[Federal Register Volume 81, Number 29 (Friday, February 12, 2016)]
[Rules and Regulations]
[Pages 7478-7480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02745]
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DEPARTMENT OF AGRICULTURE
48 CFR Parts 436 and 452
RIN 0599-AA21
Agriculture Acquisition Regulation, Fire Suppression and
Liability
AGENCY: Office of Procurement and Property Management, U.S. Department
of Agriculture
ACTION: Final rule.
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SUMMARY: The Office of Procurement and Property Management (OPPM) of
the U.S. Department of Agriculture (USDA) amends the Agriculture
Acquisition Regulation (AGAR) by adding a new clause entitled ``Fire
Suppression and Liability.'' Section 8205 of the Agricultural Act of
2014 (2014 Act) provided the USDA Forest Service with permanent
authority for Stewardship End Result Contracting by adding a new
Section 604 to the Healthy Forests Restoration Act of 2003. Section
8205 contains a requirement that the agency use a fire liability
provision in all stewardship contracts and agreements that is in
substantially the same form as the fire liability provisions contained
in the integrated resource timber contract in Forest Service Contract
Numbered 2400-13, Part H, Section H.4. This final rule establishes a
new clause in the AGAR, the USDA supplement to the Federal Acquisition
Regulation (FAR), for use in Integrated Resource Service Contracts
(IRSC) subject to the FAR. This new AGAR clause addresses fire
liability on stewardship contracts as required in the 2014 Agricultural
Act.
DATES: Effective March 14, 2016.
FOR FURTHER INFORMATION CONTACT: Ms. Ismaela Ramirez, Senior
Procurement Analyst, USDA, Office of Procurement and Property
Management at (202) 730-7997.
SUPPLEMENTARY INFORMATION:
I. Authority
II. Background
III. Discussion of Comments
IV. Summary of the Comments
V. Regulatory Information
List of Subjects
I. Authority
The enactment of Section 8205 of the Agricultural Act of 2014 (Pub.
L. 113-79) establishes permanent authority to conduct Stewardship End
Result Contracting projects by adding a new Section 604 to the Healthy
Forests Restoration Act of 2003 (HFRA) (16 U.S.C. 6591c). Section 8205
of the 2014 Agricultural Act contains a requirement that the agency use
a fire liability provision in all stewardship contracts and agreements
that is in substantially the same form as the fire liability provisions
contained in the integrated resource timber contract in Forest Service
Contract Numbered 2400-13, Part H, Section H.4 and timber sale
contracts conducted pursuant to Section 14 of the National Forest
Management Act of 1976 (16 U.S.C. 472a).
II. Background
Beginning in 1998 with the enactment of Section 347 of the
Department of the Interior and Related Agencies Appropriation Act,
1999, the Forest Service has been authorized to carry out Stewardship
End Result Contracting Projects; first on a pilot basis and then,
through a succession of subsequent amendments, this authority was
expanded. The enactment of Section 8205 of the Agricultural Act of 2014
sets forth the permanent authority for conducting Stewardship End
Resulting Contracting Projects by adding a new Section 604 to the
Healthy Forests Restoration Act of 2003. Section 8205 contains a
provision that ``not later than 90 days after the date of enactment of
this section, the Chief of the Forest Service and the Director of the
Bureau of Land Management shall issue for use in all contracts and
agreements under this section fire liability provisions that are in
substantially the same form as the fire liability provisions contained
in-- (A) integrated resource timber contracts, as described in the
Forest Service Contract Numbered 2400-13, Part H, Section H.4; and (B)
timber sale contracts conducted pursuant to Section 14 of the National
Forest Management Act of 1976 (16 U.S.C. 472a).''
This final rule establishes a new AGAR clause for use in
stewardship contracts subject to the FAR. This clause addresses fire
liability on Stewardship End Result Contracting, as required in the
2014 Agricultural Act. The text of the clause is closely specified in
the law.
III. Discussion of Comments
USDA solicited comments on the interim rule on May 22, 2014. USDA
received two comments at the end of the
[[Page 7479]]
posted comment period on June 23, 2014.
Both comments were received from the Federal Forest Resource
Coalition (FFRC), a national trade association comprised of large and
small companies, regional and state associations, county governments,
and others concerned about the management of our National Forests and
the landscape covered by Bureau of Land Management.
Both comments recommend changes to add clarity and consistency to
the language in the regulations. The comments suggest that USDA follow
the requirement of implementing a liability clause for IRSC contracts
that mirrored Integrated Resource Timber Contracts (IRTC). The comments
from FFRC are presented below, along with USDA's responses and are
grouped by the Code of Federal Regulations (CFR) section numbers to
which they apply.
48 CFR 436.578
Comment (1) In Section 436.578, we recommend that you delete ``as
applicable''. Section 8205 of the Agricultural Act of 2014 states that
``. . . the Chief and Director shall issue for use in all [emphasis
added] contracts and agreements under this section fire liability
provisions . . .''
48 CFR 452.236-78
Comment (2) In Section 452.236-78, we recommend that you change
``may be inserted'' to ``shall be inserted''. Again, Section 8205 of
the Agricultural Act of 2014 states that ``. . . the Chief and Director
shall issue for use in all [emphasis added] contracts and agreements
under this section fire liability provisions . . .''
Response: FFRC stated that the plain language in Section 8205 of
the Agricultural Act of 2014 (Pub. L. 113-79) makes clear that Congress
intended the fire liability provisions to be non-discretionary, both
for the issuance of the provision and its use in all contracts.
However, they believe that the language in the Interim Rule conveys
discretion that is not found in the statute. The Forest Service agrees
with both comments and will amend the CFR to read as follows: ``the
Chief shall issue for use in all contracts and agreements under this
section fire liability provisions that are in substantially the same
form (16 U.S.C. 472a) for all IRSC solicitations issued after May 22,
2014. Contracts and agreements in effect on May 22, 2014, are not
eligible to insert this provision.'' The Forest Service believes the
aforementioned statement in response to the two comments reflects the
intention of the Farm Bill with regards to implementing a fire
liability clause for Integrated Resources Services Contracts that
mirrors current Timber Sales Contracts. This creates the same fire
liability for all Forest Service stewardship contract types.
IV. Summary of the Comments
As a result of public comments received on the interim rule, USDA
will amend the CFR to add clarity and consistency that reflects the
intention of the Farm Bill with regard to implementing a fire liability
clause for IRSCs that mirrors current Timber Sales Contracts.
V. Regulatory Information
Regulatory Flexibility Act
USDA certifies that this final rule will not have a significant
impact on a substantial number of small entities, as defined in the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq. There is no
additional submission required as a result of this action. The rule
will not have a significant impact on the small business community or
on a substantial number of small businesses.
Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the final rule
does not impose any record keeping or information collection
requirements that require approval by the Office of Management and
Budget.
Environmental Impact
The USDA has determined that this final rule falls within this
category of actions and that no extraordinary circumstances exist that
would require preparation of an environmental assessment or
environmental impact statement.
Regulatory Impact
This final rule has been reviewed under USDA procedures and
Executive Order 12866 on Regulatory Planning and Review. It has been
determined that this is not a significant rule. This rule would not
have an annual effect of $100 million or more on the economy, nor would
it adversely affect productivity, competition, jobs, the environment,
public health and safety, or State or local governments. This final
rule would not interfere with an action taken or planned by another
agency, nor raise new legal or policy issues. Finally, this final rule
would not alter the budgetary impact of entitlement, grant, user fee,
or loan programs or the rights and obligations of beneficiaries of such
programs. Accordingly, this final rule is not subject to Office of
Management and Budget (OMB) review under Executive Order (E.O.) 12866.
No Takings Implications
The USDA has analyzed this final rule in accordance with the
principles and criteria contained in E.O. 12630 and determined that the
rule would not pose the risk of a taking of private property.
Civil Justice Reform Act
The USDA has reviewed this final rule under E.O. 12778, Civil
Justice Reform. Under this rule, (1) all State and local laws and
regulations that conflict with this rule or that impede its full
implementation would be preempted; (2) no retroactive effect would be
given to this final rule; and (3) it would require administrative
proceedings before parties may file suit in court challenging its
provisions.
Federalism and Consultation and Coordination With Indian Tribal
Governments
The USDA has considered this final rule under the requirements of
E.O. 13132 on Federalism and has determined that this rule conforms to
the Federalism principles in the E.O. The rule would not impose any
compliance costs on the States; and would not have any substantial
direct effects on the States, the relationship between the Federal
Government and the States, or the distribution of power and
responsibilities among the various levels of government. Moreover, this
final rule does not have tribal implications as defined by E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, and
therefore advance consultation with tribes is not required.
Energy Effects
The USDA has reviewed this final rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or use and has determined that this rule would not
constitute a significant energy action as defined in the E.O.
Unfunded Mandates Reform
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), the USDA assessed the effects of this final rule on
State, local, and tribal governments and the private sector. This rule
would not compel the expenditure of $100 million or more by State,
local, and tribal governments, or by the private sector. Therefore, a
statement under Section 202 of the Act is not required.
[[Page 7480]]
List of Subjects 48 CFR Parts 436 and 452
Government procurement.
For the reasons set forth in the preamble, the U.S. Department of
Agriculture amends 48 CFR Chapter 4, in the following manner:
PART 436--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
0
1. The authority citation for part 436 is revised to read as follows:
Authority: 5 U.S.C. 301 and 40 U.S.C. 121(c)
0
2. Section 436.578 is revised to read as follows:
436.578 Contract clause.
Insert the clause at 452.236-78, Fire Suppression and Liability in
solicitations and contracts for Integrated Resource Service Contracts
(IRSC) awarded for the Forest Service.
PART 452--SOLICITATION PROVISION AND CONTRACT CLAUSES
0
3. The authority citation for part 452 is revised to read as follows:
Authority: 5 U.S.C. 301 and 40 U.S.C. 121(c)
0
4. Section 452.236-78 is revised to read as follows:
452.236-78 Fire Suppression and Liability.
As prescribed in section 436.578, the following clause shall be
inserted in Intergrated Resource Service Contracts (IRSC) awarded for
the Forest Service.
Fire Suppression and Liability Clause
(a) Contractor's Responsibility for Fire Fighting. The Contractor,
under the provisions of FAR clause at 52.236-9, Protection of Existing
Vegetation, Structures, Equipment, Utilities, and Improvements, shall
immediately extinguish all fires on the work site other than those
fires in use as a part of the work. The Contractor may be held liable
for all damages and for all costs incurred by the Government for labor,
subsistence, equipment, supplies, and transportation deemed necessary
to control or suppress a fire set or caused by the Contractor or the
Contractor's agents or employees subject to the following fire
classifications listed in subsection (b).
(b) Fire Suppression Costs. The Contractor's obligations for cost
of fire suppression vary according to three classifications of fires as
follows:
(1) Operations Fire. An ``operations fire'' is a fire caused by the
Contractor's operations other than a negligent fire. The Contractor
agrees to reimburse Forest Service for such cost for each operations
fire, subject to a maximum dollar amount of [Contracting Officer insert
amount]. The cost of the Contractor's actions, supplies, and equipment
on any such fire, or otherwise provided at the request of Forest
Service, shall be credited toward such maximum. If the Contractor's
actual cost exceeds contractor's obligation stated above, Forest
Service shall reimburse the contractor for the excess.
(2) Negligent Fire. A ``negligent fire'' is a fire caused by the
negligence or fault of the Contractor's operations including, but not
limited to, one caused by smoking by persons engaged in the
Contractor's operations during the course of their employment, or
during rest or lunch periods; or if the Contractor's failure to comply
with requirements under this contract results in a fire starting, or
permits a fire to spread. Damages and the cost of suppressing negligent
fires shall be borne by the Contractor.
(3) Other Fires on Contract Area. Forest Service shall pay the
Contractor, at firefighting rates common in the area or at prior agreed
rates, for equipment or personnel furnished by the Contractor at the
request of Forest Service, on any fire on contract area other than an
operations fire or a negligent fire.
(c) Contractor's Responsibility for Notification in Case of Fire.
The Contractor shall immediately notify the Government of any fires
sighted on or in the vicinity of the work site.
(d) Contractor's Responsibility for Responding to Emergencies. When
directed by the Contracting Officer, the Contractor shall temporarily
redirect employees and equipment from the work site for emergency work
(anticipated to be restricted to firefighting). This is considered to
be within the general scope of the contract. An equitable adjustment
for any such redirection of employees and equipment will be made under
the FAR clause at 52.243-4, Changes.
(e) Performance by the Contractor. Where the Contractor's
employees, agents, contractors, subcontractors, or their employees or
agents perform the Contractor's operations in connection with fire
responsibilities, the Contractor's obligations shall be the same as if
performance was by Contractor.
(f) State Law. The Contractor shall not be relieved by the terms of
this contract of any liability to the United States for fire
suppression costs recovered in an action based on State law, except for
such costs resulting from operations fires. Amounts due to the
Contractor for firefighting expenditures on operations fires shall not
be withheld pending settlement of any such claim or action based on
State law.
(End of Clause)
Dated: February 4, 2016.
Gregory L. Parham,
U.S. Department of Agriculture, Assistant Secretary for Administration.
[FR Doc. 2016-02745 Filed 2-11-16; 8:45 am]
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