81 FR 7478 - Agriculture Acquisition Regulation, Fire Suppression and Liability
DEPARTMENT OF AGRICULTURE Federal Register Volume 81, Issue 29 (February 12, 2016)
Federal Register Volume 81, Issue 29 (February 12, 2016)
| Page Range | 7478-7480 | |
| FR Document | 2016-02745 |
[Federal Register Volume 81, Number 29 (Friday, February 12, 2016)] [Rules and Regulations] [Pages 7478-7480] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-02745] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF AGRICULTURE 48 CFR Parts 436 and 452 RIN 0599-AA21 Agriculture Acquisition Regulation, Fire Suppression and Liability AGENCY: Office of Procurement and Property Management, U.S. Department of Agriculture ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Office of Procurement and Property Management (OPPM) of the U.S. Department of Agriculture (USDA) amends the Agriculture Acquisition Regulation (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 Result 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 final 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 required in the 2014 Agricultural Act. DATES: Effective March 14, 2016. FOR FURTHER INFORMATION CONTACT: Ms. Ismaela Ramirez, Senior Procurement Analyst, USDA, Office of Procurement and Property Management at (202) 730-7997. SUPPLEMENTARY INFORMATION: I. Authority II. Background III. Discussion of Comments IV. Summary of the Comments V. Regulatory Information List of Subjects I. Authority The enactment of Section 8205 of the Agricultural Act of 2014 (Pub. L. 113-79) establishes permanent authority to conduct Stewardship End Result Contracting projects by adding a new Section 604 to the Healthy Forests Restoration Act of 2003 (HFRA) (16 U.S.C. 6591c). Section 8205 of the 2014 Agricultural Act 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 and timber sale contracts conducted pursuant to Section 14 of the National Forest Management Act of 1976 (16 U.S.C. 472a). II. 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 Result Contracting Projects; first on a pilot basis and then, through a succession of subsequent amendments, this authority was expanded. The enactment of Section 8205 of the Agricultural Act of 2014 sets forth the permanent authority for conducting 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 of the Forest Service and the Director of the Bureau of Land Management 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 final rule establishes a new AGAR clause for use in stewardship contracts subject to the FAR. This clause addresses fire liability on Stewardship End Result Contracting, as required in the 2014 Agricultural Act. The text of the clause is closely specified in the law. III. Discussion of Comments USDA solicited comments on the interim rule on May 22, 2014. USDA received two comments at the end of the [[Page 7479]] posted comment period on June 23, 2014. Both comments were received from the Federal Forest Resource Coalition (FFRC), a national trade association comprised of large and small companies, regional and state associations, county governments, and others concerned about the management of our National Forests and the landscape covered by Bureau of Land Management. Both comments recommend changes to add clarity and consistency to the language in the regulations. The comments suggest that USDA follow the requirement of implementing a liability clause for IRSC contracts that mirrored Integrated Resource Timber Contracts (IRTC). The comments from FFRC are presented below, along with USDA's responses and are grouped by the Code of Federal Regulations (CFR) section numbers to which they apply. 48 CFR 436.578 Comment (1) In Section 436.578, we recommend that you delete ``as applicable''. Section 8205 of the Agricultural Act of 2014 states that ``. . . the Chief and Director shall issue for use in all [emphasis added] contracts and agreements under this section fire liability provisions . . .'' 48 CFR 452.236-78 Comment (2) In Section 452.236-78, we recommend that you change ``may be inserted'' to ``shall be inserted''. Again, Section 8205 of the Agricultural Act of 2014 states that ``. . . the Chief and Director shall issue for use in all [emphasis added] contracts and agreements under this section fire liability provisions . . .'' Response: FFRC stated that the plain language in Section 8205 of the Agricultural Act of 2014 (Pub. L. 113-79) makes clear that Congress intended the fire liability provisions to be non-discretionary, both for the issuance of the provision and its use in all contracts. However, they believe that the language in the Interim Rule conveys discretion that is not found in the statute. The Forest Service agrees with both comments and will amend the CFR to read as follows: ``the Chief shall issue for use in all contracts and agreements under this section fire liability provisions that are in substantially the same form (16 U.S.C. 472a) for all IRSC solicitations issued after May 22, 2014. Contracts and agreements in effect on May 22, 2014, are not eligible to insert this provision.'' The Forest Service believes the aforementioned statement in response to the two comments reflects the intention of the Farm Bill with regards to implementing a fire liability clause for Integrated Resources Services Contracts that mirrors current Timber Sales Contracts. This creates the same fire liability for all Forest Service stewardship contract types. IV. Summary of the Comments As a result of public comments received on the interim rule, USDA will amend the CFR to add clarity and consistency that reflects the intention of the Farm Bill with regard to implementing a fire liability clause for IRSCs that mirrors current Timber Sales Contracts. V. Regulatory Information Regulatory Flexibility Act USDA certifies that this final 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. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the final 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 final rule falls within this category of actions and that no extraordinary circumstances exist that would require preparation of an environmental assessment or environmental impact statement. Regulatory Impact This final 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 final rule would not interfere with an action taken or planned by another agency, nor raise new legal or policy issues. Finally, this final 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 final 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 final 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 final 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 final 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 final 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 final 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 final 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 final rule on State, local, and tribal governments and the private sector. This rule would not compel the expenditure of $100 million or more by State, local, and tribal governments, or by the private sector. Therefore, a statement under Section 202 of the Act is not required. [[Page 7480]] List of Subjects 48 CFR Parts 436 and 452 Government procurement. For the reasons set forth in the preamble, the U.S. 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 is revised to read as follows: Authority: 5 U.S.C. 301 and 40 U.S.C. 121(c) 0 2. Section 436.578 is revised to read as follows: 436.578 Contract clause. Insert the clause at 452.236-78, Fire Suppression and Liability in solicitations and contracts for Integrated Resource Service Contracts (IRSC) awarded for the Forest Service. PART 452--SOLICITATION PROVISION AND CONTRACT CLAUSES 0 3. The authority citation for part 452 is revised to read as follows: Authority: 5 U.S.C. 301 and 40 U.S.C. 121(c) 0 4. Section 452.236-78 is revised to read as follows: 452.236-78 Fire Suppression and Liability. As prescribed in section 436.578, the following clause shall be inserted in Intergrated Resource Service Contracts (IRSC) awarded for the Forest Service. Fire Suppression and Liability Clause (a) Contractor's Responsibility for Fire Fighting. The Contractor, under the provisions of FAR clause at 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 listed in subsection (b). (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 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 FAR clause at 52.243-4, Changes. (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 contract 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: February 4, 2016. Gregory L. Parham, U.S. Department of Agriculture, Assistant Secretary for Administration. [FR Doc. 2016-02745 Filed 2-11-16; 8:45 am] BILLING CODE 3410-TX-P
![7478 Federal Register / Vol. 81, No. 29 / Friday, February 12, 2016 / Rules and Regulations
requirements contained in 47 CFR the manner of their compliance with the I. Authority
73.1216, as amended in the Contest Rule while giving consumers The enactment of Section 8205 of the
Commission’s Report and Order, FCC improved access to important contest Agricultural Act of 2014 (Pub. L. 113–
15–118. Under 5 CFR part 1320, an information. 79) establishes permanent authority to
agency may not conduct or sponsor a Federal Communications Commission. conduct Stewardship End Result
collection of information unless it Gloria J. Miles, Contracting projects by adding a new
displays a current, valid OMB Control Section 604 to the Healthy Forests
Federal Register Liaison Officer, Office of the
Number. No person shall be subject to Secretary. Restoration Act of 2003 (HFRA) (16
any penalty for failing to comply with U.S.C. 6591c). Section 8205 of the 2014
[FR Doc. 2016–02900 Filed 2–11–16; 8:45 am]
a collection of information subject to the Agricultural Act contains a requirement
BILLING CODE 6712–01–P
Paperwork Reduction Act that does not that the agency use a fire liability
display a current, valid OMB Control provision in all stewardship contracts
Number. The OMB Control Number is and agreements that is in substantially
3060–1209. DEPARTMENT OF AGRICULTURE
the same form as the fire liability
The foregoing notification is required
48 CFR Parts 436 and 452 provisions contained in the integrated
by the Paperwork Reduction Act of resource timber contract in Forest
1995, Public Law 104–13, October 1, RIN 0599–AA21
Service Contract Numbered 2400–13,
1995, and 44 U.S.C. 3507.
Agriculture Acquisition Regulation, Part H, Section H.4 and timber sale
The total annual reporting burdens
Fire Suppression and Liability contracts conducted pursuant to Section
and costs for the respondents are as
14 of the National Forest Management
follows: AGENCY: Office of Procurement and Act of 1976 (16 U.S.C. 472a).
OMB Control Number: 3060–1209.
Property Management, U.S. Department
OMB Approval Date: February 3, II. Background
of Agriculture
2016.
ACTION: Final rule. Beginning in 1998 with the enactment
OMB Expiration Date: February 28,
of Section 347 of the Department of the
2019.
SUMMARY: The Office of Procurement Interior and Related Agencies
Title: Section 73.1216, Licensee-
and Property Management (OPPM) of Appropriation Act, 1999, the Forest
Conducted Contests.
Form Number: None. the U.S. Department of Agriculture Service has been authorized to carry out
Respondents: Business or other for- (USDA) amends the Agriculture Stewardship End Result Contracting
profit entities; Not-for-profit Acquisition Regulation (AGAR) by Projects; first on a pilot basis and then,
institutions. adding a new clause entitled ‘‘Fire through a succession of subsequent
Number of Respondents and Suppression and Liability.’’ Section amendments, this authority was
Responses: 20,732 respondents; 20,732 8205 of the Agricultural Act of 2014 expanded. The enactment of Section
responses. (2014 Act) provided the USDA Forest 8205 of the Agricultural Act of 2014 sets
Estimated Time per Response: 0.1–9 Service with permanent authority for forth the permanent authority for
hours. Stewardship End Result Contracting by conducting Stewardship End Resulting
Frequency of Response: On occasion adding a new Section 604 to the Healthy Contracting Projects by adding a new
reporting requirement, Third party Forests Restoration Act of 2003. Section Section 604 to the Healthy Forests
disclosure requirement; Recordkeeping 8205 contains a requirement that the Restoration Act of 2003. Section 8205
requirement. agency use a fire liability provision in contains a provision that ‘‘not later than
Obligation to Respond: Required in all stewardship contracts and 90 days after the date of enactment of
order to monitor regulatory compliance. agreements that is in substantially the this section, the Chief of the Forest
The statutory authority for this same form as the fire liability provisions Service and the Director of the Bureau
collection of information is contained in contained in the integrated resource of Land Management shall issue for use
Sections 1, 4 and 303 of the timber contract in Forest Service in all contracts and agreements under
Communications Act of 1934, as Contract Numbered 2400–13, Part H, this section fire liability provisions that
amended. Section H.4. This final rule establishes are in substantially the same form as the
Total Annual Burden: 122,854 hours. a new clause in the AGAR, the USDA fire liability provisions contained in—
Total Annual Cost: $6,219,300. supplement to the Federal Acquisition (A) integrated resource timber contracts,
Nature and Extent of Confidentiality: Regulation (FAR), for use in Integrated as described in the Forest Service
There is no need for confidentiality with Resource Service Contracts (IRSC) Contract Numbered 2400–13, Part H,
this collection of information. subject to the FAR. This new AGAR Section H.4; and (B) timber sale
Privacy Act Impact Assessment: No clause addresses fire liability on contracts conducted pursuant to Section
impact(s). stewardship contracts as required in the 14 of the National Forest Management
Needs and Uses: The Commission’s 2014 Agricultural Act. Act of 1976 (16 U.S.C. 472a).’’
amendments to its ‘‘Contest Rule’’ DATES: Effective March 14, 2016. This final rule establishes a new
permit broadcast licensees to comply FOR FURTHER INFORMATION CONTACT: Ms. AGAR clause for use in stewardship
with their obligation to disclose material Ismaela Ramirez, Senior Procurement contracts subject to the FAR. This clause
contest terms either by broadcasting Analyst, USDA, Office of Procurement addresses fire liability on Stewardship
those terms or by making them available and Property Management at (202) 730– End Result Contracting, as required in
in writing on a publicly accessible 7997. the 2014 Agricultural Act. The text of
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Internet Web site. The Commission’s the clause is closely specified in the
SUPPLEMENTARY INFORMATION:
rule amendments also define the law.
I. Authority
disclosure obligation in cases where a II. Background
licensee has chosen to meet that III. Discussion of Comments
III. Discussion of Comments
obligation through an Internet Web site. IV. Summary of the Comments USDA solicited comments on the
The information collection requirements V. Regulatory Information interim rule on May 22, 2014. USDA
afford broadcasters more flexibility in List of Subjects received two comments at the end of the
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![Federal Register / Vol. 81, No. 29 / Friday, February 12, 2016 / Rules and Regulations 7479
posted comment period on June 23, of the Farm Bill with regards to Budget (OMB) review under Executive
2014. implementing a fire liability clause for Order (E.O.) 12866.
Both comments were received from Integrated Resources Services Contracts
the Federal Forest Resource Coalition No Takings Implications
that mirrors current Timber Sales
(FFRC), a national trade association Contracts. This creates the same fire The USDA has analyzed this final rule
comprised of large and small liability for all Forest Service in accordance with the principles and
companies, regional and state stewardship contract types. criteria contained in E.O. 12630 and
associations, county governments, and determined that the rule would not pose
others concerned about the management IV. Summary of the Comments
the risk of a taking of private property.
of our National Forests and the As a result of public comments
landscape covered by Bureau of Land received on the interim rule, USDA will Civil Justice Reform Act
Management. amend the CFR to add clarity and The USDA has reviewed this final
Both comments recommend changes consistency that reflects the intention of rule under E.O. 12778, Civil Justice
to add clarity and consistency to the the Farm Bill with regard to Reform. Under this rule, (1) all State and
language in the regulations. The implementing a fire liability clause for local laws and regulations that conflict
comments suggest that USDA follow the IRSCs that mirrors current Timber Sales with this rule or that impede its full
requirement of implementing a liability Contracts. implementation would be preempted;
clause for IRSC contracts that mirrored (2) no retroactive effect would be given
V. Regulatory Information
Integrated Resource Timber Contracts to this final rule; and (3) it would
(IRTC). The comments from FFRC are Regulatory Flexibility Act require administrative proceedings
presented below, along with USDA’s USDA certifies that this final rule will before parties may file suit in court
responses and are grouped by the Code not have a significant impact on a challenging its provisions.
of Federal Regulations (CFR) section substantial number of small entities, as
numbers to which they apply. defined in the Regulatory Flexibility Federalism and Consultation and
Act, 5 U.S.C. 601, et seq. There is no Coordination With Indian Tribal
48 CFR 436.578 Governments
additional submission required as a
Comment (1) In Section 436.578, we result of this action. The rule will not
recommend that you delete ‘‘as The USDA has considered this final
have a significant impact on the small rule under the requirements of E.O.
applicable’’. Section 8205 of the business community or on a substantial
Agricultural Act of 2014 states that 13132 on Federalism and has
number of small businesses. determined that this rule conforms to
‘‘. . . the Chief and Director shall issue
for use in all [emphasis added] contracts Paperwork Reduction Act the Federalism principles in the E.O.
and agreements under this section fire The rule would not impose any
The Paperwork Reduction Act does
liability provisions . . .’’ compliance costs on the States; and
not apply because the final rule does not
would not have any substantial direct
48 CFR 452.236–78 impose any record keeping or
effects on the States, the relationship
information collection requirements that
Comment (2) In Section 452.236–78, between the Federal Government and
require approval by the Office of
we recommend that you change ‘‘may the States, or the distribution of power
Management and Budget.
be inserted’’ to ‘‘shall be inserted’’. and responsibilities among the various
Again, Section 8205 of the Agricultural Environmental Impact levels of government. Moreover, this
Act of 2014 states that ‘‘. . . the Chief The USDA has determined that this final rule does not have tribal
and Director shall issue for use in all final rule falls within this category of implications as defined by E.O. 13175,
[emphasis added] contracts and actions and that no extraordinary Consultation and Coordination with
agreements under this section fire circumstances exist that would require Indian Tribal Governments, and
liability provisions . . .’’ preparation of an environmental therefore advance consultation with
Response: FFRC stated that the plain assessment or environmental impact tribes is not required.
language in Section 8205 of the statement. Energy Effects
Agricultural Act of 2014 (Pub. L. 113–
79) makes clear that Congress intended Regulatory Impact The USDA has reviewed this final
the fire liability provisions to be non- This final rule has been reviewed rule under E.O. 13211, Actions
discretionary, both for the issuance of under USDA procedures and Executive Concerning Regulations That
the provision and its use in all Order 12866 on Regulatory Planning Significantly Affect Energy Supply,
contracts. However, they believe that and Review. It has been determined that Distribution, or use and has determined
the language in the Interim Rule this is not a significant rule. This rule that this rule would not constitute a
conveys discretion that is not found in would not have an annual effect of $100 significant energy action as defined in
the statute. The Forest Service agrees million or more on the economy, nor the E.O.
with both comments and will amend the would it adversely affect productivity,
Unfunded Mandates Reform
CFR to read as follows: ‘‘the Chief shall competition, jobs, the environment,
issue for use in all contracts and public health and safety, or State or Pursuant to Title II of the Unfunded
agreements under this section fire local governments. This final rule Mandates Reform Act of 1995 (2 U.S.C.
liability provisions that are in would not interfere with an action taken 1531–1538), the USDA assessed the
substantially the same form (16 U.S.C. or planned by another agency, nor raise effects of this final rule on State, local,
srobinson on DSK5SPTVN1PROD with RULES
472a) for all IRSC solicitations issued new legal or policy issues. Finally, this and tribal governments and the private
after May 22, 2014. Contracts and final rule would not alter the budgetary sector. This rule would not compel the
agreements in effect on May 22, 2014, impact of entitlement, grant, user fee, or expenditure of $100 million or more by
are not eligible to insert this provision.’’ loan programs or the rights and State, local, and tribal governments, or
The Forest Service believes the obligations of beneficiaries of such by the private sector. Therefore, a
aforementioned statement in response to programs. Accordingly, this final rule is statement under Section 202 of the Act
the two comments reflects the intention not subject to Office of Management and is not required.
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List of Subjects 48 CFR Parts 436 and the work. The Contractor may be held Contractor at the request of Forest
452 liable for all damages and for all costs Service, on any fire on contract area
Government procurement. incurred by the Government for labor, other than an operations fire or a
subsistence, equipment, supplies, and negligent fire.
For the reasons set forth in the transportation deemed necessary to (c) Contractor’s Responsibility for
preamble, the U.S. Department of control or suppress a fire set or caused Notification in Case of Fire. The
Agriculture amends 48 CFR Chapter 4, by the Contractor or the Contractor’s Contractor shall immediately notify the
in the following manner: agents or employees subject to the Government of any fires sighted on or in
PART 436—CONSTRUCTION AND following fire classifications listed in the vicinity of the work site.
ARCHITECT-ENGINEER CONTRACTS subsection (b). (d) Contractor’s Responsibility for
(b) Fire Suppression Costs. The Responding to Emergencies. When
■ 1. The authority citation for part 436 Contractor’s obligations for cost of fire directed by the Contracting Officer, the
is revised to read as follows: suppression vary according to three Contractor shall temporarily redirect
Authority: 5 U.S.C. 301 and 40 U.S.C.
classifications of fires as follows: employees and equipment from the
121(c) (1) Operations Fire. An ‘‘operations work site for emergency work
fire’’ is a fire caused by the Contractor’s (anticipated to be restricted to
■ 2. Section 436.578 is revised to read operations other than a negligent fire. firefighting). This is considered to be
as follows: The Contractor agrees to reimburse within the general scope of the contract.
436.578 Contract clause. Forest Service for such cost for each An equitable adjustment for any such
Insert the clause at 452.236–78, Fire operations fire, subject to a maximum redirection of employees and equipment
Suppression and Liability in dollar amount of [Contracting Officer will be made under the FAR clause at
solicitations and contracts for Integrated insert amount]. The cost of the 52.243–4, Changes.
Resource Service Contracts (IRSC) Contractor’s actions, supplies, and (e) Performance by the Contractor.
awarded for the Forest Service. equipment on any such fire, or Where the Contractor’s employees,
otherwise provided at the request of agents, contractors, subcontractors, or
PART 452—SOLICITATION PROVISION Forest Service, shall be credited toward their employees or agents perform the
AND CONTRACT CLAUSES such maximum. If the Contractor’s Contractor’s operations in connection
actual cost exceeds contractor’s with fire responsibilities, the
■ 3. The authority citation for part 452 obligation stated above, Forest Service Contractor’s obligations shall be the
is revised to read as follows: shall reimburse the contractor for the same as if performance was by
Authority: 5 U.S.C. 301 and 40 U.S.C. excess. Contractor.
121(c) (2) Negligent Fire. A ‘‘negligent fire’’ (f) State Law. The Contractor shall not
■ 4. Section 452.236–78 is revised to is a fire caused by the negligence or be relieved by the terms of this contract
read as follows: fault of the Contractor’s operations of any liability to the United States for
including, but not limited to, one fire suppression costs recovered in an
452.236–78 Fire Suppression and Liability. caused by smoking by persons engaged action based on State law, except for
As prescribed in section 436.578, the in the Contractor’s operations during the such costs resulting from operations
following clause shall be inserted in course of their employment, or during fires. Amounts due to the Contractor for
Intergrated Resource Service Contracts rest or lunch periods; or if the firefighting expenditures on operations
(IRSC) awarded for the Forest Service. Contractor’s failure to comply with fires shall not be withheld pending
requirements under this contract results settlement of any such claim or action
Fire Suppression and Liability Clause in a fire starting, or permits a fire to based on State law.
(a) Contractor’s Responsibility for Fire spread. Damages and the cost of (End of Clause)
Fighting. The Contractor, under the suppressing negligent fires shall be
provisions of FAR clause at 52.236–9, borne by the Contractor. Dated: February 4, 2016.
Protection of Existing Vegetation, (3) Other Fires on Contract Area. Gregory L. Parham,
Structures, Equipment, Utilities, and Forest Service shall pay the Contractor, U.S. Department of Agriculture, Assistant
Improvements, shall immediately at firefighting rates common in the area Secretary for Administration.
extinguish all fires on the work site or at prior agreed rates, for equipment [FR Doc. 2016–02745 Filed 2–11–16; 8:45 am]
other than those fires in use as a part of or personnel furnished by the BILLING CODE 3410–TX–P
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Document Created: 2016-02-12 01:24:10
Document Modified: 2016-02-12 01:24:10
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective March 14, 2016. | |
| Contact | Ms. Ismaela Ramirez, Senior Procurement Analyst, USDA, Office of Procurement and Property Management at (202) 730-7997. | |
| FR Citation | 81 FR 7478 | |
| RIN Number | 0599-AA21 | |
| CFR Citation | 48
CFR
436 48 CFR 452 |
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