 2026).
12
National Forest System lands. The Short-Stop option is new to the recently amended Handbook and, while land-use fees
are generally addressed in 36 CFR 251.57, there is currently no CFR provision that specifically codifies a Short-Stop option
or the fee-election framework it implements. Its statutory basis is section 803(h)(2)(B) of the Federal Lands Recreation
Enhancement Act, 16 U.S.C. 6802(h)(2)(B), as refined by the EXPLORE Act.
Requested home. Recodify the Short-Stop fee into the Manual as an option and, if applicable, 36 CFR 251.57, alongside
the other land-use fee provisions, so that both the rate structure and the standard governing how the Responsible Official
sets it are fixed in binding regulation that must remain commensurate with the benefits and services provided under
FLREA, rather than left to advisory guidance.
Operational impact. The Short-Stop fee sets the land-use charge owed by commercial operators whose trips make only
short stops on NFS lands and whose permits elect the Short-Stop option in lieu of the standard percentage based or
alternative pre-determined fee. Because the short-stop rate option is established administratively and exists only in the
Handbook, it can be changed without notice-and-comment rulemaking and without any appealable process the operator
can contest, directly affecting the fees these operators owe. It can reach every commercial user whose permit is assessed
a Short-Stop rate.
Why it is essential under the Notice's criteria. It is essential to prevent waste or misuse of public funds: the Short-Stop
fee is the compensation the public receives for a defined category of commercial use under FLREA's special recreation
permit authority, and a rate structure that can be set or moved by advisory guidance can drift from the "charge
commensurate with the benefits and services provided" that section 803(h)(2)(B) requires. It is also essential to ensure
compliance with law: the fee implements a statutory fee structure under FLREA, yet the operative standard would reside
only in guidance the agency describes as advisory, leaving the statutory charge without a binding implementation that
permittees and the public can rely on.
How the nine provisions map to the Department's three criteria, and our request
Compliance with law is implicated by all nine: each supplies operative standards or implementation details that the CFR
or a governing statute depends on, but that would reside only in advisory Handbook guidance under the proposed rule.
Prevention of waste or misuse of public funds is implicated by the fee provisions, where the service-day multiplier, the
rate, and the base together determine whether the public receives its statutorily required return. Safety is implicated by
the scope definitions that decide who is bound by safety-conditioned permits, the carrying-capacity analysis that governs
crowding, and the performance reviews that verify operating and safety compliance. Applied from the other direction,
the same three criteria yield a workable line for what may safely remain advisory: guidance is genuinely technical, and
belongs in the Handbooks, where it does not alter a permit holder's eligibility, fees, operating authority, allocated use,
renewal rights, or exposure to suspension, reduction, or nonrenewal. Each of the nine provisions identified above fails
that test.
Several provisions fell just outside this list and remain monitoring items for the initial Handbook revisions, including:
the minimum annual land-use fee and assigned-site fee at FSH 2709.11 Sub Sec.36.21b and 36.21f,
the temporary-use permit issuance limits at Sec.53.1k,
the actual-use reporting requirement at Sec.53.1j(3)-(4),
and the reallocation-on-reduction provision at FSH 2709.14, ch. 50, Sec.53.1p(1)-(3), which gives existing priority-use
holders a preference when allocated use is reduced and has no CFR or Manual backstop.
13
Each of these [above] provisions is administered today through outfitting and guiding Handbook text that has no CFR or
Manual counterpart. Under the proposed framework, they would remain solely in advisory guidance and hence
structurally vulnerable in the same way as the nine enumerated provisions, but arguably with lower combined impact and
recodification feasibility.
Two considerations shape how the OGC frames this request.
First, only codification in the CFR secures the outcome that matters most to permittees: a guaranteed
opportunity for public notice and comment before a standard can be changed. Notice-and-comment attaches to
regulations; directives, including mandatory Manual direction, are generally amended through the agency's
internal directive process without APA rulemaking. Mandatory Manual direction is therefore a meaningful floor,
but likely would not, by itself, guarantee the public a voice in future changes. That is why the CFR is the primary
request and mandatory Manual direction the complement, not a substitute.
Second, the Manual is where these standards are actually used: the CFR will not carry every operational detail,
and field staff and permittees consult the Manual, not the CFR, in day-to-day administration. Codifying the
binding standard in the CFR while carrying the implementing detail as mandatory Manual direction divides the
material the way regulation and directives normally do.
The OGC asks the Department to commit, in the final rule, to recodifying these nine provisions as part of implementing
the new directives framework, so that each is fixed in binding form rather than left to advisory guidance. For most of the
nine, that means both homes: codification of the binding standard in the Code of Federal Regulations-36 CFR 251.64,
251.57, and 251.51, as applicable-and parallel mandatory direction in the Forest Service Manual. For two of them-the
service-day counting methodology (Provision 2) and the resource-capacity analysis (Provision 7)-the OGC asks in the first
instance for mandatory Manual direction, while noting that codification in the CFR may ultimately be appropriate for these
as well; binding their specifics in regulation now could remove flexibility that currently benefits permittees, so the more
measured step is mandatory Manual direction with CFR codification held in reserve. This is not a request to slow the
modernization. It is the targeted subset of provisions that the Department's own three criteria, applied to the outfitting
and guiding directives, identify as binding law by function.
IV. The Renewal Standard Delegation Gap and a Narrow Procedural Commitment
A. The CFR itself sends permittees to the Handbook for the renewal standard. Recodification is the clean fix.
The clearest reason to move certain provisions into the Code of Federal Regulations is that the CFR already sends
permittees to the directives for a substantive standard. Section 251.64(b) of Title 36 governs the renewal of priority use
outfitting and guiding permits, and it reads in full:
"A priority use outfitting and guiding permit is subject to renewal without competition as provided in
accordance with applicable Forest Service directives."22
In plain terms, this sentence is the legal basis for an outfitter's continued tenure. A priority use permit is not, strictly
speaking, a one-time grant; it carries an expectation that, at the end of the term, the permit is renewed to the same holder
without being put out to competition, so long as the holder has performed and the use remains consistent with the land
management plan. That renewal expectation is what allows outfitters to make the long-term investments in equipment,
22 36 CFR 251.64(b).
14
staff, and quality of public service that a stable operating standard supports. The OGC does not contend that a priority use
permit is a property right or a transferable asset the holder owns; the concern is the reliability of the standard on which
those business investments depend. The regulation itself, however, does not state the renewal criteria. It points the
permittee outward, to "applicable Forest Service directives," for the operative terms.
The directive that supplies those terms is Forest Service Handbook 2709.14, chapter 50, section 53.1m (Issuance of Priority
Use Permits), as modernized by Amendment 2709.14-2026-1 (effective April 28, 2026). Section 53.1m(1)-(4) sets the term
length, the performance-based path from a two-year to a ten-year permit, and the renewal-without-competition standard
itself. Paragraph (4) is the operative text: when a priority use permit terminates, it "is subject to renewal without
competition, provided that the use authorized by the permit is consistent with the applicable land management plan,
applicable laws and regulations, and the terms of the permit and the holder has performed satisfactorily as demonstrated
by acceptable performance ratings. These determinations are at the sole discretion of the Authorized Officer and must be
made in accordance with 36 CFR 251.54, 251.58, and 251.64 (renewal)."23
Under the proposed rule, that Handbook chapter would be reclassified as advisory and informational guidance that agency
employees may deviate from without documenting or justifying the departure.24 The modernized Handbook already
carries the disclaimer on its face: "Guidance documents lack the force and effect of law, unless expressly authorized by
statute or incorporated into a contract."25 Section 251.64(b), meanwhile, is not proposed for amendment. The regulation
would continue to direct permittees to "applicable Forest Service directives" for their renewal criteria even as those
directives are reclassified as material the agency describes as only advisory.
The practical result is an unstable position for the permittee. The binding regulation tells an outfitter that the rules
governing renewal of the permit-and therefore the continuity of the business-live in a document the agency now
describes as only guidance. Renewal terms could be adjusted through a Handbook amendment no longer subject to notice
and comment, with no rulemaking record and no assurance that the standard the CFR points to still binds the agency that
applies it. That is not a stable footing on which to invest in stock, equipment, insurance, or a multi-year lease.
The clean fix is straightforward and narrow: recodify the renewal-without-competition criteria-term length, the
performance-based extension, and the non-renewal conditions-directly into 36 CFR 251.64, while keeping FSH 2709.14
Sec.53.1m in place as the detailed implementation guidance. The regulation would then state the standard it currently
delegates, and the Handbook would do what the proposed rule intends guidance to do: explain how to apply it.
Consider a backcountry hunting guide in the Northern Rockies who holds a priority-use permit and has operated for
years without a documented deficiency. When the permit comes up for renewal, the district office declines to extend it.
With the governing standard reframed as non-binding guidance, the office is no longer obligated to measure the
outfitter/guide against it or to record the basis for denial. The permittee receives a non-renewal with no findings, no
citation to a performance failure, and no clear standard to have met. The business, its equipment, and its client base
were built around the expectation of continued priority use, and the discretionary denial leaves little on which to seek
review.
The same structure appears across the provisions listed in Part III. For outfitting and guiding permits, the operative land-
use fee methodology-the holder's election between the pre-determined fee and percentage-of-AGR and the
23 FSH 2709.14, ch. 50, Sec.53.1m(4) (renewal without competition is also subject to the exceptions in 36 CFR 251.124(b) and Sec.53.1m,
paragraph 3).
24 91 Fed. Reg. at 39948-49.
25 FSH 2709.14, ch. 50 (Amend. 2026-1).
15
implementation of those statutory methods-resides in FSH 2709.11, chapter 30, Sub Sec.36.21c(1)-(2) and 36.21d, not in 36
CFR 251.57, so a change to how the fee is counted can move the charge without notice and comment and without
presenting as a fee-schedule or inflation adjustment under FSH 2709.11, chapter 30, Sec.32.4. The core program definition
of 'service day'-the administrative unit the Forest Service uses to measure both land-use fees and allocation of use-
resides in FSH 2709.14, chapter 50, Sec.53.1e, while 36 CFR 251.51 already defines 'outfitting' and 'guiding' but leaves 'service
day' and related allocation terms to directives. As noted in Part II, this request carries out the Department's own stated
policy that binding direction belongs in mandatory law, with flexible material residing in advisory guidance.
B. A narrow, voluntary procedural commitment for the nine enumerated provisions.
The proposed rule would remove future Handbook changes from public comment. It proposes to amend 36 CFR 216.1(b)
"to state that the removal or recission of Forest Service Directives is not 'formulation' of standards, criteria, or guidelines
and therefore is not subject to notice and comment."26 The Department would still take comment on the first wave of
Handbook revisions pursuant to 16 U.S.C. 1612(a), but the Notice is explicit that subsequent changes to Handbooks would
not be subject to notice and comment, since advisory and informational guidance is not "standards, criteria, or guidelines"
under the statute.27 The practical effect is that once a provision sits in the modernized Handbooks, it can be rewritten or
rescinded at the agency's discretion, with no obligation to tell the public-or more to the point for the purposes here, the
stakeholders-in advance or hear from it first.
The OGC is not asking the Department to abandon this approach. We are not asking the Department to keep every
Handbook provision under notice and comment, to reverse the 36 CFR 216.1(b) amendment, or to slow the broader
modernization effort. The request in this section is deliberately narrow, and it operates as a backstop to Part III: where
the Department codifies a provision in the CFR, the CFR's own rulemaking process already supplies this protection; where
it leaves a provision in the directives-including the two for which we ask mandatory Manual direction in the first
instance-this commitment preserves the same public input.
For the specific, enumerated provisions on our recodification list-the nine provisions set out in Part III of this letter-we
ask the Department to commit that it will not materially change or rescind any listed provision without first providing a
transparent public process equivalent to the notice and comment the Department is already extending to the initial
Handbook revisions.
The Department can honor that commitment by recodifying the noted provisions into the Code of Federal Regulations
(our first preference for the provisions we identify for the CFR), and, where provisions of binding effect and/or operational
significance are not explicitly noted in these comments, by publicly committing to an equivalent comment process before
it amends or removes such provisions. This path produces the outcome our members need: predictability and input.
This is the comment the Notice asked for. The Department invited the public to identify Handbook provisions that should
be retained and moved into the CFR, and it requested comments on which provisions are essential to promote safety,
ensure compliance with law, or prevent waste or misuse of public funds. Our nine provisions are our answer to that
invitation, selected on exactl...
Doc text continues in link below
*
Original text of letter here: https://www.regulations.gov/comment/FS-2026-0067-5467
July 31, 2026
Submitted via the Federal eRulemaking Portal (www.regulations.gov)
Re: Comments of America Outdoors Association and the Undersigned Outfitter and Guide Organizations on the Proposed Rule, "Organization, Functions, and Procedures; Public Notice and Comment for Standards, Criteria, and Guidance Applicable to Forest Service Programs," RIN 0596-AD74, Document No. 2026-13281, 91 Fed. Reg. 39948 (July 1, 2026)
I. ... Show Full Article WASHINGTON, Aug. 5 -- In response to a federal agency request for information, the following public comment letter was submitted electronically to the regulations.gov site. July 31, 2026 Submitted via the Federal eRulemaking Portal (www.regulations.gov) Re: Comments of America Outdoors Association and the Undersigned Outfitter and Guide Organizations on the Proposed Rule, "Organization, Functions, and Procedures; Public Notice and Comment for Standards, Criteria, and Guidance Applicable to Forest Service Programs," RIN 0596-AD74, Document No. 2026-13281, 91 Fed. Reg. 39948 (July 1, 2026) I.Introduction: Our Members' Stake in the Directive System
America Outdoors Association (AOA) is the national trade association for the outfitting and guided outdoor recreation industry. Founded in 1982, we serve as the industry's primary advocate at the federal level while providing the policy frameworks and coordination needed to support state and regional partners on the ground. Our members-professional outfitters ranging from rafting companies and fishing lodges to dude ranches, hunting outfitters and climbing guides, aerial adventure parks, and multi-day tour operators-introduce millions of visitors to America's public lands and waterways each year. Guided and outfitted travel contributes tens of billions of dollars annually to rural economies, and the lion's share of that activity runs through the trails, campgrounds, boat ramps, and access points our members maintain and depend on.
These comments are submitted by AOA together with fifteen national, State, and regional outfitter and guide organizations whose members hold and operate under Forest Service special use permits: the Alaska Professional Hunters Association (APHA), the Colorado Outfitters Association (COA), the Colorado River Outfitters Association (CROA), the Dude Ranchers' Association (DRA), the Heli-Ski U.S. Association (HSUS), the Idaho Outfitters and Guides Association (IOGA), the Middle Fork Outfitters Association (MFOA), the Montana Outfitters and Guides Association (MOGA), the Nevada Outfitters and Guides Association (NOGA), the New Mexico Council of Outfitters and Guides (NMCOG), the Oregon Outfitters and Guides Association (OOGA), Professional Outfitters and Guides of America (POGA), the Salmon River Outfitters Association (SROA), the Wild Rogue Outfitters Association (WROA), and the Wyoming Outfitters and Guides Association (WYOGA).
AOA and the co-signing organizations are referred to together in these comments as the Outfitter and Guide Coalition
("OGC"). The OGC's members include associations founded as early as 1926 and a national alliance of eleven State and
provincial associations; collectively they represent licensed outfitters, guides, and guest ranches operating across the
country, with organizational members with particular geographic focuses in Alaska, Colorado, Idaho, Montana, Nevada,
New Mexico, Oregon, Utah, Washington, and Wyoming, across rafting, hunting, fishing, packing and horseback operations,
guest and dude ranching, climbing, skiing and helicopter skiing, and other guided recreation on National Forest System
lands. A description of each organization appears at Annex A.
A large share of that outfitted activity takes place on National Forest System lands under U.S. Forest Service special use
permits, and rests on one of the most unheralded success stories in the Federal government: a Forest Service outfitter
and guide permitting policy, and the special use framework that implements it, that has for decades delivered the public
a wide array of high-quality recreation services while sustaining the rural communities where outfitters are based.
Preserving the stability of that policy-and the benefits it delivers to rural economies and the recreating public-is what
is at stake in this rulemaking.
The Forest Service Handbooks currently play a critical role in setting forth the operating rules for our members who
operate on these lands. When a priority use permit comes up for renewal, the standard the permittee must meet can be
found at FSH 2709.14, chapter 50, section 53.1m. When the annual land use fee is calculated, the rate, the fee base, and
1
the method for counting service days are found at FSH 2709.11, chapter 30, sections 36.21c and 36.21d. When a forest
decides how much commercial use a river corridor or wilderness area can sustain, and how that capacity is divided among
outfitters, the methodology is found at FSH 2709.14, chapter 50, section 53.1f. And when a district ranger reviews an
outfitter's performance-the review that gates both renewal and any reduction in allocated use-the required frequency
and standard can be found at section 53.1q. Outfitters price their seasons, book client, buy insurance, and borrow against
their businesses on the predictability and effect of these provisions, e.g., on the expectation that the renewal standard
and expectations in the Handbook means what it says. These provisions provide more than internal "advisory and
informational guidance" and, in the event this rule moves forward, will need to be moved out of the Handbooks.
Transparency, clarity, and consistency in the key agency requirements governing our members' operations are essential
to their continued ability to serve visitors to our National Forests.
AOA submits this comment on behalf of the OGC for two purposes. First, we respond directly to the Department's
invitation to identify specific Handbook provisions that should be retained and moved into the Code of Federal
Regulations, and we do so in the vocabulary the Notice requests: provisions essential to promote safety, ensure
compliance with law, or prevent waste or misuse of public funds. Second, we respectfully note that the proposed rule's
Regulatory Flexibility Act analysis understates the rule's direct effects on the many small outfitter and guide businesses
that make up our membership, and we ask the Department to revisit that assessment on the record we provide here.
II. The Proposed Rule and Our Core Concerns
The proposed rule would restructure the Forest Service Directive System in three ways that matter to our members.
First, it would redefine the Forest Service Manual as "the sole source of continuing, mandatory direction" for the Agency,
and redefine the Forest Service Handbooks as "advisory and informational guidance that Agency employees may deviate
from without documenting or justifying alternate actions."1 The Notice states that the directives "do not hold the force of
law and are not enforceable against non-Agency parties," and that the Handbooks therefore "cannot contain legislative
rules" subject to the Administrative Procedure Act's notice-and-comment requirements.2
Second, the Department proposes to amend 36 CFR 216.1(b) to state that the removal or rescission of Forest Service
directives is not "formulation" of standards, criteria, or guidelines and therefore is not subject to notice and comment;
and, after an initial round of Handbook revisions taken through comment under 16 U.S.C. 1612(a), subsequent Handbook
changes would not be subject to notice and comment at all.3
Third, the Notice expressly invites comments "identifying any provisions of the Forest Service Handbooks that the public
believe should be retained and moved into the Code of Federal Regulations," and specifically requests comments on "which
provisions are essential to promote safety, ensure compliance with law, or prevent waste or misuse of public funds."4
The Notice lists certain Handbook titles "most likely" to contain provisions warranting review, including FSH 2709.11
(Special Uses).5 The outfitting and guiding provisions at FSH 2709.14, chapter 50, were not separately enumerated, but
they fall squarely within the substantive categories the Notice identifies: specific criteria for permit renewal, fee
1 91 Fed. Reg. 39948, 39948-49 (July 1, 2026).
2 91 Fed. Reg. at 39949.
3 91 Fed. Reg. at 39949.
4 91 Fed. Reg. at 39949
5 91 Fed. Reg. at 39949.
2
structures for the receipt of permits, and definitions of key terms that affect the scope of a regulation. The OGC
addresses this by providing the analysis the Notice invites.
The proposed rule creates asymmetry in departure standards (i.e., where agency employees may deviate) from the
Manual and Handbooks. Under the restructured system, Manual departures require that alternate actions are in the
public interest and consistent with law, and that the justification is promptly documented. Handbook departures require
nothing: employees "may deviate from [them] without documenting or justifying alternate actions."6 Because certain
standards delegated by regulation to Forest Service directives-for instance, the renewal standard at 36 CFR 251.64(b),
the fee methodology, and the scope definitions-are currently set forth in the Handbooks, the proposed rule would
relegate binding standards to the one category of agency direction an employee can depart from with zero
documentation and zero justification. That is not a stable footing for standards that underpin business continuity, fee
collection, and permit scope.
The Notice acknowledges that the current Handbooks may contain legislative rules, stating that "if commenters do
identify legislative rules in the current Forest Service Handbooks, the Agency would consider conducting a subsequent
rulemaking to rescind those provisions or recodify them in the CFR."7 The nine provisions identified below are the OGC's
answer to precisely that question: these are outfitting and guiding Handbook provisions that, in practice, operate as
binding, rule-like standards for permittees and line officers and that the Agency has asked commenters to identify for
potential rescission or recodification in the CFR.
The proposed rule's premise is that truly binding direction no longer belongs in the Handbooks, which should be limited
only to genuinely flexible material. The nine provisions the OGC identifies below are binding by function: among other
things, permittees are required to pay money under them, and eligibility for the permit system turns on them.
Anchoring that narrow set in the CFR or Manual keeps the essential standards in binding effect, exactly as the
Department proposes, and leaves the remaining Handbook detail free to serve as the flexible implementation guidance
the modernization appears designed to create.
One practical point frames all three requests. Binding text does little good if the people governed by it never see it. Line
officers administering the special recreation permit program, and the outfitters and guides subject to it, work from the
directives, not from Title 36 of the Code of Federal Regulations. A permittee planning a season, or a district employee
processing a renewal, consults the Handbook and the Manual. The restructuring compounds this: with the operative
standards distributed across statute, regulation, the Manual, and the Handbooks, a staff member must consult four
separate sources to determine how to administer a single program, and a permittee must do the same to determine what
is required of it. For most of the provisions that follow, the OGC therefore asks for both homes rather than one.
Codification in the CFR is what makes a standard binding and gives the public a right to be heard before it changes; parallel
mandatory direction in the Manual is what makes that standard findable and usable by the people who apply it.
Our comments make three requests, each developed in the parts that follow.
1. In Part III, we answer the Department's invitation with a concrete, ranked list of nine Handbook provisions that
function as binding today and should be recodified into the CFR sections and Manual chapters we identify.
2. In Part IV, we explain the delegation gap that makes recodification of the renewal standard particularly
appropriate/urgent, and we ask for a narrow, voluntary procedural commitment covering only the nine
enumerated provisions.
6 91 Fed. Reg. at 39948
7 91 Fed. Reg. at 39949.
3
3. In Part V, we document why the Regulatory Flexibility Act certification's conclusion that the rule "would not have
any direct effect on small entities" does not hold for our members, and we respectfully ask the Department to
revisit it.
III. Provisions That Should Be Recodified: Our Response to the Department's Invitation
Many of these permitting standards have been in place for decades and were published in the Federal Register, creating
settled expectations on which outfitters have built their businesses. The Department should memorialize them as binding
direction-codified in the Code of Federal Regulations and carried as mandatory direction in the Forest Service Manual.
Given the breadth of the policy in question-developed over decades across thousands of pages of Handbook and related
guidance-and the compressed comment period, the OGC has not been able to inventory every operative provision that
should be retained as binding direction. Key elements of the program that currently reside only in policy include, for
example:
procedures and criteria for authorizing new outfitter and guide activities;
standards for when competitive award of a permit is required and when a permit may be issued without
competition;
performance-rating categories, including "less than satisfactory," and the consequences attached to them; and
the timing and process for surrender of allocated visitor-use days that enables credits or adjustments on the
permit.
The provisions set out below are the prioritized subset we were able to identify and analyze within the comment period;
substantive responses to the Notice that also exemplify the kinds of standards that should not be left to guidance revisable
without public process.
The nine provisions below were selected from a 21-row gap analysis of the outfitting and guiding directives. We
excluded provisions already protected in the CFR (such as the revocation and appeal provisions at 36 CFR 251.60) and
provisions partially anchored in the Manual. Each of the nine provisions is exposed under the proposed restructuring of
the Directive System: key implementation details currently reside in outfitting and guiding Handbooks that the rule
would reclassify as advisory guidance, even though those details operationalize obligations grounded in statute
(including the EXPLORE Act) and existing regulations. The nine also fall squarely within the categories the Notice itself
identifies as most likely to warrant recodification: "specific criteria for the issuance, renewal, denial, or termination of
permits or licenses"; "fee structures for thereceipt or renewal of permits"; and "definitions of key terms that affect the
scope of a statute or regulation."8
Provision Citation Requested home
Priority-use renewal-without-competition standard FSH 2709.14, ch. 50, Sec. 36 CFR 251.64 + FSM
53.1m(1)-(4) 2720
Service-day counting methodology FSH 2709.11, ch. 30, FSM 2715 (possibly 36
Sec.36.21d CFR 251.57)
Pre-determined fee / percentage-of-AGR fee election FSH 2709.11, ch. 30, 36 CFR 251.57 + FSM
Sec.36.21c(1)-(2) 2715
8 91 Fed. Reg. at 39949.
4
Two AGR calculation methods and "base trip payment" FSH 2709.11, ch. 30, 36 CFR 251.57 + FSM
Sec.36.21c(2) 2715
Core scope definitions (outfitting, guiding, priority use, temporary FSH 2709.14, ch. 50, 36 CFR 251.51 + FSM
use, service day, quota, use area, allocation of use) Sec.53 (definitions) 2720
Reviews & adjustment of allocated service days (5-yr; 125% FSH 2709.14, ch. 50, FSM 2720 + 36 CFR
restoration) (100/125 formula statutory at 16 U.S.C. 8547; Sec.53.1n(4) 251.64
implementation layer Handbook-only)
Resource-capacity analysis and allocation of use FSH 2709.14, ch. 50, FSM 2720 (possibly 36
Sec.53.1f CFR 251.64)
Definition of "satisfactory performance" and review-renewal FSH 2709.14, ch. 50, FSM 2720 + 36 CFR
linkage (review frequency codified at 16 U.S.C. 8546(a)) Sec.53.1q(1) 251.64
Short-Stop Fee (flat per-service-day rate for short-stop commercial FSH 2709.11, ch. 30, Sec. 36 CFR 251.57 + FSM
trips) 36.21c(3) 2715
1. Priority-use renewal/reissuance without competition standard
Provision and citation.
FSH 2709.14, chapter 50, Sec.53.1m(1)-(4) (Amend. 2026-1). The governing regulation, 36 CFR 251.64(b), delegates the
"renewal without competition" standard to "applicable Forest Service directives."
Requested home.
Codify the renewal-without-competition standard-term length, the performance-based extension, and the non-renewal
criteria-directly in 36 CFR 251.64, and carry the same standard as mandatory direction in the Forest Service Manual (FSM
2720).
Operational impact.
These renewal provisions provide outfitters and guides with the long-term business certainty needed to invest in
equipment, employees, safety programs, and stewardship of Forest Service lands. Preserving these provisions recognizes
the substantial investments outfitting and guiding permit holders make in their operations to ensure continuing high-
quality recreation services and strong partnerships that benefit the public and the National Forest System. Removing the
standard or relegating it something entirely non-binding would eliminate the longer-term certainty that makes these
investments feasible. 36 CFR 251.64(d) separately authorizes the authorized officer to modify permit terms during
reauthorization to reflect new legal or management requirements, but that modification authority does not supply the
standard against which renewal itself is measured. This provision and request touches essentially every established priority
use outfitter and guide on National Forest System lands.
Why it is essential under the Notice's criteria.
This provision is essential for the reasons explained above as well as to ensure compliance with law. Section 251.64(b)
delegates the substantive renewal standard to the directives; if those directives are advisory, the regulation delegates the
standard to a document that no longer binds, and there is no enforceable rule against which to measure a renewal or non-
5
renewal decision. Codifying the standard in 36 CFR 251.64 closes that gap so the CFR commands a rule that actually
governs.
2. Counting visitor-use days: the service-day methodology
Provision and citation. FSH 2709.11, chapter 30, sec. 36.21d establishes how the Forest Service counts service days for
drop-off, pick-up, and livery services. The operative unit is statutory: EXPLORE denominates both recreation fees and
authorized use in visitor-use days, and leaves the Secretary to select and define the metric by which one is measured. The
Forest Service's chosen metric is the "service day"-the administrative unit of measurement it uses to calculate recreation
fees and authorized use under special recreation permits. It is the agency's operational implementation of the "visitor-use
day," which Congress defined in the EXPLORE Act (codified at 16 U.S.C. 8531(5)) and directed the Secretary to implement.
The statute defines "visitor-use day" broadly as "a visitor-use day, user day, launch, or other metric used by the Secretary
concerned for purposes of authorizing use under a special recreation permit."9 Congress therefore fixed the unit of
account-the visitor-use day-but delegated its measurement, and did not specify what constitutes a day of use. Section
36.21d is where that delegated measurement is exercised: it does not merely prescribe an accounting method, it
determines how many visitor-use days a given trip consumes, and therefore both what the operator owes and how quickly
its allocation is drawn down. That measurement rule exists only in the Handbook. The proposed rule would strip it of any
binding effect. Because the statutory unit and the agency's metric carry different names, this letter uses "visitor-use day"
when referring to the unit Congress fixed and the entitlement measured in it, and "service day" when referring to the
Forest Service's metric for measuring one, including where the Handbook's own text and section titles use that term.
Requested home. Rather than codify Sec. 36.21d as written, the OGC recommends that the Forest Service adopt, as
mandatory direction in the Forest Service Manual, a binding counting principle: a single trip may not be counted more
than once, and the counting methodology must ensure that fees are commensurate with the benefits and services
provided.10 That principle is the same interpretive layer that feeds the Adjusted Gross Receipts (AGR) calculation methods
addressed in provision 4 of this Part, and it should be bound once, here, so the rule that gives content to the statutory
charge unit cannot be altered by advisory guidance. Because this principle determines how the statutory visitor-use-day
metric is translated into the service-day counts that drive both fees and permit allocations, it belongs in binding direction
rather than advisory guidance. We do not ask that Sec. 36.21d be recodified as written because its operative text is activity-
specific counting mechanics-drop-off, pick-up, livery-that the agency should retain room to adjust; because Congress
has already fixed the unit of account by statute, what is missing here is binding force for the counting principle, not a new
anchor for the mechanics. Codification of that principle in 36 CFR 251.57 may ultimately be appropriate as well.
Operational impact. The fee is charged per visitor-use day,11 and the Handbook administers that charge through service-
day counting, so the service-day count is the multiplier that fixes both what an operator owes in recreation fees and how
fast it exhausts its authorized visitor-use allocation. The fee statute (16 U.S.C. 6802(h)(2)(B), in Chapter 87) and the
allocation statute (16 U.S.C. 8546-8547, in Chapter 103, Subchapter III) are distinct statutory architectures, but the
Handbook's "service day" is the administrative proxy for both. Because a single administrative count feeds both, changing
the service-day counting methodology directly changes both an operator's fee liability and the pace at which it exhausts
its allocation, even though neither the governing statutes nor the permit itself has changed and neither statutory process
is engaged. Separately, an operator's allocation is measured in visitor-use days under a distinct statutory regime,12 so a
more expansive count of drop-off, pick-up, or livery activity both raises the effective fee and accelerates exhaustion of
9 16 U.S.C. 6802(b)(1).
10 16 U.S.C. 6802(b)(1).
11 16 U.S.C. 6802(h)(2)(B)(ii)(II), (iii)(IV).
12 16 U.S.C. 8546, 8547.
6
allocated visitor-use days, with no permit amendment. It reaches every per-visitor-use-day fee payer and every operator
whose allocation is measured in visitor-use days.
Why it is essential under the Notice's criteria. It is essential to prevent waste or misuse of public funds. The count is an
advisory input that moves the public's fee revenue in either direction, yet under FSH sec. 32.4 a change to the count is
neither a notice-and-comment revision of a fee schedule nor an inflation adjustment under an established schedule-the
two categories sec. 32.4 makes non-appealable-while it still changes the operator's bill as a rate change would. Binding
the count in rule closes that gap. It is also essential to ensure compliance with law: the counting methodology is what
gives operational content to the statutory per-visitor-use-day fee13 and to the statutory allocation unit [of
measurement].14 Because Congress defined the unit and delegated only the metric, fixing the count in a binding rule is
what conforms the guidance to the statute. Section 6803(a)-(b) requires public participation and notice for any change to
a recreation fee.15 If the fee-determining methodology (i.e., how use days are defined and consequently calculated) lives
in advisory Handbooks, a change to that methodology is not formally a "fee change"; it is a reinterpretation of guidance,
and therefore bypasses the public participation the statute requires. Binding the counting principle in rule closes that gap
between what the statute requires and what the proposed rule would allow.
3. Pre-Determined Fee / percentage-of-AGR land-use fee election
Provision and citation. FSH 2709.11, chapter 30, Sec. 36.21c(1)-(2) (Amend. 2026-1): the holder's election, before permit
issuance, of either the pre-determined fee ([currently] $6 per visitor-use day) or 3 percent of AGR.
Requested home. Recodify the rate structure-pre-determined, AGR percentage, and minimum fee-into 36 CFR 251.57;
at minimum, mandatory Manual direction in FSM 2715. 36 CFR 251.57(a)(1) still bases special use fees on "the fair market
value of the rights and privileges authorized," a standard the FLREA/EXPLORE Act superseded for special recreation
permits when it fixed a fee standard "commensurate with the benefits and services provided" (16 U.S.C. 6802(b)(1)). The
regulation should be updated to reflect that statutory change, and the Handbook's outfitter and guide fee provisions
should be incorporated into the revised Sec. 251.57 as part of that same regulatory update.
Operational impact. The election between a pre-determined fee and a percentage of AGR, and the 3% ceiling on that
percentage, are codified at 16 U.S.C. Sec.6802(h)(2)(E); the $6 per visitor-use day figure is a statutory fallback that applies
only from January 4, 2027, and only where the Secretaries have not first established a predetermined fee under
Sec.6802(h)(2)(B)(iii)(I)-(III); and because a special recreation permit fee is a "recreation fee,"16 Sec.6803(a)-(b) require public
participation and notice for any change to it. The fee system is in a transition period between the prior FLREA framework
and the new EXPLORE Act fee architecture. Binding the fee methodology in the CFR now-before the statutory default
takes effect and the agency begins establishing its predetermined fee schedules under the new framework-is the point
at which durable certainty is cheapest to secure.
Why it is essential under the Notice's criteria. This provision is essential to prevent waste or misuse of public funds as
well as to provide certainty for recreation service providers: the fee is the public's compensation for commercial use of
public land, and a rate that can be moved-to some degree, albeit indirectly-administratively in either direction risks
either under-collection of the public's return or arbitrary over-collection from permittees, with the fee-schedule and
inflation-adjustment categories in FSH 2709.11 Sec.32.4 already foreclosed from appeal. It is equally essential to ensure
13 16 U.S.C. 6802(h)(2)(B).
14 16 U.S.C. 8531(5).
15 16 U.S.C. 6803(a)-(b).
16 16 U.S.C. Sec. 6801(7).
7
compliance with law: FLREA Sec.803, as amended by the EXPLORE Act, requires recreation fees commensurate with the
benefits and services provided to the visitor,17 and codifying the rate structure in 36 CFR 251.57 ties the fee mechanism
to the governing statute rather than leaving it to float in advisory text.
4. The two AGR calculation methods and the definition of "base trip payment"
Provision and citation. FSH 2709.11, chapter 30, Sec.36.21c.2(2) (Methods 1 and 2), together with the corresponding chapter
50 permit clause (Amend. 2026-1).
Requested home. Recodify the AGR definition and both calculation methods into the CFR fee provisions at 36 CFR 251.57,
and as mandatory direction in the Forest Service Manual (FSM 2715).
Operational impact. The two alternative methods that permit holders may elect for calculating fees for temporary use
and priority use permits based on defined adjusted gross receipts ("AGR"), including certain exclusions from AGR for
purposes of those calculations, and the holder's right to elect between them, are codified at 16 U.S.C. Sec.6802(h)(2)(F),
including the exclusion of goods, gear, food, and off-site services. Congress fixed the formulas; it did not fix the inputs
those formulas run on. What the Handbook still controls is how a day of use on NFS lands is counted under Sec.36.21d-and
because the fee is that count multiplied by the rate, moving the count moves the fee even though both the formula and
the rate are set by statute. Recodification should target that interpretive layer and conform the Handbook's Methods 1
and 2 to the statutory text, not restate a formula Congress has already fixed.
Why it is essential under the Notice's criteria. It is essential to prevent waste or misuse of public funds because an
administratively movable service-day count lets the effective fee drift away from a charge commensurate with the benefits
and services provided even when the published rate and the AGR methods are fixed, defeating faithful collection of the
public's return. It is essential to ensure compliance with law because a fee commensurate with the benefits and services
provided depends on a stable, rule-bound method for counting the service days and measuring the revenue the formulas
reach. It is, not least, essential to provide predictability for permit holders.
5. Core scope-defining definitions
Provision and citation. FSH 2709.14, chapter 50, Sec.53.1e (definitions of "Outfitting," "Guiding," "Priority Use," "Temporary
Use," "Service Day," "Quota," "Use Area," and "Allocation of Use"). 36 CFR 251.51 already defines "outfitting" and
"guiding," but Subpart B contains no definition of "service day"-the term that measures both the fee and the allocation-
nor of the other allocation terms ("Priority Use," "Temporary Use," "Quota," "Use Area," and "Allocation of Use"). Section
251.51 also already defines "Holder" as an individual or entity that holds a valid special use authorization. The result is
that six terms that determine who needs a permit and how much use a permit authorizes have no home in the CFR at all;
they exist only in the Handbook: "service day" (the Forest Service's metric for the statutory visitor-use day), "priority use,"
"temporary use," "quota," "use area," and "allocation of use."
Requested home. Recodify the allocation terms-"priority use," "temporary use," "quota," "use area," and "allocation of
use"-into 36 CFR 251.51, alongside the "outfitting" and "guiding" definitions Subpart B already contains, and carry the
same definitions as mandatory direction in the Forest Service Manual (FSM 2720). As to the unit of use itself, the OGC
does not ask the Department to codify the Handbook's "service day" definition. Section 251.51 should instead adopt the
statutory "visitor-use day" (16 U.S.C. 8531(5)) as the operative unit and state that the Forest Service measures that unit
17 16 U.S.C. Sec. 6802(b)(1).
8
through its service-day methodology, with the binding counting principle AOA requests in Provision 2 above supplying the
measurement rule.
Operational impact. These terms decide who needs a permit at all and how allocation and fees are measured. Narrowing
or broadening "guiding" changes who is subject to the entire permit system-pulling operators in or pushing them out-
with no rulemaking. This reaches the entire permitted population plus all would-be applicants .
Why it is essential under the Notice's criteria. Codifying these definitions is essential to ensure compliance with law: the
Notice itself lists "definitions of key terms that affect the scope of a statute or regulation" as a category warranting
codification, and scope set by advisory definition inappropriately makes the reach of the permit requirement an
unreviewable, interpretive line call. Codifying these definitions also promotes safety. Which operators must hold an
authorization-and are therefore bound by its operating, insurance, and qualification conditions-is already fixed by the
"outfitting" and "guiding" definitions at 36 CFR 251.51, and the OGC does not ask to disturb them. That is precisely why
the remaining exposure matters: it runs through "service day," the term that sets how much use each permit authorizes.
Because that term lives only in the Handbook, an administratively shifted count can change the intensity of commercial
use at a site-and the congestion and resource pressure that come with it-without rulemaking.
6. Reviews for priority use permits and adjustment of allocated service days
Provision and citation. FSH 2709.14, chapter 50, Sec.53.1n, retitled by the April 28, 2026 Amendment to "Reviews for Priority
Use Permits and Adjustment of Allocated Service Days." This provision implements sections 317 and 318 of the EXPLORE
Act, codified at 16 U.S.C. 8547. As directed by statute, the Handbook provides that During the fifth year of a priority use
permit, the Authorized Officer is to review actual use and adjusts the allocation. Where performance is satisfactory, the
allocation is set at 125 percent of the service days used in the holder's highest-use year of the review period, capped at
the level originally allocated; where performance is less than satisfactory, the allocation is to be set at no more than 100
percent of that highest-use year. The 100/125 formula is codified at 16 U.S.C. 8547; Sec.53.1n implements it.
Requested home. Because the 100/125 formula is already statutory,18 what remains exposed is not the formula but the
two inputs that drive it: how visitor-use days are counted for the five-year review, and what counts as "satisfactory"
performance. Neither is defined in any binding authority. The OGC asks that both be made binding-as mandatory
direction in FSM 2720 and codified at 36 CFR 251.64-so that the restoration buffer Congress created operates the same
way for every holder. AOA notes that 16 U.S.C. 8546(b)(3) already specifies the crediting rule for surrendered visitor-use
days-a surrendered unused day counts as one-half of a used day, or one full day if the Secretary determines the use was
prevented by circumstances beyond the provider's control-so the crediting ratio itself is statutory and AOA does not ask
to recodify it. The surrender process that produces those credits, however, is specified nowhere; not in the statute, and
not in the directives. How and when a holder notifies the agency of an inability to use allocated days, what documentation
is required, and how the agency determines that use was prevented by circumstances beyond the provider's control are
all unaddressed-even though 16 U.S.C. 8542(c)(2) contemplates that a provider may request, before surrendering a day,
a determination of whether that day would be credited as one prevented by circumstances beyond its control. This request
therefore differs in kind from the others in Part III: it is not a request to relocate binding Handbook text, but to supply a
process the statute presumes and that neither the regulations nor the directives provide. AOA asks that the process be
established as mandatory direction in FSM 2720 and codified in 36 CFR 251.64 alongside the other inputs to the five-year
review. In supplying that process, the OGC asks the Department to make clear that the circumstances Congress had in
mind include the ones that actually interrupt outfitted seasons, including but not limited to: wildfire and smoke, area and
18 16 U.S.C. 8547.
9
road closures, avalanche hazard, high or low water, and other extreme weather events that render allocated days
unusable. Naming those categories does not expand the statutory crediting rule, which AOA does not ask to disturb; it
tells holders and authorized officers alike what a request under 16 U.S.C. 8542(c)(2) is meant to address, which is the
difference between a process that functions and one that exists only on paper.
Operational impact. A holder's allocation is effectively in its business capacity. The 125-percent tier is a restoration buffer:
a satisfactory performer's allocation is reset to 125 percent of its highest-use year (capped at the original allocation), so
reduced-use in a slow year does not silently erase capacity, historically one of the industry's most consistent permit-
management concerns. What is exposed is not the statutory formula but the discretionary inputs that drive it: the count
of visitor-use days used in the review, the undefined "satisfactory" trigger, and the process, documentation, and timing
by which surrendered days are credited. This reaches all priority use holders subject to review.
Why it is essential under the Notice's criteria. Codifying these inputs is essential to ensure compliance with law because
the mechanism they feed is itself statutory. Congress set the restoration-and-adjustment formula at 16 U.S.C. 8547, but
that formula turns on a "satisfactory" finding and a service-day count that no binding authority defines. Making clear that
the counting inputs and the "satisfactory" trigger are binding standards, directed by statute, holds both the holder and
the agency to a fixed rule and keeps the restoration buffer Congress created from being eroded through discretionary
inputs.
7. Resource-capacity analysis and allocation of use
Provision and citation. FSH 2709.14, chapter 50, Sec.53.1f (Amend. 2026): the analysis of how much commercial use an area
can sustain and its allocation between outfitted and non-outfitted use and between priority and temporary use in certain
areas.
Requested home. Rather than bind the capacity-limiting methodology itself-which would risk entrenching a ceiling on
outfitter access in areas where capacity analyses are performed-elevate to FSM 2720 as mandatory direction the
procedural protections around capacity decisions: a transparent, documented analysis available to affected holders; a
functioning route for review; and no reduction in allocated capacity without a written record. These protections warrant
binding treatment because Sec.53.1f is what determines whether allocated capacity exists at all: where an analysis sets the
ceiling and the allocation divides it, the number of priority use permits available follows from that decision, and an
operator seeking new or additional allocated use in that area has nothing to apply for unless the analysis leaves capacity
unassigned. Codifying those procedural protections in the CFR (for example, 36 CFR 251.64) may ultimately be appropriate
as well; the OGC asks in the first instance for mandatory Manual direction. The OGC also asks that this direction supply
what is missing on the other side of the same decision: a procedure by which a holder or applicant may request an
allocation of unassigned capacity under 16 U.S.C. 8547(c), and by which surrendered visitor-use days temporarily
reassigned under 16 U.S.C. 8547(b) are accounted for in later capacity and allocation reviews. Congress authorized both
movements. Neither has a procedural home in the regulations or the directives, and without one the dynamic system
Congress designed operates only when the agency chooses to initiate it.
Operational impact. This provision sets the ceiling every other allocation rule operates under: how many permits exist
and who can even apply. It reaches all outfitters and potential permit applicants in capacity-constrained areas-including
certain rivers, trails, and wilderness-plus applicants .
Resource-Capacity analysis and allocation of use: The Forest Service's 1997 Guidebook on Outfitting and Guiding
framed these same allocation decisions in terms of partnership and balance:
10
"The recreating public continues to ask for a diversity of experiences, settings and opportunities on the National
Forests. Many are capable of total self-sufficiency, but those selecting an outfitter want and need help They
don't have the skill and equipment to be successful in remote and challenging environments But the public
lands belong to them, just as much as they belong to the residents living at the mouths of the canyons....An
appropriate balance between the outfitted and non-outfitted use must always be found, based on the resource
and social capability to sustain a certain level of total use. Allocation of use should recognize the value of both
without denying the public who need and seek the assistance of an outfitter guide to realize the most from the
few opportunities they have to experience the wild lands."19
Why it is essential under the Notice's criteria. Binding these procedural protections is essential to promote safety and to
protect public access to recreation on National Forest System lands. Where the agency does conduct a capacity analysis
and allocate use, that analysis governs congestion at put-ins, portages, and trailheads-bearing directly on visitor safety
and resource protection-and it determines how much guided access remains available to members of the public who
depend on an outfitter to reach those places safely. The OGC does not ask that capacity analysis be conducted everywhere;
many areas have never been allocated and do not need to be. The request is narrower: where the agency does allocate,
the procedural discipline around that decision should be binding. The OGC understands that other national outfitter and
guide associations commenting in this docket take the same position, and for the same reason: a capacity methodology
fixed in regulation could entrench a ceiling on outfitted access as readily as it could protect it. It is not the outfitting
community's position that capacity numbers be locked in. It is that the decisions setting them be transparent,
documented, and reviewable. It is also essential to ensure compliance with law: the Handbook's historical cross-reference
for capacity-allocation decisions runs to 36 CFR Part 215, which is currently reserved and empty. 36 CFR Part 215 was
repealed effective July 31, 201420 and is currently reserved on the eCFR. The current administrative review processes that
succeeded Part 215 are found at 36 CFR Part 214 (post-decisional administrative review) and 36 CFR Part 218 (pre-
decisional administrative review of projects implementing land management plans). Section 53.1f's continued cross-
reference to the repealed Part 215-without update to reflect Parts 214 and 218-is concrete evidence that the review
route for capacity-allocation decisions is outdated and should be updated, with binding standards to be set forth in the
Manual. This strengthens the case for a mandatory home. Congress anticipated a dynamic allocation system: 16 U.S.C.
8547(b) allows the Secretary to temporarily reassign unused visitor-use days to other existing or potential recreation
service providers, and 16 U.S.C. 8547(c) allows the Secretary to amend a permit at any time to allocate additional visitor-
use days if unallocated capacity is available. If the system is designed for dynamic reallocation between providers, the
procedural discipline around capacity decisions-transparency, a functioning review route, and no reduction without a
written record-becomes even more critical, because those decisions may shift use between operators.
These protections are also essential because commercial outfitters and guides are themselves a safety and public-service
mechanism in the Forest Service's recreation program. As the agency's own permitting materials explain, "These Forest
Service partners operate under special use permits and help visitors safely enjoy the Forest," and "[t]he role of commercial
outfitters and guides is to provide specialized knowledge, skills, experience and equipment that general recreationists
might not otherwise possess [which] contributes to high quality opportunities for people to recreate on public lands
regardless of their skill level or prior experience." When capacity and allocation decisions under Sec. section 53.1f shift use
between outfitted and non-outfitted segments, they therefore affect not just business opportunities but the availability
19 U.S. Department of Agriculture, Forest Service, Northern Region, Guidebook on Outfitting and Guiding, R1-97-23 (Feb. 1997).
20 79 FR 44153.
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of guided services that address "public health and safety" concerns and ensure visitors receive high-quality, well-managed
experiences on National Forest System lands.21
8. Performance-review frequency and the definition of "satisfactory performance"
Provision and citation. FSH 2709.14, chapter 50, Sec.53.1q(1) (Amend. 2026) sets reviews annually for temporary use and at
least every two years for priority use. The OGC notes that Congress has already codified this review frequency: 16 U.S.C.
8546(a)(1) requires review "not less than annually" for temporary special recreation permits, and 16 U.S.C. 8546(a)(2)
requires review "not less than once every 2 years" for long-term permits. The review frequency is therefore statutory, not
Handbook-only. What remains exposed is the undefined "satisfactory performance" standard that the statutory review
turns on, and the procedural link between the performance review and the renewal and reduction decisions it gates.
Requested home. Elevate to FSM 2720 as mandatory direction the definition of "satisfactory performance" and the
procedural linkage between performance review findings and renewal or allocation-reduction decisions, and codify that
definition and linkage in 36 CFR 251.64. The review frequency itself is already fixed at 16 U.S.C. 8546(a) and is not part of
the OGC's request.
Proposed definition. The OGC proposes that "satisfactory performance" be defined as follows, adapted from the Bureau
of Land Management's interim EXPLORE Act guidance: a permittee has performed satisfactorily where, in all material
respects, it has complied with the terms and conditions of its permit, satisfied its reporting obligations, and met
applicable resource-protection and safety requirements. Isolated or promptly corrected departures that cause no
resource or safety harm do not render performance unsatisfactory. The qualifier "where present" reflects that not all
permittees operate under a set allocation of visitor-use days.
Operational impact. The undefined "satisfactory" standard determines how much discretion to find fault precedes a
renewal or reduction decision. With the review frequency fixed by statute but the performance benchmark left to advisory
guidance, the critical exposure is the standard against which a holder's performance is measured. It reaches all priority
use and temporary holders.
Why it is essential under the Notice's criteria. Defining the standard in binding direction is essential to ensure compliance
with law: an undefined "satisfactory performance" standard, once advisory, hands broad discretion into the two most
consequential decisions a permittee faces-renewal and use reduction-with no rule against which to measure the
decision against. It also promotes safety: the performance review is the mechanism by which the agency verifies that a
holder is meeting its operating and safety obligations, and a mandatory standard for what constitutes satisfactory
performance keeps that safety oversight rule-based rather than discretionary.
9. The Short-Stop Fee
Provision and citation. FSH 2709.11, Chapter 30, section 36.21c (as amended in 2026) establishes the Short-Stop fee: a
flat per-service-day rate, historically set by the Regional Forester, for commercial trips involving only short stops on
21 U.S. Forest Service, Medicine Bow-Routt National Forests, "Outfitters and Guides - Permits,"
https://www.fs.usda.gov/r02/mbrtb/permits/outfitters-and-guides (accessed July 23, 2026).
U.S. Forest Service, Arapaho & Roosevelt National Forests, "Permits - Outfitter-Guide,"
https://www.fs.usda.gov/r02/arp/permits/outfitter-guide (accessed July 23, 2026).
U.S. Forest Service, "Outfitting and Guiding on National Forest System Lands," https://www.fs.usda.gov/media/55670 (accessed July
23, 2026).
12
National Forest System lands. The Short-Stop option is new to the recently amended Handbook and, while land-use fees
are generally addressed in 36 CFR 251.57, there is currently no CFR provision that specifically codifies a Short-Stop option
or the fee-election framework it implements. Its statutory basis is section 803(h)(2)(B) of the Federal Lands Recreation
Enhancement Act, 16 U.S.C. 6802(h)(2)(B), as refined by the EXPLORE Act.
Requested home. Recodify the Short-Stop fee into the Manual as an option and, if applicable, 36 CFR 251.57, alongside
the other land-use fee provisions, so that both the rate structure and the standard governing how the Responsible Official
sets it are fixed in binding regulation that must remain commensurate with the benefits and services provided under
FLREA, rather than left to advisory guidance.
Operational impact. The Short-Stop fee sets the land-use charge owed by commercial operators whose trips make only
short stops on NFS lands and whose permits elect the Short-Stop option in lieu of the standard percentage based or
alternative pre-determined fee. Because the short-stop rate option is established administratively and exists only in the
Handbook, it can be changed without notice-and-comment rulemaking and without any appealable process the operator
can contest, directly affecting the fees these operators owe. It can reach every commercial user whose permit is assessed
a Short-Stop rate.
Why it is essential under the Notice's criteria. It is essential to prevent waste or misuse of public funds: the Short-Stop
fee is the compensation the public receives for a defined category of commercial use under FLREA's special recreation
permit authority, and a rate structure that can be set or moved by advisory guidance can drift from the "charge
commensurate with the benefits and services provided" that section 803(h)(2)(B) requires. It is also essential to ensure
compliance with law: the fee implements a statutory fee structure under FLREA, yet the operative standard would reside
only in guidance the agency describes as advisory, leaving the statutory charge without a binding implementation that
permittees and the public can rely on.
How the nine provisions map to the Department's three criteria, and our request
Compliance with law is implicated by all nine: each supplies operative standards or implementation details that the CFR
or a governing statute depends on, but that would reside only in advisory Handbook guidance under the proposed rule.
Prevention of waste or misuse of public funds is implicated by the fee provisions, where the service-day multiplier, the
rate, and the base together determine whether the public receives its statutorily required return. Safety is implicated by
the scope definitions that decide who is bound by safety-conditioned permits, the carrying-capacity analysis that governs
crowding, and the performance reviews that verify operating and safety compliance. Applied from the other direction,
the same three criteria yield a workable line for what may safely remain advisory: guidance is genuinely technical, and
belongs in the Handbooks, where it does not alter a permit holder's eligibility, fees, operating authority, allocated use,
renewal rights, or exposure to suspension, reduction, or nonrenewal. Each of the nine provisions identified above fails
that test.
Several provisions fell just outside this list and remain monitoring items for the initial Handbook revisions, including:
the minimum annual land-use fee and assigned-site fee at FSH 2709.11 Sub Sec.36.21b and 36.21f,
the temporary-use permit issuance limits at Sec.53.1k,
the actual-use reporting requirement at Sec.53.1j(3)-(4),
and the reallocation-on-reduction provision at FSH 2709.14, ch. 50, Sec.53.1p(1)-(3), which gives existing priority-use
holders a preference when allocated use is reduced and has no CFR or Manual backstop.
13
Each of these [above] provisions is administered today through outfitting and guiding Handbook text that has no CFR or
Manual counterpart. Under the proposed framework, they would remain solely in advisory guidance and hence
structurally vulnerable in the same way as the nine enumerated provisions, but arguably with lower combined impact and
recodification feasibility.
Two considerations shape how the OGC frames this request.
First, only codification in the CFR secures the outcome that matters most to permittees: a guaranteed
opportunity for public notice and comment before a standard can be changed. Notice-and-comment attaches to
regulations; directives, including mandatory Manual direction, are generally amended through the agency's
internal directive process without APA rulemaking. Mandatory Manual direction is therefore a meaningful floor,
but likely would not, by itself, guarantee the public a voice in future changes. That is why the CFR is the primary
request and mandatory Manual direction the complement, not a substitute.
Second, the Manual is where these standards are actually used: the CFR will not carry every operational detail,
and field staff and permittees consult the Manual, not the CFR, in day-to-day administration. Codifying the
binding standard in the CFR while carrying the implementing detail as mandatory Manual direction divides the
material the way regulation and directives normally do.
The OGC asks the Department to commit, in the final rule, to recodifying these nine provisions as part of implementing
the new directives framework, so that each is fixed in binding form rather than left to advisory guidance. For most of the
nine, that means both homes: codification of the binding standard in the Code of Federal Regulations-36 CFR 251.64,
251.57, and 251.51, as applicable-and parallel mandatory direction in the Forest Service Manual. For two of them-the
service-day counting methodology (Provision 2) and the resource-capacity analysis (Provision 7)-the OGC asks in the first
instance for mandatory Manual direction, while noting that codification in the CFR may ultimately be appropriate for these
as well; binding their specifics in regulation now could remove flexibility that currently benefits permittees, so the more
measured step is mandatory Manual direction with CFR codification held in reserve. This is not a request to slow the
modernization. It is the targeted subset of provisions that the Department's own three criteria, applied to the outfitting
and guiding directives, identify as binding law by function.
IV. The Renewal Standard Delegation Gap and a Narrow Procedural Commitment
A. The CFR itself sends permittees to the Handbook for the renewal standard. Recodification is the clean fix.
The clearest reason to move certain provisions into the Code of Federal Regulations is that the CFR already sends
permittees to the directives for a substantive standard. Section 251.64(b) of Title 36 governs the renewal of priority use
outfitting and guiding permits, and it reads in full:
"A priority use outfitting and guiding permit is subject to renewal without competition as provided in
accordance with applicable Forest Service directives."22
In plain terms, this sentence is the legal basis for an outfitter's continued tenure. A priority use permit is not, strictly
speaking, a one-time grant; it carries an expectation that, at the end of the term, the permit is renewed to the same holder
without being put out to competition, so long as the holder has performed and the use remains consistent with the land
management plan. That renewal expectation is what allows outfitters to make the long-term investments in equipment,
22 36 CFR 251.64(b).
14
staff, and quality of public service that a stable operating standard supports. The OGC does not contend that a priority use
permit is a property right or a transferable asset the holder owns; the concern is the reliability of the standard on which
those business investments depend. The regulation itself, however, does not state the renewal criteria. It points the
permittee outward, to "applicable Forest Service directives," for the operative terms.
The directive that supplies those terms is Forest Service Handbook 2709.14, chapter 50, section 53.1m (Issuance of Priority
Use Permits), as modernized by Amendment 2709.14-2026-1 (effective April 28, 2026). Section 53.1m(1)-(4) sets the term
length, the performance-based path from a two-year to a ten-year permit, and the renewal-without-competition standard
itself. Paragraph (4) is the operative text: when a priority use permit terminates, it "is subject to renewal without
competition, provided that the use authorized by the permit is consistent with the applicable land management plan,
applicable laws and regulations, and the terms of the permit and the holder has performed satisfactorily as demonstrated
by acceptable performance ratings. These determinations are at the sole discretion of the Authorized Officer and must be
made in accordance with 36 CFR 251.54, 251.58, and 251.64 (renewal)."23
Under the proposed rule, that Handbook chapter would be reclassified as advisory and informational guidance that agency
employees may deviate from without documenting or justifying the departure.24 The modernized Handbook already
carries the disclaimer on its face: "Guidance documents lack the force and effect of law, unless expressly authorized by
statute or incorporated into a contract."25 Section 251.64(b), meanwhile, is not proposed for amendment. The regulation
would continue to direct permittees to "applicable Forest Service directives" for their renewal criteria even as those
directives are reclassified as material the agency describes as only advisory.
The practical result is an unstable position for the permittee. The binding regulation tells an outfitter that the rules
governing renewal of the permit-and therefore the continuity of the business-live in a document the agency now
describes as only guidance. Renewal terms could be adjusted through a Handbook amendment no longer subject to notice
and comment, with no rulemaking record and no assurance that the standard the CFR points to still binds the agency that
applies it. That is not a stable footing on which to invest in stock, equipment, insurance, or a multi-year lease.
The clean fix is straightforward and narrow: recodify the renewal-without-competition criteria-term length, the
performance-based extension, and the non-renewal conditions-directly into 36 CFR 251.64, while keeping FSH 2709.14
Sec.53.1m in place as the detailed implementation guidance. The regulation would then state the standard it currently
delegates, and the Handbook would do what the proposed rule intends guidance to do: explain how to apply it.
Consider a backcountry hunting guide in the Northern Rockies who holds a priority-use permit and has operated for
years without a documented deficiency. When the permit comes up for renewal, the district office declines to extend it.
With the governing standard reframed as non-binding guidance, the office is no longer obligated to measure the
outfitter/guide against it or to record the basis for denial. The permittee receives a non-renewal with no findings, no
citation to a performance failure, and no clear standard to have met. The business, its equipment, and its client base
were built around the expectation of continued priority use, and the discretionary denial leaves little on which to seek
review.
The same structure appears across the provisions listed in Part III. For outfitting and guiding permits, the operative land-
use fee methodology-the holder's election between the pre-determined fee and percentage-of-AGR and the
23 FSH 2709.14, ch. 50, Sec.53.1m(4) (renewal without competition is also subject to the exceptions in 36 CFR 251.124(b) and Sec.53.1m,
paragraph 3).
24 91 Fed. Reg. at 39948-49.
25 FSH 2709.14, ch. 50 (Amend. 2026-1).
15
implementation of those statutory methods-resides in FSH 2709.11, chapter 30, Sub Sec.36.21c(1)-(2) and 36.21d, not in 36
CFR 251.57, so a change to how the fee is counted can move the charge without notice and comment and without
presenting as a fee-schedule or inflation adjustment under FSH 2709.11, chapter 30, Sec.32.4. The core program definition
of 'service day'-the administrative unit the Forest Service uses to measure both land-use fees and allocation of use-
resides in FSH 2709.14, chapter 50, Sec.53.1e, while 36 CFR 251.51 already defines 'outfitting' and 'guiding' but leaves 'service
day' and related allocation terms to directives. As noted in Part II, this request carries out the Department's own stated
policy that binding direction belongs in mandatory law, with flexible material residing in advisory guidance.
B. A narrow, voluntary procedural commitment for the nine enumerated provisions.
The proposed rule would remove future Handbook changes from public comment. It proposes to amend 36 CFR 216.1(b)
"to state that the removal or recission of Forest Service Directives is not 'formulation' of standards, criteria, or guidelines
and therefore is not subject to notice and comment."26 The Department would still take comment on the first wave of
Handbook revisions pursuant to 16 U.S.C. 1612(a), but the Notice is explicit that subsequent changes to Handbooks would
not be subject to notice and comment, since advisory and informational guidance is not "standards, criteria, or guidelines"
under the statute.27 The practical effect is that once a provision sits in the modernized Handbooks, it can be rewritten or
rescinded at the agency's discretion, with no obligation to tell the public-or more to the point for the purposes here, the
stakeholders-in advance or hear from it first.
The OGC is not asking the Department to abandon this approach. We are not asking the Department to keep every
Handbook provision under notice and comment, to reverse the 36 CFR 216.1(b) amendment, or to slow the broader
modernization effort. The request in this section is deliberately narrow, and it operates as a backstop to Part III: where
the Department codifies a provision in the CFR, the CFR's own rulemaking process already supplies this protection; where
it leaves a provision in the directives-including the two for which we ask mandatory Manual direction in the first
instance-this commitment preserves the same public input.
For the specific, enumerated provisions on our recodification list-the nine provisions set out in Part III of this letter-we
ask the Department to commit that it will not materially change or rescind any listed provision without first providing a
transparent public process equivalent to the notice and comment the Department is already extending to the initial
Handbook revisions.
The Department can honor that commitment by recodifying the noted provisions into the Code of Federal Regulations
(our first preference for the provisions we identify for the CFR), and, where provisions of binding effect and/or operational
significance are not explicitly noted in these comments, by publicly committing to an equivalent comment process before
it amends or removes such provisions. This path produces the outcome our members need: predictability and input.
This is the comment the Notice asked for. The Department invited the public to identify Handbook provisions that should
be retained and moved into the CFR, and it requested comments on which provisions are essential to promote safety,
ensure compliance with law, or prevent waste or misuse of public funds. Our nine provisions are our answer to that
invitation, selected on exactl...
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Original text of letter here: https://www.regulations.gov/comment/FS-2026-0067-5467