Agriculture Acquisition Regulation, Fire Suppression and Liability, 7478-7480 [2016-02745]
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7478
Federal Register / Vol. 81, No. 29 / Friday, February 12, 2016 / Rules and Regulations
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OMB Approval Date: February 3,
2016.
OMB Expiration Date: February 28,
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Title: Section 73.1216, LicenseeConducted Contests.
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VerDate Sep<11>2014
16:06 Feb 11, 2016
Jkt 238001
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Gloria J. Miles,
Federal Register Liaison Officer, Office of the
Secretary.
[FR Doc. 2016–02900 Filed 2–11–16; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF AGRICULTURE
48 CFR Parts 436 and 452
RIN 0599–AA21
Agriculture Acquisition Regulation,
Fire Suppression and Liability
Office of Procurement and
Property Management, U.S. Department
of Agriculture
ACTION: Final rule.
AGENCY:
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:
SUMMARY:
I. Authority
II. Background
III. Discussion of Comments
IV. Summary of the Comments
V. Regulatory Information
List of Subjects
PO 00000
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Fmt 4700
Sfmt 4700
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
E:\FR\FM\12FER1.SGM
12FER1
Federal Register / Vol. 81, No. 29 / Friday, February 12, 2016 / Rules and Regulations
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.
srobinson on DSK5SPTVN1PROD with RULES
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 nondiscretionary, 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
VerDate Sep<11>2014
16:06 Feb 11, 2016
Jkt 238001
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
PO 00000
Frm 00035
Fmt 4700
Sfmt 4700
7479
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.
E:\FR\FM\12FER1.SGM
12FER1
7480
Federal Register / Vol. 81, No. 29 / Friday, February 12, 2016 / Rules and Regulations
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
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)
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
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)
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
srobinson on DSK5SPTVN1PROD with RULES
(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
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16:06 Feb 11, 2016
Jkt 238001
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
PO 00000
Frm 00036
Fmt 4700
Sfmt 9990
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
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12FER1
Agencies
[Federal Register Volume 81, Number 29 (Friday, February 12, 2016)]
[Rules and Regulations]
[Pages 7478-7480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02745]
=======================================================================
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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)
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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
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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)
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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