Page 63 - Early Winter 2014

that are imposed on traditional federal contractors, like defense contractors. The DOL agreed, stating that “[t]he [DOL’s] conclusion that USFS SUPs and similar instruments constitute contracts under [this] Executive Order and this final rule does not render NSAA’s members ‘federal contractors’ with respect to other Federal laws.” This was a critical concession, because this is the first time ever that a federal agency has definitively put into writing the conclusion that ski areas are not “federal contractors” for a whole host of other onerous regulations for tradi- January 1, 2015, did not extend to sim- practice, are not really the result of “bilat- tional federal contractors. ple, common changes to ski area permits eral negotiations” with the Forest Service. But while USFS special use permits or amendments to operating plans. The agency explained that “[t]he will be affected by this minimum wage The DOL’s final rule, however, states [DOL’s] approach in this final rule is hike, there are a number of ways that ski that certain “modifications” to an exist- designed to reflect that modifications areas may still be exempted from the hike. ing SUP could rise to the level of a “new within the scope of the contract do not in contract” for purposes of inserting a min- fact constitute new contracts.” The DOL “New CoNtraCts” imum wage clause into the permit. This is added that “if the parties bilaterally nego- The DOL’s final rule stated that the min- particularly troubling, because the DOL’s tiate a modification that is outside the imum wage hike will be implemented final rule does not fully explain what con- scope of the contract, the agency will be through minimum wage clauses inserted stitutes a “modification” for purposes of required to create a new contract . . . and into any “new” contract arising after creating a new contract that would allow will constitute a ‘new contract’ subject to January 1, 2015. For those ski areas insertion of the wage clause. the minimum wage requirements of this with long-term SUPs that are not up for The DOL stated that “any renew- rule.” The DOL went on to add that it renewal and are not expected to be termi- als or extensions of contracts resulting “cautions, however, that whether a mod- nated and reissued as a result of a transac- from bilateral negotiations involving ification qualifies as ‘within the scope’ or tion for many years down the road, these contractual modifications other than ‘outside the scope’ of the contract is nec- ski areas may not be subject to the inser- administrative changes would qualify as essarily a fact-specific determination.” tion of a minimum wage clause by the ‘new contracts’ subject to the Executive Most troubling, however, is that the Forest Service until their permit is up for Order if they are awarded on or after DOL is pushing all federal agencies to renewal, or there is a transfer or sale of January 1, 2015.” err on the side of finding any rationale to the ski area. This begs the questions: What insert minimum wage clauses into con- Indeed, when President Obama’s exactly constitutes a mere “administrative tracts and permits. The DOL explained in executive order first came out, the Forest change,” and what degree of permit mod- its final rule that “while ‘in scope’ modifi- Service told the ski industry that the rule ification is required in order for a “modi- cations do not create ‘new contracts’ under might not affect ski areas in the short fication” to the SUP to be deemed a “new this final rule, DOL strongly encourages term as much as anticipated, because contract” subject to the executive order? agencies to bilaterally negotiate, as part of most ski area permits would not be up for In fact, in the Forest Service’s own com- any such modification, application of the renewal for years, if not decades, given the ments submitted to the DOL regarding minimum wage requirements so that these 40-year term of most SUPs. this wage hike, the USFS asked whether contracts can take advantage of the bene- The DOL, however, is now pushing a contract modification would include fits of a higher minimum wage.” the Forest Service to find any excuse to something “that did not change the scope Certainly, if a ski area is sold to a new insert a minimum wage clause into per- of authorized services or facilities (such owner in 2015 or 2016, the new owner mits whenever possible. NSAA sought as updating annual operating plans).” will have a minimum wage clause inserted clarification that a “new contract” after Furthermore, changes to ski area SUPs, in into the new SUP. But the DOL’s final w w w. n s a a . o rg EARLY WINTER 2014 | NSAA Journal | 61 NSAA Early Winter 2014 prepressed v5b.indd 61 10/29/14 6:09 PM