S. 2798 (111th): National Forest Insect and Disease Emergency Act of 2010

111th Congress, 2009–2010. Text as of Sep 27, 2010 (Reported by Senate Committee).

Status & Summary | PDF | Source: GPO

II

Calendar No. 599

111th CONGRESS

2d Session

S. 2798

[Report No. 111–313]

IN THE SENATE OF THE UNITED STATES

November 18, 2009

(for himself, Mr. Risch, and Mr. Crapo) introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources

September 27, 2010

Reported by , with an amendment

Strike out all after the enacting clause and insert the part printed in italic

A BILL

To reduce the risk of catastrophic wildfire through the facilitation of insect and disease infestation treatment of National Forest System and adjacent land, and for other purposes.

1.

Short title

This Act may be cited as the National Forest Insect and Disease Emergency Act of 2009.

2.

Purposes

The purposes of this Act are—

(1)

to ensure that adequate emphasis is placed on the mitigation of hazards posed by large-scale infestations of bark beetles and other insects through the establishment of insect and disease emergency areas;

(2)

to ensure that increased resources are available within each designated insect and disease emergency area to mitigate hazards associated with—

(A)

falling trees;

(B)

increased fire hazards; and

(C)

the restoration of National Forest System land; and

(3)

to make permanent, as of the date of enactment of this Act, existing good neighbor and stewardship contracting authorities.

3.

Definitions

In this Act:

(1)

Affected State

The term affected State includes each of the States of—

(A)

Arizona;

(B)

California;

(C)

Colorado;

(D)

Idaho;

(E)

Montana;

(F)

Nevada;

(G)

New Mexico;

(H)

Oregon;

(I)

South Dakota;

(J)

Utah;

(K)

Washington; and

(L)

Wyoming.

(2)

Insect and disease emergency area

The term insect and disease emergency area means an area of National Forest System land—

(A)

that is located in an affected State that is not—

(i)

designated as wilderness; or

(ii)

an area recommended for wilderness in a forest land and resource management plan;

(B)

in which an insect and disease infestation emergency exists, as determined by the Secretary; and

(C)

that is designated by—

(i)

section 4(a); or

(ii)

the Secretary under section 4(c).

(3)

Insect and disease infestation emergency

The term insect and disease infestation emergency means an insect or disease infestation that has resulted in—

(A)

a current or future increased risk of catastrophic wildland fire; or

(B)

an increased threat posed by hazard trees to—

(i)

utility corridors;

(ii)

communication sites;

(iii)

roads;

(iv)

recreation sites;

(v)

water structures (such as reservoirs and water conveyance systems); or

(vi)

other infrastructure.

(4)

Map

The term map means the map entitled Insect Emergency Areas.

(5)

National Forest System

The term National Forest System has the meaning given the term in section 11(a) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1609(a)).

(6)

Secretary

The term Secretary means the Secretary of Agriculture.

4.

Designation of insect and disease emergency areas

(a)

Designation

Each area depicted on the map is designated as an insect and disease emergency area under this Act.

(b)

Map

(1)

Duty of Secretary

As soon as practicable after the date of enactment of this Act, the Secretary shall file the map for insect and disease emergency areas designated by subsection (a) with—

(A)

the Committee on Energy and Natural Resources of the Senate;

(B)

the Committee on Agriculture, Nutrition, and Forestry of the Senate;

(C)

the Committee on Natural Resources of the House of Representatives; and

(D)

the Committee on Agriculture of the House of Representatives.

(2)

Force of law

The map filed under paragraph (1) shall have the same force and effect as if included in this subsection, except that the Secretary may correct typographical errors in the map and the legal descriptions.

(3)

Public availability

The map filed under paragraph (1) shall be on file and available for public inspection in the appropriate offices of the Forest Service.

(c)

Designation by Secretary

(1)

In general

The Secretary may designate additional insect and disease emergency areas in accordance with each requirement described in this subsection.

(2)

Initiation

The designation of an insect and disease emergency area may be made by the Secretary—

(A)

on the initiative of the Secretary; or

(B)

in response to a request by any Governor of an affected State.

(3)

Deadline

If the Governor of a State described in paragraph (2)(B) requests the Secretary to designate as an insect and disease emergency area an area located in the State, the Secretary shall accept or deny the request by a date that is not later than 90 days after the date on which the Secretary receives the request.

(4)

Limitation on delegation

With respect to National Forest System land, the Secretary, acting through the Chief of the Forest Service, may delegate the authority to make a designation under this subsection only to a Regional Forester of the National Forest System land.

(5)

Procedure

If the Secretary designates an additional insect and disease emergency area under paragraph (1), the Secretary shall—

(A)

publish a notice of the designation of the insect and disease emergency area (including a map of the insect and disease emergency area) in the Federal Register; and

(B)

notify—

(i)

each appropriate State; and

(ii)

the appropriate committees of Congress.

(6)

Applicability

A designation made by the Secretary under paragraph (1) shall not be subject to—

(A)

the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);

(B)

section 322 of the Department of the Interior and Related Agencies Appropriations Act, 1999 (Public Law 105–277; 112 Stat. 2681–289); or

(C)

any other applicable law (including regulations).

5.

Response to emergency designation

(a)

Priority treatments

In carrying out the management of an insect and disease emergency area, the Secretary shall give priority consideration to—

(1)

the removal of hazardous fuels and hazard trees on, and the restoration of the health of, National Forest System land located in the insect and disease emergency area; and

(2)

the provision of assistance to State and local governments, Indian tribes, and private landowners for the removal of hazardous fuels and hazard trees on, and the restoration of the health of, each parcel of land located in the insect and disease emergency area—

(A)

that is under the jurisdiction of the State or local government or Indian tribe; or

(B)

the title of which is held by a private landowner; and

(3)

the making of payments under section 9011(d)(1)(B) of the Farm Security and Rural Investment Act of 2002 (7 U.S.C. 8111(d)(1)(B)) to each individual or entity that collects or harvests renewable biomass from a parcel of National Forest System land located in an insect and disease emergency area.

(b)

Emergency forest restoration

In implementing the emergency forest restoration program under section 407 of the Agricultural Credit Act of 1978 (16 U.S.C. 2206), the Secretary may make payments to an owner of a parcel of nonindustrial private forest land that is located in an insect and disease emergency area to carry out emergency measures in response to an insect and disease infestation emergency under this Act.

(c)

Biomass

Any biomass removed from a parcel of land located in an insect and disease emergency area shall be considered to be renewable biomass for purposes of the renewable fuel standard under section 211(o) of the Clean Air Act (42 U.S.C. 7545(o)).

(d)

Healthy forest restoration

(1)

Authority of Secretary

The Secretary may apply each requirement described in sections 104 and 105 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6514, 6515) to projects that are carried out to remove hazardous fuels and hazard trees on, and to restore the health of, National Forest System land that is located in an insect and disease emergency area.

(2)

Judicial review

Section 106 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6516) shall apply to each project described in paragraph (1).

6.

Good neighbor authority

(a)

State forest services

(1)

Authority of Secretary

Notwithstanding chapter 63 of title 31, United States Code, and any provisions of law related to competition, the Secretary may enter into a contract (including a sole source contract) or agreement (including an agreement for the mutual benefit of the Secretary and the State), as appropriate and consistent with all applicable general and specific operating procedures established by the Forest Service for such contracts and agreements (including labor and wage requirements), with a State to permit the State to perform watershed restoration and protection services on National Forest System land located in the State if the State is carrying out similar and complementary watershed restoration and protection services on adjacent State or private land.

(2)

Authorized services

Watershed restoration and protection services described in paragraph (1) include—

(A)

the treatment of insect-infested trees;

(B)

the reduction of hazardous fuels; and

(C)

any other activity that is carried out to restore or improve watersheds or fish and wildlife habitat across ownership boundaries.

(b)

Administrative provisions

(1)

National Forest Management Act of 1976

Subsections (d) and (g) of section 14 of the National Forest Management Act of 1976 (16 U.S.C. 472a) shall not apply to services performed under a contract or other agreement under subsection (a)(1).

(2)

Assumption of liability

The State shall assume liability, to the extent allowed by Federal, State, and local law, for the actions or omissions of employees or subcontractors of the State in preparing or implementing a contract or agreement under this title.

(3)

Subcontracts

A State may subcontract, to the extent allowed by State and local law, to prepare or implement a contract or agreement under this title.

(4)

Dispute resolution

Any dispute under a contract or agreement under subsection (a)(1) shall be resolved in accordance with, as applicable—

(A)

the dispute clause of the contract or agreement;

(B)

the Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.); or

(C)

section 1491 of title 28, United States Code.

(c)

Retention of responsibilities under National Environmental Policy Act of 1969

With respect to any watershed restoration and protection service on National Forest System land that is proposed to be carried out by a State under subsection (a), any decision required to be made under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) may not be delegated to the State or any officer or employee of the State.

(d)

Applicability

(1)

In general

Subject to paragraph (2), the authority provided by this section applies only to National Forest System land located in affected States.

(2)

Secretary of the Interior

With respect to public land that is located in an affected State and administered by the Secretary of the Interior (acting through the Bureau of Land Management), the Secretary of the Interior may carry out activities under this section on the public land.

7.

Stewardship contracting

(a)

Cancellation costs

(1)

In general

Notwithstanding any other provision of law, including section 304B of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 254c), the Secretary may not obligate funds to cover the cost of canceling a Forest Service multiyear stewardship contract under section 347 of the Department of the Interior and Related Agencies Appropriations Act, 1999 (16 U.S.C. 2104 note; Public Law 105–277) until the date on which the multiyear stewardship contract is cancelled.

(2)

Costs of cancellation or termination

The costs of any cancellation or termination of a multiyear stewardship contract described in paragraph (1) may be paid from any appropriations that are made available to the Forest Service.

(3)

Anti-Deficiency Act

In the case in which the appropriations described in paragraph (2) are exhausted—

(A)

the exhaustion shall not be considered to be a violation of section 1341 of title 31, United States Code; and

(B)

the Secretary shall seek a supplemental appropriation.

(b)

Permanent authority

Section 347(a) of the Department of the Interior and Related Agencies Appropriations Act, 1999 (16 U.S.C. 2104 note; Public Law 105–277) is amended by striking Until September 30, 2013, the and inserting The.

8.

Effect

Nothing in this Act affects or diminishes the rights of any owner of private property.

1.

Short title

This Act may be cited as the National Forest Insect and Disease Emergency Act of 2010.

2.

Purposes

The purposes of this Act are—

(1)

to ensure that adequate emphasis is placed on the mitigation of hazards posed by landscape-scale epidemics of bark beetles and other insects and diseases through the identification of areas affected by the epidemics, including areas in which resulting hazard trees pose a high risk to public health and safety;

(2)

to help focus resources within areas characterized by landscape-scale insect or disease epidemics to mitigate hazards associated with—

(A)

falling trees; and

(B)

wildfire; and

(3)

to authorize good neighbor agreements between State and Federal agencies to provide more effective and efficient forest management across certain Federal land boundaries.

3.

Definitions

In this Act:

(1)

Affected State

The term affected State includes each of the States of—

(A)

Alaska;

(B)

Arizona;

(C)

California;

(D)

Colorado;

(E)

Idaho;

(F)

Montana;

(G)

Nevada;

(H)

New Mexico;

(I)

Oregon;

(J)

South Dakota;

(K)

Utah;

(L)

Washington; and

(M)

Wyoming.

(2)

High-risk area

The term high-risk area means a road, trail, or other area that poses a high risk to public health or safety due to hazard trees resulting from landscape-scale tree mortality caused by an insect or disease epidemic.

(3)

Insect or disease epidemic area

The term insect or disease epidemic area means an area of National Forest System land in which landscape-scale tree mortality caused by an insect or disease epidemic exists.

(4)

National Forest System

The term National Forest System has the meaning given the term in section 11(a) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1609(a)).

(5)

Secretary

The term Secretary means the Secretary of Agriculture.

4.

Designation of areas

(a)

Identification of high-risk areas

(1)

In general

As soon as practicable after the date of enactment of this Act, the Secretary shall identify by map or other appropriate means high-risk areas within the National Forest System in the affected States.

(2)

Public education

In conjunction with the information developed pursuant this subsection, the Secretary shall develop educational materials that describe the risk posed by hazard trees in high-risk areas and measures that can be taken by the public to avoid or reduce that risk.

(3)

Consultation

In developing the information and educational materials required by this subsection, the Secretary shall consult with interested State, local, and tribal governments, first responders, and other stakeholders.

(4)

Updates

The Secretary shall periodically review and revise the information and educational materials required by this subsection to reflect the best available information.

(5)

Public availability

The information and associated educational materials required by this subsection shall be on file and available for public inspection, including in the appropriate offices of the Forest Service.

(b)

Identification of insect and disease epidemic areas

(1)

In general

As soon as practicable after the date of enactment of this Act, the Secretary shall identify by map or other appropriate means insect or disease epidemic areas within the National Forest System in the affected States.

(2)

Required information

The information required by paragraph (1) shall include—

(A)

a geographic estimate of the annual mortality caused by the insect or disease epidemic; and

(B)

a projection, based on the best available science, of future tree mortality resulting from the insect or disease epidemic.

(3)

Updates

The Secretary shall periodically review and revise the information required by paragraph (1) to reflect the best available information.

(4)

Availability

The information required by this subsection shall be made available to—

(A)

communities in or adjacent to an insect or disease epidemic area that have developed a community wildfire protection plan (as defined in section 101 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6511));

(B)

fire departments and other wildfire-fighting organizations responding to, or likely to respond to, a wildfire in an insect or disease epidemic area; and

(C)

the public through the appropriate offices of the Forest Service.

(c)

Contracts and financial assistance

To help collect, develop, monitor, and distribute the information and materials required by this section, the Secretary may enter into contracts or provide financial assistance through cooperative agreements in accordance with section 8 of the Cooperative Forestry Assistance Act of 1978 (16 U.S.C. 2104) with—

(1)

the State Forester or equivalent State official of an affected State;

(2)

educational institutions; or

(3)

other organizations.

5.

Support for restoration and response

(a)

Support for biomass utilization

To help reduce the risk to public health and safety from hazard trees and wildfires and to restore ecosystems affected by insect and disease epidemics, the Secretary may assist State and local governments, Indian tribes, private landowners, and other persons in affected States with the collection, harvest, storage, and transportation of eligible material from areas identified pursuant to section 4(b) in accordance with section 9011(d) of the Farm Security and Rural Investment Act of 2002 (7 U.S.C. 8111(d)).

(b)

Restoration assistance for private landowners

The Secretary may make payments to an owner of nonindustrial private forest land in an affected State to carry out emergency measures to restore the land after an insect or disease infestation in accordance with the emergency forest restoration program established under section 407 of the Agricultural Credit Act of 1978 (16 U.S.C. 2206).

(c)

National forest hazardous fuel reduction

The Secretary shall carry out authorized hazardous fuel reduction projects in affected States on National Forest System land on which an epidemic of disease or insects poses a significant threat to an ecosystem component, or forest or rangeland resource, in accordance with the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6501 et seq.).

6.

Good neighbor authority

(a)

Definitions

In this section:

(1)

Authorized restoration services

The term authorized restoration services means similar and complementary forest, rangeland, and watershed restoration services carried out on adjacent Federal land and non-Federal land by either the Secretary or a Governor pursuant to—

(A)

a good neighbor agreement; and

(B)

a cooperative agreement or contract entered into under subsection (c).

(2)

Federal land

(A)

In general

The term Federal land means the following land in a State located in whole or in part west of the 100th meridian:

(i)

National Forest System land.

(ii)

Public lands (as defined in section 103 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702)).

(B)

Exclusions

The term Federal land does not include—

(i)

a component of the National Wilderness Preservation System, National Wild and Scenic Rivers System, National Trails System, or National Landscape Conservation System;

(ii)

a National Monument, National Preserve, National Scenic Area, or National Recreation Area; or

(iii)

a wilderness study area.

(3)

Forest, rangeland, and watershed restoration services

The term forest, rangeland, and watershed restoration services means—

(A)

activities to treat insect- and disease-infected trees;

(B)

activities to reduce hazardous fuels;

(C)

activities to maintain roads and trails that cross a boundary between Federal land and non-Federal land; and

(D)

any other activities to restore or improve forest, rangeland, or watershed health, including fish and wildlife habitat.

(4)

Good neighbor agreement

The term good neighbor agreement means—

(A)

a nonfunding master cooperative agreement entered into between the Secretary and a Governor under chapter 63 of title 31, United States Code; or

(B)

a memorandum of agreement or understanding entered into between the Secretary and a Governor.

(5)

Governor

The term Governor means the Governor or any other appropriate executive official of an affected State.

(6)

Secretary

The term Secretary means—

(A)

the Secretary of Agriculture, with respect to National Forest System land; and

(B)

the Secretary of the Interior, with respect to Bureau of Land Management land.

(b)

Good neighbor agreements

(1)

In general

The Secretary may enter into a good neighbor agreement with a Governor to coordinate the procurement and implementation of authorized restoration services in accordance with this section.

(2)

Public notice and comment

The Secretary shall make each good neighbor agreement available to the public.

(c)

Task orders, contracts, and cooperative agreements

(1)

In general

The Secretary may issue a task order for, or enter into a contract (including a sole source contract) or cooperative agreement with, a Governor to carry out authorized restoration services.

(2)

Requirements

Each task order, contract, or cooperative agreement entered into under paragraph (1) shall be executed in accordance with—

(A)

chapter 63 of title 31, United States Code; and

(B)

the applicable good neighbor agreement.

(d)

Contract and subcontract requirements

(1)

Requirements for services on Federal land

(A)

In general

For authorized restoration services carried out on Federal land under subsection (c), each contract and subcontract issued under the authority of a Governor shall include the provisions described in subparagraph (B) that would have been included in the contract had the Secretary been a party to the contract.

(B)

Applicable provisions

The provisions referred to in subparagraph (A) are provisions for—

(i)

wages and benefits for workers employed by contractors and subcontractors required by—

(I)

subchapter IV of chapter 31 of part A of subtitle II of title 40, United States Code; and

(II)

chapter 6 of title 41, United States Code;

(ii)

nondiscrimination; and

(iii)

worker safety and protection.

(2)

Requirements for small businesses

Each contract and subcontract for authorized restoration services under subsection (c) shall comply with provisions for small business assistance and protection that would have been applicable to the contract had the Secretary been a party to the contract.

(3)

Liability

The Secretary shall include provisions in each good neighbor agreement, contract, or cooperative agreement, as appropriate, governing the potential liability of the State and the Secretary for actions carried out under this Act.

(e)

Termination of effectiveness

(1)

In general

The authority of the Secretary to enter into cooperative agreements and contracts under this section terminates on September 30, 2019.

(2)

Contract date

The termination date of a cooperative agreement or contract entered into under this section shall not extend beyond September 30, 2020.

(3)

Consolidated authority

(A)

Federal and State cooperative watershed restoration and protection in Colorado

Section 331 of the Department of the Interior and Related Agencies Appropriations Act, 2001 (Public Law 106–291; 114 Stat. 996) is repealed.

(B)

Federal and State cooperative forest, rangeland, and watershed restoration in Utah

Section 337 of the Department of the Interior and Related Agencies Appropriations Act, 2005 (Public Law 108–447; 118 Stat. 3102) is repealed.

(4)

Existing contracts

Nothing in the amendments made by this section affects contracts in effect on the day before the date of enactment of this Act.

7.

Authorization of appropriations

There are authorized to be appropriated to carry out this Act such sums as are necessary.

September 27, 2010

Reported with an amendment