Federal Register / Vol. 75, No. 205 / Monday, October 25, 2010 / Rules and Regulations 65437 

authorizes preexisting requirements 

under State law and does not impose 

any additional enforceable duty beyond 

that required by State law, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4). For the same reason, 

this action also does not significantly or 

uniquely affect the communities of 

Tribal governments, as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000). This action will not 

have substantial direct effects on the 

States, on the relationship between the 

national government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999), because it merely 

authorizes State requirements as part of 

the State RCRA hazardous waste 

program without altering the 

relationship or the distribution of power 

and responsibilities established by 

RCRA. This action also is not subject to 

Executive Order 13045 (62 FR 19885, 

April 23, 1997), because it is not 

economically significant and it does not 

make decisions based on environmental 

health or safety risks. This rule is not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)) because it is not a significant 

regulatory action under Executive Order 

12866. 

Under RCRA 3006(b), the EPA grants 

a State’s application for authorization as 

long as the State meets the criteria 

required by RCRA. It would thus be 

inconsistent with applicable law for the 

EPA, when it reviews a State 

authorization application, to require the 

use of any particular voluntary 

consensus standard in place of another 

standard that otherwise satisfies the 

requirements of RCRA. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. As required by 

section 3 of Executive Order 12988 (61 

FR 4729, February 7, 1996), in issuing 

this rule, the EPA has taken the 

necessary steps to eliminate drafting 

errors and ambiguity, minimize 

potential litigation, and provide a clear 

legal standard for affected conduct. The 

EPA has complied with Executive Order 

12630 (53 FR 8859, March 15, 1988) by 

examining the takings implications of 

the rule in accordance with the 

‘‘Attorney General’s Supplemental 

Guidelines for the Evaluation of Risk 

and Avoidance of Unanticipated 

Takings’’ issued under the Executive 

Order. This rule does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). The 

Congressional Review Act, 5 U.S.C. 801 

et seq., as added by the Small Business 

Regulatory Enforcement Fairness Act of 

1996, generally provides that before may 

take effect, the agency promulgating the 

rule a rule must submit a report, which 

includes a copy of the rule, to each 

House of the Congress and to the 

Comptroller General of the United 

States. The EPA will submit a report 

containing this document and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication in the 

Federal Register. A major rule cannot 

take effect until 60 days after it is 

published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This action 

will be effective December 27, 2010. 

List of Subjects in 40 CFR Part 271 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous waste, Hazardous waste 

transportation, Indian lands, 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements. 

Authority: This action is issued under the 

authority of sections 2002(a), 3006, and 

7004(b) of the Solid Waste Disposal Act as 

amended 42 U.S.C. 6912(a), 6926, 6974(b). 

Dated: October 12, 2010. 

Al Armendariz, 

Regional Administrator, Region 6. 

[FR Doc. 2010–26962 Filed 10–22–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 212, 247, and 252 

RIN 0750–AG81 

Defense Federal Acquisition 

Regulation Supplement; Defense 

Cargo Riding Gang Members (DFARS 

Case 2007–D002) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: DoD is issuing an interim rule 

to amend the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement section 3504 of 

the National Defense Authorization Act 

for Fiscal Year 2009. Section 3504 

addresses requirements that apply to 

riding gang members and DoDexempted individuals who perform 

work on U.S.-flag vessels under DoD 

contracts for transportation services. 

Section 3504 amended section 1018 of 

the National Defense Authorization Act 

for Fiscal Year 2007. 

DATES: Effective date: October 25, 2010. 

Comment date: Comments on this 

interim rule should be submitted in 

writing to the address shown below on 

or before December 27, 2010 to be 

considered in the formation of the final 

rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2007–D002, 

using any of the following methods: 

Æ Federal eRulemaking Portal: 

http://www.regulations.gov. Follow the 

instructions for submitting comments. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2007–D002 in the subject 

line of the message. 

Æ Fax: 703–602–0350. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Ms. Mary 

Overstreet, OUSD (AT&L) DPAP/DARS, 

3060 Defense Pentagon, Room 3B855, 

Washington, DC 20301–3060. 

Comments received generally will be 

posted without change to http:// 

www.regulations.gov, including any 

personal information provided. 

To confirm receipt of your 

comment(s), please check http:// 

www.regulations.gov approximately two 

to three days after submission to verify 

posting (except allow 30 days for 

posting of comments submitted by 

mail). 

FOR FURTHER INFORMATION CONTACT: Ms. 

Mary Overstreet, Defense Acquisition 

Regulations System, OUSD (AT&L) 

DPAP (DARS), 3060 Defense Pentagon, 

Room 3B855, Washington, DC 20301– 

3060. Telephone 703–602–0311; 

facsimile 703–602–0350. Please cite 

DFARS Case 2007–D002. 

SUPPLEMENTARY INFORMATION: 

I. Background 

This interim rule implements section 

3504 of the National Defense 

Authorization Act for Fiscal Year 2009 

(Pub. L. 110–417). Section 3504 

amended section 1018 of the National 

Defense Authorization Act for Fiscal 

Year 2007 (Pub. L. 109–364). 

Section 3504 addresses requirements 

that apply to riding gang members and 

DoD-exempted individuals who perform 

work on U.S.-flag vessels under DoD 

contracts for transportation services 

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65438 Federal Register / Vol. 75, No. 205 / Monday, October 25, 2010 / Rules and Regulations 

documented under chapter 121, title 46 

U.S.C. Such riding gang members must 

hold a U.S. Merchant Mariner’s 

Document issued under 46 U.S.C., 

chapter 73, or a transportation security 

card issued under section 70105 of such 

title. Section 3504 also permits 

exemptions for certain individuals, 

provided a background check of the 

individual is conducted. 

U.S. law requires crews of 

predominantly U.S. citizens aboard 

U.S.-flag vessels. For many years, 

foreign nationals have been utilized on 

U.S.-flag vessels as members of ‘‘riding 

gangs’’ who perform work beyond 

standard vessel maintenance and repair 

while ships are underway. In 2006, 

Congress prohibited the use of such 

foreign riding personnel on board 

vessels that are under contract with the 

DoD unless the DoD complied with 

certain limitations. (The Coast Guard 

and Maritime Transportation Act of 

2006, Pub. L. 109–241.) The exceptions 

provided to DoD in 2006 did not match 

those applicable to other U.S.-flag 

vessels. The Defense Authorization Act 

of FY 2009 made it clear that the 

exceptions available to DoD are 

complete exemptions both from the 

DoD-specific riding gang limitations and 

those generally applicable to U.S.-flag 

vessels. 

Contracting officers are encouraged to 

apply this rule to the maximum extent 

practicable to existing contracts, 

consistent with FAR 1.108(d). 

II. Executive Order 12866 

This rule was subject to Office of 

Management and Budget review under 

Executive Order 12866, dated 

September 30, 1993. This is not a major 

rule under 5 U.S.C. 804. 

III. Regulatory Flexibility Act 

DoD has prepared an initial regulatory 

flexibility analysis consistent with 

5 U.S.C. 603. A copy of the analysis may 

be obtained from the point of contact 

specified herein. The analysis is 

summarized as follows: 

The objective of the rule is to provide 

authorization, restrictions, and 

exemptions for the use of riding gang 

members on U.S.-flag vessels under 

charter or contract to DoD for the 

carriage of DoD cargo. The requirements 

of the rule will apply to entities 

interested in receiving DoD contracts for 

carriage of DoD cargo. 

The rule requires the contractor to 

ensure each riding gang member holds 

a valid U.S. Merchant Mariner’s 

Document issued under 46 U.S.C. 

chapter 73, or a transportation security 

card issued under section 70105 of such 

title. Any individual who is exempt 

from these requirements must pass a 

DoD background check before going 

aboard the vessel. With regard to these 

exempt individuals, the contractor shall 

submit the name and other necessary 

identifying information for a 

background check to the approving 

official specified in the contract. 

DoD invites comments from small 

businesses and other interested parties 

on the impact of this rule on small 

entities. DoD also will consider 

comments from small entities 

concerning the affected DFARS subparts 

in accordance with 5 U.S.C. 610. 

Interested parties must submit such 

comments separately and should cite 

5 U.S.C. 610 (DFARS Case 2007–D002) 

in correspondence. 

IV. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the rule does not 

impose any information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. 

V. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

(DoD) that urgent and compelling 

reasons exist to promulgate this interim 

rule without prior opportunity for 

public comments. This action is 

necessary to ensure contracts are 

compliant with section 3504 of the DoD 

Appropriations Act for Fiscal Year 2009 

(Pub. L. 110–417), which requires 

contractors to ensure that each riding 

gang member holds a valid U.S. 

Merchant Mariner’s Document issued 

under 46 U.S.C. chapter 73, or a 

transportation security card issued 

under section 70105 of such title. 

Implementing language must be 

published as quickly as possible to 

ensure that screening and security 

requirements are met for riding gang 

members who perform work on U.S.-flag 

vessels under DoD contracts for 

transportation services documented 

under chapter 121, title 46 U.S.C. 

Pursuant to 41 U.S.C. 418b, DoD will 

consider public comments received in 

response to this interim rule in the 

formation of the final rule. 

List of Subjects in 48 CFR Parts 212, 

247, and 252 

Government procurement. 

Ynette R. Shelkin, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 212, 247, and 

252 are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 212, 247, and 252 continues to 

read as follows: 

Authority: 41 U.S.C. 421 and 48 CFR 

chapter 1. 

PART 212—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 2. Section 212.301 is amended by 

adding paragraph (f)(xv) to read as 

follows: 

212.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial items. 

(f) * * * 

(xv) Use the clause at 252.247–7027, 

Riding Gang Member Requirements, as 

prescribed in 247.574(f). 

PART 247—TRANSPORTATION 

■ 3. Section 247.570 is amended by 

revising paragraph (a) to read as follows: 

247.570 Scope. 

* * * * * 

(a) Implements— 

(1) The Cargo Preference Act of 1904 

(‘‘the 1904 Act’’), 10 U.S.C. 2631, which 

applies to the ocean transportation of 

cargo owned by, or destined for use by, 

DoD; 

(2) Section 1017 of the National 

Defense Authorization Act for Fiscal 

Year 2007 (Pub. L. 109–364), which 

requires consideration, in solicitations 

requiring a covered vessel, of the extent 

to which offerors have had overhaul, 

repair, and maintenance work 

performed in shipyards located in the 

United States or Guam; and 

(3) Section 3504 of the National 

Defense Authorization Act for Fiscal 

Year 2009 (Pub. L. 110–417), which 

addresses requirements that apply to 

riding gang members and DoDexempted individuals (see 252.247– 

7027(c)) who perform work on U.S.-flag 

vessels under DoD contracts for 

transportation services documented 

under chapter 121, title 46 U.S.C. 

* * * * * 

■ 4. Section 247.572 is amended by 

adding paragraph (e) to read as follows: 

247.572 Policy. 

* * * * * 

(e) In accordance with section 3504 of 

the National Defense Authorization Act 

for Fiscal Year 2009 (Pub. L. 110–417), 

DoD may not award, renew or extend, 

or exercise an option under a charter of, 

or contract for carriage of cargo by, a 

U.S.-flag vessel documented under 

chapter 121 of title 46 U.S.C., unless the 

contract contains the clause at 252.247– 

7027. 

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Federal Register / Vol. 75, No. 205 / Monday, October 25, 2010 / Rules and Regulations 65439 

■ 5. Section 247.574 is amended by 

adding paragraph (f) to read as follows: 

247.574 Solicitation provisions and 

contract clauses. 

* * * * * 

(f) Use the clause at 252.247–7027, 

Riding Gang Member Requirements, in 

solicitations and contracts for the 

charter of, or contract for carriage of 

cargo by, a U.S.-flag vessel documented 

under chapter 121 of title 46 U.S.C. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 6. Section 252.247–7027 is added to 

read as follows: 

252.247–7027 Riding gang member 

requirements. 

As prescribed in 247.574(f), use the 

following clause: 

RIDING GANG MEMBER REQUIREMENTS 

(OCT 2010) 

(a) Definition. Riding gang member, as used 

in this clause, has the same definition as 

‘‘riding gang member’’ in title 46 U.S.C. 2101. 

(b) Requirements relating to riding gang 

members. Notwithstanding 46 U.S.C. 8106, 

the Contractor shall ensure each riding gang 

member holds a valid U.S. Merchant 

Mariner’s Document issued under 46 U.S.C. 

chapter 73, or a transportation security card 

issued under section 70105 of such title. 

(c) Exemption. 

(1) An individual is exempt from the 

requirements of paragraph (b) of this clause 

and shall not be treated as a riding gang 

member for the purposes of section 8106 of 

title 46, if that individual is on a vessel for 

purposes other than engaging in the 

operation or maintenance of the vessel and 

is— 

(i) One of the personnel who accompanies, 

supervises, guards, or maintains unit 

equipment aboard a ship, commonly referred 

to as supercargo personnel; 

(ii) One of the force protection personnel 

of the vessel; 

(iii) A specialized repair technician; or 

(iv) An individual who is otherwise 

required by the Secretary of Defense or 

designee to be aboard the vessel. 

(2) Any individual who is exempt under 

paragraph (c)(1) of this clause must pass a 

DoD background check before going aboard 

the vessel. With regard to these exempt 

individuals, the Contractor shall submit the 

name and other necessary identifying 

information for a background check to the 

approving official specified in the contract. 

The head of the contracting activity may 

waive this requirement if the individual 

possesses a valid U.S. Merchant Mariner’s 

Document issued under 46 U.S.C., chapter 

73, or a transportation security card issued 

under section 70105 of such title. 

(3) An individual exempted under 

paragraph (c)(1) of this clause is not treated 

as a riding gang member and shall not be 

counted as an individual in addition to the 

crew for the purposes of 46 U.S.C. 3304. 

(End of clause) 

[FR Doc. 2010–26721 Filed 10–22–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 219 and 252 

[DFARS Case 2009–D002] 

Defense Federal Acquisition 

Regulation Supplement; Electronic 

Subcontracting Reporting System 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: This interim rule amends the 

Defense Acquisition Regulation 

Supplement (DFARS) to conform to the 

Federal Acquisition Regulation (FAR) 

by providing Department of Defense 

(DoD)-specific policy and procedures 

related to the Electronic Subcontracting 

Reporting System (eSRS). The FAR has 

been revised to reflect use of the eSRS, 

rather than Standard Form 294— 

Subcontract Report for Individual 

Contracts, and Standard Form 295— 

Summary Subcontract Report, for 

submission of small business 

subcontract reports. 

DATES: Effective date: October 25, 2010. 

Comment date: Comments on the 

interim rule should be submitted in 

writing to the address shown below on 

or before December 27, 2010, to be 

considered in the formation of the final 

rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2009–D002, 

using any of the following methods: 

Æ Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Æ E-mail: dfars@osd.mil. Include 

DFARS Case 2009–D002 in the subject 

line of the message. 

Æ Fax: 703–602–0350. 

Æ Mail: Defense Acquisition 

Regulations System, Attn: Ms. 

Cassandra R. Freeman, OUSD (AT&L) 

DPAP (DARS), 3060 Defense Pentagon, 

Room 3B855, Washington, DC 20301– 

3060. 

All comments received will be posted 

to http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Cassandra R. Freeman, Defense 

Acquisition Regulations System, OUSD 

(AT&L) DPAP (DARS), 3060 Defense 

Pentagon, Room 3B855, Washington, DC 

20301–3060, Telephone 703–602–8383; 

facsimile(703)602–0350. Please cite 

DFARS Case 2009–D002. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This DFARS case is the companion 

case to FAR Case 2005–040 Electronic 

Subcontracting Reporting System. This 

DFARS interim rule amends sections 

219.708 and 252.219 to provide DoDspecific procedures and policies related 

to DoD’s implementation of eSRS. 

B. Regulatory Flexibility Act 

DoD does not expect this rule to have 

a significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

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

because small businesses are not 

required to have subcontracting plans 

and, therefore, are not required to use 

eSRS to submit reports on their progress 

in achieving the goals in those plans. 

Therefore, DoD has not performed an 

initial regulatory flexibility analysis. 

DoD invites comments from small 

business concerns and other interested 

parties on the expected impact of this 

rule on small entities. 

DoD will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by this rule in accordance with 5 U.S.C. 

610. Interested parties must submit such 

comments separately and should cite 

5 U.S.C. 610 DFARS Case 2009–D002 in 

correspondence. 

C. Paperwork Reduction Act 

This interim rule does not impose any 

new information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. 3501, et seq. This rule 

provides DoD instructions on how to 

submit reports that are already required 

by the FAR and are covered under 

Office of Management and Budget 

Clearance Numbers 9000–0006 and 

9000–0007. 

D. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

that urgent and compelling reasons exist 

to publish an interim rule prior to 

affording the public an opportunity to 

comment. The FAR already requires the 

use of eSRS for submission of 

subcontracting reports. This interim rule 

provides to DoD contractors the DoDspecific policies and procedures that 

they must follow in order to be able to 

submit subcontract reports using eSRS, 

as required by the FAR. 

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