69360 Federal Register / Vol. 75, No. 218 / Friday, November 12, 2010 / Rules and Regulations 

VII. Congressional Review Act 

The Congressional Review Act, 

5 U.S.C. 801 et seq., generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report to each House of 

the Congress and to the Comptroller 

General of the United States. EPA will 

submit a report containing this rule 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 of this final rule in the 

Federal Register. This final rule is not 

a ‘‘major rule’’ as defined by 5 U.S.C. 

804(2). 

List of Subjects in 40 CFR Part 180 

Environmental protection, 

Administrative practice and procedure, 

Agricultural commodities, Pesticides 

and pests, Reporting and recordkeeping 

requirements. 

Dated: October 29, 2010. 

Steven Bradbury, 

Director, Office of Pesticide Programs. 

■ Therefore, 40 CFR chapter I is 

amended as follows: 

PART 180—[AMENDED] 

■ 1. The authority citation for part 180 

continues to read as follows: 

Authority: 21 U.S.C. 321(q), 346a and 371. 

■ 2. Add § 180.650 to subpart C to read 

as follows: 

§ 180.650 Isoxaben; tolerances for 

residues. 

(a) General. Tolerances are 

established for residues of the herbicide 

isoxaben, including its metabolites and 

degradates, in or on the commodities in 

the table below. Compliance with the 

tolerance levels specified below is to be 

determined by measuring only isoxaben, 

N-[3-(1-ethyl-1-methylpropyl)-5- 

isoxazolyl]-2, 6-dimethoxybenzamide, 

in or on the commodity. 

Commodity Parts per 

million 

Almond, hulls ........................ 0.40 

Grape .................................... 0.01 

Nut, tree, Group 14 .............. 0.02 

Pistachio ............................... 0.02 

(b) Section 18 emergency exemptions. 

[Reserved] 

(c) Tolerances with regional 

registrations. [Reserved] 

(d) Indirect or inadvertent residues. 

[Reserved] 

[FR Doc. 2010–28499 Filed 11–10–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 216 and 252 

Defense Federal Acquisition 

Regulation Supplement; Award-Fee 

Reductions for Health and Safety 

Issues (DFARS Case 2009–D039) 

AGENCY: Defense Acquisition 

Regulations System; Department of 

Defense (DoD). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: DoD is issuing an interim rule 

amending the Defense Federal 

Acquisition Regulation Supplement 

(DFARS) to implement section 823 of 

the National Defense Authorization Act 

for Fiscal Year 2010. Section 823 

requires contracting officers to consider 

reduction or denial of award fee if 

contractor or subcontractor actions 

jeopardize the health or safety of 

Government personnel. 

DATES: Effective Date: November 12, 

2010. 

Comment Date: Comments on the 

interim rule should be submitted to the 

address shown below on or before 

January 11, 2011, to be considered in 

the formation of the final rule. 

ADDRESSES: You may submit comments, 

identified by DFARS Case 2009–D039, 

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–D039 in the subject 

line of the message. 

Æ Fax: 703–602–0350. 

Æ Mail: Defense Acquisition 

Regulations Council, Attn: Ms. Amy G. 

Williams, OUSD (AT&L) DPAP (DARS), 

Room 3B855, 3060 Defense Pentagon, 

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, 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. 

Amy G. Williams, 703–602–0328. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Section 823 of the National Defense 

Authorization Act for Fiscal Year 2010 

(Pub. L. 111–84), requires DoD to revise 

guidance issued pursuant to section 814 

of the National Defense Authorization 

Act for Fiscal Year 2007 (Pub. L. 109– 

364). Section 823 is entitled ‘‘Authority 

for Secretary of Defense to Reduce or 

Deny Award Fees to Companies Found 

to Jeopardize Health or Safety of 

Government Personnel.’’ For covered 

contracts that include award fees, if a 

contractor or its subcontractor acts with 

gross negligence or reckless disregard 

for health or safety, causing serious 

bodily injury or death of Government 

personnel, then the contracting officer 

must consider reduction or denial of 

award fee for the period in which that 

action occurred. This interim rule 

provides a clause to detail those 

dispositions where a reduction or denial 

of award fee is applicable. The clause 

also allows for the recovery of all or part 

of any award fees paid for any previous 

award fee evaluation period during 

which contractor actions caused serious 

bodily injury or death of Government 

personnel. 

II. Executive Order 12866 

This is not a significant regulatory 

action and, therefore, was not subject to 

review under section 6(b) of Executive 

Order 12866, Regulatory Planning and 

Review, dated September 30, 1993. 

III. Regulatory Flexibility Act: 

DoD does not expect this interim 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 most contracts awarded to 

small entities use simplified acquisition 

procedures or, based on the 

circumstances, may be awarded on a 

competitive fixed-price basis or a costplus-fixed-fee basis. Contracts awarded 

to small businesses do not generally 

utilize award-fee type incentive fee 

structure. 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–D039) 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 


jdjones on DSK8KYBLC1PROD with RULES
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 


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