[Federal Register Volume 78, Number 109 (Thursday, June 6, 2013)]
[Pages 34031-34034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-13459]

                                                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 
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statements of organization and functions are examples of documents 
appearing in this section.


Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / 

[[Page 34031]]


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 

DATES: Comments must be received in writing by July 8, 2013.

ADDRESSES: Submit comments electronically through the Internet Web site 
at http://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 [email protected]. 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.


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.''


    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.


    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 
    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.


    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.''


    Clarified that final accomplishment reports are due within 60 days 
of completing response activities, rather than 60 days from monitoring 

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 
    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 

[[Page 34033]]


    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.


    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 
    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 


    Added information specifying the type of information required in 
the final accomplishment report.


    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.


    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.

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All comments received were considered in development of the interim 
    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 

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]