II 113th CONGRESS 2d Session S. 2593 IN THE SENATE OF THE UNITED STATES July 10, 2014 Mr. McCain (for himself, Mr. Barrasso , and Mr. Flake ) introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources A BILL To amend the FLAME Act of 2009 to provide for additional wildfire suppression activities, to provide for the conduct of certain forest treatment projects, and for other purposes.

1. Short title; table of contents (a) Short title This Act may be cited as the FLAME Act Amendments Act of 2014 . (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. TITLE I—FLAME Act amendments Sec. 101. Findings. Sec. 102. FLAME Act amendments. Sec. 103. Wildfire disaster funding authority. TITLE II—Forest treatment projects Sec. 201. Definitions. Sec. 202. Projects in Forest Management Emphasis Areas. Sec. 203. Administrative review; arbitration. Sec. 204. Distribution of revenue. Sec. 205. Performance measures; reporting. Sec. 206. Termination. TITLE III—Forest stewardship contracting Sec. 301. Cancellation ceilings. I FLAME Act amendments 101. Findings Congress finds that— (1) over the past 2 decades, wildfires have increased dramatically in size and costs; (2) existing budget mechanisms for estimating the costs of wildfire suppression are not keeping pace with the actual costs for wildfire suppression due in part to improper budget estimation methodology; (3) the FLAME Funds have not been adequate in supplementing wildland fire management funds in cases in which wildland fire management accounts are exhausted; and (4) the practice of transferring funds from other agency funds (including the hazardous fuels treatment accounts) by the Secretary of Agriculture or the Secretary of the Interior to pay for wildfire suppression activities, commonly known as fire-borrowing , does not support the missions of the Forest Service and the Department of the Interior with respect to protecting human life and property from the threat of wildfires. 102. FLAME Act amendments (a) Funding Section 502(d) of the FLAME Act of 2009 ( 43 U.S.C. 1748a(d) ) is amended— (1) in paragraph (1)— (A) by striking shall consist of and all that follows through appropriated to in subparagraph (A) and inserting shall consist of such amounts as are appropriated to ; and (B) by striking subparagraph (B); and (2) by striking paragraphs (4) and (5). (b) Use of flame fund Section 502(e) of the FLAME Act of 2009 ( 43 U.S.C. 1748a(e) ) is amended by striking paragraphs (1) and (2) and inserting the following: (1) In general Amounts appropriated to a FLAME Fund, in accordance with section 251(b)(2)(E) of the Balanced Budget and Emergency Deficit Control Act of 1985 ( 2 U.S.C. 902(b)(2)(E) ), shall be available to the Secretary concerned for wildfire suppression operations if the Secretary concerned issues a declaration and notifies the relevant congressional committees that a wildfire suppression event is eligible for funding from the FLAME Fund. (2) Declaration criteria A declaration by the Secretary concerned under paragraph (1) may be issued only if— (A) an individual wildfire incident meets the objective indicators of an extraordinary wildfire situation, including— (i) a wildfire that the Secretary concerned determines has required an emergency Federal response based on the significant complexity, severity, or threat posed by the fire to human life, property, or a resource; (ii) a wildfire that covers 1,000 or more acres; or (iii) a wildfire that is within 10 miles of an urbanized area (as defined in section 134(b) of title 23, United States Code); or (B) the cumulative costs of wildfire suppression and Federal emergency response activities, as determined by the Secretary concerned, would exceed, within 30 days, all of the amounts otherwise previously appropriated (including amounts appropriated under an emergency designation, but excluding amounts appropriated to the FLAME Fund) to the Secretary concerned for wildfire suppression and Federal emergency response. . (c) Treatment of anticipated and predicted activities Section 502(f) of the FLAME Act of 2009 ( 43 U.S.C. 1748a(f) ) is amended by striking (e)(2)(B)(i) and inserting (e)(2)(A) . (d) Prohibition on other transfers Section 502 of the FLAME Act of 2009 ( 43 U.S.C. 1748a ) is amended by striking subsection (g) and inserting the following: (g) Prohibition on other transfers The Secretary concerned shall not transfer funds provided for activities other than wildfire suppression operations to pay for any wildfire suppression operations. . (e) Accounting and reports Section 502(h) of the FLAME Act of 2009 ( 43 U.S.C. 1748a(h) ) is amended by striking paragraphs (2) and (3) and inserting the following: (2) Estimates of Wildfire Suppression Operations Costs to Improve Budgeting and Funding (A) Budget submission Consistent with section 1105(a) of title 31, United States Code, the President shall include in each budget for the Department of Agriculture and the Department of the Interior information on estimates of appropriations for wildfire suppression costs based on an out-year forecast that uses a statistically valid regression model. (B) Requirements The estimate of anticipated wildfire suppression costs under subparagraph (A) shall be developed using the best available— (i) climate, weather, and other relevant data; and (ii) models and other analytic tools. (C) Independent review The methodology for developing the estimates of wildfire suppression costs under subparagraph (A) shall be subject to periodic independent review to ensure compliance with subparagraph (B). (D) Submission to congress (i) In general Consistent with the schedule described in clause (ii) and in accordance with subparagraphs (B) and (C), the Secretary concerned shall submit to the Committee on Energy and Natural Resources of the Senate and the Committee on Natural Resources of the House of Representatives an updated estimate of wildfire suppression costs for the applicable fiscal year. (ii) Schedule The Secretary concerned shall submit the updated estimates under clause (i) during— (I) March of each year; (II) May of each year; (III) July of each year; and (IV) if a bill making appropriations for the Department of the Interior and the Forest Service for the following fiscal year has not been enacted by September 1, September of each year. (3) Reports Annually, the Secretary of Agriculture and the Secretary of the Interior shall jointly submit to the Committee on Energy and Natural Resources of the Senate, the Committee on Natural Resources of the House of Representatives, and the Committees on Appropriations of the Senate and the House of Representatives a report that— (A) provides a summary of the amount of appropriations made available during the previous fiscal year, which specifies the source of the amounts and the commitments and obligations made under this section; (B) describes the amounts obligated to individual wildfire events that meet the criteria specified in subsection (e)(2); and (C) includes any recommendations that the Secretary of Agriculture or the Secretary of the Interior may have to improve the administrative control and oversight of the FLAME Fund. . 103. Wildfire disaster funding authority (a) In general Section 251(b)(2) of the Balanced Budget and Emergency Deficit Control Act of 1985 (2 U.S.C. 901(b)(2)) is amended by adding at the end the following: (E) Flame wildfire suppression (i) (I) The adjustments for a fiscal year shall be in accordance with clause (ii) if— (aa) a bill or joint resolution making appropriations for a fiscal year is enacted that— (AA) specifies an amount for wildfire suppression operations in the Wildland Fire Management accounts at the Department of Agriculture or the Department of the Interior; and (BB) specifies a total amount to be used for the purposes described in subclause (II) in the Wildland Fire Management accounts at the Department of Agriculture or the Department of the Interior that is not less than 50 percent of the amount described in subitem (AA); and (bb) as of the day before the date of enactment of the bill or joint resolution all amounts in the FLAME Fund established under section 502 of the FLAME Act of 2009 (43 U.S.C. 1748a) have been expended. (II) The purposes described in this subclause are— (aa) hazardous fuels reduction projects and other activities of the Secretary of the Interior, as authorized under the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6501 et seq.) and the Tribal Forest Protection Act of 2004 (25 U.S.C. 3115a); and (bb) forest restoration and fuel reduction activities carried out outside of the wildland urban interface that are on condition class 3 Federal land or condition class 2 Federal land located within fire regime I, fire regime II, or fire regime III. (ii) If the requirements under clause (i)(I) are met for a fiscal year, the adjustments for that fiscal year shall be the amount of additional new budget authority provided in the bill or joint resolution described in clause (i)(I)(aa) for wildfire suppression operations for that fiscal year, but shall not exceed $1,000,000,000 in additional new budget authority in each of fiscal years 2015 through 2021. (iii) As used in this subparagraph— (I) the term additional new budget authority means the amount provided for a fiscal year in an appropriation Act and specified to pay for the costs of wildfire suppression operations that is equal to the greater of the amount in excess of— (aa) 100 percent of the average costs for wildfire suppression operations over the previous 5 years; or (bb) the estimated amount of anticipated wildfire suppression costs at the upper bound of the 90 percent confidence interval for that fiscal year calculated in accordance with section 502(h)(3) of the FLAME Act of 2009 (43 U.S.C. 1748a(h)(3)); and (II) the term wildfire suppression operations means the emergency and unpredictable aspects of wildland firefighting including support, response, and emergency stabilization activities; other emergency management activities; and funds necessary to repay any transfers needed for these costs. (iv) The average costs for wildfire suppression operations over the previous 5 years shall be calculated annually and reported in the President’s Budget submission under section 1105(a) of title 31, United States Code, for each fiscal year. . (b) Disaster funding Section 251(b)(2)(D) of the Balanced Budget and Emergency Deficit Control Act of 1985 (2 U.S.C. 901(b)(2)(D)) is amended— (1) in clause (i)— (A) in subclause (I), by striking and and inserting plus ; (B) in subclause (II), by striking the period and inserting ; less ; and (C) by adding the following: (III) the additional new budget authority provided in an appropriation Act for wildfire suppression operations pursuant to subparagraph (E) for the preceding fiscal year. ; and (2) by adding at the end the following: (v) Beginning in fiscal year 2016 and in subsequent fiscal years, the calculation of the average funding provided for disaster relief over the previous 10 years shall not include the additional new budget authority provided in an appropriation Act for wildfire suppression operations pursuant to subparagraph (E). . II Forest treatment projects 201. Definitions In this title: (1) Covered project The term covered project means a project that involves the management or sale of national forest material within a Forest Management Emphasis Area. (2) Forest Management Emphasis Area (A) In general The term Forest Management Emphasis Area means National Forest System land identified as suitable for timber production in a forest management plan in effect on the date of enactment of this Act. (B) Exclusions The term Forest Management Emphasis Area does not include National Forest System land— (i) that is a component of the National Wilderness Preservation System; or (ii) on which removal of vegetation is specifically prohibited by Federal law. (3) National forest material The term national forest material means trees, portions of trees, or forest products, with an emphasis on sawtimber and pulpwood, derived from National Forest System land. (4) National Forest System (A) In general The term National Forest System has the meaning given the term in section 11(a) of the Forest and Rangeland Renewable Resources Planning Act of 1974 ( 16 U.S.C. 1609(a) ). (B) Exclusion The term National Forest System does not include— (i) the national grasslands and land utilization projects administered under title III of the Bankhead-Jones Farm Tenant Act ( 7 U.S.C. 1010 et seq. ); or (ii) National Forest System land east of the 100th meridian. (5) Secretary The term Secretary means the Secretary of Agriculture. 202. Projects in Forest Management Emphasis Areas (a) Conduct of covered projects Within Forest Management Emphasis Areas (1) In general The Secretary may conduct covered projects in Forest Management Emphasis Areas, subject to paragraphs (2) through (4). (2) Designating timber for cutting (A) In general Notwithstanding section 14(g) of the National Forest Management Act of 1976 ( 16 U.S.C. 472a(g) ), the Secretary may use designation by prescription or designation by description in conducting covered projects under this title. (B) Requirement The designation methods authorized under subparagraph (A) shall be used in a manner that ensures that the quantity of national forest material that is removed from the Forest Management Emphasis Area is verifiable and accountable. (3) Contracting methods (A) In general Timber sale contracts under section 14 of the National Forest Management Act of 1976 (16 U.S.C. 472a) shall be the primary means of carrying out covered projects under this title. (B) Record If the Secretary does not use a timber sale contract under section 14 of the National Forest Management Act of 1976 ( 16 U.S.C. 472a ) to carry out a covered project under this title, the Secretary shall provide a written record specifying the reasons that different contracting methods were used. (4) Acreage treatment requirements (A) Total acreage requirements The Secretary shall identify, prioritize, and carry out covered projects in Forest Management Emphasis Areas that mechanically treat a total of at least 7,500,000 acres in the Forest Management Emphasis Areas during the 15-year period beginning on the date that is 60 days after the date on which the Secretary assigns the acreage treatment requirements under subparagraph (B). (B) Assignment of acreage treatment requirements to individual units of the National Forest System (i) In general Not later than 60 days after the date of enactment of this Act and subject to clause (ii), the Secretary, in the sole discretion of the Secretary, shall assign the acreage treatment requirements that shall apply to the Forest Management Emphasis Areas of each unit of the National Forest System. (ii) Limitation Notwithstanding clause (i), the acreage treatment requirements assigned to a specific unit of the National Forest System under that clause may not apply to more than 25 percent of the acreage to be treated in any unit of the National Forest System in a Forest Management Emphasis Area during the 15-year period described in subparagraph (A). (b) Environmental analysis and public review process for covered projects in Forest Management Emphasis Areas (1) Environmental assessment The Secretary shall comply with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) by completing an environmental assessment that assesses the direct environmental effects of each covered project proposed to be conducted within a Forest Management Emphasis Area, except that the Secretary shall not be required to study, develop, or describe more than the proposed agency action and 1 alternative to the proposed agency action for purposes of that Act. (2) Public notice and comment In preparing an environmental assessment for a covered project under paragraph (1), the Secretary shall provide— (A) public notice of the covered project; and (B) an opportunity for public comment on the covered project. (3) Length The environmental assessment prepared for a covered project under paragraph (1) shall not exceed 100 pages in length. (4) Inclusion of certain documents The Secretary may incorporate, by reference, into an environmental assessment any documents that the Secretary, in the sole discretion of the Secretary, determines are relevant to the assessment of the environmental effects of the covered project. (5) Deadline for completion Not later than 180 days after the date on which the Secretary has published notice of a covered project in accordance with paragraph (2), the Secretary shall complete the environmental assessment for the covered project. (c) Compliance with Endangered Species Act To comply with the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ), the Secretary shall use qualified professionals on the staff of the Forest Service to make determinations required under section 7 of that Act ( 16 U.S.C. 1536 ). (d) Limitation on revision of national forest plans The Secretary may not, during a revision of a forest plan under section 6 of the Forest and Rangeland Renewable Resources Planning Act of 1974 ( 16 U.S.C. 1604 ), reduce the acres designated as suitable for timber harvest under a covered project, unless the Secretary determines, in consultation with the Secretary of the Interior, that the reduction in acreage is necessary to prevent a jeopardy finding under section 7(b) of the Endangered Species Act of 1973 ( 16 U.S.C. 1536(b) ). 203. Administrative review; arbitration (a) Administrative review Administrative review of a covered project shall occur only in accordance with the special administrative review process established by section 105 of the Healthy Forests Restoration Act of 2003 ( 16 U.S.C. 6515 ). (b) Arbitration (1) In general There is established in the Department of Agriculture a pilot program that— (A) authorizes the use of arbitration instead of judicial review of a decision made following the special administrative review process for a covered project described in subsection (a); and (B) shall be the sole means to challenge a covered project in a Forest Management Emphasis Area during the 15-year period beginning on the date that is 60 days after the date on which the Secretary assigns the acreage treatment requirements under section 202(a)(4)(B). (2) Arbitration process procedures (A) In general Any person who sought administrative review for a covered project in accordance with subsection (a) and who is not satisfied with the decision made under the administrative review process may file a demand for arbitration in accordance with— (i) chapter 1 of title 9, United States Code; and (ii) this paragraph. (B) Requirements for demand A demand for arbitration under subparagraph (A) shall— (i) be filed not more than 30 days after the date on which the special administrative review decision is issued under subsection (a); and (ii) include a proposal containing the modifications sought to the covered project. (C) Intervening parties (i) Deadline for submission; requirements Any person that submitted a public comment on the covered project subject to the demand for arbitration may intervene in the arbitration under this subsection by submitting a proposal endorsing or modifying the covered project by the date that is 30 days after the date on which the demand for arbitration is filed under subparagraph (A). (ii) Multiple parties Multiple objectors or intervening parties that meet the requirements of clause (i) may submit a joint proposal under that clause. (D) Appointment of arbitrator The United States District Court in the district in which a covered project subject to a demand for arbitration filed under subparagraph (A) is located shall appoint an arbitrator to conduct the arbitration proceedings in accordance with this subsection. (E) Selection of proposals (i) In general An arbitrator appointed under subparagraph (D)— (I) may not modify any of the proposals submitted under this paragraph; and (II) shall select to be conducted— (aa) a proposal submitted by an objector under subparagraph (B)(ii) or an intervening party under subparagraph (C); or (bb) the covered project, as approved by the Secretary. (ii) Selection criteria An arbitrator shall select the proposal that best meets the purpose and needs described in the environmental assessment conducted under section 202(b)(1) for the covered project. (iii) Effect The decision of an arbitrator with respect to a selection under clause (i)(II)— (I) shall not be considered a major Federal action; (II) shall be binding; and (III) shall not be subject to judicial review. (F) Deadline for completion Not later than 90 days after the date on which a demand for arbitration is filed under subparagraph (A), the arbitration process shall be completed. 204. Distribution of revenue (a) Payments to counties (1) In general Effective for fiscal year 2015 and each fiscal year thereafter until the termination date under section 206, the Secretary shall provide to each county in which a covered project is carried out annual payments in an amount equal to 25 percent of the amounts received for the applicable fiscal year by the Secretary from the covered project. (2) Limitation A payment made under paragraph (1) shall be in addition to any payments the county receives under the payment to States required by the sixth paragraph under the heading Forest service in the Act of May 23, 1908 (35 Stat. 260; 16 U.S.C. 500 ), and section 13 of the Act of March 1, 1911 (36 Stat. 963; 16 U.S.C. 500 ). (b) Deposit in Knutson-Vandenberg and Salvage Sale Funds After compliance with subsection (a), the Secretary shall use amounts received by the Secretary from covered projects during each of the fiscal years during the period described in subsection (a) to make deposits into the fund established under section 3 of the Act of June 9, 1930 (commonly known as the Knutson-Vandenberg Act ) ( 16 U.S.C. 576b ), and the fund established under section 14(h) of the National Forest Management Act of 1976 ( 16 U.S.C. 472a(h) ) in contributions equal to the amounts otherwise collected under those Acts for projects conducted on National Forest System land. (c) Deposit in General Fund of the Treasury After compliance with subsections (a) and (b), the Secretary shall deposit into the general fund of the Treasury any remaining amounts received by the Secretary for each of the fiscal years referred to in those subsections from covered projects. 205. Performance measures; reporting (a) Performance measures The Secretary shall develop performance measures that evaluate the degree to which the Secretary is achieving— (1) the purposes of this title; and (2) the minimum acreage requirements established under section 202(a)(4). (b) Annual Reports Annually, the Secretary shall submit to the Committee on Energy and Natural Resources of the Senate and the Committee on Natural Resources of the House of Representatives— (1) a report that describes the results of evaluations using the performance measures developed under subsection (a); and (2) a report that describes— (A) the number and substance of the covered projects that are subject to administrative review and arbitration under section 203; and (B) the outcomes of the administrative review and arbitration under that section. 206. Termination The authority of this title terminates on the date that is 15 years after the date of enactment of this Act. III Forest stewardship contracting 301. Cancellation ceilings Section 604(d) of the Healthy Forests Restoration Act of 2003 ( 16 U.S.C. 6591c(d) ) is amended— (1) by redesignating paragraphs (5), (6), and (7) as paragraphs (6), (7), and (8), respectively; and (2) by inserting after paragraph (4) the following: (5) Cancellation ceilings (A) In general The Chief and the Director may obligate funds to cover any potential cancellation or termination costs for an agreement or contract under subsection (b) in stages that are economically or programmatically viable. (B) Notice (i) Submission to congress Not later than 30 days before entering into a multiyear agreement or contract under subsection (b) that includes a cancellation ceiling in excess of $25,000,000, but does not include proposed funding for the costs of cancelling the agreement or contract up to the cancellation ceiling established in the agreement or contract, the Chief and the Director shall submit to the Committee on Energy and Natural Resources of the Senate and the Committee on Natural Resources of the House of Representatives a written notice that includes— (I) (aa) the cancellation ceiling amounts proposed for each program year in the agreement or contract; and (bb) the reasons for the cancellation ceiling amounts proposed under item (aa); (II) the extent to which the costs of contract cancellation are not included in the budget for the agreement or contract; and (III) a financial risk assessment of not including budgeting for the costs of agreement or contract cancellation. (ii) Transmittal to omb At least 14 days before the date on which the Chief and Director enter into an agreement or contract under subsection (b), the Chief and Director shall transmit to the Director of the Office of Management and Budget a copy of the written notice submitted under clause (i). .