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FOREST SERVICE HANDBOOK
PACIFIC SOUTHWEST REGION (REGION 5)
VALLEJO, CALIFORNIA
FSH 2709.11 - SPECIAL USES HANDBOOK
CHAPTER 10 - APPLICATION AND AUTHORIZATION PROCESSING
Supplement No.: 2709.11-2014-1
Effective Date: February 21, 2014
Duration: This supplement expires 5 years from the effective date unless superseded or
removed earlier.
Approved:
RANDY MOORE
Regional Forester
Date Approved: 2/21/2014
Posting Instructions: Supplements are numbered consecutively by title and calendar year.
Post by document; remove the entire document and replace it with this supplement. Retain this
transmittal as the first page(s) of this document. The last supplement to this Handbook was
2709.11-2012-1 to Chapter 10.
New Document
Superseded Document(s)
by Issuance Number and
Effective Date
2709.11_10
2709.11-2012-1 Effective 8/20/2012
14 Pages
14 pages
Digest:
Because of an update to the parent text a mandatory review of this supplement was conducted
and then certified by the directives manager. The text remains the same as the 2012-1 version.
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DURATION: This supplement expires 5 years from the effective date unless superseded or removed earlier.
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10.2 - Objectives
Administer the special use authorization requirements regarding liability insurance requirements
in keeping with the intent of FSM 2713.1. The objectives related to liability insurance
requirements are to focus limited Forest Service resources by reducing unnecessary reviews of
insurance policies; limit Forest Service liability; define roles of the holder and of the Forest
Service; and ensure the holder provides adequate liability insurance coverage.
10.5 - Definitions
(See FSM 2705, and 36 CFR 251.51 for additional definitions.)
Additional Insured. A person or entity, other than the named insured, that is added to the
insurance policy, often through an endorsement, and that has the same coverage as the
named insured under the policy. In the case of special use authorizations, the additional
insured is the United States.
Aggregate Limit. The maximum amount of coverage for third-party property damage or
personal injury, under a liability insurance policy during the term of the policy (which is
usually one year), regardless of how many separate incidents of third-party property
damage or personal injury occur during that period.
Authorized Officer. (36 CFR 251.51)
Case Manager. A special use administrator qualified to process a special use proposal
and application, from initial contact with the proponent to denial or authorization of the
use. For routine proposals, a case manager meets the competency requirements for a
special use administrator and has the knowledge and experience commensurate with the
type and complexity of the proposed use. For unusual and complex uses, such as those
typically authorized by term permits, leases, or easements, the case manager meets the
competency requirements for a special use specialist or works directly under such a
specialist's guidance.
Certificate or Declaration of Insurance. A statement of coverage issued to an insured
under an insurance policy outlining the insurance benefits and principal provisions
applicable to the insured.
Claims-Made Policy. An insurance policy that covers claims made during the time the
policy is in effect.
Combined Single Limit Policy. A policy that subjects third-party property damage, death
of or injury to one person, and death of or injury to more than one person to a single
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limit, rather than separate limits, and that does not have limits for each occurrence and
aggregate limits for each category of loss.
Concession. A valid special use authorization for the provision of commercial recreation
services, facilities, or activities on National Forest System lands. Examples of
commercial recreation services, facilities or activities include ski areas, resorts, marinas,
concession campgrounds, outfitting and guiding, recreation events and other public
services.
Declarations. Statements in an insurance policy about the type and extent of coverage
under the policy.
Indemnify. To secure against injury, loss, or damage that may occur in the future, or to
provide compensation for injury, loss, or damage already suffered.
Insured. A person or entity covered by an insurance policy, including the named insured
and any additional insured.
Insurer. A person or entity that agrees, by contract, to assume the risk of another's loss
and to compensate for that loss.
Liability Insurance. Insurance that covers claims for personal injury and third-party
property damage (damage to property other than that owned by the insured or additional
insured) up to the coverage limits, subject to the terms of the insurance policy.
Liability Limit. The maximum amount the insurer is obligated to pay for a certain
category of loss.
Liability Limit Per Occurrence. The maximum amount the insurer is obligated to pay for
each occurrence of third-party property damage or personal injury during the term of the
policy.
Named Insured. The person or entity being contracted for, and covered by, the insurance
policy (the permit holder, in the case of insurance obtained pursuant to special use
authorizations).
Occurrence. An incident, including continuous or repeated exposure to conditions that
result in personal injury or property damage, and is covered under the insurance policy.
Occurrence Policy. An insurance policy that allows claims to be made after the policy
period has expired, as long as the loss occurred while the policy was in effect.
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Property Insurance. Insurance that covers damage to the property of the insured and any
additional insured.
Right of Subrogation. The right of the insurer, when it pays the insured pursuant to an
insurance policy, to succeed to the claims that the insured has against third parties who
were responsible for the loss.
Risk Assessment. A process for determining the potential for the United States to incur
loss.
Solicited Proposal. A proposed use of National Forest System lands that is initiated by
the Forest Service through issuance of a prospectus.
Split Limit Policy. A policy that has separate limits for third-party property damage,
death of or injury to one person, and death of or injury to more than one person, and that
has limits for each occurrence and aggregate limits for each category of loss.
Unsolicited Proposal. A proposed use of National Forest System lands that is not
initiated by the Forest Service through issuance of a prospectus.
12.21 - Criteria for Initial Screening
Notify the Regional Public Services staff prior to accepting any proposal that has the potential to
create hazards to military or civilian aircraft. Potential hazards include, but are not limited to:
1. Uses that physically obstruct any portion of military or civilian airspace due to relative
height above ground level;
2. Uses that release into the air any substance, such as steam, dust, and smoke, which could
impair pilot visibility;
3. Uses that produce light emissions, glare, or distracting lights that could interfere with
pilot vision or be mistaken for airfield lighting; and,
4. Uses that produce electromagnetic and frequency spectrum interference, which could
impact military operations.
Regional Public Services staff will initiate and coordinate review by the Department of Defense
(DOD) prior to acceptance of any proposal that has the potential to create hazards to military
activities. DOD will directly notify the Regional Public Services staff whether the proposal (1)
has no significant impacts on military activities, (2) has an adverse effect on military activities
that can be mitigated, or (3) has an adverse effect on military activities that cannot be mitigated.
DOD will describe appropriate mitigations and indicate whether review is necessary. Review by
Department of Homeland Security, Federal Aviation Administration, and National Weather
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Service should normally be initiated after screening has concluded. See FSM 73.1 for further
details about application requirements for wind energy infrastructure.
Use Geographic Information Systems to aid screening processes. Regional Public Services Staff
will work closely with DOD to ensure that all available military activity data layers are updated
and available to field units.
Proposals for wind energy infrastructure that will be located in California should be reviewed
informally by state and county agencies prior to acceptance. This review can also be coordinated
by the Regional Public Services staff. As part of informal review, the authorized officer is
encouraged to discuss the proposal at a regularly scheduled renewable energy permitting meeting
that is attended by various federal, state, and county agency representatives in Sacramento. The
primary purpose of informal state and county review is to apprise the authorized officer of
potential conflicts or interference the proposal may cause to adjacent non-National Forest System
lands. See 36 C.F.R. § 251.54(e)(v). In addition, this informal review provides an opportunity for
the authorized officer gain familiarity with California’s unique regulatory environment for
energy infrastructure permitting.
14 - PREPARING AND ISSUING AUTHORIZATIONS.
Do not enter into interagency or other authorized agreements (FSM 1580) in lieu of a special use
authorization, unless there is mutual benefit to be derived by both parties and the use is otherwise
in conformance with applicable laws, regulations, policy, and management direction. This
includes uses such as training maneuvers by the military or uses which benefit state or local
governments.
14.3 - Liability and Insurance Coverage
1. Indemnification. All authorizations, except those issued to federal agencies, must
include a clause that requires the holder to indemnify and hold harmless the United States
for any injury, loss, or damage, including third-party claims, damage to federal property,
fire suppression costs, and environmental harm or injury to natural resources, that arises
in connection with the holder’s use and occupancy. Approved clauses are in chapter 50
of this Handbook.
Requests for modification of approved indemnification clauses should be submitted to the
Regional Office Special Uses staff to ensure they meet legal standards before authorizing
their use.
2. Insurance. A clause requiring insurance sufficient to cover the holder’s obligation to
indemnify the United States for all injury, loss, or damage as a result of claims, demands,
losses, or judgments that arise in connection with the holder’s use must be included in all
concession special use permits.
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EFFECTIVE DATE 2/21/2014
DURATION: This supplement expires 5 years from the effective date unless superseded or removed earlier.
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All insurance policies obtained pursuant to a special use authorization shall obligate the
insurer to defend the United States, in relation to all injury, loss, or damage, that arises in
connection with the holder's use and occupancy of National Forest System lands.
Insurance policies shall name the United States as an additional insured and shall not
allow the insurer a right of subrogation against the United States.
The United States Government is self-insuring. Therefore, do not include the liability
insurance clause or bond requirement in permits to Federal agencies.
If the facility will be operated by a non-federal third party, a clause should be included
that requires indemnification of the United States and insurance.
Requests for self insurance (i.e. State and local governments, utilities) require
coordination and review by the Regional Office Special Uses Staff prior to approval.
3. Property Insurance. The amount of property insurance for federal facilities shall be
determined by the authorized officer. In determining the amount of property insurance
coverage to require, employ sound business management principles and policy
considerations, including consideration of the following:
a. Which facilities and resources are key to providing public services, and the risk of
damage to multiple improvements.
b. The holder's liquid assets, as well as the type of use and the risk of damages or
loss due to activities conducted under the authorization, including the cost of
replacement and other mitigation.
c. The value of the facilities involved and inherent risk of damage to these facilities.
d. Full replacement coverage pays up to the dollar limit in the policy for the cost to
restore or replace the damaged or destroyed property without deduction for physical
depreciation.
e. Current value coverage pays up to the dollar limit in the policy for the current
value of the damaged or destroyed property taking into account physical depreciation.
f. Full replacement coverage provides the greatest protection to the United States
and the public for repair or replacement of needed facilities, but is more expensive.
g. Historic structures may be prohibitive in cost to reconstruct in kind. Insurance
premiums may exceed what could reasonably be expected to be paid by the holder.
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In some cases, it may be best to replace a historic structure with a modern building
that can accommodate the functions and capacity of the original structure.
h. The authorized officer may waive property insurance when it has been determined
that facilities will not be replaced or when revenues generated from their use are not
sufficient to cover the cost of insurance
Document the basis of property damage insurance, and attach a list of facilities and their
replacement values to the special use authorization.
4. Liability Insurance Policy Standards. Forest Supervisors should review each permit
issued for the degree of risk involved. For example, some categories of Outfitter/Guide
uses are of lower risks than others. These might include drift boaters or packers versus
white water guiding in Class IV or higher rivers or rock climbing. Another example is
when a ski area is a small "club" type operation. Where determined to be low in risk of
potential tort exposure, Forest Supervisors may reduce insurance requirements to a
25/300/300 minimum level. In some situations (i.e. a river with a Class IV difficulty
scale) the rating may be based upon a particular set of rapids, that if not run, would
reduce the difficulty to a Class III. Conversely, where risks appear to be higher,
determine increased insurance requirements and document the rationale.
If contemplating reduction of minimum insurance levels, the holder must outline what
operational changes to make that would reduce the degree of risk involved commensurate
with the reduction in insurance coverage. Document these changes in the holder's annual
operation plan.
Policies naming the United States as additional insured "solely as respects liability arising
from acts or omissions of the named insured," are unacceptable. Change the quoted
language to protect the United States. Acceptable language may read "solely as respects
liability arising from operations of the named insured." If there are questions regarding
additional coverage stipulations, submit the additional insured rider to the Regional
Office, Director of RWHR staff group for review.
Insurance policies meet Forest Service requirements when they are written on any of the
following forms:
a. The Occurrence Form, if adequate occurrence policies are available for the kind
of business authorized.
b. A modified Occurrence Form containing
(1) A claim reporting period requirement and a basic extended reporting period of at
least 2 years for known and reported occurrences likely to result in a claim.
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EFFECTIVE DATE 2/21/2014
DURATION: This supplement expires 5 years from the effective date unless superseded or removed earlier.
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(2) A feature that requires response to claims for at least 2 years after an incident
occurred if the insured had no way of knowing it had occurred, and therefore did not
report it.
c. A Claims-Made or Modified Claims-Made Form for the kind of business
authorized, when they provide both of the following:
(1) The policies provide at least a two-year basic extended-reporting period.
(2) They include wording, or an endorsement to the effect, that the policy will
respond to claims made within two years of an incident which occurred on National
Forest System lands, and solely in respect to liability arising from the operations of
the named insured, whether the incident had been reported or not.
Claims-Made or Modified Claims-Made Policy Forms do not meet Forest Service
requirements if the minimum two-year extended-reporting period is only available as
an option.
d. Policies must also meet all the following conditions:
(1) They name the U.S. Government as additional insured, and include the
appropriate wording shown in preceding direction.
(2) They meet the minimum coverage requirements for the authorized activities
shown in Exhibit 01 or as required by state law or regulation.
(3) They include an appropriate 30-day notification clause in case of cancellation or
amendment of coverage. When premiums are paid in full prior to use, 10-day
notification of cancellation for non-payment of premiums is acceptable.
(4) The exclusions (if any) listed on the Certificate of Insurance do not include any of
the activities/operations authorized by the permit.
(5) Some insurance policies stipulate that coverage for legal defense costs and
supplementary payments is limited, and any payment of legal defense costs or
supplementary payments reduces the limits of remaining coverage. When holders'
activities are covered by policies containing this stipulation, authorized officers shall
require the holder to have liability coverage greater than the minimum shown in
preceding direction. For example, if the required minimum shown is $300,000, and
the policy has the legal defense cost stipulation, the authorized officer shall require
$500,000 coverage. If the minimum shown is $500,000, the authorized officer shall
require $1,000,000 coverage.
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EFFECTIVE DATE 2/21/2014
DURATION: This supplement expires 5 years from the effective date unless superseded or removed earlier.
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5. Waivers of Liability and Acknowledgement of Risk Forms. Insurance companies
often require that their policy holders use Waivers of Liability and/or Acknowledgement
of Risk forms. Even when not an insurance company requirement, special use
authorization holders frequently require that their customers sign one or both of these
forms before participating in an activity provided by the holder. Forest Supervisors
should be guided by the following:
a. Appropriately worded Acknowledgement of Risk forms required by insurance
companies or special use authority holders are acceptable (Exhibit 02).
b. Do not permit use of Waiver of Liability forms (Exhibit 03) except for high risk
recreation events, such as enduros, road rallies, equestrian events, hang-gliding
contests, and so forth. Many of the forms used for these purposes are unacceptable,
because they would have the participant release the U.S. Government from liability
for its own negligence. This conflicts with the intent of Congress in the Federal Tort
Claims Act, which makes the Federal Government liable for the negligence of its
officers and employees acting within the course and scope of their employment.
Additionally, these forms may be at variance with state law.
Permit use of these forms as long as they do not attempt to require participants to
waive their rights to sue for any cause beyond ordinary negligence. To ensure that
waivers meet legal standards, submit them to the Regional Office Special Uses staff
for review before authorizing their use.
6. Administration Standards. Most, if not all, policy forms are broadly written to cover a
wide spectrum of permitted uses. Certain facilities or activities are frequently excluded
from coverage, except by endorsement (for example, swimming pools and watercraft). In
other cases certain activities, such as serving of alcoholic beverages, are excluded entirely
and will not be covered by endorsement but will require additional insurance policies.
Therefore, Forest Supervisors and District Rangers each have distinct responsibilities in
the review of insurance policies under this program, as follows:
a. District Rangers or Forest Supervisors may request or invite insurance companies,
brokers and agents to submit their policy forms for review. The Forest Supervisor
may approve a policy that meets requirements. If there is doubt about the policy,
submit it to the Regional Office Special Uses staff for further review.
b. The Regional Office Special Uses staff and Office of General Counsel (OGC) as
needed shall review the policy form to determine whether the U.S. Government is
appropriately protected.
c. The reviewing officer shall notify insurance companies, brokers and agents that
the policy form is acceptable and request them to provide a Certificate of Insurance,
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including (where applicable) the Master Policy Number, to the authorized officer.
Insurance companies shall include, on the Certificate of Insurance, a list of all
endorsements and exclusions that have been added to the special use authorization
holder's insurance policy form.
d. The special use authorization holder is required to provide a copy of the insurance
policy to the authorized officer.
e. The authorized officer shall review all endorsements or exclusions that are
additional to those provided in the policy form. The purpose of this review is to
ensure that all of the holder's activities and facilities are appropriately covered and
that none of the additional endorsements or exclusions contradicts the coverage
described in the policy form.
f. The insurer accepts the responsibility and expense of defending the holder and the
Government in liability suits, regardless of their merit.
g. The U.S. Forest Service Insurance Information Center web site is located at
http://fsweb.f3.r6.fs.fed.us/insure. The web site provides information on Commercial
General Liability insurance used by outfitters and guides who have special use
permits on the National Forest.
h. If there are questions or concerns regarding adequate coverage, the authorized
officer should send the entire policy to the Regional Office Special Uses staff for
further review.
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14.3 - Exhibit 01
Minimum Insurance Coverages for Special Uses
The Required Minimum Coverage column contains Property Damage/Death or Injury - One
Person/Death or Injury - More Than One Person. For example, 25/300/500 indicates $25,000
property damage, $300,000 death or injury - one person, and $500,000 death or injury - more
than one person.
Where insurance is required, the amounts shall not be less than 25/100/300.
Most policies are written with a "Combined Single Limits" (CSL). In the CSL kind of coverage,
the maximum an insurance company will pay for both property and death/injury is shown as a
single total. To reflect this industry change, Region 5 has established CSL minimums.
All figures are in thousands of dollars.
LIABILITY INSURANCE MINIMUM LIMITS
FSM
2721.11
2721.12
2721.13
2721.14
2721.15
2721.22
2721.30
2721.32
2721.33
2721.41
2721.42
2721.43
2721.44
2721.46
2721.47
2721.48
2721.52
Type of Special Use
Boat Dock and Wharf
Clubs
Organization Camps
Trail Shelters
Private Camps
Houseboats - insurance required only if S.U.
authorization issued for a concession.
Lodging
Hotel-Motel
Resorts
Camp and Picnic
Caves and Caverns
Golf Course
Park and Playground
Rifle and Target Ranges
Trailer Courts or Camps
Tramway
Marina
Required Minimum
Coverage or CSL
25/100/300
$300,000
25/300/500
$500,000
25/300/500
$500,000
10/100/200
$200,000
25/300/500
$500,000
25/300/300
$300,000
25/300/500
25/300/500
25/300/500
25/100/300
25/100/300
25/100/200
25/100/300
25/100/300
25/300/300
50/500/2000
50/500/500
$500,000
$500,000
$500,000
$300,000
$300,000
$200,000
$300,000
$300,000
$300,000
$2,000,000
$500,000
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14.3 - Exhibit 01-- Continued
LIABILITY INSURANCE MINIMUM LIMITS
FSM
2721.53
2721.54
2721.55
2721.56
2721.57
2721.58
2721.61
2721.62
2721.63
2721.64
2721.65
2725.51
2725.53
Type of Special Use
Outfitter and Guide Service:
Saddle and Pack Stock
Nordic Skiing:
Non-Avalanche Areas
Avalanche Potential Areas
Back Packing
Rock Climbing
Bicycling
Nature Hikes
Running Clinics
Snowmobiling
Rafting and Boating:
Class IV-V
Class I-III
Rental Services
Restaurant
Service Station
Store, Shop, Offices
Vendor and Peddler
Winter Sports Resorts:
Nordic Skiing non-avalanche areas
Nordic Skiing with avalanche potential
Alpine Skiing
Avalanche Training
Ski Lifts
Ski Slopes
Ski Activities
Snow Play
Still Photography
Commercial Filming
Required Minimum
Coverage or CSL
25/500/500
$500,000
25/300/300
25/500/500
25/300/300
25/500/500
25/500/500
25/300/300
25/300/300
25/500/500
$300,000
$500,000
$300,000
$500,000
$500,000
$300,000
$300,000
$500,000
25/500/1000
25/500/500
25/100/300
25/100/300
25/100/300
25/100/300
25/100/300
$1,000,000
$500,000
$300,000
$300,000
$300,000
$300,000
$300,000
25/300/500
25/500/500
50/500/2000
25/500/1000
50/500/2000
50/500/2000
25/100/300
25/500/1000
25/100/300
25/100/300
$500,000
$500,000
$2,000,000
$1,000,000
$2,000,000
$2,000,000
$300,000
$1,000,000
$300,000
$300,000
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14.3 - Exhibit 02
ACKNOWLEDGEMENT OF RISK FORM
SAMPLE
I (we) recognize the element of risk in any adventure, sport or activity associated with the
outdoors. I (we) am (are) fully aware of the risks and dangers inherent in (activity) such as, but
not inclusive, of:
(explain risk)
Knowing the risks and dangers, I (we) understand the possible consequences of participating in
such activity are as follows:
(state consequences)
I (we) certify that I (we) have the necessary skills and ability to participate in the said activity
and assume full responsibility for myself (ourselves) for bodily injury, death and loss of personal
property and expenses thereof as a result of my (our) negligence in participating in said activity
except to the extent such damage or injury may be due to the negligence of (operator).
I (we) also agree to abide by the rules or instructions given to me (us) either verbally or in
writing by the (operator). I (we) further understand that (operator) reserves the right to refuse to
allow any person to participate who is judged to be incapable of meeting the rigors and
requirements of participating in said activity.
I (we) have read, understood, and accepted the terms and conditions stated herein and
acknowledge that this agreement shall be effective and binding upon me (us) during the entire
period of participation in the said activity.
Signature Block
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14.3 - Exhibit 03
WAIVER-OF-LIABILITY FORM
SAMPLE
As lawful consideration for being permitted by (operator) to participate in the sport of (activity),
I do hereby release from any legal liability, (operator), the United States Forest Service, and all
of their officers, members, organizations, agents and employees for any and all injury or death
caused by or resulting from my participation in the sport of (activity), whether or not such injury
or death was caused by their negligence or from any cause.
I further agree not to sue, claim against, attach the property of or prosecute (operator), the United
States Forest Service, and all of their officers, members, affiliated organizations, agents and
employees for any injury or death caused by or resulting from my participation in the sport of
(activity), whether or not such injury or death was caused by their negligence or from any other
cause.
Signature Block