§ 8548. Liability

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(a)Insurance requirements

(1)In general Except as provided in paragraph (2), as a condition of issuing a special recreation permit under subsection (h)(1)(B) of section 6802 of this title (as amended by this title) or a commercial use authorization, the Secretary concerned may require the holder of the special recreation permit or commercial use authorization to have a commercial general liability insurance policy that—

(A)is commensurate with the level of risk of the activities to be conducted under the special recreation permit or commercial use authorization; and

(B)includes the United States as an additional insured in an endorsement to the applicable policy.

(2)Exception The Secretary concerned shall not require a holder of a special recreation permit or commercial use authorization for low-risk activities, as determined by the Secretary concerned, including commemorative ceremonies and participation by the public in a recreation activity or recreation use of a specific area of Federal recreational lands and waters in which use by the public is allocated, to comply with the requirements of paragraph (1).

(b)Indemnification by governmental entities The Secretary concerned shall not require a State, State agency, State institution, or political subdivision of a State to indemnify the United States for tort liability as a condition for issuing a special recreation permit or commercial use authorization to the extent the State, State agency, State institution, or political subdivision of a State is precluded by State law from providing indemnification to the United States for tort liability, if the State, State agency, State institution, or political subdivision of the State maintains the minimum amount of liability insurance coverage required by the Federal land management agency for the activities conducted under the special recreation permit or commercial use authorization in the form of—

(1)a commercial general liability insurance policy, which includes the United States as an additional insured in an endorsement to the policy, if the State is authorized to obtain commercial general liability insurance by State law;

(2)self-insurance, which covers the United States as an additional insured, if authorized by State law; or

(3)a combination of the coverage described in paragraphs

(1)and (2).

(c)Exculpatory agreements

(1)In general Except as provided in paragraph (2), a Federal land management agency shall not implement, administer, or enforce any regulation, guidance, or policy prohibiting the use of an exculpatory agreement between a recreation service provider or a holder of a commercial use authorization and a customer relating to services provided under a special recreation permit or a commercial use authorization.

(2)Requirements Any exculpatory agreement used by a recreation service provider or holder of a commercial use authorization for an activity authorized under a special recreation permit or commercial use authorization—

(A)shall shield the United States from any liability, if otherwise allowable under Federal law; and

(B)shall not waive any liability of the recreation service provider or holder of the commercial use authorization that may not be waived under the laws (including common law) of the applicable State or for gross negligence, recklessness, or willful misconduct.

(3)Consistency Not later than 2 years after January 4, 2025, the Secretaries shall—

(A)review the policies of the Secretaries pertaining to the use of exculpatory agreements by recreation service providers and holders of commercial use authorizations; and

(B)revise any policy described in subparagraph

(A)as necessary to make the policies of the Secretaries pertaining to the use of exculpatory agreements by recreation service providers and holders of commercial use authorizations consistent with this subsection and across all Federal recreational lands and waters.

(d)Effect Nothing in this section applies to a concession contract issued by the National Park Service for the provision of accommodations, facilities, or services.

(Pub. L. 118–234, title III, § 319, Jan. 4, 2025, 138 Stat. 2907.)

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