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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: May 20, 2005

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

SOURCE: Federal Register, May 20, 2005, Vol. 70, No. 97, page 29208

AGENCIES: Office of the Secretary of the Interior

ACTION: Final Rule

SYNOPSIS: The Department of the Interior (DOI) is finalizing, with changes, the interim final rule that added 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: For more on the interim final rule being finalized, see the August 27, 2004, FEDERAL CONTRACTS DISPATCH “Department of the Interior Acquisition Regulation (DIAR); Woody Biomass Utilization.”

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.

EFFECTIVE DATE: May 20, 2005.

FOR FURTHER INFORMATION CONTACT: Delia Emmerich, Office of Acquisition and Property Management, DOI, 202-208-3348, or e-mail: Delia_Emmerich@os.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 this type of material.

On August 27, 2004, DOI published an interim final rule adding DIAR Part 1437. DOI received comments from two respondents, and as a result of comments is finalizing the rule by moving the language to DIAR Subpart 1437.72, Utilization of Woody Biomass, moving the contract clause that was in DIAR 1437.103, Format of Woody Biomass Utilization Clause, to DIAR 1452.237-71, Utilization of Woody Biomass, and making some minor clarifications.

The following are the key provisions of DIAR Subpart 1437.72 (with the corresponding section numbering in parentheses):

• DIAR 1437.7200, General (formerly DIAR 1437.100), 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 1437.7201, When can woody biomass be removed? (formerly DIAR 1437.101), 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 1437.7202, When is the biomass utilization clause required? (formerly DIAR 1437.102), requires that DIAR 1452.237-71 be used in each solicitation and contract that is expected to generate woody biomass that meets the requirements of DIAR 1437.7201 unless biomass removal is required elsewhere in the contract. In addition, the contract “will 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 1437.7203, Definitions (formerly DIAR 1437.104), provides definitions for "ecologically appropriate"; “responsible official,” "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").

DIAR 1452.237-71 (formerly DIAR 1437.103, Format of Woody Biomass Utilization 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 timber/vegetative 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 the related timber/vegetative sales contract before removal may be authorized."
  
  
• "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."

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953.

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