[Senate Report 112-55]
[From the U.S. Government Publishing Office]


                                                       Calendar No. 135
112th Congress                                                   Report
                                 SENATE
 1st Session                                                     112-55

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



 
           SKI AREA RECREATIONAL OPPORTUNITY ENHANCEMENT ACT

                                _______
                                

   August 30 (legislative day, August 2), 2011.--Ordered to be printed

   Filed under authority of the order of the Senate of August 2, 2011

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 382]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 382) to amend the National Forest Ski 
Area Permit Act of 1986 to clarify the authority of the 
Secretary of Agriculture regarding additional recreational uses 
of National Forest System land that is subject to ski area 
permits, and for other purposes, having considered the same, 
reports favorably thereon without amendment and recommends that 
the bill do pass.

                                Purpose

    The purpose of S. 382 is to amend the National Forest Ski 
Area Permit Act of 1986 to authorize the Secretary of 
Agriculture to permit additional recreational activities and 
associated facilities on National Forest System land that is 
subject to a ski area permit.

                          Background and Need

    The National Forest Ski Area Permit Act of 1986 (Public Law 
99-522) authorizes the Secretary of Agriculture ``to issue 
permits . . . for the use and occupancy of suitable lands 
within the National Forest System for nordic and alpine skiing 
operations and purposes.'' 16 U.S.C. 497b. The Forest Service's 
regulations implementing that Act define a ``ski area'' as ``a 
site and attendant facilities expressly developed to 
accommodate alpine or nordic skiing and from which the 
preponderance of revenue is generated by the sale of lift 
tickets and fees for ski rentals, for skiing instruction and 
trail passes for the use of permittee-maintained ski trails. A 
ski area may also include ancillary facilities directly related 
to the operation and support of skiing activities.'' 36 C.F.R. 
251.51 (2009).
    The Forest Service has permitted more than 120 ski areas on 
National Forest System land in 13 States. Many of these areas 
provide for uses other than nordic and alpine skiing, such as 
snow-boarding and sledding, and some have been permitted to 
provide for summer activities such as mountain biking, disc-
golf (or ``frisbee golf'') courses, and zip lines. The interest 
in such non-skiing activities by the permit holders and the 
public has grown significantly over the years, and the interest 
in expanding summer uses is expected to grow in the future.
    S. 382 would provide clear authority for the Secretary to 
issue ski area permits that authorize a broader range of winter 
and summer activities for the public at ski areas on National 
Forest System land, along with some general direction regarding 
which activities would be appropriate.

                          Legislative History

    S. 382 was introduced by Senators Udall of Colorado and 
Barrasso on February 17, 2011, and is cosponsored by 10 other 
Senators. The Subcommittee on Public Lands and Forests held a 
hearing on the bill on May 18, 2011 (S. Hrg. 112-39). At its 
business meeting on July 14, 2011, the Committee on Energy and 
Natural Resources ordered S. 382 favorably reported without 
amendment. In the 111th Congress, the Committee reported an 
identical bill (S. 607; S. Rept. 111-304) and the House of 
Representatives passed a similar bill (H.R. 2476, by voice vote 
on July 30, 2010).

                        Committee Recommendation

    The Committee on Energy and Natural Resources, in open 
business session on July 14, 2011, by a voice vote of a quorum 
present, recommends that the Senate pass S. 382.

                      Section-by-Section Analysis

    Section 1 provides the short title for the bill.
    Section 2 provides the purpose for the bill.
    Section 3 of the bill amends section 3 of the National 
Forest Ski Area Permit Act of 1986 (``Ski Area Act'') (16 
U.S.C. 497b).
    Paragraphs (1) and (2) of section 3 of the bill amend 
subsections (a) and (b) of section 3 of the Ski Area Act to 
provide the Secretary of Agriculture with general authority to 
issue permits for ski areas and associated facilities on 
National Forest System land not only for nordic and alpine 
skiing, but also for skiing and other snow sports and 
recreational uses.
    Paragraphs (3) and (4) provide for the addition of a new 
subsection (c) in section 3 of the Ski Area Act. The new 
subsection (c) provides specific authority to the Secretary to 
authorize ski area permittees to provide to the public certain 
seasonal and year-round natural resource-based recreational 
activities and associated facilities on National Forest System 
land. Each activity authorized under the new subsection would 
have to meet specified requirements designed to ensure that the 
new activities are appropriate for National Forest System land, 
that they do not expand the developed footprint of the ski 
area, and that they remain an ancillary use under the permit. 
The amendment includes illustrative lists of activities that 
may--and would not--be permissible. For example, the Secretary 
is precluded from permitting amusement parks, but may, in 
appropriate circumstances that meet the requirements of the 
amendment, permit a collection of features such as zip lines, 
mountain-bike trails, and other recreational activities. The 
new subsection also includes a provision clarifying that it 
does not affect any activities or facilities authorized in a 
current ski area permit during the term of that permit. For 
example, an activity that currently is authorized in a ski area 
permit but that would not be permissible under the proposed 
amendment would not be precluded by the amendment from 
continuing for the remainder of the term of that permit.
    Paragraph (5) amends section 3 of the Ski Area Act to 
direct the Secretary to promulgate regulations for ski area 
permits.
    Paragraph (6) makes conforming changes to a number of 
citations of existing laws in the Ski Area Act.
    Section 4 of the bill clarifies that that the new authority 
provided to the Secretary to permit additional recreational 
activities under the new subsection (c) of the Ski Area Act 
does not create a legal preference for the permittee to provide 
those activities to the public on the National Forest System 
land subject to the permit.

                   Cost and Budgetary Considerations

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

S. 382--Ski Area Recreational Opportunity Enhancement Act of 2011

    S. 382 would expand the authority of the Forest Service to 
allow ski concessioners to offer additional recreational 
services on public lands. Based on information provided by the 
agency, CBO estimates that enacting the legislation would have 
no significant impact on the federal budget. The Forest Service 
already has authority to allow its concessioners to provide 
certain off-season and other recreational services at ski 
resorts. Expanding that authority could increase the agency's 
collection of fees from ski concessioners (currently yielding 
offsetting receipts to the Treasury of about $30 million a 
year), but CBO estimates that any increase would total less 
than $500,000 a year.
    Because enacting the legislation could result in additional 
offsetting receipts ( a credit against direct spending), pay-
as-you-go procedures apply. Enacting S. 382 would not affect 
revenues.
    The legislation contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act 
and would impose no costs on state, local, or tribal 
governments.
    On June 27, 2011, CBO transmitted a cost estimate for H.R. 
765, the Ski Area Recreational Opportunity Enhancement Act of 
2011, as ordered reported by the House Committee on Natural 
Resources on June 15, 2011. The two pieces of legislation are 
similar, and CBO's estimate of their budgetary impact is the 
same.
    The CBO staff contact for this estimate is Jeff LaFave. The 
estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                      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. 382.
    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. 382, as ordered reported.

                   Congressionally Directed Spending

    S. 382, 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 testimony provided by the Forest Service at the May 18, 
2011, hearing on S. 382 follows.

Statement of Mary Wagner, Associate Chief, Forest Service Department of 
                              Agriculture

    Mr. Chairman and Members of the Subcommittee, I am Mary 
Wagner, Associate Chief for the U.S. Forest Service. Thank you 
for the opportunity to appear before you to provide the views 
of the U.S. Department of Agriculture (USDA) on S. 382, the Ski 
Area Recreational Opportunity Enhancement Act of 2011.
    S. 382 would amend the National Forest Ski Area Permit Act 
of 1986 to authorize the Secretary to permit seasonal or year-
round natural resource-based recreational activities and 
associated facilities at ski areas, in addition to those that 
support Nordic and alpine skiing and other snow sports that are 
currently authorized by the Act.
    The Department supports S. 382 and wishes to thank the 
Members of the Committee for addressing the concerns expressed 
when we testified last Congress on S. 607. Like its 
predecessor, S. 382 would promote seasonal or year-round 
recreation opportunities at ski resorts on National Forest 
System lands and, by doing so, would expand the opportunities 
for ski areas to attract visitors during all four seasons.
    The additional seasonal or year-round recreational 
activities and associated facilities authorized by the bill 
would have to encourage outdoor recreation and enjoyment of 
nature and, to the extent practicable, would have to harmonize 
with the natural environment. The bill specifies certain 
recreational activities and facilities that could, under 
appropriate circumstances, be authorized and those that would 
be excluded from authorization. The bill would make clear that 
the primary purpose of the authorized use and occupancy would 
continue to be skiing and other snow sports.
    There are 122 ski areas operating under permit on National 
Forest System lands. These ski areas occupy less than 1 percent 
of all National Forest System lands. Nevertheless, about one-
fifth of all recreation in national forests occurs at these sik 
areas. The ski areas are some of the most developed sites in 
the national forests. However, for many Americans, ski areas 
are portals to the national forests and a means to greater 
appreciation of the natural world.
    Focusing more of developed outdoor recreational activities 
within ski areas is appropriate and would reduce impacts on 
less developed areas in the national forests. If S. 382 is 
enacted, we would develop criteria for the types of seasonal or 
year-round activities that would be appropriate at ski areas to 
provide a basis for case-specific proposals at the local level 
in accordance with established law, regulations, and procedures 
including the Secretary's duties to involve the public in his 
decision-making and planning for the national forests.
    In summary, this legislation would encourage greater 
recreational use of the national forests and would concentrate 
highly developed recreation in areas that are currently among 
the most develooped sites in national forests. In addition, the 
legislation would enhance the long-term viability of the ski 
areas on National Forest System lands and the adjoining rural 
economies.
    Mr. Chairman and Members of the Subcommittee, this 
concludes my testimony. I'll be happy to answer any of your 
questions.

                        Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill S. 382 as ordered reported, are shown as follows 
(existing law proposed to be omitted is enclosed in black 
brackets, new matter is printed in italic, existing law in 
which no change is proposed is shown in roman):

              NATIONAL FOREST SKI AREA PERMIT ACT OF 1986


             (Public Law 99-522; Approved October 22, 1986)


                            [16 U.S.C. 497b]


AN ACT To establish a ski area permit system on national forest lands, 
and for other purposes

           *       *       *       *       *       *       *


SEC. 3. SKI AREA PERMITS.

    (a) Law Applicable to Permits.--The provisions of the Act 
of March 4, 1915 (16 U.S.C. 497) notwithstanding, the term and 
acreage of permits for the operation of [nordic and alpine ski 
areas and facilities] ski areas and associated facilities on 
National Forest System lands shall henceforth be governed by 
this Act and other applicable law.
    (b) Authority.--The Secretary of Agriculture (hereinafter 
referred to as ``the Secretary'') is authorized to issue 
permits (hereinafter referred to as ``ski area permits'') for 
the use and occupancy of suitable lands within the National 
Forest System for [nordic and alpine skiing operations and 
purposes] skiing and other snow sports and recreational uses 
authorized by this Act. A ski area permit--
          (1) may be issued for a term not to exceed 40 years;
          (2) shall ordinarily be issued for a term of 40 years 
        (unless the Secretary determines that the facilities or 
        operations are of a scale or nature as are not likely 
        to require long-term financing or operation), or that 
        there are public policy reasons specific to a 
        particular permit for a shorter term;
          (3) shall encompass such acreage as the Secretary 
        determines sufficient and appropriate to accommodate 
        the permittee's needs for ski operations and 
        appropriate ancillary facilities;
          (4) may be renewed at the discretion of the 
        Secretary;
          (5) may be cancelled by the Secretary in whole or in 
        part for any violation of the permit terms or 
        conditions, for nonpayment of permit fees, or upon the 
        determination by the Secretary in his planning for the 
        uses of the national forests that the permitted area is 
        needed for higher public purposes;
          (6) may be modified from time to time by the 
        Secretary to accommodate changes in plans or operations 
        in accordance with the provisions of applicable law;
          (7) shall be subject to such reasonable terms and 
        conditions as the Secretary deems appropriate; and
          (8) shall be subject to a permit fee based on fair 
        market value in accordance with applicable law.
    (c) Other Recreational Uses.--
          (1) Authority of secretary.--Subject to the terms of 
        a ski area permit issued pursuant to subsection (b), 
        the Secretary may authorize a ski area permittee to 
        provide such other seasonal or year-round natural 
        resource-based recreational activities and associated 
        facilities (in addition to skiing and other snow-
        sports) on National Forest System land subject to a ski 
        area permit as the Secretary determines to be 
        appropriate.
          (2) Requirements.--Each activity and facility 
        authorized by the Secretary under paragraph (1) shall--
                  (A) encourage outdoor recreation and 
                enjoyment of nature;
                  (B) to the extent practicable--
                          (i) harmonize with the natural 
                        environment of the National Forest 
                        System land on which the activity or 
                        facility is located; and
                          (ii) be located within the developed 
                        portions of the ski area;
                  (C) be subject to such terms and conditions 
                as the Secretary determines to be appropriate; 
                and
                  (D) be authorized in accordance with--
                          (i) the applicable land and resource 
                        management plan; and
                          (ii) applicable laws (including 
                        regulations).
          (3) Inclusions.--Activities and facilities that may, 
        in appropriate circumstances, be authorized under 
        paragraph (1) include--
                  (A) zip lines;
                  (B) mountain bike terrain parks and trails;
                  (C) frisbee golf courses; and
                  (D) ropes courses.
          (4) Exclusions.--Activities and facilities that are 
        prohibited under paragraph (1) include--
                  (A) tennis courts;
                  (B) water slides and water parks;
                  (C) swimming pools;
                  (D) golf courses; and
                  (E) amusement parks.
          (5) Limitation.--The Secretary may not authorize any 
        activity or facility under paragraph (1) if the 
        Secretary determines that the authorization of the 
        activity or facility would result in the primary 
        recreational purpose of the ski area permit to be a 
        purpose other than skiing and other snow-sports.
          (6) Boundary determination.--In determining the 
        acreage encompassed by a ski area permit under 
        subsection (b)(3), the Secretary shall not consider the 
        acreage necessary for activities and facilities 
        authorized under paragraph (1).
          (7) Effect on existing authorized activities and 
        facilities.--Nothing in this subsection affects any 
        activity or facility authorized by a ski area permit in 
        effect on the date of enactment of this subsection 
        during the term of the permit.
    [(c) Rules and Regulations.--Within one year after the date 
of enactment of this Act, the Secretary shall promulgate rules 
and regulations to implement the provisions of this Act, and 
shall, to the extent practicable and with the consent of 
existing permit holders, convert all existing ski area permits 
or leases on National Forest System lands into ski area permits 
which conform to the provisions of this Act within 3 years of 
the date of enactment of this Act.]
    (d) Regulations.--Not later than 2 years after the date of 
enactment of this subsection, the Secretary shall promulgate 
regulations to implement this section.
    [(d)] (e) Nothing in this Act shall be deemed to amend, 
modify or otherwise affect the Secretary's duties under [the 
National Environmental Policy Act, or the Forest and Rangelands 
Renewable Resources Planning Act as amended by the National 
Forest Management Act] the National Environmental Policy Act of 
1969 (42 U.S.C. 4321 et seq.) and the Forest and Rangeland 
Renewable Resources Planning Act of 1974 (16 U.S.C. 1600 et 
seq.), including his duties to involve the public in his 
decisionmaking and planning for the national forests.

                                  
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