H.R. 4200 (109th): Forest Emergency Recovery and Research Act

109th Congress, 2005–2006. Text as of May 17, 2006 (Passed the House (Engrossed)).

Status & Summary | PDF | Source: GPO

I

109th CONGRESS

2d Session

H. R. 4200

IN THE HOUSE OF REPRESENTATIVES

AN ACT

To improve the ability of the Secretary of Agriculture and the Secretary of the Interior to promptly implement recovery treatments in response to catastrophic events affecting Federal lands under their jurisdiction, including the removal of dead and damaged trees and the implementation of reforestation treatments, to support the recovery of non-Federal lands damaged by catastrophic events, to revitalize Forest Service experimental forests, and for other purposes.

1.

Short title and table of contents

(a)

Short title

This Act may be cited as Forest Emergency Recovery and Research Act.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title and table of contents.

Sec. 2. Findings.

Sec. 3. Definitions.

Title I—Response to Catastrophic Events on Federal Lands

Sec. 101. Development of research protocols and use in catastrophic event research projects.

Sec. 102. Catastrophic event recovery evaluations.

Sec. 103. Compliance with National Environmental Policy Act.

Sec. 104. Availability and use of pre-approved management practices.

Sec. 105. Availability and use of emergency procedures.

Sec. 106. Administrative and judicial review.

Sec. 107. Guidance regarding reforestation in response to catastrophic events.

Sec. 108. Effect of title.

Sec. 109. Standards for tree retention.

Title II—Restoring Landscapes and Communities Impacted by Catastrophic Events

Subtitle A—Cooperative Forestry Assistance Act of 1978

Sec. 201. Assistance under Cooperative Forestry Assistance Act of 1978 to restore landscapes and communities affected by catastrophic events.

Subtitle B—Department of the Interior Assistance

Sec. 211. Restoring landscapes.

Sec. 212. Restoring communities.

Title III—Experimental Forests

Sec. 301. Findings.

Sec. 302. Availability and use of pre-approved management practices on National Forest experimental forests.

Sec. 303. Limited consideration of alternatives for projects on National Forest experimental forests.

Title IV—General Provisions

Sec. 401. Regulations.

Sec. 402. Dedicated source of funds for research and monitoring.

Sec. 403. Other funding sources.

Sec. 404. Effect of declaration of major disaster or emergency.

2.

Findings

Congress finds the following:

(1)

The number and severity of catastrophic events causing resource damage to Federal land has significantly increased over the last 20 years, and such catastrophic events also create serious adverse environmental, social, and economic consequences for Federal land and adjacent non-Federal land and communities.

(2)

Catastrophic events often devastate forest or rangeland ecosystems and eliminate sources of seed for desired tree and plant species, which—

(A)

delays or even precludes the reestablishment of appropriate forest or plant cover on millions of acres of Federal land;

(B)

increases the susceptibility of the damaged land to wildfire and noxious or harmful species and reduces the economic value of the damaged land’s resources;

(C)

increases the susceptibility of adjacent undamaged land to insect infestations, disease, and noxious weeds;

(D)

pollutes municipal water supplies and damages water delivery infrastructure;

(E)

exacerbates sediment production that adversely impacts native fish habitat and soil productivity;

(F)

results in unsafe campgrounds, trails, roads, and other infrastructure; and

(G)

adversely impacts the sustainability of ecosystems and the well-being of adjacent communities.

(3)

Program authorities and funding mechanisms currently available to the Secretary of Agriculture and the Secretary of the Interior to respond to catastrophic events on forested Federal land do not provide for consistent and timely response activities.

(4)

The Council on Environmental Quality has approved on an infrequent basis the use of alternative arrangements to respond to catastrophic events on forested Federal land, but, when used in the past, such alternative arrangements have encouraged expedited and successful recovery outcomes.

(5)

A prompt and standardized management response to a catastrophic event, which is also adaptive to the unique characteristics of each catastrophic event, is needed—

(A)

to effectively recover the area damaged by the catastrophic event,

(B)

to minimize the impact on the resources of the area and adjacent communities adversely affected by the catastrophic event; and

(C)

to recover damaged, but still merchantable, material before it loses its economic value.

(6)

Reforestation treatments on forested Federal land after a catastrophic event helps to restore appropriate forest cover, which provides multiple renewable resource benefits, including—

(A)

protecting soil and water resources;

(B)

providing habitat for wildlife and fish;

(C)

contributing to aesthetics and enhancing the recreational experience for visitors;

(D)

providing a future source of timber for domestic use; and

(E)

ensuring the health and resiliency of affected ecosystems for present and future generations.

(7)

According to the Comptroller General, the reforestation backlog for Federal land has increased since 2000 as a result of natural disturbances, such as wildland fires, insect infestations, and diseases.

(8)

Additional scientific and monitoring information is needed regarding the effectiveness of recovery treatments to improve subsequent recovery proposals in response to future catastrophic events.

(9)

State, tribal, and local governments, local communities, and other entities play a critical role in restoring landscapes damaged by a catastrophic event and in reducing the risks associated with the catastrophic event.

(10)

Greater resources and adaptive arrangements must be made available to land managers to facilitate the prompt implementation of recovery treatments, including reforestation, following catastrophic events.

3.

Definitions

In this Act:

(1)

Burned area emergency response

The term burned area emergency response means the process used by the Secretary concerned to plan and implement emergency stabilization actions on Federal land in response to a catastrophic event in order to minimize threats to life or property or to stabilize and prevent unacceptable degradation to natural and cultural resources resulting from the effects of the catastrophic event.

(2)

Catastrophic event

The term catastrophic event means any natural disaster or any fire, flood, or explosion, regardless of cause, that the Secretary concerned determines has caused or will cause damage of significant severity and magnitude to Federal land or, in the case of title II, non-Federal land. A natural disaster may include a hurricane, tornado, windstorm, snow or ice storm, rain storm, high water, wind-driven water, tidal wave, earthquake, volcanic eruption, landslide, mudslide, drought, or insect or disease outbreak.

(3)

Catastrophic event recovery

The term catastrophic event recovery, with respect to an area of Federal land damaged by a catastrophic event, means—

(A)

if the catastrophic event involved fire, the rehabilitation and restoration activities (other than any emergency stabilization treatments undertaken as part of the burned area emergency response) that are undertaken on the damaged Federal land, including any infrastructure or facilities thereon, in response to the catastrophic event;

(B)

if the catastrophic event did not involve fire, the emergency stabilization and rehabilitation and restoration activities that are undertaken on the damaged Federal land, including infrastructure or facilities thereon, in response to the catastrophic event; or

(C)

the reforestation or revegetation, consistent with the applicable land and resource management plan, of the damaged Federal land in response to the catastrophic event using, to the extent practicable and preferable, native or beneficial plants to avoid creation of plantation forests and the recovery of trees on the damaged Federal land, through the use of timber harvesting and other appropriate methods of forest regeneration.

(4)

Catastrophic event recovery evaluation

The term catastrophic event recovery evaluation, with respect to an area of Federal land damaged by a catastrophic event, means an evaluation of the damaged Federal land that is conducted in accordance with section 102.

(5)

Catastrophic event recovery proposal

The term catastrophic event recovery proposal means the list and brief description of catastrophic event recovery projects, catastrophic event research projects, and pre-approved management practices that are—

(A)

identified as part of the catastrophic event recovery evaluation of an area of Federal land damaged by a catastrophic event; and

(B)

proposed to be undertaken to facilitate the catastrophic event recovery of the area or evaluate the effects and effectiveness of such recovery efforts.

(6)

Catastrophic event recovery project

The term catastrophic event recovery project means an individual activity or a series of activities identified in a catastrophic event recovery proposal for an area of Federal land damaged by a catastrophic event and proposed to be undertaken in response to the catastrophic event to promote catastrophic event recovery.

(7)

Catastrophic event research project

The term catastrophic event research project means a scientifically designed study of the effects and effectiveness of—

(A)

any catastrophic event recovery projects undertaken in an area of land damaged by a catastrophic event; and

(B)

any emergency stabilization treatments undertaken as part of a burned area emergency response in the area of land damaged by a catastrophic event.

(8)

Community wildfire protection plan

The term community wildfire protection plan has the meaning given that term in section 101(3) of the Healthy Forest Restoration Act of 2003 (16 U.S.C. 6511(3)).

(9)

Eligible entity

The term eligible entity, for purposes of providing assistance under subtitle B of title II, means a State Forester or equivalent State official, an Indian tribe, local government, community-based organization, or other person.

(10)

Federal land

The term Federal land means land in the National Forest System and public lands. The term does not include any land contained in a component of the National Wilderness Preservation System or designated as a national monument.

(11)

Indian tribe

The term Indian tribe has the meaning given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b).

(12)

Land and resource management plan

The term land and resource management plan means—

(A)

a land and resource management plan developed for a unit of the National Forest System under section 6 of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1604); or

(B)

a land use plan developed for an area of the public lands under section 202 of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1712).

(13)

Land-grant colleges and universities

The term land-grant colleges and universities has the meaning given that term in section 1404(11) of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3103(11)).

(14)

Landscape assessment

The term landscape assessment means an assessment describing catastrophic event conditions and recovery needs and opportunities on non-Federal land affected by a catastrophic event and including a list of proposed special recovery projects to address those needs and opportunities.

(15)

National forest system

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

(16)

Pre-approved management practice

The term pre-approved management practice means a management practice identified by the Secretary concerned under section 104(a) that may be immediately implemented as part of a catastrophic event recovery project or catastrophic event research project to facilitate the catastrophic event recovery of an area of Federal land damaged by a catastrophic event.

(17)

Public lands

The term public lands has the meaning given that term in section 103(e) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702(e)).

(18)

Secretary concerned

The term Secretary concerned means—

(A)

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

(B)

the Secretary of the Interior, with respect to public lands.

(19)

Special recovery project

The term special recovery project means an individual activity or a series of activities proposed to be undertaken to rehabilitate, repair, and restore non-Federal land damaged by a catastrophic event, community infrastructure and facilities on the land, and economic, social, and cultural conditions affected by the catastrophic event.

I

Response to Catastrophic Events on Federal Lands

101.

Development of research protocols and use in catastrophic event research projects

(a)

Development of protocols; purpose

For the purpose of conducting and evaluating the effectiveness and effects of a catastrophic event recovery project and of emergency stabilization treatments undertaken as part of a burned area emergency response, the Secretary concerned shall develop research protocols consisting of—

(1)

a research approach that is specifically designed to improve knowledge, understanding, and predictive capabilities—

(A)

to increase the long-term benefits of management activities, including natural and artificial regeneration of vegetation; and

(B)

to decrease the short-term impacts of such management activities;

(2)

an appropriate and scientifically sound experimental design or set of sampling procedures; and

(3)

accompanying methods of data analysis and interpretation.

(b)

Peer review

The research protocols developed under subsection (a), and any subsequent modification thereof, shall be subject to peer review, including independent, third-party peer review, by scientific and land management experts.

(c)

Time for completion; modification

The research protocols required by this section shall be submitted to Congress not later than 180 days after the date of the enactment of this Act. The Secretary concerned may modify the research protocols, as the Secretary determines necessary, after their submission to Congress. The Secretary concerned shall notify Congress regarding any such modification.

(d)

Catastrophic event research projects

In accordance with the research protocols developed under this section, the Secretary concerned may conduct one or more catastrophic event research projects in an area of land damaged by a catastrophic event. The Secretary may develop a proposed catastrophic event research project as part of a catastrophic event recovery proposal or develop a catastrophic event research project independently of the catastrophic event recovery proposal during the catastrophic event recovery in response to changing conditions in the area damaged by the catastrophic event.

(e)

Public access

(1)

Protocols

The Secretary concerned shall make the research protocols developed under subsection (a), including any modification thereof, publicly available, in a form determined to be appropriate by the Secretary.

(2)

Research results

After completion of the peer review required by subsection (b), the Secretary concerned shall make the results of catastrophic event research projects publicly available, in a form determined to be appropriate by the Secretary.

(f)

Forest health partnerships

In developing and using the research protocols required by this section, the Secretary concerned shall enter into cooperative agreements with land-grant colleges and universities and other institutions of higher education to form forest health partnerships, including regional institutes, to utilize their education, research, and outreach capacity to address the catastrophic event recovery of forested land. A forest health partnership may be aligned with the current network of Cooperative Ecosystem Studies Units.

102.

Catastrophic event recovery evaluations

(a)

Commencement

(1)

Evaluation required

In response to a catastrophic event affecting 1,000 or more acres of Federal land, the Secretary concerned shall conduct a catastrophic event recovery evaluation of the damaged Federal land.

(2)

Evaluation authorized

If a catastrophic event affects more than 250 acres of Federal land, but less than 1,000 acres, the Secretary concerned is authorized, but not required, to conduct a catastrophic event recovery evaluation of the damaged Federal land.

(b)

Time for commencement

(1)

When evaluation required

When a catastrophic event recovery evaluation is required under subsection (a)(1), the Secretary concerned shall commence the catastrophic event recovery evaluation for the Federal land damaged by the catastrophic event—

(A)

as soon as practicable during or after the conclusion of the catastrophic event to facilitate prompt decision-making with regard to the catastrophic event recovery of the damaged Federal land; but

(B)

in no event later than 30 days after the conclusion of the catastrophic event.

(2)

When evaluation discretionary

When a catastrophic event recovery evaluation is simply discretionary under subsection (a)(2), the Secretary concerned shall make a final decision whether to commence a catastrophic event recovery evaluation for the Federal land damaged by the catastrophic event, and, if the final decision is to commence a catastrophic event recovery evaluation, actually commence the evaluation—

(A)

as soon as practicable during or after the conclusion of the catastrophic event to facilitate prompt decision-making with regard to the catastrophic event recovery of the damaged Federal land; but

(B)

in no event later than 30 days after the conclusion of the catastrophic event.

(c)

Completion

(1)

Time for completion

To facilitate prompt implementation of catastrophic event recovery projects on Federal land damaged by a catastrophic event when a catastrophic event recovery evaluation is undertaken under subsection (a), whether because the evaluation is required under paragraph (1) of such subsection or because the Secretary concerned makes a decision to conduct an evaluation under paragraph (2) of such subsection, the Secretary concerned shall complete the catastrophic event recovery evaluation for the damaged Federal land not later than 30 days after the date on which Secretary commenced the catastrophic event recovery evaluation.

(2)

Extension

The Secretary concerned may extend the completion date for a catastrophic event recovery evaluation, on a case-by-case basis, when the Secretary concerned determines that additional time is necessary to evaluate a complex catastrophic event, an on-going catastrophic event, or a series of catastrophic events. Only a single extension may be provided for any catastrophic event recovery evaluation, and the extension shall not be longer than 60 days after the date on which the evaluation was otherwise required to be completed under paragraph (1).

(d)

Elements of catastrophic event evaluation

In conducting the catastrophic event recovery evaluation for an area of Federal land damaged by a catastrophic event, the Secretary concerned shall prepare the following:

(1)

A description of catastrophic event conditions on the damaged Federal land, recovery needs and opportunities, and the areas where management intervention would be helpful to achieve the catastrophic event recovery of the damaged Federal land.

(2)

A preliminary determination of any catastrophic event research projects that best fit the circumstances of the particular catastrophic event environment or would enhance scientific understanding relevant to the damaged area.

(3)

A catastrophic event recovery proposal containing possible catastrophic event recovery projects and catastrophic event research projects for the damaged area and describing the anticipated size and scope of these projects.

(4)

One or more maps detailing the area of damaged Federal land and the location of catastrophic event recovery proposals.

(5)

A preliminary estimate of the funding that would be needed to complete the catastrophic event recovery projects and catastrophic event research projects contained in the catastrophic event recovery proposal.

(6)

A preliminary estimate of the receipts, including receipts from biomass and other forest products, to be derived from the catastrophic event recovery projects and catastrophic event research projects contained in the catastrophic event recovery proposal, and, to the maximum extent practicable, an estimate of revenues likely to be lost if action is not taken in a timely manner.

(7)

A preliminary schedule showing the timing of possible catastrophic event recovery projects and catastrophic event research projects by fiscal year, assuming funding is available to undertake the projects.

(e)

Use of pre-approved management practices or emergency procedures

(1)

Determination

In addition to complying with the requirements specified in subsection (d) for each catastrophic event recovery evaluation, the Secretary concerned shall make a determination of—

(A)

whether or not any pre-approved management practices should be immediately implemented under section 104 to facilitate the catastrophic event recovery of the area covered by the catastrophic event recovery evaluation; and

(B)

whether or not any catastrophic event recovery project or catastrophic event research project, or portion of such a project, contained in the catastrophic event recovery proposal should be developed and carried out using the emergency procedures authorized by section 105.

(2)

Factors

In making any determination under paragraph (1)(B) to develop and carry out a catastrophic event recovery project or catastrophic event research project, or portion of such a project, using emergency procedures under section 105, the Secretary concerned shall consider at a minimum the following:

(A)

The necessity of promptly responding to the catastrophic event on the damaged Federal land.

(B)

The recovery needs and opportunities identified under subsection (d)(1) with respect to the damaged Federal land.

(C)

The lack of pre-approved management practices authorized by section 104 applicable to the damaged Federal land.

(D)

The threat to public health and safety.

(E)

The likelihood of substantial loss of adjacent private and public property or other substantial economic losses.

(3)

CEQ notification

The Secretary concerned shall make the determination under paragraph (1) after notification of the Council on Environmental Quality, but the determination remains in the sole discretion of the Secretary.

(f)

Interdisciplinary approach

To conduct the catastrophic event recovery evaluation of an area of Federal land damaged by a catastrophic event, the Secretary concerned shall use a systematic, interdisciplinary approach that insures the integrated use of appropriate natural and social sciences.

(g)

Coordination with other activities

(1)

Related assessment of non-Federal land

The Secretary concerned may combine the preparation of a catastrophic event recovery evaluation of Federal land with the preparation of a landscape assessment for non-Federal land in the vicinity of the damaged Federal land prepared under subtitle B of title II or subsection (c) of section 10A of the Cooperative Forestry Assistance Act of 1978 (16 U.S.C. 2106c), as added by section 201.

(2)

Related community wildfire protection plans

During preparation of a catastrophic event recovery evaluation for an area of Federal land damaged by a catastrophic event involving wildfire, the Secretary concerned shall consider post-fire management recommendations, if any, contained in any community wildfire protection plan addressing the damaged Federal land.

(h)

Public collaboration

To encourage meaningful participation during the preparation of catastrophic event recovery projects, the Secretary concerned shall facilitate collaboration among State and local governments, Indian tribes, land-grant colleges and universities, and interested persons during the preparation of catastrophic event recovery evaluations and catastrophic event recovery proposals.

(i)

Public notice

(1)

Notice of evaluation

The Secretary concerned shall provide public notice of each catastrophic event recovery evaluation, including the catastrophic event recovery proposal prepared as part of the evaluation. The notice shall be provided in a form determined to be appropriate by the Secretary concerned.

(2)

Notice of public meetings

The Secretary concerned shall provide notice of public meetings conducted in connection with a catastrophic event recovery evaluation and the availability of preliminary analyses or documents prepared as part of the evaluation. The notice shall be provided at such times and in such a manner as the Secretary concerned considers appropriate.

103.

Compliance with National Environmental Policy Act

(a)

Compliance required

Except as provided in subsection (b), the Secretary concerned shall comply with the National Environmental Policy Act of 1969 (42 U.S.C. 4331 et seq.), its implementing regulations, and other applicable laws in designing and conducting catastrophic event recovery projects and catastrophic event research projects.

(b)

Satisfaction of NEPA requirements

The following activities are deemed to satisfy the requirements of section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332 et seq.) and its implementing regulations:

(1)

The preparation of the list of pre-approved management practices under section 104.

(2)

The use of pre-approved management practices on the list in the manner provided in section 104.

(3)

The use of emergency procedures in the manner provided in section 105.

104.

Availability and use of pre-approved management practices

(a)

List of available pre-approved management practices

The Secretary concerned shall prepare a list of management practices, by forest type or plant association group, that may be immediately implemented as part of a catastrophic event recovery project or catastrophic event research project to facilitate the catastrophic event recovery of an area of Federal land damaged by a catastrophic event. The list of pre-approved management practices shall be prepared using notice and comment rule making under section 553 of title 5, United States Code.

(b)

Peer review

Before a management practice may be included on the list of pre-approved management practices, the management practice shall be subject to peer review, including independent, third-party peer review, by scientific and land management experts. The results of the peer review shall be available to the public during the comment period.

(c)

Revision or amendment of list

The Secretary concerned may amend or revise the list of pre-approved management practices as necessary whenever new scientific and managerial information becomes available. Subsections (a) and (b) shall apply to the amendment or revision process.

(d)

Use for certain activities prohibited

(1)

Road construction

A pre-approved management practice may not authorize any permanent road building. Any temporary road constructed as part of a pre-approved management practice shall be obliterated upon conclusion of the practice and the road area restored to the extent practicable.

(2)

Timber harvesting

Timber harvesting carried out as part of a pre-approved management practice shall be limited to trees—

(A)

that are already down, dead, broken, or severely root sprung;

(B)

regarding which mortality is highly probable within five years after the end of the catastrophic event; or

(C)

that are required to be removed for worker or public safety.

(e)

Compliance with other laws

(1)

ESA consultation

In the case of the proposed use of a pre-approved management practice included on the list prepared under subsection (a), the Secretary concerned may use the emergency procedures described in section 402.05 of title 50, Code of Federal Regulations, to comply with section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536). At the conclusion of the consultation, the statement required by subsection (b)(4) of such section shall be issued for any incidental taking that may occur while using the pre-approved management practice, which shall be effective beginning on the date the Secretary concerned initiates the practice and shall apply to all persons assisting or cooperating with the Secretary in using the practice.

(2)

Other required consultation

Any consultation required under other laws, such as the National Historic Preservation Act (16 U.S.C. 470 et seq.), may proceed simultaneously with the implementation of a pre-approved management practice. Results of consultation shall be immediately incorporated into the practice, to the extent feasible, practical, and consistent with the response, recovery, and rehabilitation objectives of the project.

(3)

Federal water pollution control act compliance

Compliance with any applicable requirements of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) may proceed simultaneously with the implementation of a pre-approved management practice.

(f)

Issuance of decision document

Not later than 30 days after the date on which the Secretary concerned makes the determination under section 102(e) to use a pre-approved management practice to facilitate the catastrophic event recovery of an area of Federal land damaged by a catastrophic event, the Secretary concerned shall issue a concise decision document that contains the following:

(1)

A description of the pre-approved management practice to be implemented.

(2)

The rationale for the agency decision.

(3)

An economic analysis and justification.

(4)

An analysis of the environmental effects of the pre-approved management practice and how such effects will be minimized or mitigated consistent with the applicable land and resource management plan. As part of this analysis, the Secretary concerned shall consider, to the extent the Secretary concerned determines appropriate, forest type or plant association group, standing- and down-dead wood, watershed, water quality, wildlife habitat, and soils applicable to the damaged Federal land.

(g)

Immediate implementation

The Secretary concerned shall implement a pre-approved management practice immediately after the issuance of the decision document under subsection (f), subject only to the availability of funds for the practice.

(h)

Monitoring

To monitor the implementation of a pre-approved management practice, the Secretary concerned may establish a third-party monitoring group, as determined to be appropriate by the Secretary.

105.

Availability and use of emergency procedures

(a)

Limited consideration of alternatives

If the Secretary concerned determines under section 102(e) to utilize emergency procedures to conduct a catastrophic event recovery project or catastrophic event research project, or portion of such a project, the Secretary concerned is not required to study, develop, or describe more than the proposed agency action and the alternative of no action in designing that project or the portion of the project for which the emergency procedures are utilized.

(b)

Use for certain activities prohibited

(1)

Road construction

Emergency procedures under this section may not be used to design or conduct a catastrophic event recovery project or catastrophic event research project, or portion of such a project, that provides for any permanent road building. Any temporary road constructed as part of the project shall be obliterated upon completion of the project and the road area restored to the extent practicable.

(2)

Timber harvesting

Timber harvesting carried out as part of a catastrophic event recovery project or catastrophic event research project, or portion of such a project, for which emergency procedures under this section were used shall be limited to trees—

(A)

that are already down, dead, broken, or severely root sprung;

(B)

regarding which mortality is highly probable within five years after the end of the catastrophic event; or

(C)

that are required to be removed for worker or public safety.

(c)

Compliance with other laws

(1)

ESA consultation

In the case of a catastrophic event recovery project or catastrophic event research project, or portion of such a project, for which emergency procedures under this section are used, the Secretary concerned may use the procedures described in section 402.05 of title 50, Code of Federal Regulations, to comply with section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536). At the conclusion of the consultation, the statement required by subsection (b)(4) of such section shall be issued for any incidental taking that may occur under the project, which shall be effective beginning on the date the Secretary concerned initiates action under the project and shall apply to all persons assisting or cooperating with the Secretary under the project.

(2)

Other required consultation

Any consultation required under other laws, such as the National Historic Preservation Act (16 U.S.C. 470 et seq.), may proceed simultaneously with the design of a catastrophic event recovery project or catastrophic event research project, or portion of such a project, for which emergency procedures under this section are used. Results of consultation shall be immediately incorporated into the project, to the extent feasible, practical, and consistent with the response, recovery, and rehabilitation objectives of the project.

(3)

Federal water pollution control act compliance

Compliance with any applicable requirements of the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) may proceed simultaneously with the design of a catastrophic event recovery project or catastrophic event research project, or portion of such a project, for which emergency procedures under this section are used.

(d)

Completion of emergency procedures and issuance of decision document

Not later than 90 days after the date on which the Secretary concerned makes the determination under section 102(e) to develop and carry out a catastrophic event recovery project or catastrophic event research project, or portion of such a project, using emergency procedures, the Secretary concerned shall—

(1)

complete the emergency procedures for that catastrophic event recovery project or catastrophic event research project, or portion thereof, under this section; and

(2)

issue a concise decision document that contains the following:

(A)

The rationale for the agency decision.

(B)

An economic analysis and justification.

(C)

An analysis of the environmental effects of the project and how such effects will be minimized or mitigated consistent with the applicable land and resource management plan. As part of this analysis, the Secretary concerned shall consider, to the extent the Secretary concerned determines appropriate, forest type or plant association group, standing- and down-dead wood, watershed, water quality, wildlife habitat, and soils applicable to the damaged Federal land.

(e)

Immediate implementation

In the case of a catastrophic event recovery project or catastrophic event research project, or portion of such a project, for which the emergency procedures authorized by this section are used, the Secretary concerned shall implement the project, or portion of the project, immediately after the issuance of the decision document under subsection (d), subject only to the availability of funds for the project.

(f)

Monitoring

To monitor a catastrophic event recovery project or catastrophic event research project, or portion of such a project, for which the emergency procedures authorized by this section were used, the Secretary concerned may establish a third-party monitoring group, as determined to be appropriate by the Secretary.

106.

Administrative and judicial review

(a)

Administrative review generally

Except as provided in subsection (b), nothing in this title affects—

(1)

the notice, comment, and appeal requirements of section 322 of the Department of the Interior and Related Agencies Appropriations Act, 1993 (Public 102–381; 16 U.S.C. 1612 note); and

(2)

section 215 of title 36, Code of Federal Regulations.

(b)

Predecisional administrative notice, comment, and review

(1)

Interim final regulations

Not later than 60 days after the date of the enactment of this Act, the Secretary of Agriculture shall promulgate interim final regulations to establish a predecisional administrative review process that will serve as the sole means by which—

(A)

the Secretary of Agriculture will provide notice of and solicit comments regarding—

(i)

the proposed use of a pre-approved management practice under section 104 on National Forest System land; and

(ii)

a catastrophic event recovery project or catastrophic event research project, or portion of such a project, for which the emergency procedures under section 105 are used on National Forest System land; and

(B)

a person can seek administrative review regarding—

(i)

the proposed use of a pre-approved management practice under section 104 on National Forest System land; and

(ii)

a catastrophic event recovery project or catastrophic event research project, or portion of such a project, for which the emergency procedures under section 105 are used on National Forest System land.

(2)

Period covered by review process

The review portion of the predecisional administrative review process described in paragraph (1)(B) shall occur during the period—

(A)

beginning on the date on which the Secretary of Agriculture makes a determination to use pre-approved management practices or emergency procedures under section 102(e); and

(B)

ending not later than the date of the issuance of applicable decision document under section 104 or 105.

(3)

Effective date

The interim final regulations promulgated under paragraph (1) shall take effect on the date of promulgation of the regulations.

(4)

Final regulations

The Secretary of Agriculture shall promulgate final regulations to establish the predecisional administrative review process described in paragraph (1) as soon as practicable after the interim final regulations have been promulgated and a reasonable period of time has been provided for public comment.

(c)

Judicial review

Section 106 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6516) shall apply with respect to the implementation of a pre-approved management practice under section 104 or a catastrophic event recovery project or catastrophic event research project regarding which the applicable administrative review process has been exhausted. In any proceeding for judicial review of agency action under this subsection, attorney fees awarded to a prevailing party may not exceed the hourly rates established in section 3006A of title 18, United States Code.

107.

Guidance regarding reforestation in response to catastrophic events

Not later than 180 days after the date of the enactment of this Act, the Secretary concerned shall—

(1)

standardize the collection, reporting, and review procedures for data regarding more aggressive, expedited, and comprehensive reforestation in response to catastrophic events by clarifying agency-wide guidance and developing standard protocols for determining when and how reforestation can be best achieved as part of the response to catastrophic events;

(2)

clarify agency-wide guidance regarding reforestation in response to catastrophic events to ensure that such guidance is consistent with agency goals and budget constraints; and

(3)

clarify agency-wide guidance regarding the development, during the revision of a land and resource management plan, of goals and objectives for catastrophic event recovery to ensure that such guidance addresses catastrophic event recovery objectives, by forest type or plant association group, related to standing- and down-dead wood, soil and watershed protection, wildlife habitat, and other resource values.

108.

Effect of title

(a)

Use of other authorities

Nothing in this title affects the use by the Secretary concerned of other statutory or administrative authority, including categorical exclusions adopted to implement the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), to conduct a catastrophic event recovery project or catastrophic event research project, or portion of such a project, that is not conducted using the emergency procedures authorized by section 105.

(b)

Preference for local operators

In the manner provided in section 420 of the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2006 (Public Law 109–54; 119 Stat. 553), the Secretary concerned may give consideration to local contractors in awarding a Federal contract to implement—

(1)

a pre-approved management practice under section 104; or

(2)

a catastrophic event recovery project or catastrophic event research project, or portions of such a project, for which the emergency procedures under section 105 are used.

(c)

Advisory committees

The Federal Advisory Committee Act (5 U.S.C. App.) and title XVIII of the Food and Agriculture Act of 1977 (7 U.S.C. 2281 et seq.) shall not apply to—

(1)

the peer review provided by scientific and land management experts under section 101(b) or 104(b);

(2)

the monitoring process under section 104(h) or 105(f); and

(3)

the preparation of a catastrophic event recovery evaluation or catastrophic event recovery proposal.

109.

Standards for tree retention

(a)

Standing dead trees and downed wood

In planning or conducting any catastrophic event recovery project or catastrophic event research project, the Secretary concerned shall ensure that—

(1)

standing dead tree and downed wood retention guidelines contained in the applicable land and resource management plan are applied; or

(2)

if the applicable land and resource management plan does not contain standing dead tree and downed wood retention guidelines, adequate standing dead trees and downed wood of the oldest age class are retained in the project area—

(A)

to provide habitat for associated species through various stages of forest development;

(B)

to provide a long-term nutrient source; and

(C)

to retain, to the extent practicable and appropriate for forest type and plant association group, the more decay-resistant species.

(b)

Exception

Subsection (a) shall not apply if the Secretary concerned determines that science from land-grant colleges and universities or a Forest Service Research Station provides more appropriate standing dead tree and downed wood retention guidelines for a particular catastrophic event recovery project or catastrophic event research project.

(c)

Plan amendment

The Secretary concerned may amend a land and resource management plan to incorporate standing dead tree and downed wood retention guidelines, specific to forest type or plant association group.

II

Restoring Landscapes and Communities Impacted by Catastrophic Events

A

Cooperative Forestry Assistance Act of 1978

201.

Assistance under Cooperative Forestry Assistance Act of 1978 to restore landscapes and communities affected by catastrophic events

(a)

Assistance authorized

Section 10A of the Cooperative Forestry Assistance Act of 1978 (16 U.S.C. 2106c) is amended—

(1)

by redesignating subsections (c) and (d) as subsections (d) and (e), respectively; and

(2)

by inserting after subsection (b) the following new subsection:

(c)

Response to catastrophic events affecting non-Federal lands

(1)

Landscape assessments

At the request of an eligible entity, the Secretary may cooperate with the eligible entity in the preparation of a landscape assessment for non-Federal lands affected by a catastrophic event. The Secretary may combine the preparation of a landscape assessment with the preparation of a catastrophic event recovery evaluation under title I of the Forest Emergency Recovery and Research Act regarding Federal land in the vicinity of the damaged non-Federal land.

(2)

Community assessments

At the request of an eligible entity affected by a catastrophic event, the Secretary may cooperate with the eligible entity in the preparation of a community wildfire protection plan or related plan.

(3)

Decision to provide assessment assistance

In response to the request of an eligible entity for assistance under paragraph (1) or (2), the Secretary shall make a decision, within 30 days after receiving the request, whether or not to provide such assistance. The decision rests in the sole discretion of the Secretary, but, if the Secretary rejects the request for assistance, the Secretary shall provide the eligible entity with an explanation of the reasons for the rejection.

(4)

Types of assistance

The Secretary concerned may provide technical and financial cost-share assistance to an eligible entity—

(A)

to assist in the preparation of a landscape assessment under paragraph (1) or a community wildfire protection plan, community assessment, or community action plan under paragraph (2); and

(B)

to implement special recovery projects identified in the landscape assessment or community wildfire protection plan, community assessment, or community action plan.

(5)

Special recovery projects

Special recovery projects supported under paragraph (4)(B) may include projects involving—

(A)

revegetation, tree planting, and other management practices the Secretary determines to be appropriate;

(B)

developing products from and markets for timber harvested in response to a catastrophic event and remaining forest resources;

(C)

training for the local populace for work in connection with catastrophic event recovery;

(D)

repair of forest roads, bridges, and trails and water supply areas affected by a catastrophic event; and

(E)

such other activities as the Secretary determines to be necessary to undertake the special recovery project.

(6)

Additional funding sources

Amounts appropriated to the Secretary to carry out sections 8 and 10 may be used to provide assistance under this subsection.

(7)

Definitions

In this subsection:

(A)

The term eligible entity means a State Forester or equivalent State official, an Indian tribe, or local government. The term may include community-based organizations and other persons working in conjunction with a State Forester or equivalent State official, an Indian tribe, or local government.

(B)

The terms catastrophic event, landscape assessment, and special recovery project have the meanings given those terms in section 3 of the Forest Emergency Recovery and Research Act.

(C)

The term community wildfire protection plan has the meaning given that term in section 101(3) of the Healthy Forest Restoration Act of 2003 (16 U.S.C. 6511(3)).

.

(b)

Clerical amendment

The heading of such section is amended by inserting before the period at the end the following: and response to catastrophic events.

B

Department of the Interior Assistance

211.

Restoring landscapes

(a)

Landscape assessments

At the request of an eligible entity, the Secretary of the Interior may cooperate with the eligible entity in the preparation of a landscape assessment for non-Federal lands affected by a catastrophic event. The Secretary may combine the preparation of a landscape assessment with the preparation of a catastrophic event recovery evaluation under title I regarding Federal land in the vicinity of the damaged non-Federal land.

(b)

Decision to provide assessment assistance

In response to the request of an eligible entity for assistance under subsection (a), the Secretary of the Interior shall make a decision, within 30 days after receiving the request, whether or not to provide such assistance. The decision rests in the sole discretion of the Secretary, but, if the Secretary rejects the request for assistance, the Secretary shall provide the eligible entity with an explanation of the reasons for the rejection.

(c)

Types of assistance

The Secretary of the Interior may provide technical and financial cost-share assistance to an eligible entity—

(1)

to assist in the preparation of a landscape assessment; and

(2)

to implement special recovery projects identified in the landscape assessment.

(d)

Special recovery projects

The Secretary of the Interior may provide assistance under subsection (c)(2) for special recovery projects, including revegetation, tree planting, and other practices the Secretary determines to be appropriate.

212.

Restoring communities

(a)

Community assessments

At the request of an eligible entity affected by a catastrophic event, the Secretary of the Interior may cooperate with the eligible entity in the preparation of a community wildfire protection plan or related plan.

(b)

Decision to provide assessment assistance

In response to the request of an eligible entity for assistance under subsection (a), the Secretary of the Interior shall make a decision, within 30 days after receiving the request, whether or not to provide such assistance. The decision rests in the sole discretion of the Secretary, but, if the Secretary rejects the request for assistance, the Secretary shall provide the eligible entity with an explanation of the reasons for the rejection.

(c)

Types of assistance

The Secretary of the Interior may provide technical and financial cost-share assistance to an eligible entity—

(1)

to assist in the preparation of development of a community wildfire protection plan, a community assessment, or a community action plan; and

(2)

to implement special recovery projects identified in a community wildfire protection plan, a community assessment, or a community action plan.

(d)

Special recovery projects

Special recovery projects supported under subsection (c)(2) may include projects involving—

(1)

developing products from and markets for timber harvested in response to a catastrophic event and remaining forest resources;

(2)

training for the local populace for work in connection with catastrophic event recovery;

(3)

repair of forest roads, bridges, and trails and water supply areas affected by a catastrophic event; and

(4)

such other activities as the Secretary determines to be necessary to undertake the special recovery project.

III

Experimental Forests

301.

Findings

Congress finds the following:

(1)

The experimental forests established pursuant to section 4 of the Forest and Rangeland Renewable Resources Research Act of 1978 (16 U.S.C. 1643) or the organic administrative authorities of the Secretary of Agriculture (16 U.S.C. 551) serve as a natural laboratory for the Forest Service to evaluate management practices generally and specific responses to catastrophic events that can be eventually used throughout the National Forest System.

(2)

To build upon the knowledge base to be developed using catastrophic events research projects conducted under title I, the Secretary of Agriculture should be authorized to use the same authorities provided under sections 104 and 105 to design and carry out projects in the experimental forests.

302.

Availability and use of pre-approved management practices on National Forest experimental forests

Management practices included on the list of pre-approved management practices prepared under subsection (a) of section 104 may be implemented, in the manner provided by such section, in an experimental forest established pursuant to section 4 of the Forest and Rangeland Renewable Resources Research Act of 1978 (16 U.S.C. 1643) or the organic administrative authorities of the Secretary of Agriculture (16 U.S.C. 551).

303.

Limited consideration of alternatives for projects on National Forest experimental forests

Section 105(a) shall apply with respect to any individual activity or a series of activities proposed to be undertaken in an experimental forest established pursuant to section 4 of the Forest and Rangeland Renewable Resources Research Act of 1978 (16 U.S.C. 1643) or the organic administrative authorities of the Secretary of Agriculture (16 U.S.C. 551).

IV

General Provisions

401.

Regulations

Except as provided in section 106(b), the Secretary concerned is not required to promulgate regulations to implement this Act.

402.

Dedicated source of funds for research and monitoring

(a)

Special account

The Secretary of the Treasury shall establish a special account in the Treasury for each Secretary concerned.

(b)

Deposits

Ten percent of the gross proceeds derived by the Secretary concerned from catastrophic event recovery projects and catastrophic event research projects conducted by the Secretary concerned under title I shall—

(1)

be deposited in the special account established for that Secretary; and

(2)

remain available, without further appropriation and until expended, for expenditure as provided in subsection (c).

(c)

Research-related use of special accounts

The Secretary concerned shall use amounts in the special account established for that Secretary—

(1)

to develop research protocols under section 101;

(2)

to prepare and implement catastrophic event research projects; and

(3)

to provide for monitoring under sections 104 and 105.

(d)

Relation to other funds

Amounts in the special account established for the Secretary concerned are in addition to other amounts available to that Secretary for the purposes described in subsection (c).

403.

Other funding sources

(a)

Availability of knutson-vandenberg funds

Section 3 of the Act of June 9, 1930 (commonly known as the Knutson-Vandenberg Act; 16 U.S.C. 576b), is amended—

(1)

by striking Such deposits shall be covered and inserting the following:

(b)

Amounts deposited under subsection (a) shall be covered

;

(2)

by inserting after national park. the following new sentence: The Secretary of Agriculture may also use excess amounts to cover the costs of activities of the Secretary under title I of the Forest Emergency Recovery and Research Act.; and

(3)

in subsection (c)—

(A)

in paragraph (1), by striking and;

(B)

by redesignating paragraph (2) as paragraph (3); and

(C)

by inserting after paragraph (1) the following new paragraph:

(2)

the excess amounts will not be needed for activities of the Secretary under title I of the Forest Emergency Recovery and Research Act during the fiscal year in which the transfer would be made; and

.

(b)

Availability of forest service salvage sale funds

Section 14(h) of the National Forest Management Act of 1976 (16 U.S.C. 472a(h)) is amended—

(1)

in the fourth sentence, by inserting after the purposes for which deposited the following: and to cover the costs of activities of the Secretary under title I of the Forest Emergency Recovery and Research Act; and

(2)

in last proviso, by striking for which deposited on any national forest and inserting for which deposits of money are available under this subsection.

(c)

Availability of BLM revolving fund derived from disposal of salvage timber

The first paragraph under the headings Forest Ecosystems Health and Recovery and revolving fund, special account in title I of the Department of the Interior and Related Agencies Appropriations Act, 1993 (Public Law 102–381; 106 Stat. 1376; 43 U.S.C. 1736a), is amended by adding at the end the following new sentence: The money in this fund shall likewise be immediately available to cover the costs of activities of the Bureau of Land Management under title I of the Forest Emergency Recovery and Research Act..

404.

Effect of declaration of major disaster or emergency

(a)

Availability of funds

If an area of non-Federal land damaged by a catastrophic event is also covered by a declaration by the President under section 401 or 501 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170, 5191) that a major disaster or emergency exists, the Director of Federal Emergency Management Agency may use funds available for activities under that Act to reimburse the Secretary concerned for assistance in that area provided under—

(1)

subtitle B of title II; or

(2)

subsection (c) of section 10A of the Cooperative Forestry Assistance Act of 1978 (16 U.S.C. 2106c), as added by section 201.

(b)

Limitation

Reimbursements under subsection (a) shall be limited to those activities authorized under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122 et seq.) for which assistance under paragraph (1) or (2) of such subsection is provided.

Passed the House of Representatives May 17, 2006.

Karen L. Haas

Clerk.