Forest Service Payments to Counties—Title I of the Federal Forests County Revenue, Schools, and Jobs Act of 2012: Issues for Congress

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Forest Service Payments to Counties—

Title I of the Federal Forests County

Revenue, Schools, and Jobs Act of 2012:

Issues for Congress

-name redactedSpecialist in Natural Resources Policy

-name redactedLegislative Attorney

March 26, 2012

Congressional Research Service

7-....

www.crs.gov

R42452

CRS Report for Congress

Prepared for Members and Committees of Congress

Federal Forests County Revenue, Schools, and Jobs Act of 2012: Issues for Congress

Summary

Since 1908, the Forest Service (USFS) in the Department of Agriculture has paid 25% of its

receipts to the states for use on roads and schools in the counties where the national forests are

located. The Bureau of Land Management (BLM) in the Department of the Interior has paid 50%

of its receipts to the Oregon counties where the revested (returned to federal ownership) Oregon

and California Railroad (O&C) grant lands are located. Payments under these programs dropped

substantially in the 1990s, largely because of declining timber sales. In the Secure Rural Schools

and Community Self-Determination Act of 2000 (P.L. 106-393; SRS), Congress created an

optional alternative payment system for these lands, but the law expired at the end of FY2011.

The 112th Congress has considered options for addressing the lower payments from federal lands

due to lower timber sales. One bill, H.R. 4019 (Title I, the County, Schools, and Revenue Trust

for Federal Forest Land), would establish a new payment program; the House Committee on

Natural Resources has ordered the bill reported. The bill would establish the trust with receipts

from certain projects, and give the USFS the “fiduciary responsibility” to undertake projects to

achieve annual revenue requirements in counties that do not opt out of the trust program. The bill

would direct the USFS to calculate the revenue requirements and, to implement trust projects,

establish procedures for public involvement, environmental reporting, and judicial review. The

bill also would direct the allocation and use of the trust payments, and provide appropriations for

the payments until trust projects generated receipts for the trust payments.

H.R. 4019 raises several issues for Congress. One is that, although the trust program has been

described as a replacement for the SRS, the payments would apparently be in addition to the

USFS 25% and O&C 50% payments that had been replaced by the SRS. Also, the fiduciary

responsibility for trust payments makes the counties the primary beneficiary of federal land

management and could restrict the ability of individuals to challenge decisions that they feel

could degrade the federal lands and resources. The annual revenue requirement—60% of average

1980-1999 gross receipts—raises several questions: what would be included in “gross receipts”;

what receipts could be deposited in the trust (e.g., whether deposits to other accounts could

instead be deposited in the trust); how much additional revenue would be needed; and where

those revenues could come from (e.g., how much additional timber might need to be cut, how

many jobs might be created, where the timber could be cut, and what other options might be

feasible, such as permits for currently free uses). Public involvement would be limited to written

comments and objections to proposed and final trust decisions, filed before the required

environmental report is prepared. The environmental report would not need to be made available,

and could not be challenged in court or administratively. Trust project decisions would be

presumed to be in accordance with several laws, such as the National Environmental Policy Act,

the Endangered Species Act, and the National Forest Management Act. The 65% of trust project

receipts that would be paid to the states would be a significant increase over the 25% USFS

payments and the 50% O&C payments. The bill is unclear on the allocation among states; it could

be based on historic receipts or on SRS payments, with substantially different results. There could

also be numerous implementation issues, such as treatment of state education funding, inclusion

of the O&C lands, forests with some counties opting out of the trust payments, existing federal

timber sale requirements, the possible need for implementing regulations, and possible additional

staffing and funding requirements.

Congressional Research Service

Federal Forests County Revenue, Schools, and Jobs Act of 2012: Issues for Congress

Contents

Background...................................................................................................................................... 1

Federal Timber Harvests............................................................................................................ 1

Payments for Counties............................................................................................................... 3

Secure Rural Schools Act .......................................................................................................... 4

Title I of H.R. 4019.......................................................................................................................... 5

Section 101. Definitions ............................................................................................................ 5

Section 102. County, Schools, and Revenue Trust .................................................................... 5

Section 103. Opt-Out Option..................................................................................................... 6

Section 104. Determination of Annual Revenue Requirement and Minimum Sale

Level....................................................................................................................................... 6

Section 105. County, Schools, and Revenue Trust Projects ...................................................... 6

Public Review and Comment.............................................................................................. 7

Environmental Review........................................................................................................ 7

Section 106. Distribution of Amounts from Trust Projects ....................................................... 8

Section 107. Payments to Beneficiary Counties from County, Schools, and Revenue

Trust........................................................................................................................................ 8

Section 108. Initial Payments Pending Implementation of Trust Projects ................................ 9

Analysis of Possible Issues for Congress ........................................................................................ 9

Fiduciary Trust Responsibilities and Federal Assets ................................................................. 9

Annual Revenue Requirements ............................................................................................... 10

Gross Receipts................................................................................................................... 10

Receipts Available for Deposit to the Trust....................................................................... 10

Additional Receipts Needed.............................................................................................. 13

Where the Receipts Might Come From............................................................................. 13

Effects If Annual Revenue Requirements Are Not Met .................................................... 16

Public Involvement and Environmental Reporting ................................................................. 16

Allocation and Distribution of Trust Payments ....................................................................... 18

Implementation........................................................................................................................ 20

Provision on State Education Funding .............................................................................. 21

Inclusion of the O&C Lands ............................................................................................. 21

Implementation for Parts of National Forests ................................................................... 21

Timber Sale Practices and Procedures .............................................................................. 22

Regulations for Implementation........................................................................................ 22

Impacts on USFS Staffing and Funding............................................................................ 22

Figures

Figure 1. Federal Timber Sales........................................................................................................ 2

Tables

Table 1. Average and Calculated USFS Annual Payments, by State ............................................. 19

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Federal Forests County Revenue, Schools, and Jobs Act of 2012: Issues for Congress

Contacts

Author Contact Information........................................................................................................... 23

Acknowledgments ......................................................................................................................... 23

Congressional Research Service

Federal Forests County Revenue, Schools, and Jobs Act of 2012: Issues for Congress

S

ince 1908, the Forest Service (USFS) in the U.S. Department of Agriculture has paid 25%

of its gross receipts from timber sales and most other revenue-generating activities to the

states for use on roads and schools in the counties where the national forests are located.

This was intended to compensate localities for the tax-exempt status of federal lands.1 Similarly,

since 1937, the Bureau of Land Management (BLM) in the U.S. Department of the Interior has

paid 50% of its gross receipts to the counties containing the “O&C lands” (described below).

Payments have declined substantially in many areas due to falling USFS and BLM timber sales.

Congress has enacted temporary programs to sustain the payments at higher levels; the most

recent such program, the Secure Rural Schools and Community Self-Determination Act of 2000

(SRS), expired following payments made for FY2011. Because of continuing concerns about

substantial declines in USFS and BLM timber sales and payments for county roads and schools,

Congress is considering related legislation. Title I of H.R. 4019, the Federal Forests County

Revenue, Schools, and Jobs Act of 2012, addresses federal land management to provide timber

jobs and revenues for county roads and schools.2 The House Committee on Natural Resources

ordered the bill reported on February 16, 2012.

Background

Federal Timber Harvests

The USFS has been selling timber for more than a century. The President was authorized to

proclaim national forests (originally called forest reserves) in 1891.3 Congressional concerns over

proclamations by President Grover Cleveland led to provisions in the Sundry Civil Expenses

Appropriations Act for FY1898 limiting the forest reservations to specific purposes, including “to

furnish a continuous supply of timber for the use and necessities of citizens,” and authorizing the

sale of “dead, matured, or large growth of trees.”4 The first timber sale was in 1899 to the

Homestake Mining Company in South Dakota.

USFS timber sales grew slowly in the subsequent decades. Then, in the 1950s, USFS sales

expanded rapidly, fueled by demand from the post-World War II economic expansion and by the

decline in timber supply from private forests. (See Figure 1.) Except for the 1980 and 1982

recessions, the high USFS timber sale level was sustained through the 1980s. The decline in

USFS sales began in 1990 with litigation to protect the northern spotted owl in western

Washington, western Oregon, and northwestern California. Though commonly believed to be a

result of listing the northern spotted owl as threatened under the Endangered Species Act (ESA),5

1

See CRS Report R42439, Compensating State and Local Governments for the Tax-Exempt Status of Federal Lands:

What Is Fair and Consistent?, by (name redacted) and (name redacted).

2

Titles II and III address different issues, and are not covered in this report. Title II amends the Payments in Lieu of

Taxes (PILT) Program (16 U.S.C. §§6901-6907; for information on the PILT Program, see CRS Report RL31392,

PILT (Payments in Lieu of Taxes): Somewhat Simplified, by (name redacted)). Title III addresses the USFS Recreation

Residence Program that authorized permits and fees for private cabins on national forest lands; for more information,

see the USFS website at http://www.fs.fed.us/specialuses/special-recreation-residence.shtml or contact (name redact

ed), CRS Specialist in Natural Resources

Policy, 7-.... or [redacted]@crs.loc.gov.

3

Act of March 3, 1891 (ch. 561, 26 Stat. 1103), Section 24 (16 U.S.C. §471, repealed in 1976).

4

Act of June 4, 1897 (ch. 2; 30 Stat. 11), 7th and 9th unnumbered paragraphs under “Surveying the Public Lands” (16

U.S.C. §§475-476, the 9th paragraph was repealed in 1976). Commonly referred to as the USFS Organic Act.

5

Act of December 28, 1973 (P.L. 93-205; 16 U.S.C. §§1531-1540). The northern spotted owl was listed as threatened

throughout its habitat on July 23, 1990.

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Federal Forests County Revenue, Schools, and Jobs Act of 2012: Issues for Congress

the original litigation was primarily under a provision of the regulations to implement the

National Forest Management Act of 1976 (NFMA)6 that required management for viable

populations of native species.7 However, USFS timber sales declined in nearly all regions in the

early 1990s, indicating more widespread problems than just northern spotted owls. USFS timber

sales have continued at relatively modest levels for the past two decades, owing to continued

concerns about the environmental effects of timber sales and relatively weak wood products

demand in the United States and globally.

Figure 1. Federal Timber Sales

(in thousand board feet)

16,000,000

BLM Western Oregon Timber

USFS Timber

14,000,000

12,000,000

10,000,000

8,000,000

6,000,000

4,000,000

2,000,000

19

4

19 0

4

19 2

4

19 4

4

19 6

4

19 8

50

19

5

19 2

5

19 4

5

19 6

5

19 8

6

19 0

6

19 2

6

19 4

6

19 6

6

19 8

7

19 0

7

19 2

7

19 4

7

19 6

7

19 8

8

19 0

8

19 2

8

19 4

86

19

8

19 8

9

19 0

9

19 2

9

19 4

9

19 6

9

20 8

00

20

0

20 2

04

20

0

20 6

0

20 8

10

0

Source: USFS: Doug Crandall, Director, Legislative Affairs, USFS. BLM: Amy Krause, Legislative Specialist, BLM.

Notes: USFS timber is harvest level rather than sale level, to avoid the spikes in sales from four very large, longterm (50-year) timber sales issued over the 70-year period. BLM timber is sale level from the O&C lands.

The Bureau of Land Management (BLM) in the U.S. Department of the Interior (DOI) also sells

timber. The vast majority (about 95%) of BLM timber sales are from the Oregon and California

(O&C) grant lands in western Oregon. These lands were granted to the Oregon and California

Railroad Company in 1869 for building a railroad north from the Oregon-California border, and

the lands were to be sold to settlers. The 2.5 million acres of timberland in western Oregon were

6

Act of October 22, 1976 (P.L. 94-588; 16 U.S.C. §§1600-1614). The viable population requirement, derived from 16

U.S.C. §1604(g)(3)(B), was at 36 C.F.R. §219.19.

7

S. L. Yaffee, The Wisdom of the Spotted Owl: Policy Lessons for a New Century (Washington: Island Press, 1994).

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Federal Forests County Revenue, Schools, and Jobs Act of 2012: Issues for Congress

returned to (“revested in”) federal ownership under a U.S. Supreme Court decision in 1915 for

violations of the terms of the grant.8 The O&C lands are often understood to include the Coos

Bay Wagon Road (CBWR) grant lands, 74,547 acres of timberland amid the O&C lands. These

lands were granted in 1869 to the Southern Oregon Company to build a military wagon road

between Coos Bay and Roseburg, Oregon, and returned (“reconveyed”) to federal ownership by

an act of Congress in 1919 to terminate litigation over violations of the terms of the original

grant. Federal administration of the O&C and CBWR lands was subject to various statutes until

Congress directed management by the DOI in the O&C Act of 1937.9 Management was initially

by the General Land Office, which was merged with the U.S. Grazing Service in 1946 to create

the BLM. As with USFS timber sales, O&C timber sales declined after 1990, as shown in Figure

1, initially owing to protection of northern spotted owl habitat.

Payments for Counties

In 1908, Congress added a provision to the Agriculture Appropriations Act directing the USFS to

give 25% of its gross receipts to the states for use on roads and schools in the counties where the

national forest lands are located.10 Thus, the money is paid to the state, and the state determines

how much goes toward roads and how much toward schools (or leaves some or all of the

discretion to the counties).11 The state also determines which programs can be funded (e.g.,

salaries, construction, maintenance, etc.) and which local governmental agency receives the funds

(e.g., counties, townships, school districts, etc.), but the state cannot retain any of the funds, even

for administrative costs. How much must be spent in each county is calculated by the USFS based

on gross receipts from all sources (timber, grazing, special use permits, etc.) and acres in each

county for each of the 156 proclaimed national forests.12 The payment basis was altered in 2008

to provide 25% of a seven-year rolling average of receipts (rather than current-year receipts), to

reduce annual fluctuations in payments. The USFS 25% payments to states have mandatory

spending authority, and thus the payments are made automatically, unless Congress acts to alter

the payments.

The O&C Act of 1937 provided for payments from the O&C lands. The act allocated 50% of

receipts directly to the counties for any governmental purpose, 25% for administering the O&C

lands (with any remainder returned to the Treasury), and 25% to pay the counties for accrued tax

liabilities through March 1, 1938; after the accrued tax liabilities were paid, the 25% was to be

used for administering the O&C lands, with any remainder provided to the counties. In practice,

after the tax liabilities were paid (by 1952), all of the 25% has been used to administer the O&C

lands, raising the Treasury share to 50%. Thus, the counties receive 50% of receipts. Payments

8

Oregon & California Railroad Co. v. United States, 238 U.S. 393 (1915).

Act of Aug. 28, 1937 (ch. 876, 52 Stat. 874; 43 U.S.C. §§1181a-j).

10

Act of May 23, 1908 (ch. 192; 35 Stat. 251), 6th unnumbered paragraph under “Forest Service” (16 U.S.C. §§500).

Commonly referred to as the USFS 25% Payments to States Act of 1908.

11

For information on state allocations of USFS payments to road and school programs, see CRS Congressional

Distribution Memorandum, Forest Service Revenue-Sharing Payments: Distribution System, by (name redacted),

November 19, 1999, available from the authors of this report.

12

The USFS has merged many national forests for administrative and planning purposes, leading to 104 administrative

units; such merged forests include the Idaho Panhandle NF (ID and MT), the Arapaho-Roosevelt NF (CO), the ApacheSitgreaves NF (AZ and NM), the Shasta-Trinity NF (CA), the Mt. Baker-Snoqualmie NF (WA), the National Forests in

Texas, the Chequamegon-Nicolet NF (WI), and many more.

9

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Federal Forests County Revenue, Schools, and Jobs Act of 2012: Issues for Congress

for the CBWR lands were not included in the O&C Act, but were included in a later act.13 The

program paralleled the O&C payments: the counties could effectively receive up to 50% of

receipts. However, the CBWR act also directed that the payments “be computed by applying the

same rates of taxation as are applied to privately owned property of similar character in such

counties.” Thus, the actual payments are the county tax bills (county tax rates for assessed value

of the lands), up to 50% of the receipts from the CBWR lands.

Concern over declining timber sales and thus declining payments, attributed to protecting spotted

owls and other species, led President Clinton to propose a 10-year payment program to address

regional economic problems resulting from protection efforts that reduced federal timber harvests

in the Pacific Northwest. Congress enacted this program in the Omnibus Budget Reconciliation

Act of 1993.14 For 1994, these “spotted owl payments” began at 85% of the average payments

between FY1986 and FY1990, and declined by 3 percentage points annually, to 58% in FY2003.

Secure Rural Schools Act

Concerns about declining timber sales and county payments continued and expanded, especially

with the declining spotted owl payments and in areas without northern spotted owls. Congress

responded with a temporary, optional substitute payment program: the Secure Rural Schools and

Community Self-Determination (SRS) Act of 2000. For counties that chose the SRS payments,

the program provided payments at the average of the three highest payments between FY1986

and FY1999. (Some counties with USFS lands chose to continue receiving payments of 25% of

gross receipts.) Under Title II of SRS, counties receiving payments of $100,000 or more were

required to spend 15%-20% of the payment on reinvestment projects (e.g., watershed

improvement, wildfire fuel reduction, etc.) on the federal lands, and under Title III up to 7%

could be used for additional specified purposes (e.g., search and rescue on federal lands). SRS

payments were authorized for six years, FY2001-FY2006. Congress enacted a one-year extension

for FY2007, then amended the SRS law in 2008. The amendment authorized a four-year

extension (though FY2011) and modified the payments through a complicated formula that

included the average of the three highest payments between FY1986 and FY1999, the eligible

federal lands in each county, and relative per capita income in each county. The amended version

also included transition payments for several states, and retained the Title II (federal land

reinvestment) and Title III (special purposes) provisions of the payments.

The amended SRS payments expired at the end of FY2011, and the USFS and O&C payments

will return to their previous historic levels (25% and 50% of receipts, respectively) for FY2012

unless Congress enacts an alternative payment program before September 30, 2012. There have

been many issues involved in congressional efforts to reauthorize SRS, as described in CRS

Report R41303, Reauthorizing the Secure Rural Schools and Community Self-Determination Act

of 2000. One of the most significant difficulties has been the need for offsets to fund the

reauthorization of the mandatory payments, and Congress continues to examine options on this

issue.

One other issue relates to the payments more generally. The issue has been referred to as

“linkage.” Some observers have noted that, because the counties historically received a share of

13

14

Act of May 4, 1939 (ch. 144; 53 Stat. 753).

P.L. 103-66; §§13982 and 13983.

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Federal Forests County Revenue, Schools, and Jobs Act of 2012: Issues for Congress

revenues, they were rewarded for advocating revenue-generating activities (principally timber

sales) and for opposing management that reduced or constrained activities that generate no

revenues to the local forest (e.g., protecting commercial or sport fish harvests or designating

wilderness areas). Thus, counties often allied themselves with the timber industry, and opposed

environmental groups, in debates over USFS and O&C management and budget decisions.

Because SRS payments were based on historic payments, and not on current agency receipts, they

were seen as “de-linked” from the pressure to produce revenues—a situation desired by many

environmental and conservation organizations but opposed by many user groups.

Title I of H.R. 4019

Three bills addressing USFS payments for counties have been introduced in the 112th Congress.

Two, H.R. 3599 and S. 1692, would extend the SRS Act for five additional years. The other, Title

I of H.R. 4019, takes a different approach, and thus warrants a separate analysis. This title of H.R.

4019 is called the County, Schools, and Revenue Trust for Federal Forest Land. It contains eight

sections, described below.

Section 101. Definitions

This section contains 14 definitions. Eight are unique to this bill, including defining the Secretary

of Agriculture as the “Trustee.” Two are common or defined in other sources: “State” (to include

the Commonwealth of Puerto Rico, the only territory with national forest lands); and “community

wildfire protection plans.” The other four include potentially conflicting definitions. “Federal

lands,” for example, are defined to include the National Forest System and the O&C lands

(§101(7)), and the “National Forest System” is then defined in the bill to exclude certain National

Forest System lands (§101(9)). “Secretary” is defined as the Secretary of Agriculture (§101(10)),

while “Secretary concerned” is defined as the Secretary of Agriculture for National Forest System

lands and the Secretary of the Interior for the O&C lands (§101(11)).

Section 102. County, Schools, and Revenue Trust

This section would establish the County, Schools, and Revenue Trust.15 It would direct that the

Trustee (the Secretary of Agriculture) “has a fiduciary responsibility to beneficiary counties to use

… Projects to generate amounts sufficient to satisfy the annual revenue requirements established

for units of the National Forest System.” It would establish the trust with an appropriation of

$875 million and would direct that the portion of receipts from trust projects, as required in

Section 106(a)(1), be deposited in the trust. It also would prohibit garnishment by or payment to a

county creditor; spending other than as directed in Section 107; and offsetting state funding “for

local schools, facilities, or educational purposes.”

15

For this report, the account is referred to as the trust, and the related projects, payments, and program are called trust

projects, trust payments, and the trust program.

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Federal Forests County Revenue, Schools, and Jobs Act of 2012: Issues for Congress

Section 103. Opt-Out Option

This section would allow political subdivisions of states (referred to as counties throughout the

bill and this report) with National Forest System lands eligible for payments under SRS to elect

not to participate; such an election would need to be submitted each year the county chooses not

to participate. Counties otherwise would be automatically included in the trust program. The

section would prohibit trust projects from commencing on lands in counties that have opted not to

participate.

Section 104. Determination of Annual Revenue Requirement and

Minimum Sale Level

This section would require the Secretary of Agriculture to determine, for each unit of the National

Forest System, the annual revenue requirement for the unit and the minimum sale level for the

unit. (“Unit” is not defined.) The annual revenue requirement is defined (§101(1)) as 60% of the

“average annual gross receipts from the unit during the 20-year period beginning with” FY1980

(i.e., FY1980-FY1999).

The minimum sale level is defined (§101(8)) as 50% of the “average annual chargeable timber

volume (as measured in net sawtimber volume) sold from the unit during the period beginning

with fiscal year 1980 through fiscal year 2000” (i.e., for the 21-year period). Chargeable volume

is defined (§101(4)) as “the volume of timber and other forest products that is counted toward

meeting the allowable sale quantity of a unit of National Forest System land based on the

regionally applicable utilization and merchantability standards.” Allowable sale quantity is a

provision that limits USFS timber sales to “a quantity equal to or less than a quantity which can

be removed from such [national] forest annually in perpetuity on a sustained-yield basis.”16

Accordingly, Section 104 might cause management problems for forest supervisors for meeting

the minimum sale level, if it conflicted with maintaining a perpetual supply.

Section 105. County, Schools, and Revenue Trust Projects

This section would provide for the implementation and review of projects that provide funds to be

deposited in the trust. Trust projects would include any projects, but “may not exceed the number

of projects necessary to meet the annual revenue requirement.” Trust projects could not occur on

National Forest System lands in counties that opt out of the trust program, in components of the

National Wilderness Preservation System,17 on lands where Congress had prohibited timber

harvesting,18 or on lands “over which administrative jurisdiction was assumed by the Forest

16

Allowable sale quantity is an administratively established term derived from §13 of the Forest and Rangeland

Renewable Resources Planning Act of 1974 (RPA; P.L. 93-378), as amended by the National Forest Management Act

of 1976 (NFMA; P.L. 94-588); 16 U.S.C. §1611.

17

The Wilderness Act (P.L. 88-577; 16 U.S.C. §§1131-1136) established a system of federal lands designated by

Congress to be managed under specified provisions that prohibited timber harvesting and most other commercial

activities. For more information, see CRS Report R41649, Wilderness Laws: Statutory Provisions and Prohibited and

Permitted Uses, by (name redacted).

18

It is unclear how this relates to limitations on timber harvesting established by Congress other than prohibitions; for

example, Congress directed that “scheduled timber harvesting” be planned so as to protect wild and scenic rivers in

§§10 and 12 of the Wild and Scenic Rivers Act of 1968 (P.L. 90-542; 16 U.S.C. §§1271-1287).

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Federal Forests County Revenue, Schools, and Jobs Act of 2012: Issues for Congress

Service under section 311.” It is not clear to what this latter provision refers, as there is no

Section 311 in the bill. Section 105 also would direct that trust projects be consistent with the

standards and guidelines in the NFMA plans for each National Forest System unit, but also would

allow the standards and guidelines to be modified for each trust project. Thus, it is not clear what

role existing land management plans would have in the proposed trust system.

Section 105(d) would provide for public review, public comments, and environmental review.

Section 105(e) would direct that the provisions of this section, for implementing trust projects, are

“deemed to be compliance with the requirements of” the Forest and Rangeland Renewable

Resources Planning Act of 1974 (RPA),19 the National Forest Management Act of 1976

(NFMA),20 the Multiple Use-Sustained Yield Act of 1960 (MUSYA),21 the National

Environmental Policy Act of 1969 (NEPA),22 and the Endangered Species Act of 1973 (ESA).23

Accordingly, the reviews, appeals, and analyses offered by these statutes would be superseded by

the abbreviated process within H.R. 4019.

Public Review and Comment

Section 105(d)(1) would establish a notice and comment process for trust projects. Proposed

projects would require a Federal Register notice, and the public would have 30 days to provide

written comments on the proposals. After considering the written comments, the decision-maker

would be required to issue a final decision within 90 days after the end of the comment period.

This would require another Federal Register notice, marking the start of a 30-day objection

period. Only parties who submitted written comments on the proposed projects could submit

written objections. However, there is no provision that would require consideration of the written

objections. This process is identified as the sole means for the public to seek administrative

review of trust projects.

Environmental Review

Section 105(d)(2) would require an environmental report on each proposed trust project within

180 days of the initial Federal Register notice, as much as 30 days after the deadline for written

comments on the project’s final decision. For catastrophic events, defined as events that have

caused or will cause severe damage to National Forest System lands (§101(3)), the deadline

would be shortened to 30 days, with public comment and objection periods shortened as

necessary. The environmental review would include an evaluation of environmental impacts “to

the extent the Secretary considers appropriate and feasible,” including any effect on threatened or

endangered plants or animals listed under ESA. The environmental review also would include the

public comments and objections and any response, as well as modifications needed “to ensure the

annual revenue requirement is met.” The environmental report would not be allowed to cost more

than one-third of the estimated receipts generated by the project. It is not clear whether the

environmental review would be published or otherwise available to the public. Finally, the

environmental report would not be subject to judicial review.

19

P.L. 93-378; 16 U.S.C. §§1600-1616.

P.L. 94-588; 16 U.S.C. §§1600-1616, et al.

21

P.L. 86-517; 16 U.S.C. §§528-531.

22

P.L. 91-190; 42 U.S.C. §§4321-4347.

23

P.L. 93-205; 16 U.S.C. §§1531-1540.

20

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Federal Forests County Revenue, Schools, and Jobs Act of 2012: Issues for Congress

Section 106. Distribution of Amounts from Trust Projects

This section would allocate receipts from trust projects:

•

65% would be deposited in the trust; and

•

35% would be “deposited in the general fund of the Treasury for use ... in such

amounts as may be provided in advance in appropriation Acts, for the Forest

Service.” Of this amount, up to 1% would be available for “performance-based

cash awards ... to employees of the Forest Service who assist a unit in exceeding

its minimum sale level for the fiscal year.”

Section 107. Payments to Beneficiary Counties from County,

Schools, and Revenue Trust

This section would direct that all deposits to the trust be distributed to the states each year as soon

as practicable after the end of the fiscal year. Section 107(a) would direct each state’s allocation

“to the beneficiary counties in the manner provided by” SRS Section 102(c)(1). That section of

SRS directed allocations among the counties in accordance with the USFS 25% Payments to

States Act and the Weeks Law.24 These two laws direct the states to spend the money on roads and

schools in the counties where the national forests are located; the money is not necessarily paid to

the counties, and some states direct the payments to school districts or other local governmental

entities. The USFS 25% payment allocation within each state is based on the receipts from each

proclaimed national forest and the acreage of each county within each proclaimed forest.

Section 107 is silent concerning the allocation among the states. It could be based on the current

receipts from each proclaimed national forest, as is done under the USFS 25% Payments to States

Act and the Weeks Law. However, it also could be based on the complicated formula in SRS,

based on each county’s share of historic receipts and of eligible lands, adjusted by relative per

capita income.

Section 107(b) would direct use of the trust payments in accordance with SRS Sections 102(c)(2)

and (d). SRS Section 102(c)(2) directed use of payments in accordance with the USFS 25%

Payments to States Act and the Weeks Law—that is, on roads and schools as determined by each

state. SRS Section 102(d) required that, for counties with payments greater than $350,000 in a

fiscal year, 80%-85% of the payment must have been used in accordance with Section 102(c)(2).

Up to 7% of the remainder could be used for certain projects, as specified in SRS Title III (e.g.,

for search-and-rescue or for local wildfire protection). The remaining funds were to be used as

specified in SRS Title II—reinvested in projects on the federal lands in accordance with

recommendations of local resource advisory committees (RACs) and approval of the Secretary.

Counties with smaller annual payments were excused from some or all of allocation to Title II

and Title III projects. Section 107(b) is silent on whether the Title II projects can be done as trust

projects in accordance with the implementation provisions of Section 105.

24

Act of March 1, 1911 (ch. 186, 36 Stat. 961; 16 U.S.C. §500).

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Section 108. Initial Payments Pending Implementation of Trust

Projects

This section would direct allocations of the appropriations provided to the trust for the first two

fiscal years. For FY2012, the Secretaries would make payments to beneficiary counties equal to

the FY2010 SRS payments. For FY2013, the payments would be 75% of the FY2012 payments.

The payments would be used in accordance with the provisions directed in Section 107(b).

Analysis of Possible Issues for Congress

Title I of H.R. 4019 raises many possible issues for Congress. The bill would shift the focus of

management for some federal lands to generating revenues for counties, possibly at the expense

of providing benefits to the American people for current and future generations, but also possibly

creating jobs in the timber industry. It would presume that the new management focus complies

with many existing statutes that require informing the public about possible impacts of decisions

and alternatives (NEPA), protecting rare plants and animals (ESA), and assuring sustained forest

ecosystems (NFMA). This would effectively eliminate the external enforcement of these

provisions for projects on many federal lands. There are also many technical implementation

questions. Specific issues are discussed below.

In addition, while it appears that H.R. 4019 is intended as a substitute for USFS 25% payments to

states and O&C 50% payments to counties, nowhere does the bill direct that these payments not

be made. Thus, the trust payments would apparently be in addition to the USFS 25% and O&C

50% payments. However, the bill includes no direction on deposits to the National Forest Fund to

make the USFS 25% payments.

Fiduciary Trust Responsibilities and Federal Assets

The bill would establish a fiduciary responsibility to the Secretary of Agriculture as trustee for the

trust. Typically, a trust is a collection of assets to be administered by its trustee for the

beneficiaries, typically to provide income while preserving the assets of the trust. The

beneficiaries of the income and of the assets can differ; for example, some trusts are established

to provide a surviving spouse with income while maintaining the assets for the children.

In H.R. 4019, the trust is defined as the income, not as the assets. The bill would establish a

responsibility to produce income, but is unclear on the responsibilities of the agency and the

means citizens might have to protect the assets—the federal lands and resources. H.R. 4019

would constrain some of the opportunities to challenge management decisions on trust projects to

produce income for the counties. It is not clear whether the trust requirements to manage for

income to the counties would outweigh long-term management to maintain the assets.

The counties would be the principal beneficiaries of the trust, but would appear to bear few of the

responsibilities or costs associated with the implementation and administration of the trust. That

is, the costs to prepare and administer trust projects to produce income for the counties are borne

by the federal government. In addition to the costs of the trust projects, there would also likely be

costs to establish and administer the trust, also borne by the federal government. While 35% of

the receipts from trust projects could be made available in advance in appropriations acts, it is

unclear whether this funding would be sufficient to cover the costs of implementing the trust

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projects and administering the trust. It is also unclear whether this funding would be supplemental

to or in lieu of annual appropriations.

Annual Revenue Requirements

H.R. 4019 would establish an annual revenue requirement of 60% of the average annual gross

receipts from each National Forest System unit between FY1980 and FY1999. This provision

raises a number of potential questions for Congress. For example, it may be unclear to some why

60% of annual gross receipts from FY1980 through FY1999 was selected for the bill; the

committee and subcommittee press releases and statements from the chairmen do not include

explanations for either the level or the selected period. (The eligibility period under SRS was

FY1986 through FY1999.) Other possible questions include what would be included in “gross

receipts”; what receipts would be available to make the specified payments; what additional

receipts would be needed to make the specified payments; and where those receipts might come

from.

Gross Receipts

The bill does not define “gross receipts.” For USFS 25% payments to states, “gross receipts”

include some receipts but not others. For example, timber purchaser deposits to the KnutsonVandenberg (K-V) Fund and deposits in the Salvage Timber Sale Fund are included as receipts

for USFS 25% payments.25 In contrast, timber purchaser deposits for brush disposal, fees for

forest botanical product harvests, and recreation fees under the Federal Lands Recreation

Enhancement Act are exempt from the USFS 25% payments.26 Thus, the basis for calculating the

60% of gross receipts is unclear. If the gross receipts subject to the annual revenue requirement in

the bill were the average gross receipts from FY1980 through FY1999 used to determine the

USFS 25% payments to states, then the annual revenue requirement nationally would likely be

about $550 million to $600 million. However, the actual annual revenue requirement could be

higher or lower than this estimate, depending on a host of estimates and assumptions about

options and future receipts.

Receipts Available for Deposit to the Trust

The above discussion of gross receipts suggests several categories of receipts that could be

deposited in the trust. One category of receipts that could be deposited in the trust are those

currently deposited in the National Forest Fund (NFF). This is a receipt account that accumulates

USFS receipts which are not deposited directly into an account with mandatory spending

25

Deposits to the K-V Fund (Act of June 6, 1930; ch. 416, 46 Stat. 527; 16 U.S.C. §§576-576b) were defined as

receipts for receipt-sharing in §16 of NFMA, even though up to 100% of timber sale receipts can be deposited in the

fund. Similarly, deposits to the Salvage Sale Fund (NFMA §14(h); 16 U.S.C. §472a(h)) were defined as receipts for

receipt-sharing in the 6th unnumbered paragraph under “Administrative Provisions, Forest Service” in P.L. 102-381

(Department of the Interior and Related Agencies Appropriations Act for FY1993), even though up to 100% of timber

sale receipts can be deposited in the fund.

26

See the authorizing language in each of the relevant statutes: respectively, Act of August 11, 1916 (ch. 313, 39 Stat.

446; 16 U.S.C. §490); P.L. 106-113 (Consolidated Appropriations Act for FY2000), Appendix C, §339 (16 U.S.C.

§528 note); and P.L. 108-447 (Consolidated Appropriations Act for FY2005), Division J, Title VIII (16 U.S.C. §§68016814).

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authority (an MSA).27 Congress has directed many of the NFF funds to be used for specific

purposes, such as the 10% Roads and Trails Fund. The USFS has historically reported on NFF

deposits in its annual budget justification, although that table was not included in the FY2013

budget justification. Many of the various land and resource uses generate receipts:

•

Timber sales—$18.8 million annually for FY2008-FY2010, after deducting the

mandatory spending from NFF deposits ($7.6 million annually).

•

Grazing fees—$1.9 million annually for FY2008-FY2010, after deducting the

mandatory spending from NFF deposits ($3.3 million annually).

•

Minerals—$45.3 million annually for FY2008-FY2010, after deducting the

mandatory spending from NFF deposits ($0.2 million annually). Of this amount,

$44.0 million annually for FY2008-FY2010 was collected by the Minerals

Management Service (MMS) in the U.S. Department of the Interior (now the

Office of Natural Resource Revenues) and deposited in the NFF; because the

collections are not USFS receipts, it is not certain whether they can be identified

as trust projects and deposited in the trust.

•

Recreation fees—$44.2 million annually for FY2008-FY2010, after deducting

the mandatory spending from NFF deposits ($7.6 million annually). This does

not include recreation fees under the Federal Lands Recreation Enhancement Act

(FLREA), since these collections are deposited directly into an MSA.

•

Fees for land uses and power—$16.9 million annually for FY2008-FY2010, after

deducting the mandatory spending from NFF deposits ($3.3 million annually).

Thus, NFF funds for FY2008-FY2010 that could have been available for the trust would have

averaged $127.1 million annually, if MMS deposits were included, or $83.1 million annually, if

the MMS were not included.

One possible source of funds for the trust could be funds deposited in many of the MSAs. It is

unclear whether the provisions of H.R. 4019 could override previous statutes on the disposition of

receipts to the MSAs. For certain accounts associated with timber sales, the USFS determines the

amount deposited (if any) in each of the MSAs. These accounts include:

•

The Knutson-Vandenberg (K-V) Fund—$101.9 million annually for FY2008FY2010. These funds are a portion of timber sale receipts currently used for

reforestation, timber stand improvement, and mitigation and enhancement of

other resources in timber sale areas.

•

The Salvage Sale Fund—$27.0 million annually for FY2008-FY2010. These

funds are a portion of timber sale receipts currently used to prepare and

administer additional salvage timber sales.

•

Brush Disposal—$7.5 million annually for FY2008-FY2010. These funds are

additional deposits from timber purchasers currently used to clean up the “slash”

(tree tops and limbs) in timber sale areas.

27

For a description of the USFS MSAs, see CRS Report RL30335, Federal Land Management Agencies’ Mandatory

Spending Authorities, coordinated by (name redacted).

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•

Stewardship Contracting retained receipts—$5.5 million annually for FY2008FY2010. Stewardship contracts are special timber sales where the USFS is

authorized to require additional land and resource treatments in exchange for

lower timber payments; the USFS is also authorized to retain any receipts

generated by stewardship contracts to be used for additional stewardship

contracting activities.

Because the USFS determines the amount deposited in the first three of these accounts, and can

choose not to undertake stewardship contracting, the agency could substantially expand the funds

available for the trust. The K-V and Salvage Sale Funds could be directly deposited in the trust,

while reducing or halting the use of brush disposal and stewardship contracting would likely

increase the bid prices for USFS timber sales.28 The total amount available from these accounts

that could have been available for the trust averaged $141.9 million annually for FY2008FY2010.

Funds directed to be deposited into other MSAs might also be diverted to the trust. The statutes

establishing these many MSAs direct the deposit of specified receipts into these accounts.

However, the USFS might be able to designate the activities generating these receipts as trust

projects, shifting funds from the MSAs to the trust. The total amount available from these

accounts that could have been available for the trust averaged $124.0 million annually for

FY2008-FY2010. While many of the accounts are relatively modest (less than $5 million

annually), two accounts are relatively large:

•

Recreation fees under FLREA—$64.4 million annually for FY2008-FY2010.

These funds have been used primarily to address the $5.5 billion backlog of

deferred maintenance in the national forests.

•

The 10% Roads and Trails Fund—$14.0 million annually for FY2008-FY2010.

These funds were originally set aside to supplement appropriations for road

construction; at various times, they have been returned to the U.S. Treasury to

offset USFS road appropriations, although for several years they were authorized

to be used for other forest health activities in the national forests.

There are a few MSAs that are unlikely to be available for the trust. These accounts include funds

for specific purposes that would not have been deposited into the accounts without use for those

purposes. The largest account is Restoration of Lands and Improvements, which accumulates

recoveries from cash bonds, forfeitures, judgments, settlements, and the like from contractors

who fail to complete the required work; the funds are used for others to complete the work.

Similarly, the Cooperative Work account includes deposits from contractors and cooperators for

commensurately funding jointly beneficial work (e.g., USFS expenditures to maintain jointly

used roads). The total amount from these accounts averaged $67.7 million annually for FY2008FY2010, but would probably not be available for the trust.

28

Reducing required deposits for brush disposal or additional contract requirements in stewardship contracts would

allow timber purchasers to bid more for the timber itself, although the rise in timber prices might be less than the

reduced costs in areas with little or no competitive bidding for federal timber.

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Additional Receipts Needed

The discussion of sources suggests that current NFF receipts could provide about $83 million to

$127 million annually, depending on the availability of the MMS deposits. Reducing or

eliminating the use of the several timber-related MSAs, and depositing those receipts in the trust,

could generate another $142 million annually. Shifting deposits from the other MSAs, excluding

the last group (whose funds likely would not be available for the trust), could add another $124

million to the trust. Thus, if the USFS chose (and were able) to designate all these activities as

trust projects and deposit all the receipts in the trust, total deposits in FY2008-FY2010 could have

been as much as $349 million to $393 million annually.

As described above, the trust would likely need receipts of about $550 million to $600 million

annually. If only current NFF receipts were deposited in the trust, additional annual requirements

could range from $423 million to $517 million. As NFF deposits from timber harvests averaged

$18.8 million annually for FY2008-FY2010, timber sales would need to increase by more than 20

times above the average timber harvest level of FY2008-FY2010 (2.6 billion board feet (bbf)) to

generate sufficient funds. This could lead to annual USFS timber harvests increasing to as much

as or more than the current annual timber harvest level from all lands (federal and nonfederal) in

the United States. Thus, the USFS would have to alter the way it has been selling timber and/or

allocating receipts.

If the timber receipts deposited in the timber-related MSAs were allocated to the trust as receipts

from trust projects, the need for additional annual requirements would be reduced. NFF and

timber-related MSA deposits averaged about $161 million for FY2008-FY2010. Thus, the

additional funds needed for the trust would be about $281 million to $375 million. With this

allocation, timber sales would need to increase by more modest, but still substantial, amounts—

about 175% to 233% above current levels. This would imply USFS sale levels of about 7.2 bbf to

8.7 bbf. While roughly triple the harvest levels of the past 20 years, these would be within historic

levels. (See Figure 1, above.)

If all activities that provide funds for MSAs were designated to be trust projects, the additional

annual requirements would be reduced to about $157 million to $251 million. Using additional

timber receipts (deposits to the NFF and timber-related MSA deposits, about $161 million

annually for FY2008-FY2010) would require increasing timber sales between 98% and 156%,

5.1 bbf to 6.7 bbf, double or more the FY2008-FY2010 average of 2.6 bbf.

Where the Receipts Might Come From

Additional Timber Sales

Interests disagree about whether such increased timber sales are feasible and desirable. One

question is whether sufficient timber exists in the national forests to provide the necessary

additional receipts for the annual revenue requirements. Timber inventory data show that

softwood growing stock on all forest lands increased by 23% between 1953 and 2007, and by

18% in the national forests.29 The increase has largely been in medium-sized trees (7-17 inches in

29

The timber inventory data are from W. B. Smith et al., Forest Resources of the United States, 2007, USDA Forest

Service, Gen. Tech. Rept. WO-78, Washington, DC, 2009, pp. 209-211, 249-251 (Table 18 and Table 29),

http://www.fs.fed.us/nrs/pubs/gtr/gtr_wo78.pdf). The data show forest acreage, growing stock (commercially usable

(continued...)

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diameter), while the inventory in large trees (more than 29 inches in diameter) has declined,

especially in the Pacific Coast states (Alaska, Washington, Oregon, and California).

The national forests contain more timber now than when harvest levels were much higher, and

timber growth exceeds harvests and mortality, so timber inventories will continue to grow. This is

true even with extensive wildfires and insect infestations (e.g., mountain pine beetles) in recent

years. This suggests that, biologically, more timber could be cut from the national forests, at least

in the near term and especially in salvaging trees killed by fires, insects, or diseases. However,

salvage timber and the smaller average tree diameter suggest lower values for the remaining

timber. Furthermore, in some areas of the Rocky Mountains, sawmill capacity has declined

substantially in the past 20 years, raising questions about whether sufficient markets exist for

increased federal timber harvests.30

If additional timber were harvested under the bill, additional jobs would likely be generated in the

timber industry. Job multipliers based on timber harvests are imprecise, because they are

influenced by many factors, such as tree diameters, mill characteristics, and more. One metastudy on northern spotted owl impacts in 1990 showed timber job multipliers ranging from 6 to

26 direct and indirect jobs per million board feet harvested, although most ranged from 14 to 16

jobs per million board feet.31 More recent studies have suggested that timber job multipliers are

now lower—11.28 jobs per million board feet in Washington in 2004.32 If the additional timber

sales estimated above (5.1 billion to 8.7 billion board feet) were achieved, the 2004 multiplier

would suggest additional direct and indirect timber industry jobs of 57,000 to 98,000 jobs.

The USFS likely could adjust its timber practices to provide at least some of the annual revenue

requirement. As implied above, significant additional receipts could come from receipts that

previously were being deposited in the K-V, Salvage, and brush disposal funds and were being

used in stewardship contracts. Because the level of deposits and use of stewardship contracts are

within the agency’s discretion, shifting these funds to the trust is feasible. However, additional

appropriations would likely be needed to accomplish the tasks now being supported by these

(...continued)

trees of at least 5 inches in diameter) volume, and timber growth, harvest, and mortality. In the Pacific Coast states

(Alaska, Washington, Oregon, and California), softwood growing stock declined between 1953 and 2007 by 10% on all

forest lands and by 9% in the national forests, although it rose between 1987 and 2007 (by 7% for all lands and by 9%

for national forests); these data reflect the logging of old-growth timber during the 1960s, 1970s, and 1980s. In the

Rocky Mountain states (the rest of the West), softwood growing stock increased substantially—by 43% on all lands

and by 67% in the national forests between 1953 and 2007. Softwood growing stock has also been changing in size

(diameter). The increased inventory since 1953 has been predominantly in trees between 7 and 17 inches in diameter

(small sawtimber) in all regions. In contrast, the inventory of trees greater than 29 inches in diameter (large sawtimber)

declined everywhere, by 37% nationally, although by only 5% in the Rocky Mountain states.

30

Data on numbers of sawmills are not reported. However, in 1980, there were sufficient data for the Western Wood

Products Association (WWPA) to report sawmill profiles for 11 western states. By 2010, WWPA was only able to

report sawmill profiles for 5 western states—Washington, Oregon, California, Idaho, and Montana—because too few

mills existed in the other states to report without disclosing company-specific data. (WWPA, Statistical Yearbook of the

Western Lumber Industry, annual series.)

31

See out-of-print CRS Report 92-922 ENR, Economic Impacts of Protecting Spotted Owls: A Comparison and

Analysis of Existing Studies, by (name redacted), available from the authors of this report.

32

C. L. Mason and B. R. Lippke, Jobs, Revenues, and Taxes from Timber Harvest: An Examination of the Forest

Industry Contribution to the Washington State Economy, Rural Technology Initiative, College of Forest Resources,

University of Washington, Working Paper 9, Seattle, WA, September 2007, http://www.ruraltech.org/pubs/working/09/

index.asp.

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funds—reforestation, timber sale preparation, treatment of logging debris to reduce wildfire

threats, and more.

The USFS also could likely shift timber harvests to emphasize the remaining large-diameter

timber (or at least the largest-diameter trees that remain). This could lead to ecological problems,

however. For example, one of the contributing factors in the forest health and wildfire problem of

the intermountain West has been the historic emphasis on logging large-diameter pines. Cutting

more of the large-diameter trees and leaving the small trees, undergrowth, and debris exacerbates

wildfire threats. Increased logging does not reduce wildfire threats because it puts more dead

biomass at ground level, which makes fires more difficult to control, and leaves small trees to

serve as fuel ladders to carry fires into the canopy; this could lead to catastrophic wildfires.33

Another potential ecological problem could be degraded forest conditions. It has long been

recognized that harvesting the best trees, and leaving the poorer-quality trees, is not desirable in

the long run; this approach is called “high-grading” the forest, and is generally regarded as a poor

forest management practice. Because harvests account for a relatively small acreage in any one

year, and because on-the-ground inventories occur only periodically, it could be decades before

the extent of high-grading were known, and it would take decades, if it were even feasible, to

restore the forests to healthy conditions after such practices occur. In addition, the loss of largediameter trees would likely alter the composition of wildlife populations.

Finally, it would also be possible to harvest additional timber in some national forests, and use

those revenues to provide the trust payments to other counties. Only receipts from trust projects

would be deposited in the trust, and trust projects could only occur in counties that did not opt out

of the trust payment program. However, all trust project receipts would be deposited in the trust,

and the allocation to counties in the trust payment program would not be based on where those

receipts were generated. Thus, the USFS could emphasize timber sales in areas with high timber

values, such as in the Allegheny National Forest (PA) and in the south Atlantic and Gulf coastal

national forests. For example, two of the four counties that have Allegheny NF land opted for

SRS payments, while the other two opted for the USFS 25% payments. If those two counties

opted for trust payments, the USFS could expand timber sales in those two counties to make trust

payments in other areas. This is significant, because the value of USFS timber in the Allegheny in

2010 was 20 times greater (per thousand board feet) than in Colorado or Nevada.

Other Possible Sources of Revenues

Much of the attention on H.R. 4019 has been on increased timber sales to provide the additional

revenues for the trust. However, the bill would not limit revenues to timber sales. Specifically,

Section 105(b)(2) also included “issuance of a grazing permit, issuance of a special use permit

involving land use, mineral development, power generation, or recreational use, and projects

implementing a community wildfire protection plan.” Livestock grazing is unlikely to provide

much revenue, as the administrative fee for grazing use (there is no fee for a grazing permit) is set

under a formula originally enacted in law, and administrative efforts to raise grazing fees have

been controversial.34 Potential revenues from community wildfire protection plan projects would

also likely be modest, at best. Biomass removal for wildfire protection generally involves

33

See CRS Report R40811, Wildfire Fuels and Fuel Reduction, by (name redacted).

See CRS Report RS21232, Grazing Fees: Overview and Issues, by (name redacted). The formula for

establishing federal grazing fees was authorized in the Public Rangelands Improvement Act of 1978 (P.L. 95-514; 43

U.S.C. §§1901-1908). It expired in 1985, but the formula has continued to be used by the past five Administrations.

34

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removing biomass on or near the ground, such as underbrush and small trees.35 Such biomass has

little or no commercial value. While the biomass could have some value for energy production,

such use to date has required federal and state subsidies to be viable, and no independent

commercial biomass energy facilities using biomass from forests are currently in operation.

Special use permits, however, could offer more opportunities. Special use permits are employed

for a wide variety of activities in the national forests, such as ski areas, commercial filming, and

commercial telecommunication sites. The USFS generally seeks to recover fair market values for

special use permits. New or higher fees for renewable energy production, such as from wind or

solar farms, could be a possible source of revenues, although the capacity to generate fees from

these sources and the possible environmental and social impacts from renewable energy farming

continue to be studied. Other activities for which special use permits might be required could

include other uses for which the USFS is not prohibited from charging fees. For example, under

FLREA, some recreational activities cannot be charged user fees, such as parking and picnicking,

camping at undeveloped sites, and hunting and fishing “for any person who has a right of access

for hunting or fishing privileges under a specific provision of law or treaty.” However, other

recreational users could be charged a fair market price for special use permits, such as for hunting

and fishing for persons lacking a right of access, for using all-terrain vehicles or snowmobiles off

roads, for commercial outfitters and guides, and more. The amount of possible revenues from

such special use permits is unknown, and in remote areas, the cost to collect and enforce the fees

may exceed the potential receipts. In addition, it seems likely that most of the burden of the fee

increases would be borne by people living closest to the national forests and those living in the

counties to which these revenues would be transferred.

Effects If Annual Revenue Requirements Are Not Met

The bill provides no penalties or guidance on consequences for not meeting the annual revenue

requirements.

Public Involvement and Environmental Reporting

Section 105(d)(2) would require an environmental report for each proposed trust project. The

report must be produced within 180 days of the Federal Register notice on the proposed trust

project, meaning that the USFS could issue a report 30 days after the deadline for written

comments on its final decision.

Thus, H.R. 4019 appears not to provide a notice-and-comment process on the environmental

report for either the public or other agencies. Furthermore, in cases of catastrophic events, the

USFS would be required to produce the environmental report within 30 days of the notice of the

proposed project and permitted to shorten the public comment period on the trust project. H.R.

4019 does not identify any penalties or consequences if the USFS fails to meet the specified

deadlines.

Under current law, non-trust timber sales require an environmental review under NEPA and an

ESA consultation with either the Fish and Wildlife Service (FWS) or the National Marine

Fisheries Service (NMFS) about the sale’s impacts on listed species and critical habitat. Section

35

See CRS Report R40811, Wildfire Fuels and Fuel Reduction.

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105(e), however, would exclude trust projects from NEPA and ESA compliance. Moreover, H.R.

4019’s requirements suggest that the environmental report would not be a functional equivalent of

a review under NEPA or a biological assessment under ESA. The “minimum” contents of the

report would be:

•

an evaluation of the environmental impacts, including the effect on threatened or

endangered species, to the extent “appropriate and feasible”;

•

public comments and objections and “any response” to them; and

•

any modifications to the project to ensure annual revenue is met.

Section 105 would expressly ban judicial review of the report and would limit administrative

review to an opportunity to submit objections to the trust project final decision; however, H.R.

4019 would not require USFS to review or respond to the objections. Thus, the rationale for

preparing the report is unclear, as it does not appear to inform the USFS or the public of the

consequences of a trust project in a timely manner, nor would it arguably provide agencies or the

public an adequate opportunity to comment meaningfully on the report.

If H.R. 4019 were enacted, review could not be forced under many other statutes pertaining to

timber harvests. The bill states that compliance with Section 105 would be deemed as compliance

with the requirements of the Multiple Use-Sustained Yield Act, the National Environmental

Policy Act, the Endangered Species Act, the Forest and Rangeland Renewable Resources

Planning Act, and the National Forest Management Act. It is not clear how NFMA Section 14

could be satisfied by the environmental report, as that law pertains to bidding, contracting, and

harvesting practices.36 However, it appears to mean that, under H.R. 4019, timber harvests for

trust projects would not need to be made at appraised value or overseen by federal employees.

The possibility of litigation related to trust projects would not be entirely precluded by H.R. 4019.

Courts could be asked to review violations under several laws, including the Clean Water Act,37

the Clean Air Act,38 the National Historic Preservation Act,39 and the Archaeological Resources

Protection Act.40

In addition, by barring ESA consultation, H.R. 4019 could potentially expose companies

performing trust projects to liability. The consultation process under ESA typically leads to either

FWS or NMFS issuing what is called an incidental take statement, immunizing the agency and

any applicant from liability if the project incidentally harms a listed species.41 By eliminating the

consultation process in this way, Section 105(e) insulates the USFS from ESA liability, but does

not appear to protect private parties, such as timber companies, from suit.

36

16 U.S.C. §472a.

P.L. 92-500; 33 U.S.C. §§1251 et seq.

38

P.L. 95-95; 42 U.S.C. §§7401 et al.

39

P.L. 96-515; 16 U.S.C. §§470 et seq.

40

P.L. 96-95; 16 U.S.C. §§470aa-470mm.

41

16 U.S.C. §1536(B)(4).

37

Congressional Research Service

17

Federal Forests County Revenue, Schools, and Jobs Act of 2012: Issues for Congress

Allocation and Distribution of Trust Payments

The bill would allocate 65% of trust project receipts to the trust. This would be a significant

increase from the historic allocation—25% of USFS receipts and 50% of O&C receipts. The trust

payments would be allocated by the states to the counties in accordance with SRS Section

102(c)(1), which refers to the original USFS 25% payments to states. This clearly would direct

allocations for roads and schools in the counties based on revenues from each proclaimed national

forest and acreage of that national forest in each county; the payment may or may not go to the

county, depending on each state’s statutory direction.

How the trust payments would be allocated among the states is not clear. The allocation could be

based on the average 1980-1999 USFS revenues in each state; this is shown in the fifth column in

Table 1 (under “Calculated Payments, Historic Allocation”).42 Table 1 shows the historic USFS

payments: the second column shows the average annual payments for 1980-1999; the third

column shows the average annual payments for 2001-2007; and the fourth column shows the

average annual payments for 2008-2011. Because the bill refers to the distribution in SRS as

amended, the allocation of the trust payments could be based on the allocation of SRS payments

in each state; this calculated allocation is shown in the sixth column in Table 1.43

The allocation among states—by historic payments or SRS formula—would make a substantial

difference in state payments. If the allocation were based on historic payments, trust payments

would rise from the SRS 2008-2011 average annual payments in a few states, notably Oregon,

Washington, and California. In fact, the average annual trust payments in California would likely

exceed the average annual payments for any of the preceding periods. In contrast, if the allocation

were based on the SRS formula, trust payments would decline from the SRS 2008-2011 average

annual payments in many states, especially western states with large land areas but modest

historic receipts, such as Arizona, Colorado, Idaho, Montana, Nevada, Utah, and Wyoming.

In addition, because the payments would be distributed “subject to” SRS Sections 102(c)(2) and

(d), counties where the payments exceed the specified amounts must or may (depending on the

level and the circumstances) allocate 15%-20% of their payments for projects in accordance with

SRS Titles II and III. Thus, the amounts shown in the fourth and fifth data columns overstate the

likely payments in many of the counties opting for the trust payment program. For counties

opting out of the trust payment program, if current receipts were significantly higher than their

1980-1999 average receipts, the actual payments could be higher than shown in the table. The

trust payments also appear to be in addition to the USFS 25% payments, which would lead to

greater payments (perhaps substantially greater) in some areas.

42

This column equals the 65% payment of annual revenue requirement, which equals 60% of the average annual

receipts for 1980-1999 (= 4 times column 2, adjusted for the Owl Payments in Washington and Oregon).

43

This column equals the 65% payment of the national total annual revenue requirement (the total for column 5) times

each state’s share of the SRS average annual payment, 2008-2001 (= each state’s average payment divided by the

national total at the bottom of column 4).

Congressional Research Service

18

Federal Forests County Revenue, Schools, and Jobs Act of 2012: Issues for Congress

Table 1. Average and Calculated USFS Annual Payments, by State

(in dollars)

Calculated

Payment,

Historic

Allocation

Calculated

Payment,

SRS

Allocation

Average 25%

Payment,

1980-1999

Average SRS

Payment,

2001-2007a

Average SRS

Payment

2008-2011b

Alabama

1,488,717

2,075,265

2,170,788

2,322,398

1,995,326

Alaska

3,860,066

9,088,096

17,862,878

6,021,703

16,419,040

Arizona

4,488,276

7,220,552

15,625,872

7,001,711

14,362,848

Arkansas

5,227,385

6,819,198

8,189,822

8,154,721

7,527,847

California

45,361,694

63,616,815

49,494,650

70,764,243

45,494,048

Colorado

3,633,940

5,996,549

16,149,657

5,668,947

14,844,297

Florida

1,725,797

2,436,086

2,758,006

2,692,243

2,535,079

Georgia

868,837

1,265,554

1,783,779

1,355,386

1,639,598

Idaho

12,543,729

20,621,665

32,781,951

19,568,217

30,132,219

Illinois

99,636

295,221

106,831

155,431

98,196

Indiana

76,431

126,352

322,140

119,232

296,102

Kentucky

396,492

580,340

2,375,536

618,527

2,183,524

Louisiana

2,855,389

3,637,394

2,389,717

4,454,407

2,196,558

Maine

29,860

40,205

88,776

46,581

81,600

Michigan

1,709,960

2,604,516

4,193,001

2,667,537

3,854,085

Minnesota

1,086,970

1,975,389

3,099,736

1,695,673

2,849,188

Mississippi

6,094,110

7,947,293

7,291,737

9,506,811

6,702,353

Missouri

1,726,648

2,641,832

4,275,925

2,693,572

3,930,307

Montana

8,648,043

12,787,744

24,156,509

13,490,948

22,203,963

Nebraska

40,737

46,161

418,420

63,549

384,600

Nevada

329,663

441,846

4,939,800

514,274

4,540,521

New Hampshire

439,611

479,327

603,829

685,793

555,022

1,587,011

2,231,740

15,659,490

2,475,737

14,393,749

5,705

14,039

27,100

8,900

24,909

North Carolina

766,760

990,562

2,224,327

1,196,146

2,044,536

North Dakota

77

98

806

120

741

Ohio

88,564

75,325

329,960

138,159

303,289

Oklahoma

741,136

1,241,571

1,159,306

1,156,172

1,065,601

109,424,123

145,056,621

106,941,284

138,004,031

98,297,330

Pennsylvania

3,377,462

5,768,269

4,325,544

5,268,841

3,975,915

South Carolina

2,124,756

3,188,849

2,346,850

3,314,620

2,157,157

South Dakota

1,880,203

3,763,028

2,659,932

2,933,116

2,444,933

Tennessee

418,880

543,608

1,419,527

653,453

1,304,788

New Mexico

New York

Oregon

Congressional Research Service

19

Federal Forests County Revenue, Schools, and Jobs Act of 2012: Issues for Congress

Calculated

Payment,

Historic

Allocation

Calculated

Payment,

SRS

Allocation

Average 25%

Payment,

1980-1999

Average SRS

Payment,

2001-2007a

Average SRS

Payment

2008-2011b

Texas

3,079,676

4,552,606

3,332,525

4,804,295

3,063,160

Utah

1,287,934

1,973,408

13,262,498

2,009,177

12,190,504

Vermont

185,867

367,753

400,926

289,953

368,520

Virginia

580,269

876,676

2,044,701

905,220

1,879,430

Washington

30,658,521

41,490,084

30,863,755

37,338,243

28,369,070

West Virginia

912,926

1,949,023

2,185,209

1,424,164

2,008,581

Wisconsin

968,364

1,753,942

2,600,654

1,510,648

2,390,445

Wyoming

1,512,294

2,291,636

5,217,656

2,359,178

4,795,918

Puerto Rico

15,453

41,969

186,354

24,107

171,291

262,347,971

370,914,205

398,267,758

366,076,185

366,076,185

Total

Source: CRS calculations from USFS data in annual ASR 10-1 reports.

Note: Excludes possible trust payments for the O&C lands. Also, this payment is apparently in addition to the

USFS 25% payments to states and O&C 50% payments to counties.

a.

The average annual payments for FY2001-FY2007 were made under the original SRS Act formula, for those

opting for the SRS program, and under the USFS 25% program, for all others.

b.

The average annual payments for FY2008-FY2011 were made under the formula in the SRS Act as amended,

for those opting for the SRS program, and under the USFS 25% program, for all others.

The bill also would allocate 35% of receipts to the U.S. Treasury, and would allow the funds to be

appropriated to the USFS. For trust project receipts appropriated to the USFS, the agency would

be allowed to use up to 1% of that appropriation for bonuses to employees “who assist a unit in

exceeding its minimum sale level for the fiscal year.” This bonus would reward employees who

help in increasing timber sales, regardless of the environmental and economic consequences of

those sales, since it would be for exceeding volume targets, not for achieving revenue

requirements. Efforts to increase receipts from other sources (such as those described above)

would not be eligible for bonuses.

Implementation

The implementation of H.R. 4019 also raises a number of possible issues. Some issues may

appear to be relatively minor; for example, grazing fees are charged for actual use, not for permits

(as implied in Section 105(b)(2)), and chargeable volume (Section 101(4)) in some national

forests is calculated in growing stock (cubic feet), not in merchantable sawtimber (board feet),

making the minimum sale level calculation (Section 104(2) from the definition in Section 101(8))

difficult, at best. Six implementation provisions could raise more complicated issues and warrant

some additional discussion: the provision on state education funding; inclusion of the O&C lands;

implementation in parts of national forests; directions on timber sale practices and procedures; the

need for regulations for implementation; and impacts on USFS staffing and funding.

Congressional Research Service

20

Federal Forests County Revenue, Schools, and Jobs Act of 2012: Issues for Congress

Provision on State Education Funding

Section 102(c)(3) would direct that the “assets of the Trust shall not ... be used in lieu of or to

otherwise offset State funding sources for local schools, facilities, or educational purposes.” This

provision appears to be intended to prevent states from adjusting their allocation of state

educational funds in response to USFS state payments, as is currently done in Washington and

other states. Some might view this as federal interference in state prerogatives to allocate state

funding as the state sees fit, which would violate the Spending Clause/Tenth Amendment of the

U.S. Constitution. Others would likely argue that this is a legitimate condition of the federal trust

payments.44 While the language of Section 102(c)(3) appears to make this a requirement only for

counties choosing the trust payments, the automatic opt-in provision (§103) and the allocation

and distribution provisions (§§106 and 107) make this appear less of a voluntary grant program.

Inclusion of the O&C Lands

The bill would include payments for the O&C lands in western Oregon through the definition of

federal land (§101(7)(B)). However, some of the actions required by the bill would not be applied

to the O&C lands. The provisions of Section 105, implementing the trust projects, direct the

Secretary of Agriculture to identify trust projects on National Forest System lands. There are no

directions for the Secretary of the Interior to identify trust projects on O&C lands, and no

authorization for the trust project designation, public involvement, or environmental review

provisions to be implemented on the O&C lands. Section 106 would direct that trust project

revenues be deposited in the U.S. Treasury to be available for appropriation to the USFS. Finally,

Section 107 would direct use of the funds consistent with SRS Section 102(c), which refers to the

USFS 25% Payments to States Act requiring use of funds for roads and schools; under the 1937

O&C Act, the O&C payments have been available for any local governmental purpose. Thus, the

bill includes the O&C lands in its definition of federal land, but other provisions of the bill seem

not to apply to the O&C lands and it is not clear whether the counties with O&C lands would be

eligible for trust payments.

Implementation for Parts of National Forests

The bill would allow each county to opt out of the trust payment program, and would prohibit

trust projects from occurring on lands in counties that have opted out of the program. However,

calculations and decisions would generally be directed to be done at units of the National Forest

System. These two aspects could significantly complicate national forest management. First, the

bill does not define “unit” of the National Forest System. NFMA allows multiple national forests

to be combined for planning purposes, and the USFS has combined several national forests for

administrative purposes; for example, the Choctawhatchee National Forest (NF), with 743 acres,

is administered with three other national forests as the National Forests in Florida. However, the

USFS 25% payments to states program is organized by proclaimed national forest, not by

administrative designation. The bill is not clear on which of these approaches may or must be

used for the required calculations and decisions.

44

See CRS Report RL30315, Federalism, State Sovereignty, and the Constitution: Basis and Limits of Congressional

Power, by (name redacted).

Congressional Research Service

21

Federal Forests County Revenue, Schools, and Jobs Act of 2012: Issues for Congress

An additional possible complication is that some national forests are spread over many counties;

the Mark Twain NF, for example, has land in 29 counties in Missouri, while the Daniel Boone NF

and Jefferson NF each have land in 22 counties, the latter in three different states. Under the SRS

payment program, counties could opt in, and in 38 of the 156 proclaimed national forests (24%),

some counties opted in while others opted out. If similar choices were made under the trust

payment program, about a quarter of the national forests would be required to administer some

lands with trust projects and their implementation guidance, and other lands under MUSYA,

NFMA, and other laws. This might require additional surveying, to assure that trust projects

occur only in those counties that have not opted out of the trust payment program.

Timber Sale Practices and Procedures

Section 14 of NFMA sets forth guidelines for timber sales in the National Forest System.45 It

requires an appraisal of the timber value in each sale and advertisement of the sale. Each sale is to

be at not less than the appraised value, in open and competitive bidding. The timber harvest is to

be supervised by a USDA employee. And the Secretary of Agriculture is to develop timber

utilization standards, measurement methods, and harvesting practices “to provide for the optimum

practical use of the wood material.” Since the bill states that trust projects comply with NFMA

(among other laws), it is unclear whether these guidelines would necessarily continue to be

implemented and enforced.

Regulations for Implementation

The bill does not require regulations to implement its provisions. However, the USFS would be

implementing different timber sale procedures on different lands, depending on decisions by the

counties. Thus, regulations for the timber sale procedures for trust projects might be needed to

provide consistent practices and to assure that adequate receipts are deposited in the trust.

Moreover, counties could move into and out of the trust program from year to year, and the USFS

might need regulations to guide timber practices on sales begun as trust projects versus those

begun as non-trust projects.

Impacts on USFS Staffing and Funding

H.R. 4019 would likely increase USFS staffing needs and funding requirements. Additional staff

would likely be needed to prepare and administer the expected increase in timber sales, although

some staff might be saved by decreasing the needed environmental analysis on those sales.

However, implementing different sets of sale regulations on possibly adjoining lands could

significantly increase the total work effort. In addition, it seems likely that some additional staff

will be needed to administer the trust and trust payments.

Additional funding would likely be needed. As noted above, one possible avenue for achieving

the revenue requirements is to reduce or eliminate USFS deposits to many of the MSAs. Thus,

additional funding would likely be needed to replace funds for:

•

45

timber sale preparation and administration from the Salvage Sale Fund and

possibly the Timber Sale Pipeline Fund;

16 U.S.C. §472a.

Congressional Research Service

22

Federal Forests County Revenue, Schools, and Jobs Act of 2012: Issues for Congress

•

reforestation from the K-V Fund and brush disposal funds;

•

fuel treatment to replace brush disposal funds and to replace forest health

improvements achieved through stewardship contracts; and

•

mitigation of the effects of the additional timber sales on other resource values

and conditions, such as degradation to water quality and loss of certain types of

animal habitats, from the K-V fund.

In addition, funding for staff to administer the trust and trust payments would likely be needed,

since trust funds are not authorized to be used for administration of the trust.

The extent of possible additional funding needs is unclear, but seems likely to be at least as much

as the decline in deposits to USFS MSAs—$142 million annually for FY2008-FY2010 for the

four timber-related accounts and another $124 million annually for FY2008-FY2010 for the other

MSAs. In the current tight federal fiscal situation, it is unclear how such additional funding might

be provided.

Author Contact Information

(name redacted)

Specialist in Natural Resources Policy

[redacted]@crs.loc.gov, 7-....

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Acknowledgments

Ross Gorte, retired CRS Specialist in Natural Resources Policy, made important contributions to this

report.

Congressional Research Service

23

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