Current through Register Vol. 63, No. 9, September 1, 2024
(1) Under ORS
477.120(6), "if
a fire originates while an operation is in progress, there is a presumption,
under ORS 40.120, that the fire originated
as a result of the operation." "Operation in progress" as defined by
477.001(19)
means "that time when workers are on an operation area for the purpose of an
operation, including the period of time when fire watches are required to be on
the operation area pursuant to
477.665." "Operation area" is
defined by 477.001(18) to
mean "the area on which an operation is being conducted and the area on which
operation activity may have resulted in the ignition of a fire."
(2) When determining whether the presumption
in ORS 477.120(6)
applies, the forester must determine whether the fire origin was on an
operation area. In doing so, the forester may:
(a) Include any area where an ignition source
of any type connected with the operation activity could reasonably be
determined to reach flammable material, such as:
(A) On or adjacent to the area specifically
described in the notice of operation required in ORS 527.670 or the permit to
operate power driven machinery required in ORS
477.625, regardless of
ownership; or
(B) On an area,
regardless of whether a notice of operation or application for a permit to
operate power driven machinery was properly submitted, that is:
(i) Within or adjacent to the timber cutting
boundary of a harvest unit or road construction project or within or adjacent
to the area of other planned operation activity;
(ii) Within or adjacent to where power driven
machinery has been operated;
(iii)
Within or adjacent to where workers have worked, traversed to access their
work, traversed to return to their transports or taken breaks;
(iv) Within or adjacent to where logging
lines, rigging, carriages or blocks have been operated; or
(v) Where vehicles connected with the
operation activity have been operated over or adjacent to flammable materials,
such as a turnaround, trail or road that is within the area of planned
operation activity.
(b) Not include any area outside the area
described in subsection (a) of this section where the only operation activity
consists of hauling logs or workers traveling to and from the operation on
improved roads in properly maintained vehicles authorized for use on such roads
by the motor vehicle laws of this state.
(c) For the purposes of this section,
"improved road" means a road maintained for the use of passenger vehicles and
that is clear of flammable vegetation or debris.
(3) Notwithstanding section (2) of this rule,
any direct evidence of the fire cause that links the origin of a fire to
operation activity allows the forester to hold the owner or operator
responsible under the provisions of ORS
477.120(2)(b).
(4) Under ORS
477.120(5) an
owner or operator is not eligible for the limits on liability provided in
477.120(3) or
(4)"if the owner or operator fails to make
every reasonable effort."
(5) ORS
477.001(6)
defines "every reasonable effort" to mean "the use of the reasonably available
personnel and equipment under the supervision and control of an owner or
operator, which are needed and effective to fight the fire in the judgment of
the forester and which can be brought to bear on the fire in a timely
fashion."
(6) "Every reasonable
effort" is by design a standard that will differ by each owner's or operator's
individual circumstance. If the forester determines it is practicable to do so,
the forester, in cooperation with the owner or operator in the early stages of
a fire, will make an initial assessment of the "reasonably available personnel
and equipment" that can be provided by the owner or operator. If the forester
determines that such a cooperative assessment is not practicable, the forester
must make the assessment using the best information available at the time. The
determination of resources required to suppress the fire may change as
necessary throughout the duration of the fire and shall be communicated to the
owner or operator as such changes occur.
(7) As used in ORS
477.001(6)
pursuant to 477.120(5),
"reasonably available personnel and equipment under the supervision and control
of an owner or operator":
(a) May include
resources such as:
(A) The owner or any
operators involved in the subject operation, if natural persons;
(B) Any person employed by the owner or any
operators whose operations are involved in the fire, or any person contracted
or subcontracted by the owner or any operators to work on any operation
involved in the fire;
(C) Equipment
of any type, other than aircraft, owned by the owner or operator, or rented,
leased, or otherwise under the control of the owner or operator that is not
barred from use in fire suppression by the nature of the contractual
arrangement and that, in the judgment of the forester, is needed and can be
effective in the effort to suppress the fire; or
(D) Notwithstanding paragraph (C) of this
subsection, aircraft that are already in use as part of the operation or
burning activity that resulted in the fire, for the remaining daylight hours of
the day the fire was first attacked and for one subsequent daylight burning
period.
(b) May not
include:
(A) Aircraft that are not in use as
part of the operation or burning activity that resulted in the fire;
(B) Personnel or equipment that are already
actively engaged in a fire management or suppression effort at a different
location;
(C) Personnel or
equipment that are actively completing fire watch requirements on another
operation;
(D) Any personnel or
equipment that are currently located more than 100 miles from the fire unless
the personnel or equipment would normally be returning to a location within 100
miles of the fire within the time that they are needed to suppress the
fire;
(E) Any personnel or
equipment that are currently located less than 100 miles from the fire, but
that would have to cross jurisdictional boundaries such as state lines, if
doing so would necessitate licensing, permitting, or other such requirements
that could not reasonably be met within the time the resource is needed to
suppress the fire;
(F) Employees
who, for reasons of physical capability or unfamiliarity with forestland
conditions, cannot reasonably be expected to meet requirements for persons
employed in firefighting in accordance with Oregon Occupational Safety and
Health Standards, OAR chapter 437, division 7 within the time they are needed
to suppress the fire; or
(G)
Employees who, for reasons of court ordered restrictions or military obligation
cannot reasonably be expected to be available for firefighting within the time
they are needed to suppress the fire.
(c) For the purposes of this section,
"equipment" may include, but is not limited to maps, lists or geographic
information databases that contain information such as location of roads,
terrain, fuel concentrations, water sources, or location of firefighting
resources that the forester determines may be helpful in suppressing the
fire.
(8) Nothing in
this rule is intended to discourage or restrict the owner or operator from
voluntarily providing resources in addition to those specified in section (7)
of this rule.
Stat. Auth.: ORS 526.041(1)
Stats. Implemented: ORS
477.120
