Federal Register / Vol. 75, No. 218 / Friday, November 12, 2010 / Rules and Regulations 69361 

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 

that urgent and compelling reasons exist 

to promulgate this interim rule without 

prior opportunity for public comments. 

This action is necessary because section 

823 of the National Defense 

Authorization Act for Fiscal Year 2010 

requires implementation no later than 

180 days after October 28, 2009. If this 

requirement is not implemented in the 

DFARS, contracting officers may not be 

aware of the requirement to consider 

reduction or denial of the award fee 

paid in a period in which actions of 

gross negligence or reckless disregard of 

health or safety by the contractor or its 

subcontractors caused serious bodily 

injury or death of Government 

personnel. However, 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 216 and 

252 

Government procurement. 

Clare M. Zebrowski, 

Editor, Defense Acquisition Regulations 

System. 

■ Therefore, 48 CFR parts 216 and 252 

are amended as follows: 

■ 1. The authority citation for 48 CFR 

parts 216 and 252 continues to read as 

follows: 

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

chapter 1. 

PART 216—TYPES OF CONTRACTS 

■ 2. Sections 216.405–270 and 216.406 

are added to subpart 216.4 to read as 

follows: 

216.405–270 Award fee reduction or denial 

for jeopardizing the health or safety of 

Government personnel. 

(a) Definitions. 

Covered incident and serious bodily 

injury, as used in this section, are 

defined in the clause at 252.216–7004, 

Award Fee Reduction or Denial for 

Jeopardizing the Health or Safety of 

Government Personnel. 

(b) In accordance with section 823 of 

the National Defense Authorization Act 

for Fiscal Year 2010 (Pub. L. 111–84), 

the contracting officer shall include in 

the evaluation of any award fee plan, a 

review of contractor actions that 

jeopardized the health and safety of 

Government personnel. 

(c) If, in performing under a contract, 

contractor or subcontractor actions 

cause serious bodily injury or death of 

civilian or military Government 

personnel, the contracting officer shall 

consider reducing or denying the award 

fee for any of the relevant award fee 

periods in which the covered incident 

occurred, including the recovery of all 

or part of any award fees previously 

paid for such period. 

216.406 Contract clauses. 

Use the clause at 252.216.7004, 

Award Fee Reduction or Denial for 

Jeopardizing the Health or Safety of 

Government Personnel, in all 

solicitations and contracts containing 

award fee provisions. 

PART 252—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 3. Section 252.216–7004 is added as 

follows: 

252.216.7004 Award Fee Reduction or 

Denial for Jeopardizing the Health or Safety 

of Government Personnel. 

As prescribed in 216.406 use the 

following clause: 

AWARD FEE REDUCTION OR DENIAL FOR 

JEOPARDIZING THE HEALTH OR SAFETY 

OF GOVERNMENT PERSONNEL (NOV 2010) 

(a) Definitions. As used in this clause— 

Covered incident— 

(1) Means any incident in which the 

Contractor, through a criminal, civil, or 

administrative proceeding that results in a 

disposition listed in paragraph (2) of this 

definition— 

(i) Has been determined in the performance 

of this contract to have caused serious bodily 

injury or death of any civilian or military 

personnel of the Government through gross 

negligence or with reckless disregard for the 

safety of such personnel; or 

(ii) Has been determined to be liable for 

actions of a subcontractor of the Contractor 

that caused serious bodily injury or death of 

any civilian or military personnel of the 

Government through gross negligence or with 

reckless disregard for the safety of such 

personnel. 

(2) Includes those incidents that have 

resulted in any of the following dispositions: 

(i) In a criminal proceeding, a conviction. 

(ii) In a civil proceeding, a finding of fault 

or liability that results in the payment of a 

monetary fine, penalty, reimbursement, 

restitution, or damage of $5,000 or more. 

(iii) In an administrative proceeding, a 

finding of fault and liability that results in— 

(A) The payment of a monetary fine or 

penalty of $5,000 or more; or 

(B) The payment of a reimbursement, 

restitution, or damages in excess of $100,000. 

(iv) In a criminal, civil or administrative 

proceeding, a disposition of the matter by 

consent or compromise with an 

acknowledgment of fault by the Contractor if 

the proceeding could have led to any of the 

outcomes specified in paragraphs (2)(i), 

(2)(ii), or (2)(iii) of this definition. 

Serious bodily injury means a grievous 

physical harm that results in a permanent 

disability. 

(b) If, in the performance of this contract, 

the Contractor’s or its subcontractor’s actions 

cause serious bodily injury or death of 

civilian or military Government personnel, 

the Government may reduce or deny the 

award fee for the relevant award fee period 

in which the covered incident occurred, 

including the recovery of all or part of any 

award fees paid for any previous period 

during which the covered incident occurred. 

(End of clause) 

[FR Doc. 2010–28494 Filed 11–10–10; 8:45 am] 

BILLING CODE 5001–08–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 0910131363–0087–02] 

RIN 0648–XZ88 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pacific Ocean Perch 

in the Bering Sea Subarea of the 

Bering Sea and Aleutian Islands 

Management Area 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; apportionment 

of reserves; request for comments. 

SUMMARY: NMFS apportions amounts of 

the non-specified reserve to the initial 

total allowable catch of Pacific ocean 

perch in the Bering Sea subarea of the 

Bering Sea and Aleutian Islands 

management area. This action is 

necessary to allow fishing operations to 

continue. It is intended to promote the 

goals and objectives of the fishery 

management plan for the Bering Sea and 

Aleutian Islands management area. 

DATES: Effective November 10, 2010 

through 2400 hrs, Alaska local time, 

December 31, 2010. Comments must be 

received at the following address no 

later than 4:30 p.m., Alaska local time, 

November 26, 2010. 

ADDRESSES: Send comments to Sue 

Salveson, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region, NMFS, Attn: 

Ellen Sebastian. You may submit 

comments, identified by 0648–XZ88 by 

any one of the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 


jdjones on DSK8KYBLC1PROD with RULES
69362 Federal Register / Vol. 75, No. 218 / Friday, November 12, 2010 / Rules and Regulations 

Federal eRulemaking Portal Web site at 

http://www.regulations.gov. 

• Mail: P.O. Box 21668, Juneau, AK 

99802. 

• Fax: (907) 586–7557. 

• Hand delivery to the Federal 

Building: 709 West 9th Street, Room 

420A, Juneau, AK. 

All comments received are a part of 

the public record and will generally be 

posted to http://www.regulations.gov 

without change. All Personal Identifying 

Information (e.g., name, address) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter N/A in the required 

fields, if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

portable document file (pdf) formats 

only. 

FOR FURTHER INFORMATION CONTACT: 

Obren Davis, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

Bering Sea and Aleutian Islands (BSAI) 

exclusive economic zone according to 

the Fishery Management Plan for 

Groundfish of the Bering Sea and 

Aleutian Islands Management Area 

(FMP) prepared by the North Pacific 

Fishery Management Council under 

authority of the Magnuson-Stevens 

Fishery Conservation and Management 

Act. Regulations governing fishing by 

U.S. vessels in accordance with the FMP 

appear at subpart H of 50 CFR part 600 

and 50 CFR part 679. 

The 2010 initial total allowable catch 

(ITAC) of Pacific ocean perch in the 

Bering Sea subarea was established as 

3,256 metric tons (mt) by the final 2010 

and 2011 harvest specifications for 

groundfish of the BSAI (75 FR 11778, 

March 12, 2010). In accordance with 

§ 679.20(a)(3) the Regional 

Administrator, Alaska Region, NMFS, 

has reviewed the most current available 

data and finds that the ITAC for Pacific 

ocean perch in the Bering Sea subarea 

needs to be supplemented from the nonspecified reserve in order to promote 

efficiency in the utilization of fishery 

resources in the BSAI and allow fishing 

operations to continue. 

Therefore, in accordance with 

§ 679.20(b)(3), NMFS apportions from 

the non-specified reserve of groundfish 

300 mt to the Pacific ocean perch ITAC 

in the Bering Sea subarea. This 

apportionment is consistent with 

§ 679.20(b)(1)(i) and does not result in 

overfishing of a target species because 

the revised ITAC is equal to or less than 

the specifications of the acceptable 

biological catch in the final 2010 and 

2011 harvest specifications for 

groundfish in the BSAI (75 FR 11778, 

March 12, 2010). 

The harvest specification for the 2010 

Pacific ocean perch ITAC included in 

the harvest specifications for groundfish 

in the BSAI is revised as follows: 3,556 

mt for Pacific ocean perch in the Bering 

Sea subarea. 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA, 

(AA) finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 

5 U.S.C. 553(b)(B) and 

§ 679.20(b)(3)(iii)(A) as such a 

requirement is impracticable and 

contrary to the public interest. This 

requirement is impracticable and 

contrary to the public interest as it 

would prevent NMFS from responding 

to the most recent fisheries data in a 

timely fashion and would delay the 

apportionment of the non-specified 

reserves of groundfish to the Pacific 

ocean perch fishery in the Bering Sea 

subarea. Immediate notification is 

necessary to allow for the orderly 

conduct and efficient operation of this 

fishery, to allow the industry to plan for 

the fishing season, and to avoid 

potential disruption to the fishing fleet 

and processors. NMFS was unable to 

publish a notice providing time for 

public comment because the most 

recent, relevant data only became 

available as of November 5, 2010. 

The AA also finds good cause to 

waive the 30-day delay in the effective 

date of this action under 5 U.S.C. 

553(d)(3). This finding is based upon 

the reasons provided above for waiver of 

prior notice and opportunity for public 

comment. 

Under § 679.20(b)(3)(iii), interested 

persons are invited to submit written 

comments on this action (see 

ADDRESSES) until November 26, 2010. 

This action is required by § 679.20 

and is exempt from review under 

Executive Order 12866. 

Authority: 16 U.S.C. 1801, et seq. 

Dated: November 8, 2010. 

Brian Parker, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. 2010–28530 Filed 11–10–10; 8:45 am] 

BILLING CODE 3510–22–P 


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