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Title II — Facilitating Implementation and Outreach

S. 4625 · 116th Congress · Sep 17, 2020 · Lineage

II Facilitating Implementation and Outreach

Sec. 201 Cooperative agreements and contracts

(a)
Definition of eligible entity— In this section, the term eligible entity means a State, an Indian Tribe, a county or municipal government, a fire district, a nongovernmental organization, including the Nature Conservancy, or a private entity.
(b)
Authorization— The Secretaries may enter into a cooperative agreement or contract with an eligible entity to authorize the eligible entity to coordinate, plan, or conduct a prescribed fire on Federal land.
(c)
Subcontracts— A State, Indian Tribe, or county that enters into a cooperative agreement or contract under subsection (b) may enter into a subcontract, in accordance with applicable contracting procedures of the State, Indian Tribe, or county, to conduct a prescribed fire on Federal land pursuant to that cooperative agreement or contract.
(d)
Agent of Secretary— A cooperative agreement or contract entered into under subsection (b) may authorize the eligible entity to serve as the agent for the Secretary or the Secretary of Agriculture in coordinating, planning, or conducting a prescribed fire—
(1)
on Federal land; or
(2)
across an area that—
(A)
includes adjacent landowners; and
(B)
includes Federal land.
(e)
Indemnity requirements— Each eligible entity contracted for implementing a prescribed fire shall procure and maintain sufficient indemnity insurance during the entire period of performance under the cooperative agreement or contract entered into under this section.
(f)
Applicable law— A prescribed fire conducted under this section shall be carried out on a project-to-project basis under existing authorities of the applicable agency responsible for the management of the Federal land.
(g)
Preservation of decision authority— No project authorized under this section may be undertaken without the prior written approval of the Secretary or the Secretary of Agriculture.
(h)
Long-Term contracts— A cooperative agreement or contract with an eligible entity under subsection (b) may authorize the eligible entity to conduct a series of prescribed fires on Federal land for a period of not longer than 10 years.

Sec. 202 Human resources

(a)
Prescribed fire workforce—
(1)
Training— The Secretaries shall hire additional employees and provide training and development activities, including through partnerships with community colleges, to increase the number of skilled and qualified prescribed fire practitioners in the Department of the Interior, the Department of Agriculture, Indian Tribes, and other qualified organizations, including training in smoke management practices.
(2)
Temporary workers—
(A)
In general— The Director of the Office of Personnel Management shall provide to the Secretaries direct hire authority in accordance with section 3304(a)(3) of title 5, United States Code, to appoint qualified individuals to positions performing temporary or emergency work relating to prescribed fires, including training, implementation, and post-prescribed burning activities.
(B)
Term of employment— The term of the appointment of an individual under subparagraph (A) shall be restricted to a period that—
(i)
begins not more than 72 hours prior to planned ignition; and
(ii)
ends not more than 72 hours after the prescribed fire has stopped burning.
(3)
Overtime payments—
(A)
Purpose— The purpose of the amendment made by subparagraph (B) is to allow the Secretaries to use additional new budget authority for wildfire suppression for the cost of overtime payments to employees implementing a prescribed fire.
(B)
Amendment— Section 251(b)(2)(F)(ii)(II) of the Balanced Budget and Emergency Deficit Control Act of 1985 (2 U.S.C. 901(b)(2)(F)(ii)(II)) is amended—
(i)
in item (bb), by striking “and” at the end;
(ii)
in item (cc), by striking the period at the end and inserting “; and”; and
(iii)
by adding at the end the following:

“(dd) overtime payments to employees implementing a prescribed fire (as defined in section 3 of the National Prescribed Fire Act of 2020).”

(4)
Conversion of seasonal firefighters to permanent employees— The Secretaries may noncompetitively convert a Federal seasonal employee to a Federal permanent employee if—
(A)
the listed job duties of the employee include wildland firefighting;
(B)
the employee received a rating of at least “Fully Successful” in each of the performance appraisals of the employee for the 5 most recent seasons of Federal employment of the employee; and
(C)
the job duties and performance standards of the position into which the permanent employee converts include implementing prescribed fires.
(5)
Employment of formerly incarcerated individuals—
(A)
In general— The Secretaries, in consultation with the Attorney General and State departments of corrections, shall seek to provide a career pathway, including through partnerships with the Corps Network, to individuals described in subparagraph (B) to work as prescribed fire practitioners.
(B)
Individuals described— An individual referred to in subparagraph (A) is an individual that—
(i)
has been convicted in any court of a criminal offense, other than arson, and was sentenced to a term of imprisonment for that offense; and
(ii)
during the term of imprisonment described in clause (i), served on a wildland firefighting crew or received other comparable training.
(6)
Underrepresented employees— To further address the gender disparity in wildland firefighting, the Secretaries shall support the development and participation of women in leadership opportunities, mentorship networks, and training in prescribed fire, including the Fire Leadership for Women course and Women-In-Fire Training Exchange—
(A)
to develop strong leaders;
(B)
to increase the number of women overseeing prescribed fires; and
(C)
to enhance the longevity and success of women in wildland fire management.
(7)
Veterans crews—
(A)
In general— The Secretaries, in consultation with the Secretary of Veterans Affairs, shall seek—
(i)
to provide a career pathway to individuals described in subparagraph (B) to work as prescribed fire practitioners; and
(ii)
to establish crews composed predominantly of veterans to conduct prescribed fires.
(B)
Individuals described— An individual referred to in subparagraph (A) is an individual who—
(i)
served in the active military, naval, or air service; and
(ii)
was discharged or released under conditions other than dishonorable.
(8)
Inter-Tribal organizations— The Secretaries may provide funding to Tribal and inter-Tribal organizations, including the Intertribal Timber Council, to provide training and workforce development opportunities in wildland fire.
(b)
Additional training centers— Subject to the availability of appropriations, not later than September 30, 2023, the Secretary, in cooperation with the Secretary of Agriculture (and the Secretary of Defense in the case of a center located on a military installation), shall—
(1)
establish and operate a prescribed fire training center in a western State;
(2)
continue to operate a prescribed fire training center in an eastern State;
(3)
establish a virtual prescribed fire training center; and
(4)
establish and operate a managed-wildfire training center.
(c)
Competencies for firefighters—
(1)
Updates to required competencies for specific firefighter positions— The Secretaries, in coordination with the Fire Executive Council, the National Association of State Foresters, and the Intertribal Timber Council, shall task the National Wildfire Coordinating Group to add a requirement for an individual to obtain the necessary certification to serve in—
(A)
the position of a single-resource boss; and
(B)
any other positions determined to be necessary by the Secretaries.
(2)
Additional experience— The Secretaries shall require significant additional experience, gained exclusively during a prescribed fire, to obtain a certification described in paragraph (1).
(d)
Indemnity of Federal employees— Except in the case of gross negligence, a Federal employee planning or overseeing a prescribed fire that escaped—
(1)
shall not be subject to criminal prosecution; and
(2)
shall not be subject to civil proceedings, except in accordance with section 2672 of title 28, United States Code.

Sec. 203 Liability of certified prescribed fire managers

(a)
Definition of covered law— In this section, the term “covered law” means a State law that establishes the standard of care in a civil suit against a certified prescribed fire manager for an escaped prescribed fire to be “gross negligence”, if the certified prescribed fire manager—
(1)
obtained a permit for the prescribed fire;
(2)
conducted the prescribed fire consistent with a written burn plan;
(3)
was at the site of prescribed fire for the duration of the prescribed fire; and
(4)
ensured adequate personnel, equipment, and firebreaks were in place during the prescribed fire, in accordance with the written burn plan.
(b)
Memorandum of agreement— Subject to the availability of appropriations, in accordance with recommendation A3C of the special report of the Western Governors' National Forest and Rangeland Management Initiative, dated June 2017, the Secretary may enter into a memorandum of agreement with the National Governors' Association to host a conference, at which governors can meet to discuss the benefits of addressing liability protection and possible incentives for States to enact a covered law.
(c)
Funding— The Secretary may provide not more than $1,000,000 under the memorandum of agreement under subsection (b).

Sec. 204 Environmental review

(a)
Smoke management agencies—
(1)
Policy— The Secretaries shall ensure that policies, training, and programs of the Secretaries are consistent with this subsection—
(A)
to facilitate greater use of prescribed fire; and
(B)
to address public health and safety, including impacts from smoke from prescribed fires.
(2)
Expenditure of funds— When a smoke-sensitive facility or vulnerable individual is identified in an area to be impacted by smoke from a prescribed fire, the Secretaries may expend funding appropriated for hazardous fuel reduction to mitigate the impacts of the prescribed fire.
(3)
Coordination among Federal and State air quality agencies and Federal and State land management agencies— The Administrator of the Environmental Protection Agency, in cooperation with Federal and State land management agencies, shall coordinate with State, Tribal, and local air quality agencies that regulate smoke under the Clean Air Act (42 U.S.C. 7401 et seq.) to facilitate the use of prescribed fire on Federal land and State, Tribal, and private land, including by—
(A)
streamlining the decisionmaking process for approving the use of prescribed fire under a State, Tribal, or local government smoke management program; and
(B)
(i)
promoting basic smoke management practices;
(ii)
disseminating information about basic smoke management practices; and
(iii)
educating landowners that use prescribed fire about the importance of—
(I)
using basic smoke management practices; and
(II)
including basic smoke management practices as a component of a burn plan.
(4)
Exceptional event demonstrations—
(A)
Requirement to seek exceptional event demonstration— Subject to subparagraph (C), the appropriate State or Tribal air quality agency shall develop and submit to the Administrator of the Environmental Protection Agency a demonstration in accordance with section 50.14 of title 40, Code of Federal Regulations (or successor regulations), if—
(i)
the Secretary, the Secretary of Agriculture, a State land management agency, or an Indian Tribe conducts a prescribed fire on Federal land or State land, as applicable, in accordance with a State or Tribal smoke management program that incorporates basic smoke management practices; and
(ii)
the prescribed fire described in clause (i) contributes to an exceedance or other violation of a national ambient air quality standard under section 109 of the Clean Air Act (42 U.S.C. 7409), as measured using a Federal reference monitor or an equivalent method.
(B)
Demonstration assistance— For an exceedance or other violation described in clause (ii) of subparagraph (A), the Secretary or Secretary of Agriculture, with the concurrence of the State or Tribal air quality agency, may assist with the development of the demonstration under that subparagraph.
(C)
Savings provision— Subparagraph (A) shall not apply if the exceedance or other violation described in clause (ii) of that subparagraph is the result of—
(i)
a violation of a smoke management program;
(ii)
a failure to use basic smoke management practices; or
(iii)
a violation of applicable permit conditions.
(5)
Exemption for large prescribed fires—
(A)
Federal land management agency exemption— Consistent with subsection (b) of section 118 of the Clean Air Act (42 U.S.C. 7418), a prescribed fire conducted on Federal land by the Secretary or the Secretary of Agriculture that burns more than 1,000 acres per day shall be deemed to be in the paramount interest of the United States and shall be exempt from requirements with respect to the control of pollution from Federal facilities under that Act (42 U.S.C. 7401 et seq.) if the Secretary or the Secretary of Agriculture determines that the prescribed fire—
(i)
will be conducted in an area where the terrain or fuel load makes the area inaccessible or unsafe for firefighting personnel;
(ii)
is necessary to reduce hazardous fuels;
(iii)
will be conducted to minimize smoke impacts on populated areas through the use of basic smoke management practices; and
(iv)
will be conducted under a smoke management program, if applicable.
(B)
State exemption— If the Secretary concerned conducts a prescribed fire that is deemed to be in the paramount interest of the United States under subparagraph (A) on Federal land, a prescribed fire conducted by a State land management agency on State or private land that is contiguous to that Federal land shall be exempt from any applicable national ambient air quality standards under section 109 of the Clean Air Act (42 U.S.C. 7409).
(C)
Tribal exemption— Consistent with subsection (b) of section 118 of the Clean Air Act (42 U.S.C. 7418), a prescribed fire conducted on Tribal land by an Indian Tribe that burns more than 1,000 acres per day shall be deemed to be in the paramount interest of the United States and shall be exempt from requirements with respect to the control of pollution from Federal facilities under that Act (42 U.S.C. 7401 et seq.) if the Indian Tribe determines that the prescribed fire—
(i)
will be conducted in an area where the terrain or fuel load makes the area inaccessible or unsafe for firefighting personnel;
(ii)
is necessary to reduce hazardous fuels;
(iii)
will be conducted to minimize smoke impacts on populated areas through the use of basic smoke management practices; and
(iv)
will be conducted under a smoke management program, if applicable.
(D)
Savings provision— Consistent with section 118(b) of the Clean Air Act (42 U.S.C. 7418(b))—
(i)
an exemption granted under this paragraph shall apply to the applicable entity for a period of not more than 1 year; and
(ii)
on a new determination of the Secretary, the Secretary of Agriculture, or an Indian Tribe under subparagraph (A) or (C), as applicable, additional exemptions under this paragraph may be granted for subsequent periods after the expiration of the exemption described in clause (i), each of which shall apply for a period of not more than 1 year.
(6)
State and Tribal standards—
(A)
Approval of State or Tribal standards— Notwithstanding section 110 of the Clean Air Act (42 U.S.C. 7410), when approving a State or Tribal implementation plan under that section, the Administrator of the Environmental Protection Agency may not approve any standards with respect to—
(i)
preventing nuisance impacts that result from prescribed fires that incorporate basic smoke management practices; or
(ii)
criteria pollutants that result from prescribed fires that are more stringent than what is required to meet the national ambient air quality standards for those pollutants under section 109 of that Act (42 U.S.C. 7409), as measured using a Federal reference monitor or an equivalent method.
(B)
State and Tribal enforcement— A State or Indian Tribe may not enforce standards in a State or Tribal implementation plan that was approved under the Clean Air Act (42 U.S.C. 7401 et seq.) before the date of enactment of this Act with respect to—
(i)
preventing nuisance impacts that result from prescribed fires that incorporate basic smoke management practices; or
(ii)
criteria pollutants that result from prescribed fires that are more stringent than what is required to meet the national ambient air quality standards for those pollutants under section 109 of that Act (42 U.S.C. 7409), as measured using a Federal reference monitor or an equivalent method.
(C)
Amendment to anti-backsliding provision— If a State or Tribal implementation plan under section 110 of the Clean Air Act (42 U.S.C. 7410) is revised to include a smoke management program for prescribed fires in that implementation plan, subsection (l) of that section shall not apply with respect to that revision.
(7)
Evaluation— The Secretary or the Secretary of Agriculture, as applicable, shall conduct an evaluation to facilitate learning new approaches for predicting and preventing exceedances during subsequent prescribed fires if the Secretary or the Secretary of Agriculture—
(A)
conducts a prescribed fire on Federal land—
(i)
for which a demonstration is developed and submitted under paragraph (4)(A); or
(ii)
that is subject to an exemption under paragraph (5)(A); and
(B)
the prescribed fire described in subparagraph (A) contributes to an exceedance of a national ambient air quality standard under section 109 of the Clean Air Act (42 U.S.C. 7409).
(8)
Programs and research— To address the public health and safety risk of the expanded use of prescribed fire under this Act, the Secretary of Agriculture and the Secretary, in coordination with the Administrator of the Environmental Protection Agency and the Director of the Centers for Disease Control and Prevention, shall conduct research to improve or develop—
(A)
wildland fire smoke prediction models;
(B)
smoke impact display tools for the public and decisionmakers;
(C)
appropriate, cost-effective, and consistent mitigation strategies for communities impacted adversely by smoke from prescribed fire;
(D)
consistent nationally and scientifically supported messages regarding personal protection equipment for the public; and
(E)
prescribed fire activity tracking and emission inventory systems.
(b)
National Environmental Policy Act of 1969 efficiencies—
(1)
Purpose— The purpose of this subsection is to require the Secretaries to develop a series of categorical exclusions from the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) for implementing prescribed fires in accordance with this subsection.
(2)
Previous environmental review decisions— The Secretaries shall—
(A)
gather and evaluate all of the decision memos, decision notices, and records of decision and associated findings of no significant impact or environmental impact statements under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) prepared for recent prescribed fire projects;
(B)
review any documented environmental impacts of those prescribed fire projects, if the Secretaries monitored or evaluated the effects of the implemented actions; and
(C)
develop findings of—
(i)
similarities and differences among prescribed fire projects; and
(ii)
elements and mitigation measures that consistently appeared in those prescribed fire projects that did not individually or cumulatively have a significant impact on the environment.
(3)
Rulemaking— Not later than 2 years after the date of enactment of this Act, the Secretaries shall publish in the Federal Register for public review and comment a series of notices of proposed categorical exclusions from the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) for implementing prescribed fire projects in, at a minimum, the following forest types:
(A)
Longleaf pine forest.
(B)
Shortleaf pine forest.
(C)
Ponderosa pine forest.
(D)
Pinyon-juniper forest.
(E)
Dry-site Douglas-fir forest.
(F)
Chaparral shrubland.
(4)
Extraordinary circumstances— The Secretaries shall apply the extraordinary circumstances procedures under section 220.6 of title 36, Code of Federal Regulations (or successor regulations), in determining whether to use a categorical exclusion established under this subsection.
(5)
Oregon and California grant lands— On Oregon and California Railroad grant land revested in the United States by the Act of June 9, 1916 (39 Stat. 218, chapter 137), the Secretary, acting through the Director of the Bureau of Land Management, shall—
(A)
implement not fewer than 2 impact demonstration projects to assess the environmental effects of prescribed fires;
(B)
monitor the actual environmental effects during and after that implementation; and
(C)
evaluate the merits of using a categorical exclusion from the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) for prescribed fires on that land.

Sec. 205 Prescribed fire education program

(a)
In general— The Secretary of Agriculture, acting through the Chief of the Forest Service, and the Secretary, acting through the Director of the Office of Wildland Fire, may enter into a memorandum of agreement with the Longleaf Alliance to carry out a national prescribed fire education program, including the use of the character known as “Burner Bob”.
(b)
Program elements— A prescribed fire education program authorized under subsection (a) may include—
(1)
public service advertisements;
(2)
the use of social media;
(3)
campaign and educational activities and materials;
(4)
commercial licensing;
(5)
character images and appearances; and
(6)
awards and recognition.