Burned Area Emergency Response, Forest Service, 34031-34034 [2013-13459]
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34031
Notices
Federal Register
Vol. 78, No. 109
Thursday, June 6, 2013
This section of the FEDERAL REGISTER
contains documents other than rules or
proposed rules that are applicable to the
public. Notices of hearings and investigations,
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DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596–AC73
Burned Area Emergency Response,
Forest Service
Forest Service, USDA.
Notice of interim directive;
request for public comment.
AGENCY:
ACTION:
The Forest Service is issuing
an interim directive to guide its
employees in revised procedures for
Burned Area Emergency Response. The
interim directive provides direction and
guidance specific to assessing, planning
and implementing post-fire emergency
response actions on National Forest
System (NFS) lands to ensure consistent
and adequate analyses for evaluating
post-fire risks and determining
appropriate and cost-effective response
actions. This interim directive
supersedes the existing directive located
at FSM 2523. Public comment is invited
and will be considered during
development of the final directive.
DATES: Comments must be received in
writing by July 8, 2013.
ADDRESSES: Submit comments
electronically through the Internet Web
site at https://www.regulations.gov or
mail written comments to U.S. Forest
Service, Attn: Director, Watershed, Fish,
Wildlife, Air and Rare Plants, Mail Stop
1121, 1400 Independence Ave SW.,
Washington, DC 20250–1121. If
comments are sent by electronic means,
please do not send duplicate comments
via regular mail.
All comments, including names and
addresses when provided, will be
placed in the record and are available
for public inspection and copying.
Persons wishing to inspect the
comments received on this interim
directive may do so in the Office of the
Director, Watershed, Fish, Wildlife, Air
and Rare Plants, U.S. Forest Service, 3rd
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SUMMARY:
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Floor-Northwest, Sidney R. Yates
Federal Building, 201 14th Street SW.,
Washington, DC, between 8:30 a.m. and
4:00 p.m. on business days. Those
wishing to inspect comments are
encouraged to call ahead at 202–205–
1167 to facilitate access to the building.
FOR FURTHER INFORMATION CONTACT:
Penny Luehring, Watershed, Fish
Wildlife, Air and Rare Plants Staff, 333
Broadway SE., Albuquerque, NM 87102,
505–842–3141 or pluehring@fs.fed.us.
Individuals who use telecommunication
devices for the deaf (TDD) may call the
Federal Information Relay Service
(FIRS) at 1–800–877–8339 between 8:00
a.m. and 8:00 p.m., Eastern Standard
Time, Monday through Friday.
SUPPLEMENTARY INFORMATION:
Background and Need for the Interim
Directive
The Forest Service has administered a
Burned Area Emergency Response
(BAER) program for over 30 years. The
objective of the BAER program is to
rapidly assess burned areas to identify
post-wildfire threats to human safety,
property and critical natural or cultural
resources on National Forest System
lands and take immediate and
reasonable actions to manage
unacceptable risks. The last substantive
changes to the Forest Service BAER
policy were in 2004. Since that time,
over 10,000,000 acres of National Forest
System lands have burned and the
proportion of acreage burned at a high
severity level has increased annually.
Dry conditions, areas of tree mortality
due to bark beetle infestations and
hazardous fuels buildup are creating
conditions that make the outlook for
more and bigger fires almost certain.
Also during that time, concerns on
rising costs in the fire operations
program have prompted increased
efforts to improve cost efficiencies.
These cost issues affect the Forest
Service BAER program since funding for
this program resides in the fire
operations budget.
The increasing acres of burned land
combined with fiscal concerns have
prompted new management challenges
for which existing policy is inadequate.
The current FSM 2523 direction often
fails to provide the specificity for
determining when true post-fire
emergencies may exist and what
techniques exist to effectively mitigate
or manage these emergencies in a
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fiscally prudent manner. The interim
directive provides a consistent
framework and terminology for
assessing risk and making decisions
regarding appropriate emergency
response actions. It also incorporates
changes that provide for increased costsavings.
Summary of Revisions
Minor technical and editorial changes
were made throughout the chapter.
Substantive changes are listed and
described below.
FSM 2523.01—Authority
This section includes an updated
reference regarding the legal authority to
enter into Watershed Restoration and
Enhancement Agreements (Wyden
Amendment authority). Section 2523.53
explains the conditions under which
Wyden Amendment authority may be
appropriate in the BAER program.
FSM 2523.02—Objectives
This sentence was revised to
emphasize the emergency nature and
focused scope of the BAER program.
The revised objective is ‘‘To identify
imminent post-wildfire threats to
human life and safety, property and
critical natural or cultural resources on
National Forest System lands and take
immediate actions, as appropriate, to
manage unacceptable risks.’’
2523.03—Policy
Several changes were made in this
section. The requirement for performing
BAER assessments on all fires,
regardless of size, was changed to only
those fires 500 acres and larger. An
internal program evaluation has
demonstrated that there is seldom a
request for treatment made for fires
smaller than 500 acres. Removing the
mandatory requirement to perform
assessments on these small fires, given
that requests for treatment are so
infrequent, has the potential to provide
time and cost savings. An option has
been provided to allow for performing
assessments on smaller fires when
potential threats to human life and
safety, property, or critical natural or
cultural resources may exist. The term
‘‘wildland fire’’ in this section was
replaced to ‘‘wildfire’’ to be consistent
with the Federal Wildland Fire
Management Policy. A sentence was
added to emphasize that the critical
values addressed by the BAER program
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are limited to those listed in a new
exhibit (FSM 2523.1, exhibit 01).
Clarification was provided to ensure
that any planned response actions are
limited to those likely to substantially
reduce risks within the first year.
Changes were also made to limit the
treatment of invasive species under
BAER authority and to limit funding to
one year to more closely align with the
emergency nature of this program.
Stricter requirements are included for
justifying the use of BAER funding for
repair or replacement of previously
installed emergency stabilization
measures. The policy on monitoring
using BAER funding was clarified to
describe the limited purpose for BAER
monitoring. Changes were also made to
clarify the criteria for determining when
BAER treatments are appropriate in
wilderness areas. A policy statement
was added explicitly stating that BAER
is not appropriate for non-emergency
rehabilitation and restoration or to
correct undesirable conditions that
existed prior to the fire.
2523.04—Responsibility
Changed the caption from ‘‘Director,
Watershed and Air Management Staff,
Washington Office’’ to ‘‘Washington
Office, Director, Watershed, Fish,
Wildlife, Air, and Rare Plants
Management Staff’’ and sets forth
additional safety responsibilities at that
director level.
Added responsibilities for safety and
monitoring-needs identification at the
regional forester level and clarified the
conditions under which regional
foresters may extend the seven-day
assessment timeline. Established
additional responsibility at the regional
forester level for monitoring planned
and actual regional BAER expenditures.
Added forest supervisor responsibility
for pre-season preparedness with an
emphasis on safety. Added forest
supervisor responsibility for initiating
and ensuring communication with
appropriate Federal, Tribal, State,
county, and local emergency response
agencies regarding potential threats that
may exist downstream of National
Forest System lands and clearly
communicating to those agencies the
limits of Forest Service authorities.
Changed caption from ‘‘District
Rangers’’ to ‘‘Forest, Grassland, Prairie,
Area Supervisors and District Rangers,’’
for the purpose of combining BAER
implementation, monitoring and
reporting responsibilities into shared
responsibility at the unit and district
levels. Also in this section, additional
safety responsibilities are set forth for
BAER implementation and monitoring
activities.
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Added the source references to the
existing definitions of ‘‘Emergency
Stabilization,’’ ‘‘Burned-Area
Rehabilitation’’ and ‘‘Burned-Area
Restoration.’’ Added new definitions for
‘‘Burned-Area Emergency,’’ ‘‘Risk,’’ and
‘‘Wildfire.’’
considered ‘unacceptable’ when the
value is human life or safety). The
exhibit also defines the terms
probability of damage or loss and
magnitude of consequences’ which
provide the justification for emergency
response actions, including emergency
stabilization in the BAER program.
2523.05—Timeframes
2523.2—Emergency Response Actions
Clarified that final accomplishment
reports are due within 60 days of
completing response activities, rather
than 60 days from monitoring
completion.
Clarified that BAER actions are
response actions necessary to control
the immediate impacts of a post-fire
emergency and fall within the NEPA
provisions for such actions described in
36 CFR 220.4 b (1). These NEPA
provisions allow the responsible official
to take necessary actions to control the
immediate impacts of the emergency to
mitigate harm to life, property or
important natural or cultural resources.
When taking such actions, the
responsible official shall take into
account any probable environmental
consequences of the emergency action(s)
and mitigate foreseeable adverse
environmental effects to the extent
practical.
Added a paragraph that describes the
appropriate notification requirements
when hazardous or unsafe conditions
are identified and to emphasize the
need to coordinate and cooperate with
the appropriate Federal, State or local
response agencies when flooding or
other threats may continue downstream
of National Forest System lands.
Clarified the hierarchy for emergency
response decision strategies; describing
the preferred order starting with natural
recovery, to administrative closure, and
then to stabilization actions. Improved
the descriptive guidelines for employing
response actions involving
administrative closure and access
control.
Removed the description of specific
techniques for treatments involving
large structures and cultural sites. This
is technical guidance and more
appropriate for inclusion in the Forest
Service Handbook. A paragraph was
added to describe how BAER funding
should be used to implement
administrative closures. The paragraph
on appropriate response actions in
wilderness areas was expanded to
clearly describe the unique
circumstances that would justify BAER
actions in wilderness areas. Added
guidance to the invasive species section
to reinforce the one-year limitation on
that type of treatment and include a
reference to Forest Service Manual 2900
for general guidance on invasive species
management.
2523.05—Definitions
2523.1—Burned-Area Emergency
Assessment
Expanded this section to better clarify
the process for conducting Burned-Area
assessments, emphasizing the
progression from risk assessment to
planned actions in a sequential and
logical fashion. The steps are: (1)
Evaluate potential threats to critical
values; (2) determine the risk level for
each threat; (3) identify situations where
unacceptable risks exist; (4) develop risk
management objectives; (5) design
response actions that meet the
objectives; (6) evaluate potential
response actions on likelihood for
timely implementation, effectiveness in
reducing the risk, feasibility and cost.
Clarified this section to encourage
consultation with Tribes for assistance
in identifying critical cultural resource
values.
Added two new exhibits to this
section. Exhibit 01 lists the values
considered critical under the BAER
program to provide focus for the risk
assessment and associated emergency
response action planning processes.
These values include human life, safety,
high value property, important natural
resources (high value water, soil
productivity, hydrologic function,
critical habitat for federally listed
threatened or endangered species, and
plant communities not currently
negatively affected by invasive species
or noxious weeds) and important
cultural resources (cultural resources
listed on or potentially eligible for the
National Register of Historic Places,
Traditional Cultural Properties and
Indian Sacred Sites) on National Forest
System lands.
Exhibit 02 is a qualitative risk
assessment tool that compares the
probability of damage or loss to the
expected magnitude of consequences
and assigns a risk level using five
categories that range from ‘very low’ to
‘very high’. Risk levels of ‘high’ and
‘very high’ are considered
‘unacceptable’ (and ‘intermediate’ is
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2523.3—Monitoring
Expanded this section to clarify the
types of monitoring appropriate for
BAER funding. It contains a general
description of BAER implementation
and effectiveness monitoring.
Effectiveness monitoring is divided into
three levels, and this section describes
the purpose, guidelines and planning
responsibilities for each level.
2523.4—Suppression-Damaged Areas
Clarified that costs for suppressiondamage rehabilitation activities are
charged to the fire incident and not to
BAER.
2523.5—Financing
Changed the caption from
‘‘Financing’’ to ‘‘Use of Funds’’ and
added the reference to the Forest
Service Handbook on Appropriation
Use (FSH 6509.11g) which provides the
overall direction on appropriate use of
agency funds, including those used in
BAER. Removed the guidance on
approval responsibility and nonemergency rehabilitation, because it was
redundant to that provided elsewhere in
the directive.
Revised direction in this section to
allow all wildfires regardless of origin to
be potentially eligible for BAER. The
original direction had stated that
wildfires that started by way of planned
ignitions (prescribed fires) could not
qualify for BAER assessment or
response actions.
Added additional clarification to
identify the appropriate Forest Service
coordination and cooperation actions
when other Federal land is burned or at
risk for post-fire damage. Updated the
reference to reflect the current
Interagency Agreement between the
Department of the Interior and Forest
Service for cooperation in fire
management and BAER cooperation.
Added direction to stress the
importance of Forest Service
coordination with other government
agencies to identify shared risk
management responsibilities for other
Federal and non-Federal lands. Added a
reference to the appropriate Forest
Service Manual and Handbook for
guidance on agreement requirements
when using the Wyden authority.
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2523.6—Human Resources
Reorganized this section to improve
clarity. Established new codes and
captions for the categories of ‘‘Safety’’
and ‘‘Pay Provisions.’’ Replaced
previous specific guidance with a
reference to the Incident Business
Management Handbook (FSH 5109.34)
as the source for direction on work/rest
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and driving/rest requirements that apply
to BAER personnel.
2523.7—Reporting
Added information specifying the
type of information required in the final
accomplishment report.
2523.8—Controls
Removed specific direction regarding
frequency of activity reviews and types
of performance review(s) from this
section. Instead, added a reference was
added to FSM 1410, which provides
overall guidance for Forest Service
program and activity reviews.
2523.9—Coordination Between BAER
and Other Recovery Programs
Added a new section setting forth
direction on coordination between
BAER and other, non-emergency,
rehabilitation and long-term post-fire
recovery programs.
Regulatory Certifications
Environmental Impact
This interim directive revises the
adminstrative policies and procedures
for conducting Burned Area Emergency
Response activities on National Forest
System lands. Agency regulations at 36
CFR 220.6(d)(2) (73 FR 43093) exclude
from documentation in an
environmental assessment or impact
statement ‘‘rules, regulations, or policies
to establish Service-wide administrative
procedures, program processes, or
instructions.’’ The Agency has
concluded that this interim directive
falls within this category of actions and
that no extraordinary circumstances
exist which would require preparation
of an environment assessment or
environmental impact statement.
Regulatory Impact
This interim directive has been
reviewed under USDA procedures and
E.O. 12866 on regulatory planning and
review. The Office of Management and
Budget (OMB) has determined that this
directive is non-significant for purposes
of E.O. 12866. This action to clarify
agency direction will not have an
annual effect of $100 million or more on
the economy, nor will it adversely affect
productivity, competition, jobs, the
environment, public health and safety,
or State or local governments. This
interim directive will not interfere with
an action taken or planned by another
agency, nor will it raise new legal or
policy issues. Finally, the interim
directive will not alter the budgetary
impact of entitlement, grant, user fee, or
loan programs or the rights and
obligations of beneficiaries of those
programs.
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34033
This interim directive has been
considered in light of Executive Order
13272 regarding proper consideration of
small entities and the Small Business
Regulatory Enforcement Fairness Act of
1996 (SBREFA), which amended the
Regulatory Flexibility Act (5 U.S.C. 601
et seq.). A small entities flexibility
assessment has determined that this
action will not have a significant
economic impact on a substantial
number of small entities as defined by
SBREFA. This interim directive is
focused on National Forest System
Burned Area Emergency Response
activities and imposes no requirements
on small or large entities.
Federalism
The Agency has considered the
interim directive under the
requirements of E.O. 13132 on
federalism and has determined that the
directive conforms with the federalism
principles set out in this Executive
order; will not impose any compliance
costs on the States; and will not have
substantial direct effects on the States,
the relationship between the Federal
Government and the States, or the
distribution of power and
responsibilities among the various
levels of government. Therefore, the
Agency has determined that no further
assessment of federalism implications is
necessary.
Consultation and Coordination With
Indian Tribal Governments
In accordance with Executive Order
13175 of November 6, 2000,
‘‘Consultation and Coordination With
Indian Tribal Governments,’’ and in
recognition of the unique governmentto-government relationship with
federally recognized Indian tribes, the
Agency has consulted with tribal
officials and considered the results of
consultation in developing the interim
directive.
On May 24, 2011, the Deputy Chief
for the National Forest System sent
letters to the Regional Foresters, Station
Directors, Area Director, IITF Director,
Deputy Chiefs, and Washington Office
Directors instructing them to conduct
government-to-government consultation
with federally recognized tribes on the
proposed BAER directive revisions. The
Forest Service considers tribal
consultation as an ongoing, iterative
process that runs from development of
proposed directives through issuance of
final directives.
From late May 2011 to October 2011,
Forest and Grassland Supervisors and
District Rangers in each Region made
contacts in person and in writing to the
Tribes within their area of jurisdiction.
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Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Notices
All comments received were considered
in development of the interim directive.
The Agency received four comments
from two tribes with interests in
National Forest System land in the
Southwestern, Pacific Southwest and
Intermountain West regions. One
comment noted the directive lacked
emphasis on protection of heritage
resources and cultural values. Two
comments addressed the 500 acre
minimum size limit for assessment and
suggested that there should be an
exception if cultural resources were
affected. One comment stated that there
was no provision for Tribal consultation
and that tribes should be involved in the
BAER process, especially if cultural
sites are in the project area. These
comments all resulted in changes
incorporated into the interim directive.
The Agency has also determined that
this interim directive does not impose
substantial direct compliance costs on
Indian tribal governments nor does it
mandate tribal participation. Instead, it
provides guidance to authorized officers
to consult with affected tribes to assist
in identifying critical cultural resources,
and it seeks to ensure emergency
stabilization actions do not negatively
affect cultural resources.
Energy Effects
The Agency has reviewed the interim
directive under E.O. 13211 of May 18,
2001, ‘‘Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use.’’ The Agency has
determined that the directive does not
constitute a significant energy action as
defined in the Executive Order.
Controlling Paperwork Burdens on the
Public
The interim directive does not contain
any additional record-keeping or
reporting requirements or other
information collection requirements as
defined in 5 CFR part 1320 that are not
already required by law or not already
approved for use and therefore imposes
no additional paperwork burden on the
public Accordingly, the review
provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.) and
its implementing regulations at 5 CFR
part 1320 do not apply.
Dated: May 31, 2013.
Thomas L. Tidwell,
Chief, Forest Service.
[FR Doc. 2013–13459 Filed 6–5–13; 8:45 am]
BILLING CODE 3410–11–P
No Taking Implications
DEPARTMENT OF AGRICULTURE
The Agency has analyzed the interim
directive in accordance with the
principles and criteria contained in E.O.
12630. The Agency has determined that
the directive does not pose the risk of
a taking of private property.
Forest Service
Civil Justice Reform
AGENCY:
The interim directive has been
reviewed under E.O. 12988 of February
7, 1996, ‘‘Civil Justice Reform’’. At the
time of adoption of this directive, (1) all
state and local laws and regulations that
conflicts with this directive or that
impede full implementation of this
directive were preempted; (2) no
retroactive effect was given to the
directive; and (3) administrative
proceedings are not required before
parties can file suit in court to challenge
its provisions.
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Unfunded Mandates
Pursuant to Title II of the Unfunded
Mandates Reform Act of 1995, (2 U.S.C.
1531–1538), the Agency has assessed
the effects of the interim directive on
State, local, and Tribal governments and
the private sector. The directive will not
compel the expenditure of $100 million
or more by any State, local, or tribal
government or anyone in the private
sector. Therefore, a statement under
section 202 of the act is not required.
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National Advisory Committee for
Implementation of the National Forest
System Land Management Planning
Rule
ACTION:
Forest Service, USDA.
Notice of meeting.
The National Advisory
Committee for Implementation of the
National Forest System Land
Management Planning Rule will meet in
Salt Lake/West Valley City, Utah via
webinar/conference call. The Committee
operates in compliance with the Federal
Advisory Committee Act (FACA) (Pub.
L. 92–463). The purpose of the
Committee is to provide advice and
recommendations on the
implementation of the National Forest
System Land Management Rule and to
continue deliberations on formulating
advice to the Secretary on the Proposed
Land Management Planning Directives.
The meeting is also open to the public.
DATES: The meeting will be held, via
webinar/conference call, on Tuesday
and Wednesday, June 25–26, 2013, from
8:00 a.m. to 6:00 p.m. and on Thursday,
June 27, 2013, from 8:00 a.m. to 11:30
p.m., Mountain Standard Time.
ADDRESSES: The meeting will be held at
the Embassy Suites Salt Lake/West
SUMMARY:
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Valley City, 3524 South Market Street,
West Valley City, Utah 84119 via
webinar/conference call. For anyone
who would like to attend via webinar/
conference call, please visit the
following Web site: https://
www.fs.usda.gov/main/planningrule/
committee or contact Chalonda Jasper at
cjasper@fs.fed.us for further details.
Written comments may be submitted
as described under Supplementary
Information. All comments, including
names and addresses when provided,
are placed in the record and are
available for public inspection and
copying. The public may inspect
comments received at 1601 N Kent
Street, Arlington, VA 22209, 6th Floor.
Please contact, Chalonda Jasper at 202–
260–9400, or cjasper@fs.fed.us, to
facilitate entry into the building to view
comments.
FOR FURTHER INFORMATION CONTACT:
Chalonda Jasper, Ecosystem
Management Coordination, 202–260–
9400, cjasper@fs.fed.us.
Individuals who use
telecommunication devices for the deaf
(TDD) may call the Federal Information
Relay Service (FIRS) at 1–800–877–8339
between 8:00 a.m. and 8:00 p.m.,
Eastern Standard Time, Monday
through Friday.
SUPPLEMENTARY INFORMATION: The
following business will be conducted:
(1) Continue deliberations on
formulating advice for the Secretary on
the Proposed Land Management
Planning Directives, (2) Discuss findings
from Committee working groups, and (3)
Administrative tasks.
Further information, including the
meeting agenda, will be posted on the
Planning Rule Advisory Committee Web
site at https://www.fs.usda.gov/main/
planningrule/committee.
Anyone who would like to bring
related matters to the attention of the
Committee may file written statements
with the Committee staff before the
meeting. Written comments must be
sent to USDA Forest Service, Ecosystem
Management Coordination, 201 14th
Street SW., Mail Stop 1104,
Washington, DC 20250–1104.
Comments may also be sent via email to
Chalonda Jasper at cjasper@fs.fed.us, or
via facsimile to 703–235–0138. A
summary of the meeting will be posted
at https://www.fs.usda.gov/main/
planningrule/committee within 21 days
of the meeting.
Meeting Accommodations: If you
require sign language interpreting,
assistive listening devices or other
reasonable accommodation, please
submit request prior to the meeting by
contacting Chalonda Jasper at 202–260–
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Agencies
[Federal Register Volume 78, Number 109 (Thursday, June 6, 2013)]
[Notices]
[Pages 34031-34034]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13459]
========================================================================
Notices
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains documents other than rules
or proposed rules that are applicable to the public. Notices of hearings
and investigations, committee meetings, agency decisions and rulings,
delegations of authority, filing of petitions and applications and agency
statements of organization and functions are examples of documents
appearing in this section.
========================================================================
Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 /
Notices
[[Page 34031]]
DEPARTMENT OF AGRICULTURE
Forest Service
RIN 0596-AC73
Burned Area Emergency Response, Forest Service
AGENCY: Forest Service, USDA.
ACTION: Notice of interim directive; request for public comment.
-----------------------------------------------------------------------
SUMMARY: The Forest Service is issuing an interim directive to guide
its employees in revised procedures for Burned Area Emergency Response.
The interim directive provides direction and guidance specific to
assessing, planning and implementing post-fire emergency response
actions on National Forest System (NFS) lands to ensure consistent and
adequate analyses for evaluating post-fire risks and determining
appropriate and cost-effective response actions. This interim directive
supersedes the existing directive located at FSM 2523. Public comment
is invited and will be considered during development of the final
directive.
DATES: Comments must be received in writing by July 8, 2013.
ADDRESSES: Submit comments electronically through the Internet Web site
at https://www.regulations.gov or mail written comments to U.S. Forest
Service, Attn: Director, Watershed, Fish, Wildlife, Air and Rare
Plants, Mail Stop 1121, 1400 Independence Ave SW., Washington, DC
20250-1121. If comments are sent by electronic means, please do not
send duplicate comments via regular mail.
All comments, including names and addresses when provided, will be
placed in the record and are available for public inspection and
copying. Persons wishing to inspect the comments received on this
interim directive may do so in the Office of the Director, Watershed,
Fish, Wildlife, Air and Rare Plants, U.S. Forest Service, 3rd Floor-
Northwest, Sidney R. Yates Federal Building, 201 14th Street SW.,
Washington, DC, between 8:30 a.m. and 4:00 p.m. on business days. Those
wishing to inspect comments are encouraged to call ahead at 202-205-
1167 to facilitate access to the building.
FOR FURTHER INFORMATION CONTACT: Penny Luehring, Watershed, Fish
Wildlife, Air and Rare Plants Staff, 333 Broadway SE., Albuquerque, NM
87102, 505-842-3141 or pluehring@fs.fed.us. Individuals who use
telecommunication devices for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m.
and 8:00 p.m., Eastern Standard Time, Monday through Friday.
SUPPLEMENTARY INFORMATION:
Background and Need for the Interim Directive
The Forest Service has administered a Burned Area Emergency
Response (BAER) program for over 30 years. The objective of the BAER
program is to rapidly assess burned areas to identify post-wildfire
threats to human safety, property and critical natural or cultural
resources on National Forest System lands and take immediate and
reasonable actions to manage unacceptable risks. The last substantive
changes to the Forest Service BAER policy were in 2004. Since that
time, over 10,000,000 acres of National Forest System lands have burned
and the proportion of acreage burned at a high severity level has
increased annually. Dry conditions, areas of tree mortality due to bark
beetle infestations and hazardous fuels buildup are creating conditions
that make the outlook for more and bigger fires almost certain. Also
during that time, concerns on rising costs in the fire operations
program have prompted increased efforts to improve cost efficiencies.
These cost issues affect the Forest Service BAER program since funding
for this program resides in the fire operations budget.
The increasing acres of burned land combined with fiscal concerns
have prompted new management challenges for which existing policy is
inadequate. The current FSM 2523 direction often fails to provide the
specificity for determining when true post-fire emergencies may exist
and what techniques exist to effectively mitigate or manage these
emergencies in a fiscally prudent manner. The interim directive
provides a consistent framework and terminology for assessing risk and
making decisions regarding appropriate emergency response actions. It
also incorporates changes that provide for increased cost-savings.
Summary of Revisions
Minor technical and editorial changes were made throughout the
chapter. Substantive changes are listed and described below.
FSM 2523.01--Authority
This section includes an updated reference regarding the legal
authority to enter into Watershed Restoration and Enhancement
Agreements (Wyden Amendment authority). Section 2523.53 explains the
conditions under which Wyden Amendment authority may be appropriate in
the BAER program.
FSM 2523.02--Objectives
This sentence was revised to emphasize the emergency nature and
focused scope of the BAER program. The revised objective is ``To
identify imminent post-wildfire threats to human life and safety,
property and critical natural or cultural resources on National Forest
System lands and take immediate actions, as appropriate, to manage
unacceptable risks.''
2523.03--Policy
Several changes were made in this section. The requirement for
performing BAER assessments on all fires, regardless of size, was
changed to only those fires 500 acres and larger. An internal program
evaluation has demonstrated that there is seldom a request for
treatment made for fires smaller than 500 acres. Removing the mandatory
requirement to perform assessments on these small fires, given that
requests for treatment are so infrequent, has the potential to provide
time and cost savings. An option has been provided to allow for
performing assessments on smaller fires when potential threats to human
life and safety, property, or critical natural or cultural resources
may exist. The term ``wildland fire'' in this section was replaced to
``wildfire'' to be consistent with the Federal Wildland Fire Management
Policy. A sentence was added to emphasize that the critical values
addressed by the BAER program
[[Page 34032]]
are limited to those listed in a new exhibit (FSM 2523.1, exhibit 01).
Clarification was provided to ensure that any planned response actions
are limited to those likely to substantially reduce risks within the
first year. Changes were also made to limit the treatment of invasive
species under BAER authority and to limit funding to one year to more
closely align with the emergency nature of this program. Stricter
requirements are included for justifying the use of BAER funding for
repair or replacement of previously installed emergency stabilization
measures. The policy on monitoring using BAER funding was clarified to
describe the limited purpose for BAER monitoring. Changes were also
made to clarify the criteria for determining when BAER treatments are
appropriate in wilderness areas. A policy statement was added
explicitly stating that BAER is not appropriate for non-emergency
rehabilitation and restoration or to correct undesirable conditions
that existed prior to the fire.
2523.04--Responsibility
Changed the caption from ``Director, Watershed and Air Management
Staff, Washington Office'' to ``Washington Office, Director, Watershed,
Fish, Wildlife, Air, and Rare Plants Management Staff'' and sets forth
additional safety responsibilities at that director level.
Added responsibilities for safety and monitoring-needs
identification at the regional forester level and clarified the
conditions under which regional foresters may extend the seven-day
assessment timeline. Established additional responsibility at the
regional forester level for monitoring planned and actual regional BAER
expenditures.
Added forest supervisor responsibility for pre-season preparedness
with an emphasis on safety. Added forest supervisor responsibility for
initiating and ensuring communication with appropriate Federal, Tribal,
State, county, and local emergency response agencies regarding
potential threats that may exist downstream of National Forest System
lands and clearly communicating to those agencies the limits of Forest
Service authorities.
Changed caption from ``District Rangers'' to ``Forest, Grassland,
Prairie, Area Supervisors and District Rangers,'' for the purpose of
combining BAER implementation, monitoring and reporting
responsibilities into shared responsibility at the unit and district
levels. Also in this section, additional safety responsibilities are
set forth for BAER implementation and monitoring activities.
2523.05--Definitions
Added the source references to the existing definitions of
``Emergency Stabilization,'' ``Burned-Area Rehabilitation'' and
``Burned-Area Restoration.'' Added new definitions for ``Burned-Area
Emergency,'' ``Risk,'' and ``Wildfire.''
2523.05--Timeframes
Clarified that final accomplishment reports are due within 60 days
of completing response activities, rather than 60 days from monitoring
completion.
2523.1--Burned-Area Emergency Assessment
Expanded this section to better clarify the process for conducting
Burned-Area assessments, emphasizing the progression from risk
assessment to planned actions in a sequential and logical fashion. The
steps are: (1) Evaluate potential threats to critical values; (2)
determine the risk level for each threat; (3) identify situations where
unacceptable risks exist; (4) develop risk management objectives; (5)
design response actions that meet the objectives; (6) evaluate
potential response actions on likelihood for timely implementation,
effectiveness in reducing the risk, feasibility and cost. Clarified
this section to encourage consultation with Tribes for assistance in
identifying critical cultural resource values.
Added two new exhibits to this section. Exhibit 01 lists the values
considered critical under the BAER program to provide focus for the
risk assessment and associated emergency response action planning
processes. These values include human life, safety, high value
property, important natural resources (high value water, soil
productivity, hydrologic function, critical habitat for federally
listed threatened or endangered species, and plant communities not
currently negatively affected by invasive species or noxious weeds) and
important cultural resources (cultural resources listed on or
potentially eligible for the National Register of Historic Places,
Traditional Cultural Properties and Indian Sacred Sites) on National
Forest System lands.
Exhibit 02 is a qualitative risk assessment tool that compares the
probability of damage or loss to the expected magnitude of consequences
and assigns a risk level using five categories that range from `very
low' to `very high'. Risk levels of `high' and `very high' are
considered `unacceptable' (and `intermediate' is considered
`unacceptable' when the value is human life or safety). The exhibit
also defines the terms probability of damage or loss and magnitude of
consequences' which provide the justification for emergency response
actions, including emergency stabilization in the BAER program.
2523.2--Emergency Response Actions
Clarified that BAER actions are response actions necessary to
control the immediate impacts of a post-fire emergency and fall within
the NEPA provisions for such actions described in 36 CFR 220.4 b (1).
These NEPA provisions allow the responsible official to take necessary
actions to control the immediate impacts of the emergency to mitigate
harm to life, property or important natural or cultural resources. When
taking such actions, the responsible official shall take into account
any probable environmental consequences of the emergency action(s) and
mitigate foreseeable adverse environmental effects to the extent
practical.
Added a paragraph that describes the appropriate notification
requirements when hazardous or unsafe conditions are identified and to
emphasize the need to coordinate and cooperate with the appropriate
Federal, State or local response agencies when flooding or other
threats may continue downstream of National Forest System lands.
Clarified the hierarchy for emergency response decision strategies;
describing the preferred order starting with natural recovery, to
administrative closure, and then to stabilization actions. Improved the
descriptive guidelines for employing response actions involving
administrative closure and access control.
Removed the description of specific techniques for treatments
involving large structures and cultural sites. This is technical
guidance and more appropriate for inclusion in the Forest Service
Handbook. A paragraph was added to describe how BAER funding should be
used to implement administrative closures. The paragraph on appropriate
response actions in wilderness areas was expanded to clearly describe
the unique circumstances that would justify BAER actions in wilderness
areas. Added guidance to the invasive species section to reinforce the
one-year limitation on that type of treatment and include a reference
to Forest Service Manual 2900 for general guidance on invasive species
management.
[[Page 34033]]
2523.3--Monitoring
Expanded this section to clarify the types of monitoring
appropriate for BAER funding. It contains a general description of BAER
implementation and effectiveness monitoring. Effectiveness monitoring
is divided into three levels, and this section describes the purpose,
guidelines and planning responsibilities for each level.
2523.4--Suppression-Damaged Areas
Clarified that costs for suppression-damage rehabilitation
activities are charged to the fire incident and not to BAER.
2523.5--Financing
Changed the caption from ``Financing'' to ``Use of Funds'' and
added the reference to the Forest Service Handbook on Appropriation Use
(FSH 6509.11g) which provides the overall direction on appropriate use
of agency funds, including those used in BAER. Removed the guidance on
approval responsibility and non-emergency rehabilitation, because it
was redundant to that provided elsewhere in the directive.
Revised direction in this section to allow all wildfires regardless
of origin to be potentially eligible for BAER. The original direction
had stated that wildfires that started by way of planned ignitions
(prescribed fires) could not qualify for BAER assessment or response
actions.
Added additional clarification to identify the appropriate Forest
Service coordination and cooperation actions when other Federal land is
burned or at risk for post-fire damage. Updated the reference to
reflect the current Interagency Agreement between the Department of the
Interior and Forest Service for cooperation in fire management and BAER
cooperation. Added direction to stress the importance of Forest Service
coordination with other government agencies to identify shared risk
management responsibilities for other Federal and non-Federal lands.
Added a reference to the appropriate Forest Service Manual and Handbook
for guidance on agreement requirements when using the Wyden authority.
2523.6--Human Resources
Reorganized this section to improve clarity. Established new codes
and captions for the categories of ``Safety'' and ``Pay Provisions.''
Replaced previous specific guidance with a reference to the Incident
Business Management Handbook (FSH 5109.34) as the source for direction
on work/rest and driving/rest requirements that apply to BAER
personnel.
2523.7--Reporting
Added information specifying the type of information required in
the final accomplishment report.
2523.8--Controls
Removed specific direction regarding frequency of activity reviews
and types of performance review(s) from this section. Instead, added a
reference was added to FSM 1410, which provides overall guidance for
Forest Service program and activity reviews.
2523.9--Coordination Between BAER and Other Recovery Programs
Added a new section setting forth direction on coordination between
BAER and other, non-emergency, rehabilitation and long-term post-fire
recovery programs.
Regulatory Certifications
Environmental Impact
This interim directive revises the adminstrative policies and
procedures for conducting Burned Area Emergency Response activities on
National Forest System lands. Agency regulations at 36 CFR 220.6(d)(2)
(73 FR 43093) exclude from documentation in an environmental assessment
or impact statement ``rules, regulations, or policies to establish
Service-wide administrative procedures, program processes, or
instructions.'' The Agency has concluded that this interim directive
falls within this category of actions and that no extraordinary
circumstances exist which would require preparation of an environment
assessment or environmental impact statement.
Regulatory Impact
This interim directive has been reviewed under USDA procedures and
E.O. 12866 on regulatory planning and review. The Office of Management
and Budget (OMB) has determined that this directive is non-significant
for purposes of E.O. 12866. This action to clarify agency direction
will not have an annual effect of $100 million or more on the economy,
nor will it adversely affect productivity, competition, jobs, the
environment, public health and safety, or State or local governments.
This interim directive will not interfere with an action taken or
planned by another agency, nor will it raise new legal or policy
issues. Finally, the interim directive will not alter the budgetary
impact of entitlement, grant, user fee, or loan programs or the rights
and obligations of beneficiaries of those programs.
This interim directive has been considered in light of Executive
Order 13272 regarding proper consideration of small entities and the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),
which amended the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). A
small entities flexibility assessment has determined that this action
will not have a significant economic impact on a substantial number of
small entities as defined by SBREFA. This interim directive is focused
on National Forest System Burned Area Emergency Response activities and
imposes no requirements on small or large entities.
Federalism
The Agency has considered the interim directive under the
requirements of E.O. 13132 on federalism and has determined that the
directive conforms with the federalism principles set out in this
Executive order; will not impose any compliance costs on the States;
and will not have substantial direct effects on the States, the
relationship between the Federal Government and the States, or the
distribution of power and responsibilities among the various levels of
government. Therefore, the Agency has determined that no further
assessment of federalism implications is necessary.
Consultation and Coordination With Indian Tribal Governments
In accordance with Executive Order 13175 of November 6, 2000,
``Consultation and Coordination With Indian Tribal Governments,'' and
in recognition of the unique government-to-government relationship with
federally recognized Indian tribes, the Agency has consulted with
tribal officials and considered the results of consultation in
developing the interim directive.
On May 24, 2011, the Deputy Chief for the National Forest System
sent letters to the Regional Foresters, Station Directors, Area
Director, IITF Director, Deputy Chiefs, and Washington Office Directors
instructing them to conduct government-to-government consultation with
federally recognized tribes on the proposed BAER directive revisions.
The Forest Service considers tribal consultation as an ongoing,
iterative process that runs from development of proposed directives
through issuance of final directives.
From late May 2011 to October 2011, Forest and Grassland
Supervisors and District Rangers in each Region made contacts in person
and in writing to the Tribes within their area of jurisdiction.
[[Page 34034]]
All comments received were considered in development of the interim
directive.
The Agency received four comments from two tribes with interests in
National Forest System land in the Southwestern, Pacific Southwest and
Intermountain West regions. One comment noted the directive lacked
emphasis on protection of heritage resources and cultural values. Two
comments addressed the 500 acre minimum size limit for assessment and
suggested that there should be an exception if cultural resources were
affected. One comment stated that there was no provision for Tribal
consultation and that tribes should be involved in the BAER process,
especially if cultural sites are in the project area. These comments
all resulted in changes incorporated into the interim directive.
The Agency has also determined that this interim directive does not
impose substantial direct compliance costs on Indian tribal governments
nor does it mandate tribal participation. Instead, it provides guidance
to authorized officers to consult with affected tribes to assist in
identifying critical cultural resources, and it seeks to ensure
emergency stabilization actions do not negatively affect cultural
resources.
No Taking Implications
The Agency has analyzed the interim directive in accordance with
the principles and criteria contained in E.O. 12630. The Agency has
determined that the directive does not pose the risk of a taking of
private property.
Civil Justice Reform
The interim directive has been reviewed under E.O. 12988 of
February 7, 1996, ``Civil Justice Reform''. At the time of adoption of
this directive, (1) all state and local laws and regulations that
conflicts with this directive or that impede full implementation of
this directive were preempted; (2) no retroactive effect was given to
the directive; and (3) administrative proceedings are not required
before parties can file suit in court to challenge its provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
(2 U.S.C. 1531-1538), the Agency has assessed the effects of the
interim directive on State, local, and Tribal governments and the
private sector. The directive will not compel the expenditure of $100
million or more by any State, local, or tribal government or anyone in
the private sector. Therefore, a statement under section 202 of the act
is not required.
Energy Effects
The Agency has reviewed the interim directive under E.O. 13211 of
May 18, 2001, ``Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use.'' The Agency has determined
that the directive does not constitute a significant energy action as
defined in the Executive Order.
Controlling Paperwork Burdens on the Public
The interim directive does not contain any additional record-
keeping or reporting requirements or other information collection
requirements as defined in 5 CFR part 1320 that are not already
required by law or not already approved for use and therefore imposes
no additional paperwork burden on the public Accordingly, the review
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.) and its implementing regulations at 5 CFR part 1320 do not apply.
Dated: May 31, 2013.
Thomas L. Tidwell,
Chief, Forest Service.
[FR Doc. 2013-13459 Filed 6-5-13; 8:45 am]
BILLING CODE 3410-11-P