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Analysis of Draft FLREA Modernization Act 2015

FLREA Discussion Draft Circulated.  Outfitter Provisions Are Similar to Last Year’s Bill.

The draft reauthorization of the Federal Lands Recreation Enhancement Act authorizes and revises entrance, amenity and permit fees through December 31, 2020.  The bill strengthens the permitting authority for all the federal land managing agencies, except for NPS which is governed by other law.  A hearing is scheduled in the House Federal Lands Subcommittee on October 28, 2015.  The Senate held a hearing on September 17, 2015 where AOA Executive Director David Brown gave testimony.

The legislation offers the same permit provisions for outfitters and guides found in the bill approved by the House Resources committee in the last Congress.  There are still a few gray areas that need clarification, but overall the bill offers permit streamlining and reduces the costs for permit administration.  

The most remarkable advancement is the waiver of NEPA compliance for new permits where uses are similar, have been previously studied, and do not increase overall use of an area.  

SEC. 102 (h) Authorizes special recreation permits and fees for group activities, competitive events, outfitting and guiding, motorized recreation, and allocated use.  (h)(2)(A) authorizes permits and fees for specialized group use, motorized use, and allocated use, (h)(2)(B) authorizes permits and fees for outfitter and guide permits and (h)(2)(C) authorizes permits for special events.  There should be some clarification that more than one type of fee from these distinct authorities should not be layered on to the same permit holders.

(h)(2)(B)  Authorizes outfitter and guide permits and fees

(h)(3) Waives NEPA for new permits when uses are similar to existing uses or have been analyzed previously or are not inconsistent with approved uses and will not substantially increase use of an area.

(h)(3) Authorizes one permit to provide services or conduct events across multiple agency boundaries (including NPS), provided the permit complies with laws for each agency and the delegation of authority has been approved.  This provision is unlikely to be accepted by NPS which has different laws authorizing contracts and permits.

 (A) This section authorizes rule-making for how recreation fees shall be established and authorizes deductions for off Forest activities which seems to imply that those charges need to be included in the calculation of fees.  This part is confusing and needs clarification since the next paragraph make it clear that off-Forest Services are to be excluded when calculating fees.

(h)(5) Prohibits fees for services delivered off public lands and waters.  Such a provision would also be desirable for NPS concessions, but the fee provisions in this bill do not apply to NPS contracts.  The bill is not clear, however, as to what additions (and exclusions) would be applicable.

(B) REVENUE EXCLUSIONS.—Revenue exclusions under subparagraph (A) shall include, but not be limited to, revenue from goods or services provided by the recreation service provider outside the Federal recreational lands and waters, such as— 

(i) costs for transportation, lodging, and other services before or after a trip begins; 

(ii) deductions for activities outside public lands or on other Federal lands if separate permits are issued.

(C) Set permit fees at 3% of gross or a similar flat but mentions unspecified additions and exclusions that are not specified.   Additional costs incurred for “event” management are added for example, but this is the only type of permit where incurred costs are mentioned.  

(6) (A) Authorizes a pilot program at 20 sites to provide fee credits for unreimbursed maintenance such as trail maintenance.  AOA asked for funding micro contracts (less than $2,500) funded by pooled fees.

(7)  Allows permit holders to disclose fees paid to their customers.

(l) (1) Requires public comment and Congressional approval of new entrance, day use or amenity fees.  Recreation permit fees are not required to go through this process.

(m) Existing permits are grandfathered-in and may remain in effect after the authority in the legislation sunsets on December 31, 2020.

The legislation maintains the prohibition on road use fees for recreation special use permittees.

Other provisions in the bill

Delete standard and expanded amenity fees and replaces them with day use and amenity fee.

Tighten up the exemption from day use fees for educational groups to only provide an exemption for non-recreational educational purposes when pursuing academic credit.

Require agencies to develop a consistent entrance fee policy for visitors, commercial groups and others.

Reauthorize fees for government tours and programs but only after evaluating non-fee based interpretive opportunities.

Require Congressional approval of new amenity and day use fees.

Prohibit the use of recreation fees for biological monitoring under the Endangered Species Act and further prohibits the use of recreation fees to reduce or diminish access to public lands.

Eliminate the Recreation RAC requirement, which have generally not been effective.

Provide the BLM with authority to provide concession opportunities for their recreation facilities.

Establish a pilot program to privatize certain Forest Service facilities.

What’s missing.

Better accountability for the use of fees.  AOA recommended accounting for recreastion fees at each collection site.  We do not see that in the bill.

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