### 59343 Federal Register / Vol. 77, No. 188 / Thursday, September 27, 2012 / Rules and Regulations

■ 6. Section 1852.228–78 is revised to
read as follows:

**1852.228–78 Cross-waiver of liability for science or space exploration activities**  **unrelated to the International Space Station.**

As prescribed in 1828.371(b) and (d), insert the following clause:

CROSS–WAIVER OF LIABILITY FOR

SCIENCE OR SPACE EXPLORATION

ACTIVITIES UNRELATED TO THE

INTERNATIONAL SPACE STATION

( OCT 2012)

(a) The purpose of this clause is to extend a cross-waiver of liability to NASA contracts for work done in support of Agreements between Parties involving Science or Space Exploration activities that are not related to the International Space Station (ISS) but
involve a launch. This cross-waiver of liability shall be broadly construed to achieve the objective of furthering participation in space exploration, use, and investment.

(b) As used in this clause, the term: (1) ‘‘Agreement’’ refers to any NASA Space Act agreement that contains the cross-waiver of liability provision authorized in 14 CFR

1266.104.

(2) ‘‘ Damage’’ means: (i) Bodily injury to, or other impairment of health of, or death of, any person;

(ii) Damage to, loss of, or loss of use of any property;

(iii) Loss of revenue or profits; or (iv) Other direct, indirect, or consequential Damage;

(3) ‘‘ Launch Vehicle’’ means an object, or any part thereof, intended for launch, launched from Earth, or returning to Earth which carries Payloads or persons, or both.

(4) ‘‘ Party’’ means a party to a NASA Space Act agreement for Science or Space Exploration activities unrelated to the ISS that involve a launch and a party that is neither the prime contractor under this contract nor a subcontractor at any tier
hereof.

(5) ‘‘ Payload’’ means all property to be
flown or used on or in a Launch Vehicle.

(6) ‘‘ Protected Space Operations’’ means all Launch or Transfer Vehicle activities and Payload activities on Earth, in outer space, or in transit between Earth and outer space in implementation of an Agreement for Science or Space Exploration activities unrelated to
the ISS that involve a launch. Protected Space Operations begins at the signature of the Agreement and ends when all activities done in implementation of the Agreement are completed. It includes, but is not limited to:

(i) Research, design, development, test, manufacture, assembly, integration, operation, or use of Launch or Transfer Vehicles, Payloads, or instruments, as well as related support equipment and facilities and services; and

(ii) All activities related to ground support, test, training, simulation, or guidance and control equipment, and related facilities or

services.

Protected Space Operations excludes
activities on Earth which are conducted on return from space to develop further a payload’s product or process other than for the activities within the scope of an Agreement.

(7) ‘‘ Related entity’’ means: (i) A contractor or subcontractor of a Party at any tier;

(ii) A user or customer of a Party at any tier; or

(iii) A contractor or subcontractor of a user or customer of a Party at any tier.

Note to paragraph (a)(7): The terms
‘‘contractors’’ and ‘‘subcontractors’’ include suppliers of any kind.

(8) ‘‘ Transfer Vehicle’’ means any vehicle that operates in space and transfers Payloads or persons or both between two different space objects, between two different locations on the same space object, or between a space object and the surface of a celestial body. A Transfer Vehicle also includes a vehicle that departs from and returns to the same location on a space object.

(c) Cross-waiver of liability: (1) The Contractor agrees to a waiver of liability pursuant to which it waives all claims against any of the entities or persons listed in paragraphs (c)(1)(i) through (c)(1)(iv) of this clause based on Damage arising out ofProtected Space Operations. This crosswaiver shall apply only if the person, entity, or property causing the Damage is involved in Protected Space Operations and the person, entity, or property damaged is damaged by virtue of its involvement in Protected Space Operations. The waiver shall apply to any claims for Damage, whatever the legal basis for such claims, against:

(i) A Party; (ii) A Party to another NASA Agreement or contract that includes flight on the same Launch Vehicle;

(iii) A Related Entity of any entity identified in paragraphs (c)(1)(i) or (c)(1)(ii) of this clause; or

(iv) The employees of any of the entities identified in (c)(1)(i) through (iii) of this
clause.

(2) The Contractor agrees to extend the cross-waiver of liability as set forth in paragraph (c)(1) of this clause to its own subcontractors at all tiers by requiring them, by contract or otherwise, to:

(i) Waive all claims against the entities or persons identified in paragraphs (c)(1)(i) through (c)(1)(iv) of this clause; and

(ii) Require that their Related Entities waive all claims against the entities or persons identified in paragraphs (c)(1)(i) through (c)(1)(iv) of this clause.

(3) For avoidance of doubt, this crosswaiver of liability includes a cross-waiver of claims arising from the Convention on International Liability for Damage Caused by Space Objects, entered into force on 1 September 1972, in which the person, entity, or property causing the Damage is involved in Protected Space Operations and the person, entity, or property damaged is damaged by virtue of its involvement in Protected Space Operations.

(4) Notwithstanding the other provisions of this clause, this cross-waiver of liability shall not be applicable to:

(i) Claims between the Government and its
own contractors or between its own contractors and subcontractors; (ii) Claims made by a natural person, his/ her estate, survivors, or subrogees (except when a subrogee is a Party to an Agreement or is otherwise bound by the terms of this cross-waiver) for bodily injury to, or other impairment of health, or death of such

person;

(iii) Claims for Damage caused by willful misconduct;

(iv) Intellectual property claims; (v) Claims for damages resulting from a
failure of the contractor to extend the crosswaiver of liability to its subcontractors and related entities, pursuant to paragraph (c)(2) of this clause; or

(vi) Claims by the Government arising out of or relating to a contractor’s failure to perform its obligations under this contract.

(5) Nothing in this clause shall be
construed to create the basis for a claim or
suit where none would otherwise exist.

(6) This cross-waiver shall not be applicable when 49 U.S.C. Subtitle IX, Chapter 701 is applicable.

(End of Clause)

[FR Doc. 2012–23715 Filed 9–26–12; 8:45 am]

**BILLING CODE 7510–01–P**

**DEPARTMENT OF DEFENSE**

**Defense Acquisition Regulations System** 

**48 CFR Part 3415**

**Contracting by Negotiation**

CFR Correction

In Title 48 of the Code of Federal Regulations, Chapter 29 to End, revised as of October 1, 2011, on page 150, in section 3415.605, paragraph (d) is correctly revised, and section 3415.606
is added to read as follows:

**3415.605 Content of unsolicited proposals.** 

* * * * *

d. No prior commitments were received from Departmental employees regarding acceptance of this proposal.

Date:

lllllllllllllllllll Organization:

lllllllllllllllllll Name:

lllllllllllllllllll Title:

lllllllllllllllllll (This certification must be signed by a responsible person authorized to enter
into contracts on behalf of the organization.)

**3415.606 Agency procedures.**

(b)(1) The HCA or designee is the contact point to coordinate the receipt, control, and handling of unsolicited proposals.


### 59344 Federal Register / Vol. 77, No. 188 / Thursday, September 27, 2012 / Rules and Regulations

(2) Offerors must direct unsolicited proposals to the HCA.

[FR Doc. 2012–23944 Filed 9–26–12; 8:45 am]

**BILLING CODE 1505–01–D**

**DEPARTMENT OF COMMERCE**

**National Oceanic and Atmospheric**
**Administration**

**50 CFR Part 622**

**[Docket No. 040205043–4043–01]**

**RIN 0648–XC134**

**Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 2012**  **Commercial Accountability Measure**
**and Closure for South Atlantic Vermilion Snapper** 

**AGENCY :**  National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA),

Commerce.

**ACTION :**  Temporary rule; closure.

**SUMMARY :**  NMFS implements accountability measures (AMs) for the commercial sector for vermilion snapper in the exclusive economic zone (EEZ) of
the South Atlantic. The Science Research Director (SRD) has estimated that commercial landings for vermilion snapper are projected to have reached
the commercial annual catch limit (ACL) on September 28, 2012. Therefore, NMFS closes the commercial sector for vermilion snapper in the South Atlantic EEZ on September 28, 2012, and it will remain closed throughout the remainder of the fishing year. This closure is necessary to protect the vermilion snapper resource.

**DATES :**  This rule is effective 12:01 a.m., local time, September 28, 2012, until 12:01 a.m., local time, January 1, 2013.

**FOR FURTHER INFORMATION CONTACT :**  Catherine Hayslip, telephone: 727–824– 5305, email: Catherine.Hayslip@noaa.gov.

**SUPPLEMENTARY INFORMATION :**  The snapper-grouper fishery of the South Atlantic includes vermilion snapper and is managed under the FisheryManagement Plan for the SnapperGrouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

The commercial ACL (commercial quota) for vermilion snapper in the South Atlantic is 302,523 lb (137,222 kg), gutted weight, for the current fishing period, July 1 through December 31, 2012, as specified in 50 CFR 622.42(e)(4)(ii).

In accordance with regulations at 50 CFR 622.49(b)(6)(i), NMFS is required to
close the commercial sector for vermilion snapper when the commercial ACL (commercial quota) for the applicable portion of the fishing year has been reached, or is projected to be reached, by filing a notification to that
effect with the Office of the Federal Register. NMFS has determined that the commercial ACL (commercial quota) for South Atlantic vermilion snapper will have been reached by September 28, 2012. Accordingly, the commercial
sector for South Atlantic vermilion snapper is closed effective 12:01 a.m., local time, September 28, 2012, until 12:01 a.m., local time, January 1, 2013.

The operator of a vessel with a valid commercial vessel permit for South Atlantic snapper-grouper having vermilion snapper onboard must have landed and bartered, traded, or sold such vermilion snapper prior to 12:01 a.m., local time, September 28, 2012. During the closure, the bag limit specified in 50 CFR 622.39(d)(1)(v), applies to all harvest or possession of vermilion snapper in or from the South Atlantic EEZ, including the bag limit that may be retained by the captain or crew of a vessel operating as a charter vessel or headboat. The bag limit for such captain and crew is zero. During the closure, the possession limits specified in 50 CFR 622.39(d)(2) apply to all harvest or possession of vermilion snapper in or from the South Atlantic EEZ. During the closure, the sale or purchase of vermilion snapper taken from the EEZ is prohibited. The prohibition on sale or purchase does not apply to the sale or purchase of vermilion snapper that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, September 28, 2012, and were held in cold storage by a dealer or processor. For a person on
board a vessel for which a Federal
commercial or charter vessel/headboatpermit for the South Atlantic snappergrouper fishery has been issued, the sale and purchase provisions of the
commercial closure for vermilion snapper would apply regardless of
whether the fish are harvested in state or Federal waters, as specified in 50 CFR 622.43(a)(5)(ii).

Classification

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds that the need to immediately implement this action to close the commercial sector for vermilion snapper constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest. Such procedures would be unnecessary because the rule establishing the closure has been subject to notice and comment, and all that remains is to notify the public of the closure. Allowing prior notice and opportunity for public comment is contrary to the public interest. This action needs to be immediately implemented to protect vermilion snapper because the capacity of the fishing fleet allows for rapid harvest of the quota. Prior notice and opportunity for public comment would require time and would potentially result in a
harvest well in excess of the established commercial ACL (commercial quota).

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

This action is taken under 50 CFR 622.43(a) and is exempt from review
under Executive Order 12866.

Authority: 16 U.S.C. 1801 et seq.
Dated: September 24, 2012. Lindsay Fullenkamp, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

[FR Doc. 2012–23815 Filed 9–24–12; 4:15 pm]

**BILLING CODE 3510–22–P**