Author: Paul Sanford

Today, the Coalition for Outdoor Access submitted detailed comments on the National Park Service’s on-line commercial use authorization application and reporting system. NPS announced the rollout of the system on July 26, 2023. You can read more about the announcement here.

Commercial use authorizations (CUAs) are one of the primary ways in which the National Park Service authorizes guided recreation use in the National Park system. These authorizations are governed by the Concessions Management Improvement Act of 1998. The requirements and limitations for CUAs can be found in 54 U.S.C. § 101925. 

In its comments, COA congratulated NPS on the rollout of the on-line system. We noted that the system will make the acquisition of CUAs easier and more efficient. We also commended the Park Service for including functionality for telling the public where CUA opportunities exist. This will make NPS recreation opportunities more visible and equitable. 

COA also expressed support for NPS’s plan to standardize the application fee for CUAs. This is an important step, because there has been significant variation in the amount of the application fee at different locations through the National Park system. 

At the same time, COA’s comments argued that a standardized $350 application fee is too high. While this would be a reduced fee in some high profile locations, it would be a significant increase in other locations, and may create a barrier to access for small operators that serve historically excluded communities. It is particularly impactful since paying the fee is no guarantee that the applicant will receive a permit. 

COA joined with its member organization the American Mountain Guides Association in urging NPS set the application fee at $250 and recover a higher proportion of the cost through the management fee imposed on CUA holders. This approach will ensure the burden of cost recovery is carried primarily by those who have an opportunity to generate revenue through a CUA.

COA also urged NPS to acknowledge the limitations of 54 U.S.C. § 101925(d), which reads: 

(d) Nonprofit Institutions.— Nonprofit institutions are not required to obtain commercial use authorizations unless taxable income is derived by the institution from the authorized use.

Our comments explained that in the overwhelming majority of cases, outdoor program providers that are recognized as tax exempt organizations under section 501(c)(3) of the Internal Revenue Code do not generate taxable income when they charge for outdoor educational programs that are squarely within their “exempt function.” COA urged NPS to increase compliance with this provision of the law governing CUAs by providing more training to NPS staff and by including a notification in its on-line application system the nonprofit organizations are not required to obtain CUAs in most circumstances. 

You can read COA’s comments on the NPS proposal here. 

The Simplifying Outdoor Access for Recreation Act (SOAR Act)—the permitting reform legislation that could bring much needed updates to the federal process for the permitting of guides, outfitters and educational institutions on public lands—is potentially headed for the home stretch this fall. As part of the package of recreation bills known as America’s Outdoor Recreation Act (AORA), the SOAR Act would provide long overdue reforms for guide and outfitter permitting such as standardizing the types of permits that can be issued, and fees that can be charged by federal land managers. SOAR Act also creates two new types of permits that federal agencies can issue, creates an incentive program for unused service days to be made available to others, provides for multijurisdictional permits, and directs the agencies to take steps that make the permitting process easier, faster and more efficient.

Congress nearly enacted the SOAR Act last year after it was integrated into AORA and passed out of the SENR Committee with unanimous consent. Senators Manchin and Barrasso reintroduced AORA this Congress—including the SOAR Act provisions—and the bill again sailed through committee last June. A companion SOAR Act in the US House of Representatives has also enjoyed unanimous support and is expected to be included in a House version of the AORA package. Depending on what happens with the government shutdown, enactment could come as early as October but it may take Congress the rest of the year to find time and take action. While AORA remains widely supported with very little opposition, the Coalition for Outdoor Access continues to aggressively advocate for getting AORA and the SOAR Act across the finish line. Stay tuned for updates as things progress.

The National Park Service (NPS) is seeking comments on a new online Commercial Use Authorization (CUA) system intended to standardize, modernize, and streamline the application and reporting process.

For 25 years commercial service providers in national parks and other NPS lands that do not operate under a concession contract have been required to obtain a CUA. The CUA application and reporting systems have long been out-of-date, inconsistent, and inefficient for both CUA applicants and NPS administrators. This new online process will be available to a range of commercial service providers such as guided climbing, boat tours, and horseback trips, but will not affect road-based commercial tour operators who will have their own online system eventually.

In addition to new online CUA applications and reporting, the NPS intends the new system to collect fees and allow the public to view all available CUA opportunities. The online portal would provide educational materials for applicants—such as user guides, demonstration videos, and FAQs—to support successful applications. CUA fees will also be collected through the online system and will start at a minimum of $350.

The new system will go online December 1, 2023 for 2024 CUAs in some parks that opted into the first phase (by October the NPS will provide a list of which NPS units will start online applications this December). All NPS units will use the online system starting December 1, 2024, for the 2025 CUA season at which time a standard CUA application fee will be the same across all NPS units and will be reviewed every two years for any adjustments.

The public comment period closes on September 20, 2023. More information can be found at the Park Service website: https://www.nps.gov/subjects/cua/index.htm.

Today, the Coalition for Outdoor Access submitted detailed comments on the U.S. Forest Service’s Notice of Proposed Rulemaking on Cost Recovery. Our comments stated COA’s opposition to the proposed rule and urged the Forest Service to reconsider its plan to increase cost recovery fees for recreation special use permits. 

COA’s comments were submitted in response to a notice, published on March 9, 2023, in which the Forest Service proposed to increase the cost recovery fees charged to recreation special use permit holders. The proposed rule would increase fees in several ways:

1. The Forest Service would begin charging cost recovery fees for the “proposal” phase of the application process. Currently, the meter doesn’t start running until an activity proposal has completed its initial review and becomes a formal application. This will increase up front costs for  outdoor leaders seeking permits. 
2. The Forest Service would eliminate the 50-hour exemption for recreation special use permits. Currently, the first 50 hours of processing time is exempt from cost recovery. Under the proposed rule, this exemption would be eliminated. As a result, permit applicants would begin paying cost recovery fees from the moment they submit a proposal or begin discussing a proposal with the agency. 
3. The Forest Service would adjust the current schedule of cost recovery fees upward to reflect the increasing costs for staff time needed to process recreation special use applications. 

COA based its opposition to the proposed rule on two core principles:

1. Guided outdoor recreation and recreation events provide benefits to the public and to the Forest Service that differentiate them from non-recreational special uses.
2. Because of the financial realities in the outdoor programming space, the proposed increase in cost recovery fees will have an outsized impact on outdoor leaders. 

Based on these principles, COA identified four main concerns with the proposed increase in fees. 

1. The proposed rule would impose significant costs that will burden a wide range of recreation service providers, including small nonprofit outdoor program providers and similar affinity groups, college and university recreation programs, small outfitters, larger outfitters, independent guides, and recreation event sponsors.  
2. The proposed rule directly contradicts equity goals and promises of both the Forest Service and the Biden administration, as outlined in the Forest Service’s Equity Action Plan and the administration’s America the Beautiful Campaign.  
3. The Forest Service has not adequately demonstrated how the proposed rule will improve customer service such that the benefits will outweigh the costs. 
4. The proposed rule does not increase consistency between the Forest Service and the Bureau of Land Management (BLM) on cost recovery. 

In addition to the members of COA’s Steering Committee members, ten organizations signed on to the COA comment:

• American Alpine Institute
• American Hiking Society 
• Human Potential LLC. 
• American Camp Association
• Bus for Outdoor Access and Teaching
• Choose Outdoors
• Latino Outdoors
• Northwest Outward Bound School
• Outward Bound USA
• Runners for Public Lands.

You can read the COA comment here.