Agriculture Acquisition Regulation, Fire Suspension Suppression and Liability, 29369-29371 [2014-11770]

Agencies

• DEPARTMENT OF AGRICULTURE
• Office of Procurement and Property Management

[Federal Register Volume 79, Number 99 (Thursday, May 22, 2014)]
[Rules and Regulations]
[Pages 29369-29371]
From the Federal Register Online via the Government Printing 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: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: Procurement.policy@usda.gov.
     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 Curt.Brown@dm.usda.gov, 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