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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: August 27, 2004

SUBJECT: Department of the Interior Acquisition Regulation (DIAR); Woody Biomass Utilization

SOURCE: Federal Register, August 27, 2004, Vol. 69, No. 166, page 52607

AGENCIES: Assistant Secretary for Policy, Management and Budget, Department of the Interior (DOI)

ACTION: Interim Final Rule

SYNOPSIS: DOI is adding DIAR Part 1437, Utilization of Woody Biomass, to provide contractors the option of removing woody biomass by-products from DOI land management activities wherever ecologically appropriate and in accordance with the law.

EDITOR'S NOTE: The DIAR is Chapter 14 of Title 48 of the Code of Federal Regulations. It is available on the Internet at http://www.doi.gov/pam/aindex.html.

DATES: This interim final rule is effective August 27, 2004. Comments on the rule must be received by October 26, 2004.

ADDRESSES: Submit comments, identified by "1084-AA00," to: (1) http://www.regulations.gov; (2) e-mail: John_Stewart@ios.doi.gov; (3) fax: 202-606-3150; (4) mail: Office of Wildland Fire Coordination, Department of the Interior, MS-3060 1849 C Street NW, Washington, DC 20240; or (5) hand delivery: Office of Wildland Fire Coordination, MS-3060, Department of the Interior, 1849 C Street NW, Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Wiley Horsley, Office of Acquisition and Property Management, DOI, at 202-208-3347, or by e-mail at Wiley_Horsley@ios.doi.gov.

SUPPLEMENTAL INFORMATION: Woody biomass consists of "trees and woody plants, including limbs, tops, needles, leaves, and other woody parts, grown in a forest, woodland, or rangeland environment, that are the by-products of management, restoration and/or hazardous fuel reduction treatment." This rule establishes procedures allowing contractors to remove woody biomass by-products from DOI land management activities when ecologically appropriate ("for example, it may be necessary to retain snags or small woody debris to meet wildlife habitat objectives, or to create specific prescribed burning conditions to stimulate native plant development"). Removal or use of woody biomass will reduce smoke and emissions from prescribed and natural fires; preserve landfill capacities; reduce the threat of catastrophic wildfires to communities and public/private utilities; improve watershed and wildlife habitat protection; and improve forest, woodland, and rangeland health by reducing insects, disease, and invasive plant and animal species. The Forest Service of the Department of Agriculture has provisions in timber sale, service, and stewardship contracts that provide opportunities to utilize the type of materials included in this rule.

The following are the key provisions of new DIAR Part 1437:

• DIAR 1437.100, General, explains the purpose of the part, and states, "If the woody biomass has fair market value and payment is required, or as required by regulation, Bureau [of Land Management] policy or the Mineral Materials Disposal Act of 1947,...a separate timber/vegetative sales contract must be executed."
  
  
• DIAR 1437.101, When can woody biomass be removed?, states that DOI "allows and encourages contractors to remove and use woody biomass from project areas when: (1) the biomass is generated during land management service contract activity; and (2) removal is ecologically appropriate." It goes on to require a contractor removing biomass to "(1) do so only within legal limits applicable to the contractor, including National Environmental Policy Act (NEPA) compliance; and (2) if required, comply with the terms, conditions and special provisions of the applicable timber/vegetative sales notice."
  
  
• DIAR 1437.102, When is the biomass utilization clause required?, requires that the clause in DIAR 1437.103, Format of Woody Biomass Utilization Clause, be used in any solicitation or contract expected to generate woody biomass that meets the requirements of DIAR 1437.101 unless biomass removal is already required in the service contract. In solicitations and contracts meeting the requirements of DIAR 1437.101, the contracting officer must also "specify any limitations on types of woody biomass that may not be removed; and specify any areas from which woody biomass must not be removed."
  
  
• DIAR 1437.103, Format of Woody Biomass Utilization Clause, requires the contracting officer to include the "Utilization of Woody Biomass" in solicitations and contracts meeting the requirements of DIAR 1437.101. The clause provides that:
  
  
  • "The contractor may remove and utilize woody biomass, if: (a) project work is progressing as scheduled; and (b) removal is completed before contract expiration."
    
    
  • Requires the contractor to submit a written request if it wishes to execute this option.
    
    
  • "If appropriate, the government and the contractor will negotiate and execute a separate timber/vegetative sales contract. Payment under this sales contract must be at a price equal to or greater than the appraised value before the removal of any woody biomass. The contractor must make any appropriate payment specified in this timber/vegetative sales contract."
    
    
  • "If required by law, regulation or Bureau [of Land Management] policy, the government will prepare a timber/vegetative sales notice and/or prospectus, including volume estimates, appraised value and any appropriate special provisions."
    
    
  • "The contractor must treat any woody biomass not removed in accordance with the specifications in the service contract."
    
    
  • "The sales contract and service contract are severable; default or termination under either contract does not remove the contractor from payment or performance obligations under the other contract."
  
  
• DIAR 1437.104, Definitions, provides definitions for "ecologically appropriate"; "timber/vegetative sales contract and/or notice" ("contract instrument for the sale, barter, exchange, billing or other compensation for the payment, removal, and/or transportation of woody biomass material"); "woody biomass"; and "woody biomass utilization" ("the harvest, sale, offer, trade, and/or utilization of woody biomass to produce the full range of wood products, including timber, engineered lumber, paper and pulp, furniture and value-added commodities, and bio-energy and/or bio-based products such as plastics, ethanol and diesel").

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

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