Why S. 2438 Fee Repeal and Expanded Access Act of 2007 May Result in New Layers of Fees on the Outfitting Industry

Overview
S. 2438, Fee Repeal and Expanded Access Act of 2007, repeals the authority for the issuance of outfitter and guide permits authorized under the Federal Lands Recreation Enhancement Act. Under REA outfitter and guide fees are retained by the Forest and not returned to the Treasury. Some Forests depend on the this money for trail maintenance and upkeep of facilities. Unfortunately, despite the intent of REA these permit fees may not always make it back to the ranger districts or the ground. REA gave Forest Supervisors discretion over use of the fees, when the original intent of fee demo and REA was to cover backlogged maintenance to support recreation enhancements. So, some changes to the administration of REA is desirable, but a repeal is not desirable and would likely result in dramatically higher fees for outfitting and guiding to make up for loss of revenues from other users. In other words, it is doubtful that fees outfitters pay are going to be eliminated, therefore most of the burden will be shifted to the outfitted public.

Better Accountability on Use of Funds
Currently, the Forest Service receives about $60 million from the fees associated with REA. $10 million is used to fund the Forest Service's portion of the multi-agency recreation reservation service for campgrounds and similar facilities, a service provided under contract with Reserve America. The rest is available by the Forests for use at the discretion of the Forest Supervisor. We believe that these fees are not always getting back to the ranger districts and projects on the ground and that Congress should ensure that this occurs rather than repeal the entire bill. When outfitters in one National Forest asked how the fee money was being used, the agency said no one was keeping track of it. This indicates the indifference that some agency personnel have regarding their accountability and is in part why the fee program is unpopular.

Why the Repeal Is a Bad Idea and Will Increase Outfitter Fees
S. 2438 would remove several provisions in REA that prevent the agencies from layering additional fees on the outfitted public and outfitters and guides. It is unfair for permittees to pick up the expense of maintenance and management for other user groups who are often the majority of the users. The current REA law prohibits agencies from charging permittees for road use and monitoring fees for endangered species, which the Forest Service has proposed or had implemented in some areas prior to the passage of REA in 2004.

While some amenity fees outfitters pay may be prohibited by the repeal of REA, outfitters will find themselves making up the difference for this loss and the loss of fees paid by public through increased permit fees, road use and monitoring fees. For example, in Idaho, the Salmon River road providing access for Main Salmon River launches and Middle Fork Salmon River egress is a Forest Road that is dependent on recreation fees for a significant portion of annual maintenance. The same is true of the forest road providing access to Boundary Creek, the launch site for Middle Fork boaters. The Idaho Outfitters and Guides Association is concerned that outfitters on the Upper Main Salmon River may encounter monitoring fees for endangered chinook salmon as a condition of permit renewal

While We Are Not Convinced Reopening REA Is A Good Idea, If It Is Re-opened How Should It Be Changed?
Changes to S. 2438 should direct outfitter and guide fees to permit administration first and after those activities are funded, allow the use of the money for other purposes, such as trail maintenance, which continues to be a growing need in view of decreasing funding and large catastrophic fire of the past twenty years. Instead of repealing REA, the bill could require more user involvement in the use of fees, track the use of fees for use on the ground, improve accountability and require the elimination of fees for special projects once projects are completed

1. As proposed, S. 2438 repeals existing permit authority. The new permitting authority for outfitter and guide permits will be the Land and Water Conservation Fund.

Under REA the authority to issue outfitter and guide permits is contained in

h) Special recreation permit fee

The Secretary may issue a special recreation permit, and charge a special recreation permit fee in connection with the issuance of the permit, for specialized recreation uses of Federal recreational lands and waters, such as group activities, recreation events,

Under S. 2438, the Forest Service would only retain 15% of outfitter permit fees. The remainder will go back to the Treasury. The incentive for permit administrators to deal with outfitter issues is already limited because fees and funding are not reaching the ranger districts. We suggest that S. 2438 redirect outfitter fees to permit administrators to cover permit administration with no more than 15% for use by the Forests for overhead.

Once REA is repealed, the FS will only have authority to charge the general public for:
*certain specialized recreation uses like camping,
* some congressionally designated areas (not sure the Middle Fork or Main Salmon would qualify) and
* 21 high impact areas (near urban areas) where security is needed, for example.

2. S. 2438 also repeals the prohibition on road use fees and monitoring fees. The Forest Service once proposed that permittees pay both road use and monitoring fees in addition to permits fees and amenity fees. As once proposed, outfitter permittees were the only recreational users subject to these fees. A repeal of REA would enable the Forest Service to collect these fees.

Language in the existing law . . . . .

Section 802
(2) Relation to fees for use of highways or roads
An entity that pays a special recreation permit fee or similar permit fee shall not be subject to a road cost-sharing fee or a fee for the use of highways or roads that are open to private, non-commercial use within the boundaries of any Federal recreational lands or waters, as authorized under section 537 of this title.
Prohibition on fees for fees for biological monitoring.
(b) Limitation on Use of Fees- The Secretary may not use any recreation fees for biological monitoring on Federal recreational lands and waters under the Endangered Species Act of 1973 for listed or candidate species.

3. What we would like to see in the bill if S. 2438 moves forward: . . . . . . .

• Maintain the prohibition on road use fees for special use permits or outfitters will be expected to pay for road maintenance for everyone.
• Maintain the prohibition on fees for biological monitoring.
• Allow the agency to retain outfitter and guide fees for use in permit administration but only for those costs and not for the costs of managing non-commercial uses or other uses. Outfitters will pay for permit programs for self-guided user if the agency loses the authority to charge those users for those systems.
• Repeal certain sections of REA that allow the agency to provide services currently offered by the private sector. For example, REA authorizes the agency to collect fees for
  (C) Rental of cabins, boats, stock animals, lookouts, historic structures, group day-use or overnight sites, audio tour devices, portable sanitation devices, binoculars or other equipment.
  (D) Use of hookups for electricity, cable, or sewer.
  (E) Use of sanitary dump stations.
  (F) Participation in an enhanced interpretive program or special tour.
  (G) Use of reservation services.
  (H) Use of transportation services.
  
  While some of these fee sources are appropriate, providing "special tours", "stock rental" and "transportations services" are generally activities offered through permit by the private sector.
  
• Require the agencies to offer credits to outfitters for work they do to clear and maintain trails. In some Forests outfitters are doing the majority of the trail maintenance work because the agency crews arrive too late, are under staffed and/or under funded to address the growing back log exacerbated by fire. Where fees haves reached the ground, trail maintenance is much improved. See the attached photo of a trail in the Scapegoat Wilderness which had to be cleared with hand saws. A similar trail was cleared by outfitters just prior to this photo, which was taken in June 2007. In some areas, the agency now expects outfitters to do much of this work, which is costly and extremely difficult, but for which outfitters often receive little or no credit. Essentially, access, for hiking and by pack train, is being lost or encumbered in and out of wilderness areas.

America Outdoors Summary Position Statement on Forest Service Proposed Outfitter and Guide Permitting Directives Released October 19, 2007

• Bias against small businesses. The Federal Register Notice regarding these directives (issued October 19, 2007) is misleading by purporting boldly to be supporting small business when in fact many small entities will be forced out of business or lose their capacity to serve the public.
• Use will be steadily and surely ratcheted down for quality, long term permittees due to an unreasonable requirement for them to utilize 100% of capacity. Unless they utilize 100% capacity in one of five years, an outfitter with use allocations will have capacity (authorized as service days under the permit) transferred to a common pool for issuance to loosely regulated, temporary use holders. Few travel businesses, especially those with shoulder seasons, can operate at 100% capacity. Outfitters need firm capacity to sell in shoulder season or in the good years when demand and resource conditions allow for extended seasons. The current proposals will strip away this capacity if it is not fully utilized. It is unfair to hard-working, small businesses for the agency to change the rules retrospectively, when many permittees would not see reductions in assigned use under the current directives and the standards practiced in the field. Temporary use permittees are not subject to similar permit utilization requirements and or stringent regulation.
• Outfitter use is unrecoverable once lost. The directives are biased toward reduction of capacity for outfitters and guides on longer term permits. Once permitted capacity is lost, it is virtually unrecoverable.
• One of the goals of the proposed directives is to increase access for institutions and non profits serving youth by streamlining the issuance of temporary permits. However, the agency has no plans outlined in the directives to screen these applicants for their qualifications prior to issuance of temporary permits for non recurring temporary permits for 100 user days. Only outfitters applying for new priority use permits have their qualifications evaluated.
• Some of the proposed insurance requirements need adjustment. The assignment of liability limits to the various risk categories has no foundation in data. For example, the agency intends to categorize some activities as "high risk". High risk is defined as "injuries are likely to result in death or permanent disability". We are not sure these activities are insurable in the first place. There is no data to support categorizing activities under the risk categories in the directives. Both the liability limits and the categorization of activities into risk categories are at the discretion of various Forest Service Regions or Forest Supervisors, which could lead to a patchwork of standards.
• Elimination of existing temporary permits. Outfitters, guest ranches and tour operators whose businesses currently have significant use on temporary permits would be forced out of business almost immediately because these permits under the proposed directives will be limited to 100 user days. Issuance of these permits from a common pool does not provide the firm capacity needed to book trips in advance.
• There is no affordable strategy to convert existing temporary permits to long-term priority use as proposed. To convert temporary use to priority use (long term permits), the agency directive requires the permittee to pay for the costs of environmental evaluations mandated by regulation under the National Environmental Policy Act. The costs for these analyses are well beyond the means of most outfitters and guides. Therefore, there is no affordable transition strategy as claimed by the agency in the Federal Register Notice.

A Brief Overview of Proposed Solutions

• Permit administrators need options to manage use, not a mandated "one size fits all" strategy that diminishes capacity for quality operations. Many permit administrators have evolved systems to allow the issuance of temporary permits to groups who are qualified to provide services for youth and others. These systems should not be invalidated by the directives and some may serve as models
• Temporary permits should be issued without drawing use from existing, quality permittees who are operating successfully. There is capacity to issue temporary permits at most resources without drawing from priority use permittees under stringent requirements.
• Outfitters on priority use cannot be expected to operate at 100% capacity. Hotels on average operate at 65% capacity and airlines just above 80%. However, like outfitters, they need firm excess capacity to fill demand when it arrives in shoulder seasons or in years that are better than others. The good years are necessary to overcome the bad years, when wildfires shut down operations or economic downturns, such as the one that followed 9/11 depress demand for two or three years. The agency's proposal to assign use at actual use plus 10% when permit utilization is reviewed every five years is an insufficient cushion.
• The average utilization of permittees at a resource should be used as the benchmark to determine if a company's annual utilization is optimum. This strategy factors in business interruptions, variations in snow pack, access to hunting licenses, economic downturns and other factors. We propose that once an outfitter's utilization falls significantly below the average at a resource, a portion may be redistributed through a pool for priority use permittees or held in reserve. If, over time, the utilization percentage for the entire group of permittees is low, then use may be retired, issued competitively to others or redistributed to other user segments through a planning process. However, the agency should also have the option to suspend use reviews or redistribution of allocated capacity for permittees when adverse conditions, through no fault of the operator, depress demand or where permittees operate under unique conditions. The proposed Forest Service directives erroneously substitute permit administration for planning functions by redistributing use capacity to various user segments through unilateral decisions during permit administration.
• Temporary use permittees should operate at standards that are similar to those applied to priority use permittees. Without initiating an overly bureaucratic process, the agency should require every applicant for a permit to state their qualifications and the training that qualifies them to provide the services proposed. The Code of Federal Regulations requires the agency to reject unqualified "proponents" for permitted activities. For activities in backcountry settings where there is no access to emergency medical services, operating plans and first aid qualifications should be confirmed prior to issuance of temporary permits. Many institutions provide quality, highly professional services to their students. However, the goal of streamlining the issuance of temporary permits without checking qualifications, especially for organizations serving students and institutions, has its risks. See the excerpt below from Thompson Rivers University. "The field of outdoor education is littered with the wreckage of good field trips gone bad where students have been grievously injured or died on school-sponsored trips. Notable instances include the deaths of 12 students and one leader during a canoeing trip on Lake Timiskaming in 1978, the deaths of six students during a winter hike on the Cairngorm Plateau in Scotland in 1972, the deaths of seven students and two adults during an ascent of Mt. Hood in Oregon in 1986 and the deaths of seven students in an avalanche in Rogers Pass, BC in 2002."
• A process to convert temporary use to priority use must be included in the proposed Forest Service directives. Cost recovery should not be applied to NEPA evaluations for outfitter and guide permits. This will allow conversion of existing temporary use permits to priority use. We propose an interim temporary use permit to achieve this.
• Use pools for temporary use and for priority use may be utilized effectively in some areas to facilitate more optimal utilization of permitted capacity. However, they are not necessary in every area. Where temporary uses have been authorized, the agency should continue to issue those permits in excess of 100 user days (the proposed limit) until the permits can be converted to priority use. (See the Interim Temporary Use Permit).
• There will never be a sufficient number of permits for everyone who wants one. Unless the agency is prepared to completely abandon the regulation of commercial use and group activities, some limitations on the number of permits are going to remain in effect.
• We support the directives provision, which provides for the issuance of permits for ten-year terms and to base renewal on performance.