Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 11371 

(i) The Contractor shall use, modify, 

reproduce, perform, or display technical 

data received from the Government with 

limited rights legends or computer 

software received with restricted rights 

legends only in the performance of this 

contract. The Contractor shall not, 

without the express written permission 

of the party whose name appears in the 

legend, release or disclose such data or 

software to any unauthorized person. 

(ii) If the Contractor is a covered 

Government support contractor, the 

Contractor further agrees and 

acknowledges that— 

(A) The data or software will be 

accessed and used only for the purposes 

stated in this contract and shall not be 

used to compete for any Government or 

non-Government contract; 

(B) The Contractor will take all 

reasonable steps to protect the technical 

data or computer software against any 

unauthorized release or disclosure; 

(C) The Contractor will ensure that 

the party whose name appears in the 

legend is notified of the Contractor’s 

access or use of such data or software; 

(D) The Contractor will enter into a 

non-disclosure agreement with the party 

whose name appears in the legend, if 

required to do so by that party, and that 

any such non-disclosure agreement will 

implement the restrictions on the 

Contractor’s use of such data or software 

as set forth in this clause, and shall not 

include any additional terms and 

conditions unless mutually agreed to by 

the parties to the non-disclosure 

agreement; 

(E) The Contractor shall provide a 

copy of any such non-disclosure 

agreement or waiver to the Contracting 

Officer, upon request; and 

(F) That a breach of these obligations 

or restrictions may subject the 

Contractor to— 

(1) Criminal, civil, administrative, and 

contractual actions in law and equity for 

penalties, damages, and other 

appropriate remedies by the United 

States; and 

(2) Civil actions for damages and 

other appropriate remedies by the party 

whose name appears in the legend. 

(2) GFI marked with government 

purpose rights legends. The Contractor 

shall use technical data or computer 

software received from the Government 

with government purpose rights legends 

for government purposes only. The 

Contractor shall not, without the 

express written permission of the party 

whose name appears in the restrictive 

legend, use, modify, reproduce, release, 

perform, or display such data or 

software for any commercial purpose or 

disclose such data or software to a 

person other than its subcontractors, 

suppliers, or prospective subcontractors 

or suppliers, who require the data or 

software to submit offers for, or perform, 

contracts under this contract. Prior to 

disclosing the data or software, the 

Contractor shall require the persons to 

whom disclosure will be made to 

complete and sign the non-disclosure 

agreement at 227.7103–7. 

(3) GFI marked with specially 

negotiated license rights legends. The 

Contractor shall use, modify, reproduce, 

release, perform, or display technical 

data or computer software received from 

the Government with specially 

negotiated license legends only as 

permitted in the license. Such data or 

software may not be released or 

disclosed to other persons unless 

permitted by the license and, prior to 

release or disclosure, the intended 

recipient has completed the nondisclosure agreement at 227.7103–7. 

The Contractor shall modify paragraph 

(1)(c) of the non-disclosure agreement to 

reflect the recipient’s obligations 

regarding use, modification, 

reproduction, release, performance, 

display, and disclosure of the data or 

software. 

(4) GFI marked with commercial 

restrictive legends. 

(i) The Contractor shall use, modify, 

reproduce, perform, or display technical 

data that is or pertains to a commercial 

item and is received from the 

Government with a commercial 

restrictive legend (i.e., marked to 

indicate that such data are subject to 

use, modification, reproduction, release, 

performance, display, or disclosure 

restrictions) only in the performance of 

this contract. The Contractor shall not, 

without the express written permission 

of the party whose name appears in the 

legend, use the technical data to 

manufacture additional quantities of the 

commercial items, or release or disclose 

such data to any unauthorized person. 

(ii) If the Contractor is a covered 

Government support contractor, the 

Contractor further agrees and 

acknowledges that— 

(A) The data or software will be 

accessed and used only for the purposes 

stated in this contract and shall not be 

used to compete for any Government or 

non-Government contract; 

(B) The Contractor will take all 

reasonable steps to protect the technical 

data against any unauthorized release or 

disclosure; 

(C) The Contractor will ensure that 

the party whose name appears in the 

legend is or has been notified of the 

Contractor’s access or use of such data; 

(D) The Contractor will enter into a 

non-disclosure agreement with the party 

whose name appears in the legend, if 

required to do so by that party, and that 

any such non-disclosure agreement will 

implement the restrictions on the 

Contractor’s use of such data as set forth 

in this clause, and shall not include any 

additional terms and conditions unless 

mutually agreed to by the parties to the 

non-disclosure agreement; 

(E) The Contractor shall provide a 

copy of any such non-disclosure 

agreement or waiver to the Contracting 

Officer, upon request; and 

(F) That a breach of these obligations 

or restrictions may subject the 

Contractor to— 

(1) Criminal, civil, administrative, and 

contractual actions in law and equity for 

penalties, damages, and other 

appropriate remedies by the United 

States; and 

(2) Civil actions for damages and 

other appropriate remedies by the 

contractor or subcontractor whose 

technical data is affected by the breach. 

* * * * * 

[FR Doc. 2011–4531 Filed 3–1–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 232, and 252 

RIN 0750–AG56 

Defense Federal Acquisition 

Regulation Supplement; Payments in 

Support of Emergencies and 

Contingency Operations (DFARS Case 

2009–D020) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Final rule. 

SUMMARY: DoD is adopting as a final 

rule, with minor changes, an interim 

rule that amended the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement exemptions from 

the Prompt Payment Act. The interim 

rule exempted military payments 

related to contingencies and certain 

payments related to emergencies and 

the release or threatened release of 

hazardous substances. 

DATES: Effective date: March 2, 2011. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Julian E. Thrash, 703–602–0310. 

SUPPLEMENTARY INFORMATION: 

I. Background 

5 CFR part 1315 exempts from Prompt 

Payment Act compliance payments 

related to emergencies (defined in the 

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11372 Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 

Disaster Relief Act of 1974, Pub. L. 93– 

288, as amended (42 U.S.C. 5121, et 

seq.); contingency operations (as 

defined in 10 U.S.C. 101(a)(13)); and the 

release/threatened release of hazardous 

substances (as defined in 4 U.S.C. 9606, 

Section 106). DoD requires the 

flexibility provided by 5 CFR part 1315, 

Exemption from the Prompt Payment 

Act, because of the potential for 

unstable environments during 

emergencies and contingency 

operations. 

DoD published an interim rule in the 

Federal Register (75 FR 40712) on July 

13, 2010, to implement the full 

authority granted by 5 CFR 1315.1 for 

payments covered by 5 CFR 1315.1(b)(2) 

that are either certified for payment in 

an operational area, or are contingent 

upon the receipt of necessary 

supporting documentation (i.e., 

contract, invoice, receiving report) 

emanating from an operational area. The 

public comment period closed 

September 13, 2010. 

II. Analysis of Public Comments 

One respondent provided comments 

on the interim rule. A discussion of the 

comments follows: 

A. Applicability of FAR Subpart 32.9 

Comment. The respondent notes that 

DFARS 232.901, Applicability, states 

that FAR subpart 32.9 does not apply 

when the conditions therein are listed. 

However, DFARS 232.908, Contract 

clauses, states that the appropriate FAR 

Prompt Payment clause prescribed at 

FAR 32.908 should be included in the 

contract in addition to DFARS 252.232– 

7011, Payments in Support of 

Emergencies and Contingency 

Operations. Thus, FAR 32.908 still 

applies when the conditions at DFARS 

232.901 are met. According to the 

respondent, the statement that ‘‘FAR 

subpart 32.9, Prompt Payment, does not 

apply when—’’ needs to be qualified to 

state that FAR 32.908 still applies. 

Response. DoD concurs and the text 

has been revised accordingly. 

B. Inclusion of Two Payment Clauses 

Comment. The respondent states that 

it would be less confusing if the contract 

just contained either DFARS 252.232– 

7011, Payments in Support of 

Emergencies and Contingency 

Operations, or a FAR Prompt Payment 

clause. According to the respondent, if 

the environment became more stable or 

less stable, the contracting officer could 

bilaterally modify the contract to 

remove one clause and add the other. 

The respondent states that including 

both clauses and notifying the 

contractor which one applies by 

contract modification is an unusual, and 

unnecessary, way to administer a 

contract. 

Response. DoD does not concur as the 

Government requires the maximum 

flexibility provided by DFARS subpart 

232.9, Prompt Payment, in order to 

operate in such austere environments as 

Iraq and Afghanistan. This flexibility 

requires the ability to move from the 

appropriate FAR Prompt Payment 

clause when normal business conditions 

are possible, to the clause at DFARS 

252.232–7011, Payments in Support of 

Emergencies and Contingency 

Operations, when an austere 

environment exists. The conditions 

described at 232.901, Applicability, 

provide guidelines for when austere 

operations are present. Contractors that 

operate in potential environments that 

may go back and forth from stable to 

unstable operations are given the 

opportunity to price such conditions 

into their proposals. The Government 

reserves the right to structure such 

contracts for this flexibility, and to 

convert the appropriate FAR or DFARS 

clause for the given situation, rather 

than depending upon a bilateral 

modification, to which the contractor 

might not agree, and which would 

require negotiation of consideration. As 

currently stated, the contracting officer 

can issue a unilateral contract 

modification notifying the contractor 

which clause is active. 

This final rule provides DoD the 

needed flexibility in limited 

circumstances. The head of the 

contracting activity shall make 

subsequent determinations, after 

consultation with the cognizant 

comptroller, as the operational area 

evolves into a more stable business 

environment to enable the provisions of 

FAR 32.9 to apply. 

III. Executive Order 12866 

This regulatory action was subject to 

review under Section 6(b) of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

rule is not a major rule under 5 U.S.C. 

804. 

IV. Regulatory Flexibility Act 

DoD does not expect this final rule to 

have a significant economic impact on 

small entities within the meaning of the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

et seq. However, DoD has prepared a 

final regulatory flexibility analysis 

consistent with 5 U.S.C. 604 which is 

summarized below. A copy of the 

analysis may be obtained from the point 

of contact. 

On May 22, 2008, the DoDIG issued 

the results of an audit Report No. D– 

2008–098, entitled ‘‘Internal Controls 

Over Payments Made in Iraq, Kuwait, 

and Egypt.’’ The audit cited 

inconsistencies in FAR 32.9, DFARS 

232.9, and 5 CFR in regard to 

compliance with the Prompt Payment 

Act for military contingency operations. 

The audit further recommended that 

DoD establish procedures to address 

contingency operations. 

During emergencies and contingency 

operations, the operational area can be 

so fluid and dynamic that carrying out 

normal business practices can be 

extremely challenging. It is necessary 

for the Head of the Contracting Activity 

(HCA) to have the authority to 

appropriately respond to emergency and 

contingency operations accordingly 

whenever limited operational 

conditions exist. This includes the 

payment of contractors. 

This final rule takes advantage of the 

exemption provided by OMB 

implementation of the Prompt Payment 

Act, which exempts military 

contingencies. This rule allows the HCA 

to make a determination of whether or 

not stable business operations exist in 

theater to allow the Prompt Payment 

Act to apply in an emergency and 

contingency operation. If stable 

conditions don’t exist, then the HCA is 

authorized to apply the clause at 

252.232–7011, Payments in Support of 

Emergencies and Contingency 

Operations. When this clause is 

invoked, it will be used instead of one 

of the payment clauses at FAR 52.232– 

25, 52.232–26, or 52.232–27. DFARS 

232.901 will require the HCA to make 

subsequent determinations as the 

operational area evolves into a more 

stable environment to enable the 

provisions of the Prompt Payment Act 

to apply. It will also require the 

contracting officer to notify, by contract 

modification, each contractor that has a 

contract containing DFARS clause 

252.232.7011, that it is no longer 

applicable, and the applicable FAR 

Prompt Payment clause in the contract 

applies. 

No significant issues were raised by 

the public in response to the initial 

regulatory flexibility analysis. 

This rule is expected to have a 

minimal economic impact on a 

relatively small number of small 

business entities. It is anticipated that 

the rule could initially be applied to 

contracts supporting Afghanistan. As of 

today, normal business operations are 

hindered in Afghanistan due to the 

uncertain environment and instability 

in the region. It may be impractical for 

U.S. forces to adequately match receipt 

of necessary supporting documentation 

(i.e., contract, invoice, and receiving 

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Federal Register / Vol. 76, No. 41 / Wednesday, March 2, 2011 / Rules and Regulations 11373 

report) in such an operational area. It is 

expected the HCA for Afghanistan could 

exempt ‘‘payments made in the theater 

of operations’’ from Prompt Payment Act 

interest and interest penalties. 

In the preparation of the interim rule, 

a review of Federal Procurement Data 

Systems data for FY08 showed that of 

the 140 awards made to U.S. firms, only 

21 were made to small business entities. 

This total represents 15 percent of all 

awards made during this time period. 

Therefore, the overall impact of the rule 

is not expected to have a significant 

aggregate economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq. 

However, a regulatory flexibility 

analysis was completed because there is 

an economic impact to consider. 

There is no reporting requirement 

established by this rule. There are no 

significant alternatives which 

accomplish the stated objectives. This 

rule will allow DoD to utilize the 

exemptions provided by OMB 

implementation of the Prompt Payment 

Act, which exempts military 

contingencies. 

V. Paperwork Reduction Act 

The rule does not impose any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Parts 212, 

232, and 252 

Government procurement. 

Mary Overstreet, 

Editor, Defense Acquisition Regulations 

System. 

Therefore, the Defense Acquisition 

Regulations System confirms as final the 

interim rule published at 75 FR 40712, 

July 13, 2010, with the following 

changes: 

■ 1. The authority citation for 48 CFR 

part 232 continues to read as follows: 

Authority: 41 U.S.C. 1303 and 48 CFR 

chapter 1. 

PART 232—CONTRACT FINANCING 

■ 2. Section 232.901 is amended by— 

■ a. Revising the first sentence of 

paragraph (1) introductory text to read 

as set forth below; 

■ b. Amending paragraph (1)(i)(C) by 

removing ‘‘Section’’ and adding in its 

place ‘‘section’’. 

232.901 Applicability. 

(1) Except for FAR 32.908, FAR 

subpart 32.9, Prompt Payment, does not 

apply when— 

* * * * * 

[FR Doc. 2011–4526 Filed 3–1–11; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 080513659–1114–03] 

RIN 0648–AW75 

Fisheries of the Northeastern United 

States; Atlantic Herring; Amendment 4 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: This rule implements 

approved measures in Amendment 4 to 

the Atlantic Herring (Herring) Fishery 

Management Plan (FMP). Amendment 4 

was developed by the New England 

Fishery Management Council (Council) 

to bring the FMP into compliance with 

new Magnuson-Stevens Fishery 

Conservation and Management Act 

(MSA) requirements by: Revising 

definitions and the specificationssetting process, consistent with annual 

catch limit (ACL) requirements; and 

establishing fishery closure thresholds, 

a haddock incidental catch cap, and 

overage paybacks as accountability 

measures (AMs). In addition, the 

amendment designates herring as a 

‘‘stock in the fishery;’’ establishes an 

interim acceptable biological catch 

(ABC) control rule; and makes 

adjustments to the specification process 

by eliminating consideration of total 

foreign processing (JVPt), including 

joint venture processing (JVP) and 

internal waters processing (IWP), and 

reserve from the specification process, 

and eliminates the Council’s 

consideration of total allowable level of 

foreign fishing (TALFF). 

DATES: Effective April 1, 2011. 

ADDRESSES: An environmental 

assessment (EA) was prepared for 

Amendment 4 that describes the 

proposed action and other considered 

alternatives and provides a thorough 

analysis of the impacts of the proposed 

measures and alternatives. Copies of 

Amendment 4, including the EA, the 

Regulatory Impact Review (RIR), and the 

Initial Regulatory Flexibility Analysis 

(IRFA), are available from: Paul J. 

Howard, Executive Director, New 

England Fishery Management Council, 

50 Water Street, Mill 2, Newburyport, 

MA 01950, telephone (978) 465–0492. 

The EA/RIR/IRFA is also accessible via 

the Internet at http:// 

www.nero.nmfs.gov. 

FOR FURTHER INFORMATION CONTACT: 

Carrie Nordeen, Fishery Policy Analyst, 

978–281–9272, fax 978–281–9135. 

SUPPLEMENTARY INFORMATION: 

Background 

This amendment brings the Herring 

FMP into compliance with requirements 

of the reauthorization of the MSA in 

2006, specifically ACLs and AMs. 

Because herring is not subject to 

overfishing, the MSA requires the 

Herring FMP to be in compliance with 

ACL and AM requirements by 2011. In 

addition to the public meetings at which 

Amendment 4 was developed, the 

Council held three public meetings on 

the draft Amendment 4 and its EA 

during January 2010. Following the 

public comment period that ended on 

January 12, 2010, the Council adopted 

Amendment 4 on January 26, 2010, and 

submitted the amendment to NMFS on 

April 22, 2010. The Notice of 

Availability (NOA) for Amendment 4 

was published on August 12, 2010, with 

a comment period ending October 12, 

2010. A proposed rule for Amendment 

4 was published on October 18, 2010, 

with a comment period ending 

December 2, 2010. On November 9, 

2010, NMFS approved Amendment 4 on 

behalf of the Secretary of Commerce. 

Initially, the Council intended for 

Amendment 4 to also consider the 

issues of catch monitoring and 

reporting, interactions with river 

herring, access by midwater trawl 

vessels to groundfish closed areas, and 

interactions with the Atlantic mackerel 

fishery. In June 2009, the Council 

determined there was not sufficient time 

to develop and implement all the 

measures originally contemplated in 

Amendment 4 by 2011, so it decided 

that Amendment 4 would only address 

ACL and AM requirements and 

specification issues. The other issues 

(e.g., catch monitoring and reporting, 

interactions with river herring and 

Atlantic mackerel, access to groundfish 

closed areas) are currently being 

considered in Amendment 5 to the 

Herring FMP (Amendment 5). NMFS 

has the independent authority to revise 

reporting requirements, and has 

informed the Council that it will be 

developing a rulemaking to establish 

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