[Federal Register Volume 79, Number 99 (Thursday, May 22, 2014)]
[Rules and Regulations]
[Pages 29369-29371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-11770]
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DEPARTMENT OF AGRICULTURE
Office of Procurement and Property Management
48 CFR Parts 436 and 452
RIN 0599-AA21
Agriculture Acquisition Regulation, Fire Suspension Suppression
and Liability
AGENCY: Office of Procurement and Property Management, Department of
Agriculture.
ACTION: Interim rule.
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SUMMARY: The Office of Procurement and Property Management (OPPM) of
the Department of Agriculture (USDA) amends the Agriculture Acquisition
Regulation (the ``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
results 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
interim 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 requred in
the 2014 Agricultural Act.
DATES: This interim rule is effective May 22, 2014. Interested parties
should submit written comments on this interim rule, to the Department
of Agriculture before June 23, 2014 to be considered in the formulation
of a final rule.
ADDRESSES: Submit comments identified in the subject line as ``48 CFR
436 Interim Rule'' by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Email: [email protected].
Mail: Office of Procurement and Property Management,
Procurement Policy Division, MAIL STOP 9306, U.S. Department of
Agriculture, 1400 Independence Avenue SW., Washington, DC 20250-9303.
Hand Delivery/Courier: Procurement Policy Division, Room
262, Reporters' Building, 300 7th Street SW., Washington, DC 20025.
Instructions: All submissions must be identified as ``48 CFR 436
Interim Rule'' for this rulemaking. Please include your name, company
name (if applicable), email address and/or phone number where you can
be contacted if additional clarification is required regarding your
comment(s).
FOR FURTHER INFORMATION CONTACT: Please contact Curt Brown, Office of
Procurement and Property Management, by telephone at (202) 720-0840, by
email at [email protected], or by mail at OPPM, MAIL STOP 9304--
U.S. Department of Agriculture--1400 Independence Avenue SW.,
Washington, DC 20250-9303. Please cite ``48 CFR 436 (Interim Rule)'' in
all correspondence.
Individuals who use telecommunication devices for the deaf may call
the Federal Information Relay Service at 800-877-8339 between 8:00 a.m.
and 8:00 p.m., Eastern Daylight Time, Monday through Friday.
SUPPLEMENTARY INFORMATION:
1. 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 Results Contracting Projects; first on a pilot basis and then,
through a succession of subsequent
[[Page 29370]]
amendments, this authority was expanded. The enactment of Section 8205
of the Agricultural Act of 2014 sets forth the permanent authority for
the conduct of 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 and the Director 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 interim rule establishes a new AGAR clause for use in
stewardship contracts subject to the FAR. This clause addresses fire
liability on stewardship end results contracts as required in the 2014
Agricultural Act. The text of the clause is closely specified in the
law. Therefore, it has been determined that this rule should become
effective upon publication. However, comments are requested with regard
to the interim rule.
2. Regulatory Certifications
Regulatory Flexibility Act
USDA certifies that this proposed 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. The Department invites
comment on its estimates for the potential impact of this rulemaking on
small businesses.
Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
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 interim rule falls within this
category of actions and that no extraordinary circumstances exist which
would require preparation of an environmental assessment or
environmental impact statement.
Regulatory Impact
This interim 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 interim
rule would not interfere with an action taken or planned by another
agency, nor raise new legal or policy issues. Finally, this interim
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 interim 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 interim 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 interim 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 interim 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 interim 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
interim 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 interim 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 interim rule
on State, local, and tribal governments and the private sector. This
rule would not compel the expenditure of $100 million, or more by any
State, local, or tribal government, or anyone in the private sector.
Therefore, a statement under section 202 of the Act is not required.
List of Subjects in 48 CFR Parts 436 and 452
Government procurement.
For the reasons set forth in the preamble, the 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 continues to read as follows:
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
Subpart 436.5--Contract Clauses
0
2. Section 436.578 is added to read as follows:
436.578 Contract clause.
Insert the clause at 452.236-78, Fire Suppression and Liability, as
applicable, in solicitations and contracts for Integrated Resource
Service Contracts (IRSC) awarded for the Forest Service.
PART 452--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. The authority citation for part 452 continues to read as follows:
Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).
0
4. Section 452.236-78 is added to read as follows:
452.236-78 Fire Suppression and Liability.
As prescribed in Sec. 436.578, the following clause may be
inserted in contracts awarded fir Intergrated Resource Service
Contracts (IRSC) awarded for the Forest Service.
[[Page 29371]]
Fire Suppression and Liability (May 2014)
(a) Contractor's Responsibility for Fire Fighting. The
Contractor, under the provisions of FAR clause 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:
(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 of the 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 CHANGES clause, FAR 52.243-4.
(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 contact 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: May 15, 2014.
Lisa M. Wilusz,
Director, Office of Procurement and Property Management.
[FR Doc. 2014-11770 Filed 5-21-14; 8:45 am]
BILLING CODE 3410-TX-P