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[Senate Report 111-266]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 536
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-266

======================================================================

 
                 FEDERAL LAND AVALANCHE PROTECTION ACT

                                _______
                                

                 August 5, 2010.--Ordered to be printed

                                _______
                                

   Mr. Bingaman, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 2907]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 2907) to establish a coordinated 
avalanche protection program, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill, as amended, do pass.
    The amendment is as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federal Land Avalanche Protection 
Act of 2010''.

SEC. 2. DEFINITIONS.

    In this Act:
          (1) Committee.--The term ``Committee'' means the Avalanche 
        Artillery Users of North America Committee.
          (2) Program.--The term ``program'' means the avalanche 
        protection program established under section 3(a).
          (3) Secretary.--The term ``Secretary'' means the Secretary of 
        Agriculture, acting through the Chief of the Forest Service.

SEC. 3. AVALANCHE PROTECTION PROGRAM.

    (a) Establishment.--The Secretary shall establish an avalanche 
protection program to provide information and assistance to users of 
avalanche-prone National Forest System land.
    (b) Objectives.--The objectives of the program include----
          (1) to inform and educate the public about the risks posed by 
        avalanches to reduce the potential for injury, death, or 
        property damage;
          (2) to provide avalanche forecasts for avalanche-prone areas 
        of the National Forest System that are frequented by 
        recreational or other users;
          (3) to provide oversight of activities relating to the 
        prevention and control of avalanches by ski area and other 
        special use permit holders on National Forest System land, 
        including the procurement, control, and use of artillery; and
          (4) to facilitate research on the objectives of the program, 
        including research on the development of alternatives to 
        military artillery.
    (c) Coordination.--In carrying out this section, the Secretary 
shall----
          (1) use the resources of--
                  (A) the National Avalanche Center of the Forest 
                Service; and
                  (B) other partners; and
          (2) work with the Committee and other partners to improve----
                  (A) coordination among users of artillery used to 
                prevent and control avalanches; and
                  (B) access to, and the control and use of, artillery 
                and other methods to prevent and control avalanches.
    (d) Grants.--
          (1) In general.--The Secretary may make grants to any person 
        to further the objectives of the program.
          (2) Priority.--The Secretary shall give priority to grants 
        under paragraph (1) that enhance public safety.
          (3) Authorization of appropriations.--There is authorized to 
        be appropriated to carry out this subsection $4,000,000 for 
        each of fiscal years 2010 through 2014.

                                PURPOSE

    The purpose of S. 2907 is to provide for a coordinated 
avalanche protection program and to authorize the Secretary of 
Agriculture to make grants for public safety as part of the 
program.

                          BACKGROUND AND NEED

    Each year, thousands of avalanches fall from steep mountain 
slopes. When avalanches occur in areas frequented by people, 
they can be very dangerous and destructive. Over the last 10 
winters, 266 people died in avalanches each year in the United 
States, 98% of whom were snowmobiling, skiing, snowboarding, 
climbing, or otherwise recreating. Most of these fatalities 
occurred in Colorado (20%), Montana (15%), Utah (14%), Alaska 
(14%), Wyoming (11%) and Idaho (8%).
    Over the past 50 years, the vast majority of avalanche 
fatalities have occurred on National Forest System land, and 
the Forest Service has played an important role in avalanche 
coordination and safety since the 1930s. In the early 1990s, 
the Forest Service established the National Avalanche Center. 
The Forest Service also manages a network of sixteen regional 
Avalanche Centers in the West, Alaska, and New Hampshire and 
coordinates with the Colorado Avalanche Center.
    The purpose of the network is to coordinate among 
backcountry avalanche education advisory centers, transfer 
avalanche technology to the advisory centers, facilitate 
avalanche research, and develop and distribute avalanche 
forecasts, training, and safety programs. The centers also work 
to procure, store, distribute, and deploy military artillery 
that is used for avalanche control (i.e. where ordinance is 
used to trigger avalanches under more controlled conditions, 
thus reducing the risks to the public from spontaneous 
avalanches).
    Legislation is needed to provide a specific statutory 
foundation for the Forest Service's existing avalanche program 
and to authorize the Forest Service to make grants to further 
the objectives of the program.

                          LEGISLATIVE HISTORY

    S. 2907 was introduced by Senators Murkowski, Begich, and 
Mark Udall on December 18, 2009. The Subcommittee on Public 
Lands and Forests held a hearing on the bill on March 10, 2010. 
The Committee on Energy and Natural Resources considered the 
bill and adopted an amendment in the nature of a substitute at 
its business meeting on June 16, 2010. The Committee ordered S. 
2907 favorably reported, as amended, at its business meeting on 
June 21, 2010.

                        COMMITTEE RECOMMENDATION

    The Committee on Energy and Natural Resources, in open 
business session on June 21, 2010, by a voice vote of a quorum 
present, recommends that the Senate pass S. 2907, if amended as 
described herein.

                          COMMITTEE AMENDMENT

    During its consideration of S. 2907, the Committee adopted 
an amendment in the nature of a substitute. The amendment makes 
several modifications to the bill, including a number of 
changes in response to concerns raised by the Administration. 
The amendment refines the description of the objectives of the 
program, recognizing that actual avalanche protection 
activities like using ordinance are carried out separately from 
the program. The Committee amendment does not include the 
language in S. 2907, as introduced, that would require the 
Secretary of Agriculture to establish a central depository for 
military artillery for use in avalanche control, that would 
authorize the Administrator of General Services to transfer 
surplus artillery ordinance to a State agency or Tribe, or that 
would create an advisory committee to assist in the development 
and implementation of the avalanche protection program. The 
amendment does encourage the Secretary to work with the 
existing Avalanche Artillery Users of North American Committee 
and other partners to improve coordination among various users 
of artillery for avalanche control. The amendment is explained 
in detail in the section-by-section analysis below.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 provides the short title.
    Section 2 defines key terms used in the bill.
    Section 3(a) directs the Secretary of Agriculture to 
establish an avalanche protection program.
    Subsection (b) describes the objectives of the program, 
which are to educate the public about the risks posed by 
avalanches, to provide avalanche forecasts, to provide 
oversight of activities relating to the prevention of 
avalanches by special use permit holders on National Forest 
System land, and to facilitate research on the program's 
objectives.
    Subsection (c) requires the Secretary to use the resources 
of the National Avalanche Center of the Forest Service in 
carrying out the program. The Secretary must also work with the 
Avalanche Artillery Users of North America Committee and other 
partners to improve coordination among users of avalanche 
artillery and to improve access to avalanche prevention and 
control methods.
    Subsection (d) authorizes $4 million to be appropriated for 
each fiscal year from 2010 through 2014 for the Secretary to 
make grants to further the objectives of the program, giving 
priority to those grants that enhance public safety.

                   COST AND BUDGETARY CONSIDERATIONS

    The following estimate of costs of this measure has been 
provided by the Congressional Budget Office:

S. 2907--Federal Land Avalanche Protection Act of 2010

    Summary: S. 2907 would authorize the appropriation of $16 
million over the 2011-2014 period for the Forest Service to 
provide grants to reduce the risk of avalanches on public land. 
Assuming appropriation of the authorized amounts, CBO estimates 
that implementing the legislation would cost $16 million over 
the 2011-2015 period. Enacting S. 2907 would not affect direct 
spending or revenues; therefore, pay-as-you-go procedures would 
not apply.
    S. 2907 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.
    Estimated Cost to the Federal Government: The estimated 
budgetary impact of S. 2907 is shown in the following table. 
The costs of this legislation fall within budget function 300 
(natural resources and environment).

----------------------------------------------------------------------------------------------------------------
                                                              By fiscal year in millions of dollars----
                                                    ------------------------------------------------------------
                                                       2011      2012      2013      2014      2015    2011-2015
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Authorization Level................................         4         4         4         4         0         16
Estimated Outlays..................................         3         4         4         4         1         16
----------------------------------------------------------------------------------------------------------------

    Basis of Estimate: For this estimate, CBO assumes that the 
legislation will be enacted in 2010 and that the authorized 
amounts will be appropriated for each fiscal year. Estimated 
outlays are based on historical spending patterns for similar 
Forest Service programs.
    S. 2907 would authorize the appropriation of $4 million a 
year over the 2011-2014 period for the Forest Service to 
provide grants to reduce the risk of avalanches on public land. 
Under current law, the agency, in coordination with other 
public and private entities, conducts an avalanche protection 
program in recreation areas on federal lands. In 2010, the 
agency spent about $1 million to carry out activities related 
to that program. The grants authorized under the bill would 
provide additional support for those activities. Assuming 
appropriation of the authorized amounts, CBO estimates that 
implementing the legislation would cost $16 million over the 
2011-2015 period.
    Pay-as-You-Go Considerations: None.
    Intergovernmental and Private-Sector Impact: S. 2907 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments.
    Estimate Prepared by: Federal Costs: Jeff LaFave, Impact on 
State, Local, and Tribal Governments: Melissa Merrell, Impact 
on the Private Sector: Amy Petz.
    Estimate Approved by: Sam Papenfuss, Unit Chief for Income 
Security and Education Cost Estimates Unit, Budget Analysis 
Division.

                      REGULATORY IMPACT EVALUATION

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 2907.
    The bill is not a regulatory measure in the sense of 
imposing Government-established standards or significant 
economic responsibilities on private individuals and 
businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 2907, as ordered reported.

                   CONGRESSIONALLY DIRECTED SPENDING

    S. 2907, as ordered reported, does not contain any 
congressionally directed spending items, limited tax benefits, 
or limited tariff benefits as defined in rule XLIV of the 
Standing Rules of the Senate.

                        EXECUTIVE COMMUNICATIONS

    The views of the Administration were included in testimony 
received by the Committee at the hearing on S. 2907 on March 
10, 2010, which is printed below:

Statement of Harris Sherman, Under Secretary, Natural Resources and the 
                 Environment, Department of Agriculture

    Mr. Chairman, Members of the Committee, I am Harris 
Sherman, Under Secretary of Agriculture for Natural Resources 
and the Environment. Thank you for the opportunity to share the 
Department's views on S. 2907, the Federal Land Avalanche 
Protection Act of 2009.
    S. 2907 directs the Secretary of Agriculture to establish a 
coordinated avalanche protection program to identify the 
potential for avalanches on Federal lands and inform the public 
about the hazard; to carry out research related to avalanches 
to improve forecasting; and to reduce the risk and mitigate the 
effects of avalanches on Federal lands. S. 2907 also requires 
the Secretary to establish an advisory committee to assist in 
the development and implementation of the avalanche protection 
program. The bill would require the establishment of a central 
repository for weapons for avalanche control purposes, and 
would authorize the Secretary to make grants to carry out 
projects and activities under the avalanche control program.
    I would like to thank the sponsors of this legislation and 
the committee for recognizing the importance of the Forest 
Service avalanche program. The Forest Service supports the 
general concept of S. 2907, but asks the committee to consider 
revising Section 3 to clarify intent and to reflect changes to 
the Forest Service avalanche program that have occurred in the 
last several years. We would like to work with the committee 
and the sponsors in this regard.

                               background

    The Forest Service was the first agency to initiate 
avalanche control and forecasting in the United States. When 
the first ski areas began operating on National Forest System 
lands in the 1930s, the Forest Service began using explosives 
for avalanche control work to protect visitors. In 1948, the 
agency worked with the U.S. Army and pioneered the use of 
artillery for avalanche control. In the years since, the Forest 
Service has gradually transferred day-to-day responsibilities 
for avalanche control work to ski areas, though it supervises 
and manages the artillery program at the resorts. This is the 
case because the Department of Defense prohibits acquisition of 
artillery by private entities and because the Bureau of 
Alcohol, Tobacco, and Firearms requires that artillery programs 
be under federal ``dominion and control'' at ski areas.
    Departments of transportation in Alaska, California, 
Colorado, Utah, and Washington also use artillery to control 
the avalanche danger in a number of transportation corridors in 
those States.
    In these areas, artillery is fired into avalanche starting 
zones on National Forest System lands. This effort is usually 
authorized and monitored by the Forest Service under a special 
use permit issued to the respective transportation department.
    As the Forest Service gradually moved into more of an 
oversight role for avalanche control work, the agency 
increasingly focused on providing forest visitors the education 
and information necessary to avoid or minimize avalanche 
hazards in the mountain backcountry. In the early 1970s, the 
Forest Service established the Colorado Avalanche Information 
Center. Through the 1980s the agency created a number of other 
backcountry avalanche centers around the country. Today, there 
are a total of 15 avalanche forecast centers operating in nine 
States, providing avalanche training and regular backcountry 
avalanche hazard forecasts throughout the winter.
    Were it not for these avalanche centers and the information 
they provide, the number of avalanche-related fatalities would 
be much greater than the 28 that have occurred each year on 
average over the past 15 years. Nearly all of these avalanche-
related fatalities were on National Forest System lands and 
involved backcountry recreationists, including snowmobilers, 
skiers, and others. As populations increase and technology 
supports easier access to avalanche-prone areas, public 
exposure to this hazard has been heightened.
    We are convinced the avalanche forecast and education 
programs literally save lives. We are fortunate that others, 
including States and local community non-profit organizations, 
have joined with us to provide these services.

                   comments on sections 3(a) and 3(b)

    We are concerned that parts of subsections 3(a) and 3(b) 
may be interpreted to require the Forest Service to move beyond 
its traditional role of informing and educating backcountry 
users, into active avalanche control work. This concern is 
heightened if the intent is to have the Forest Service assume 
responsibilities on both National Forest System lands and 
federal lands managed by agencies in the Department of the 
Interior or others such as the Department of Defense. We would 
like to work with the Committee to clarify and limit the scope 
of Forest Service responsibilities under this legislation.

                   comments on sections 3(c) and 3(d)

    Presently, the Forest Service avalanche program has three 
main components. The first is avalanche backcountry 
forecasting, public education and information distribution, and 
research and technology transfer to avalanche forecast centers. 
The second is oversight of permitted ski areas and their 
avalanche control programs. The third component is oversight of 
the military weapons used for avalanche control.
    Section 3(c) mandates that the Secretary establish a 15-
member advisory committee to assist in the development and 
implementation of the avalanche protection program. As it 
concerns the avalanche forecast centers and their information 
and education programs, we do not believe an advisory committee 
is necessary. As it concerns civilian use of military weapons 
for avalanche control, the Avalanche Artillery Users of North 
America Committee (AAUNAC) was formed in 1987 and encompasses 
all of the users of avalanche artillery in Canada and the U.S., 
as well as the U.S. Army. AAUNAC is an ad hoc consensus-based 
working group established to address the need for an informal 
coordination body for civilian use of military weapons for 
avalanche control. AAUNAC has proven to be an effective 
organization to establish standard operating procedures, 
conduct training, and provide a central point of contact for 
U.S. Army. We feel it would be helpful if AAUNAC could be 
formally recognized as the coordinating body for using military 
weapons for avalanche control purposes. We look forward to 
working with this Committee to determine the best approach for 
providing this designation.
    Section 3(d) requires the establishment of a central 
Depository for weapons for avalanche control purposes. A 
central depository has already been established by AAUNAC, 
working with the Department of Defense. The facility is located 
at the Sierra Army Depot in Herlong, California and contains an 
estimated 20-year supply of artillery and parts. The Army has 
assured AAUNAC that the Army will reserve at least a 20-year 
supply of ordnance for AAUNAC users. Additionally, ski areas 
operating under a permit issued by the Forest Service can 
obtain ordnance for future use in their programs and store that 
ordnance at other Army Depots. Consequently, section 3(d) is 
not necessary.

                        comments on section 3(e)

    We request removal of the grant program. This subsection 
also identifies two criteria for awarding grants. If a grant 
program is retained in S. 2907, we ask the committee to 
consider recognizing the avalanche centers, and their 
forecasting and education work, as the first priority, and 
public safety the primary criteria for any grants.

                      comments on subsection 3(f)

    This section amends Section 549(c)(3) of title 40, United 
States Code to provide that, when a state agency selects 
surplus artillery ordnance suitable for avalanche control for 
distribution through donation within the state, the 
Administrator of the General Services administration shall 
transfer the ordnance to the user of the ordnance. Currently, 
munitions are purchased by the various entities in the military 
weapons program. We defer to the Department of Defense and the 
General Services Administration on this proposed change.
    In closing, I want to thank the Committee for the 
opportunity to be with you today to provide testimony on this 
legislation and we look forward to working with you on 
refinements to S. 2970.

                        CHANGES IN EXISTING LAW

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that no 
changes in existing law are made by the bill S. 2907, as 
ordered reported.

                                  
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