23120 Federal Register / Vol. 74, No. 94 / Monday, May 18, 2009 / Rules and Regulations 

Flooding source(s) Location of referenced elevation 

* Elevation in feet 

(NGVD) 

+ Elevation in feet 

(NAVD) 

# Depth in feet 

above ground 

Modified 

Communities affected 

Williamson Creek ...................... Approximately 1,000 feet upstream of Wilson Road (State 

Road 1540).

+2,105 Unincorporated Areas of 

Transylvania County. 

Approximately 1,000 feet upstream of the confluence of 

Camp Creek.

+ 2,116 

Wilson Mill Creek ...................... Approximately 1,900 feet upstream of the confluence with 

Catheys Creek.

+ 2,148 Unincorporated Areas of 

Transylvania County. 

Approximately 1,900 feet upstream of Forest Road ........... + 2,398 

* National Geodetic Vertical Datum. 

+ North American Vertical Datum. 

# Depth in feet above ground. 

ADDRESSES 

City of Brevard 

Maps are available for inspection at the City of Brevard Planning Department, 95 West Main Street, Brevard, NC. 

Unincorporated Areas of Transylvania County 

Maps are available for inspection at the Transylvania County Inspections Department, 98 East Morgan Street, Brevard, NC. 

Walworth County, Wisconsin, and Incorporated Areas FEMA Docket No.: B–7755 

Eagle Spring Lake .................... All flooding affecting County ............................................... + 822 Unincorporated Areas of 

Walworth County. 

Mukwonago River ..................... Approximately 1,700 feet North of the intersection of 

Marsh Road and County Highway J.

+ 799 Unincorporated Areas of 

Walworth County. 

Approximately 1.2 miles Northeast of the intersection of 

County Highway J and County Highway E.

+ 806 

* National Geodetic Vertical Datum. 

+ North American Vertical Datum. 

# Depth in feet above ground. 

ADDRESSES 

Unincorporated Areas of Walworth County 

Maps are available for inspection at the Office of Emergency Management, 1770 County Road NN, Elkhorn, WI 53121. 

(Catalog of Federal Domestic Assistance No. 

97.022, ‘‘Flood Insurance.’’) 

Dated: May 11, 2009. 

Deborah S. Ingram, 

Deputy Acting Assistant Administrator for 

Mitigation, Mitigation Directorate, 

Department of Homeland Security, Federal 

Emergency Management Agency. 

[FR Doc. E9–11513 Filed 5–15–09; 8:45 am] 

BILLING CODE 9110–12–P 

DEPARTMENT OF ENERGY 

48 CFR Parts 904, 952 and 970 

RIN 1991–AB71 

Acquisition Regulation: Security 

Clause 

AGENCY: Department of Energy. 

ACTION: Final rule. 

SUMMARY: The Department of Energy 

(DOE) is amending the Department of 

Energy Acquisition Regulation (DEAR) 

to revise the security clause used in all 

contracts and subcontracts involving 

access authorizations to specifically 

require background reviews, and tests 

for the absence of any illegal drug, as 

defined in DOE regulations of uncleared 

personnel (employment applicants and 

current employees), who will require 

access authorizations. Background 

reviews would not be required for 

applicants for DOE access authorization 

who possess a current access 

authorization from another Federal 

agency. 

DATES: Effective Date: June 17, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Richard Langston at 202–287–1339 or 

Richard.Langston@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Comments and Responses 

III. Procedural Requirements 

A. Review Under Executive Order 12866 

B. Review Under Executive Order 12988 

C. Review Under the Regulatory Flexibility 

Act 

D. Review Under the Paperwork Reduction 

Act 

E. Review Under the National 

Environmental Policy Act 

F. Review Under Executive Order 13132 

G. Review Under the Unfunded Mandates 

Reform Act of 1995 

H. Review Under the Treasury and General 

Government Appropriations Act, 1999 

I. Review Under Executive Order 13211 

J. Review Under the Treasury and General 

Government Appropriations Act, 2001 

K. Review Under the Small Business 

Regulatory Enforcement Fairness Act of 

1996 

L. Approval by the Office of the Secretary 

of Energy 

I. Background 

Many DOE contractor and 

subcontractor employees require access 

authorizations for access to classified 

information (restricted data, formerly 

restricted data, or national security 

information) or certain quantities of 

special nuclear material in order to 

perform official duties. On February 19, 

2008, DOE published a notice of 

proposed rulemaking to revise the 

Department of Energy Acquistion 

(DEAR) regulations to require the 

security clause used in certain contracts 

and subcontracts to specifically require 

contractors and subcontractors to 

conduct background checks and tests for 

illegal drugs of uncleared applicants 

and employees who will require DOE 

access authorizations (73 FR 9071). 

Under the proposed rule, the 

background check included the 


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collection and review by the contractor 

of items such as credit checks, and 

contacts with personal references and 

certain past employers. It then required 

contractors to assess the ‘‘job 

qualifications and suitability’’ of 

uncleared applicants and employees 

before assigning them to positions 

requiring an access authorization and 

before requesting that DOE process the 

individual for an access authorization. 

A contractor would determine 

‘‘suitability’’ by assessing the possible 

impact of ‘‘adverse information’’ found 

in the background check and deciding 

whether it is ‘‘confident’’ that an 

individual would pass the rigorous 

background investigation conducted by 

DOE for a position requiring an access 

authorization. A contractor’s assessment 

of the information would be guided by 

the criteria set forth in 10 CFR 710.8, 

used by the federal government to assess 

an individual’s eligibility for an access 

authorization. 

After considering public comments, 

DOE today revises several sections of 

the proposed rule, including amending 

Section 952.204–2(h)(2) to eliminate the 

requirement that a contractor consider 

the criteria in 10 CFR 710.8 in 

determining whether to select an 

individual for a position requiring an 

access authorization. In particular, the 

requirement that a contractor determine 

an applicant’s ‘‘suitability’’ for an access 

authorization has been removed. Rather, 

a contractor must conduct a background 

check (now defined in the final rule as 

a ‘‘review’’ or ‘‘background review’’) of 

such individuals prior to selection, 

evaluate the individual based on its own 

processes and consistent with 

applicable law, and then send specified 

information set out in the rule to DOE. 

Other changes to the proposed rule 

include revising Section 904.404 to add 

a requirement in paragraph (d)(1) that 

the security clause is required in any 

contract that will involve contractor 

employees’ access to special nuclear 

material. That requirement reflects past 

DOE practice and is being added to 

make the instruction clear and 

complete. Section 952.204–2, Security, 

is revised by changing the title of the 

section to ‘‘Security’’ and by revising its 

introductory text to conform to the more 

recent Federal Acquisition Regulation 

format. As a matter of administrative 

convenience, in addition to the 

provisions regarding the review of 

employees and applicants, the rule 

includes provisions implementing 

certain technical changes to the format 

of the DEAR provisions at issue here. 

Some of the requirements at 970.2201– 

1–2, are appropriate to other types of 

contracts if access authorizations are 

required, so language at 970.2201–1–2 is 

being restated in the security clause. 

II. Comments and Responses 

Comments were received from three 

organizations, two of which were from 

DOE National Laboratories and another 

from an aircraft manufacturer. 

The first DOE National Laboratory 

offered 4 comments. 

Comment 1. 

This comment regards the contract 

clause entitled Security at 952.204–2, 

specifically (2) Job Qualifications and 

Suitability. 

This section directs contractors to 

assess the possible impact of adverse 

information found during the course of 

a background check relative to the 

individual’s suitability for a position 

requiring an access authorization and 

act accordingly. Criteria cited following 

this statement are the access 

authorization criteria found in 10 CFR 

710.8, however criteria referenced 

earlier in the section cites background 

checks are being used to determine 

employment suitability in accordance 

with the contractor’s personnel policies. 

It is unclear as to what is required to 

be determined, suitability for 

employment or suitability for an access 

authorization. Suitability for an access 

authorization in accordance with 10 

CFR 710.8 is an adjudicative decision 

rendered by a federal employee who has 

been designated and trained to perform 

this function. Is it expected that the 

contractor, after assessing the impacts of 

adverse information in accordance with 

10 CFR 710.8, refuse to submit an 

individual for an access authorization 

even though the individual has been 

determined eligible for employment in 

accordance with the contractor’s 

personnel policies? 

Under what adjudicative authority is 

this determination authorized? 

Response 1. 

DOE is revising Section 952.204– 

2(h)(2) to eliminate: (1) the requirement 

that a contractor apply the criteria at 10 

CFR 710.8 in determining whether to 

select an uncleared applicant or 

uncleared employee for a position 

requiring an access authorization; and 

(2) any requirement that a contractor 

determine the ‘‘suitability’’ of an 

individual for an access authorization. 

The rule has been revised to clarify that 

it only requires a contractor to collect 

information and conduct a review of an 

uncleared applicant or uncleared 

employee, prior to selecting an 

individual for a position requiring an 

access authorization, to evaluate that 

individual pursuant to the contractor’s 

personnel policies and applicable law, 

and then to send to the head of the 

cognizant local DOE Security Office the 

information set out in the regulation at 

Section 952.204–2(h)(2)(vi) for selected 

individuals. Under this rule, a decision 

as to whether an individual is eligible 

for an access authorization remains a 

DOE or Federal security decision. 

Comment 2. 

For individuals under contract who 

require an access authorization or small 

companies where the company owners 

are the employees, are background 

checks required? Who renders the 

determination? What suitability is being 

determined and under what criteria— 

employment or access authorization? 

Response 2. 

An individual’s status as an 

employee, manager or owner has no 

bearing on DOE’s determination as to 

whether to grant the individual an 

access authorization. 

Comment 3. 

This comment regards paragraph (j) 

Foreign Ownership, Control or 

Influence (FOCI) of the Security clause. 

DOE facility clearance requirements 

as promulgated in DOE M 470.4–1, Chg. 

1, require processing of facility 

clearances for circumstances that do not 

involve access authorizations (i.e., Cat 

IV SNM, possession of hazardous 

materials that present radiological/ 

toxicological/biological sabotage threats 

and possession of DOE property greater 

than five million dollars in value). 

Foreign Ownership, Control or 

Influence requirements only apply 

when access authorizations are 

required. The comment recommends 

that this paragraph’s applicability be 

qualified. 

Response 3. 

Generally, only contracts involving 

restricted data or national security 

information or access to special nuclear 

material and thus requiring access 

authorizations would require use of the 

Security clause. DOE M 470.4–1, Chg. 1, 

at paragraph 5.b.2., requires Foreign 

Ownership, Control or Influence 

coverage in any contract containing the 

Security clause. DOE does not believe 

any further applicability guidance is 

necessary. In the situation where a 

Foreign Ownership, Control or 

Influence determination and a facility 

clearance are required, but access 

authorizations will not be required for 

the employees of the contractor, the preemployment review and drug tests that 

are described in the security clause are 

not required since these requirements 

are only applicable to positions 

requiring access authorizations. 

Comment 4. 

This comment relates to paragraph (l), 

Flow down to subcontracts, of the 

security clause. 


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Given the applicability of the facility 

clearance requirements, flow down to 

only those contracts that require access 

authorizations appears to be 

inconsistent. In addition, the criteria 

relative to employment eligibility 

identified in Part 970 apply to DOE 

management and operating (M&O) 

contractors. What criteria are to be used 

for contractors who are not M&O 

contractors? 

Response 4. 

This rule does not specify criteria that 

a DOE M&O or a non-M&O contractor 

must use in assessing the eligibility for 

employment of an individual that the 

contractor is considering for a position 

requiring an access authorization. Nor is 

the rule limited to M&O contractors. 

Rather, it incorporates changes to both 

Parts 952 and 970. Paragraph (l) of the 

security clause at 952.204–2 correctly 

states that the rule is applicable to all 

contracts and subcontracts which 

involve restricted data, national security 

information, or special nuclear material. 

Facility clearances are the subject of 

a separate clause at 952.204–73 and 

involve the assessment of a facility, not 

the assessment of individuals for access 

to restricted data, national security 

information, or possession of special 

nuclear material, which is the subject of 

this rulemaking. Moreover, a facility 

clearance may be required for reasons 

other than restricted data, national 

security information, or possession of 

special nuclear material. For example, a 

facility clearance may be required where 

a contractor has possession of unusually 

valuable Government property. Not all 

individual contractor employees at a 

facility that hold a facility clearance are 

required to have access authorizations. 

Only the individual contractor 

employees at such facilities who require 

access to restricted data, national 

security information, or possession of 

special nuclear material at sites with 

facility clearances need access 

authorizations. 

The second DOE National Laboratory 

offered 1 comment. 

Comment 5. 

Paragraph (h)(2) of the proposed 

security clause amendment contains the 

following statement: 

‘‘Contractors must propose personnel 

to work in positions requiring access 

authorizations only if they are confident 

that the individuals will pass the 

rigorous background review that DOE 

will conduct.’’ 

DOE’s rigorous background review is 

based on criteria found at 10 CFR 710.8. 

Those criteria include references to a 

person’s likely place of origin (e), illness 

or mental condition (h), alcohol 

dependence (j), bankruptcy—pattern of 

financial irresponsibility (l), among 

others. While the proposed rule 

represents an understandable aspiration, 

the proposed rule places contractors in 

an untenable position. Contractors 

would be required to violate antidiscrimination laws, the Americans 

with Disabilities Act, and the 

bankruptcy laws, among others. This 

situation is not one contractors relish. 

The Government alone is traditionally 

authorized to make decisions involving 

trade-offs between the Government’s 

legitimate goals of treating its citizens 

fairly and its national security interests. 

If a contractor refused to hire or retain 

an individual for one of the reasons 

above, the contractor would open the 

door to litigation; litigation that would 

not arise if the Government exercises its 

inherent functions. 

DOE Response 5. 

DOE has removed all references to the 

criteria found at 10 CFR 710.8, and will, 

under this rule, require contractors to 

comply with all laws, regulations, and 

Executive Orders in processing an 

individual’s information and in 

considering whether to select an 

individual for a position requiring an 

access authorization. 

The aircraft manufacturer offered 7 

comments. 

Comment 6. 

The reviewer noted that the proposed 

Security clause at page 9073 was dated 

2007 and suggested that it should be 

changed. 

Response 6. 

DOE agrees and the rule will specify 

the correct month and year of the 

clause’s effective date in this final rule. 

Comment 7. 

Subparagraph (a) of the proposed 

security clause contains references to 

the terms ‘‘classified information,’’ 

‘‘classified documents,’’ ‘‘classified 

matter,’’ and ‘‘classified materials,’’ 

which are confusing. We believe that 

the terms ‘‘classified matter’’ at lines 16 

and 21, ‘‘material’’ at line 25, and 

‘‘matter’’ at line 30 of the clause should 

all be revised to the terms ‘‘classified 

documents’’ or ‘‘classified articles.’’ 

Response 7. 

DOE has made clarifying changes in 

response to this comment. DOE is 

revising the second sentence to read 

‘‘The Contractor shall, in accordance 

with DOE security regulations and 

requirements, be responsible for 

protecting all classified information and 

all classified matter (including 

documents, material and special nuclear 

material), which is in the contractor’s 

possession in connection with the 

performance of work under this 

contract, against sabotage, espionage, 

loss or theft.’’ Additionally, DOE is 

changing ‘‘material’’ to ‘‘matter’’ where 

it is used in the fourth sentence, and is 

changing ‘‘matter’’ in the fifth sentence 

to ‘‘classified matter.’’ The two uses of 

‘‘classified matter’’ in the third and 

fourth sentences are correct because 

classified matter can be any 

combination of classified documents or 

other classified material. 

Comment 8. 

Under the terms of subparagraph 

(h)(2) of the proposed security clause, 

the contractor is responsible for 

conducting the background 

investigation and forwarding the results 

to DOE. This would seem risky because 

it necessitates two investigations, one by 

the contractor and another by DOE to 

verify what the contractor submitted. 

Also, at subparagraph (h)(2), DOE 

should revise ‘‘afforded access to 

classified information or matter’’ to 

‘‘afforded access to classified 

information, classified documents, or 

classified articles.’’ 

Response 8. 

The rule has been revised to clarify 

that the review required by the security 

clause is for the purpose of gathering 

information to be considered by the 

contractor before selecting an individual 

for a position that requires a DOE access 

authorization. It is not the equivalent of 

the background investigation that will 

be conducted by the federal government 

prior to the granting or denial of an 

access authorization request. With 

respect to the suggested language 

change, DOE believes the proposed 

language—‘‘afforded access to classified 

information or matter’’—is technically 

correct, and therefore, is not adopting 

the suggestion. 

Comment 9. 

At subparagraph (h)(3)(i) of the 

proposed clause, revise the term 

‘‘classified information’’ in lines 5 and 

6 to ‘‘classified information and 

classified documents.’’ 

Response 9. 

The Department does not adopt this 

recommendation because it would be 

inappropriate for this prohibition to 

apply only when both classified 

information and classified documents 

are disclosed to the same, unauthorized 

person. The term ‘‘classified 

information’’ is inclusive in that 

documents, parts, audible conversation, 

matter in cyber (electronic) or other 

form, etc. all become classified on the 

basis of their containing, revealing, or 

embodying classified information. 

Comment 10. 

At subparagraph (j) ‘‘Foreign 

Ownership, Control or Influence,’’ 

failure to satisfy the requirements of the 

clause is grounds for termination for 

default per paragraph (j)(4). We believe 


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what is intended is default for failure to 

comply with subparagraph (j)(1). We 

believe the term ‘‘this clause’’ should be 

revised to read paragraph (j)(1). 

Response 10. 

DOE does not wish to limit its right 

to terminate to just paragraph (j)(1). 

Comment 11. 

Subparagraph (k), ‘‘Employment 

announcements’’ requires a contractor 

to include a detailed notification in a 

written vacancy announcement. Failing 

to follow this requirement explicitly 

should not be a justification for the 

contracting officer to terminate the 

contractor for default. The requirement 

should be clarified as to whether it 

applies to internal announcements as 

well. 

Response 11. 

DOE will determine the appropriate 

remedy for failure to comply with the 

requirements for notice about reviews 

and drug testing requirements in 

vacancy announcements on a case-bycase basis. This final rule does not cover 

language included in an announcement 

that is internal to the contractor’s 

workplace. 

Comment 12. 

The reviewer suggests that 

subparagraph (k) be revised to require 

that applicants be told that a 

background check, drug testing, etc., 

will be required rather than requiring 

contractors to include this detail in the 

vacancy announcement. The reviewer 

questions the benefit from including the 

detail in the vacancy announcement and 

is concerned it simply announces to the 

world that the employer does classified 

work for the United States Government. 

Response 12. 

DOE is retaining the requirement that 

advance notice be given to potential 

applicants as part of the written vacancy 

announcement. This ensures that all 

applicants are given the same advance 

notification of the requirements before 

time and effort are expended by the 

applicant and employee. 

III. Procedural Requirements. 

A. Review Under Executive Order 12866 

This regulatory action has been 

determined not to be a significant 

regulatory action under Executive Order 

12866, Regulatory Planning and Review 

(58 FR 51735, October 4, 1993). 

Accordingly, this final rule is not 

subject to review under the Executive 

Order by the Office of Information and 

Regulatory Affairs (OIRA) within the 

Office of Management and Budget. 

B. Review Under Executive Order 12988 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, Civil Justice 

Reform (61 FR 4729, February 7, 1996), 

imposes on executive agencies the 

general duty to adhere to the following 

requirements: (1) Eliminate drafting 

errors and ambiguity; (2) write 

regulations to minimize litigation; (3) 

provide a clear legal standard for 

affected conduct rather than a general 

standard; and (4) promote simplification 

and burden reduction. With regard to 

the review required by section 3(a), 

section 3(b) of Executive Order 12988 

specifically requires that executive 

agencies make every reasonable effort to 

ensure that the regulation: (1) Clearly 

specifies the preemptive effect, if any; 

(2) clearly specifies any effect on 

existing Federal law or regulation; (3) 

provides a clear legal standard for 

affected conduct while promoting 

simplification and burden reduction; (4) 

specifies the retroactive effect, if any; (5) 

adequately defines key terms; and (6) 

addresses other important issues 

affecting clarity and general 

draftsmanship under any guidelines 

issued by the Attorney General. Section 

3(c) of Executive Order 12988 requires 

executive agencies to review regulations 

in light of applicable standards in 

section 3(a) and section 3(b) to 

determine whether they are met or that 

it is unreasonable to meet one or more 

of them. DOE has completed the 

required review and determined that, to 

the extent permitted by law, these 

regulations meet the relevant standards 

of Executive Order 12988. 

C. Review Under the Regulatory 

Flexibility Act 

This rule has been reviewed under the 

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

et seq., which requires preparation of an 

initial regulatory flexibility analysis for 

any rule that must be proposed for 

public comment and that is likely to 

have a significant economic impact on 

a substantial number of small entities. 

The rule would not have a significant 

economic impact on small entities 

because it imposes no significant 

burdens. Any costs incurred by DOE 

contractors complying with the rule 

would be reimbursed under the 

contract. 

Accordingly, DOE certifies that this 

rule would not have a significant 

economic impact on a substantial 

number of small entities, and, therefore, 

no regulatory flexibility analysis is 

required and none has been prepared. 

D. Review Under the Paperwork 

Reduction Act 

This final rule contains no new 

information collection or recordkeeping 

requirements. Information collection or 

recordkeeping requirements mentioned 

in this rule relative to the facility 

clearance and access authorization 

processes have been previously cleared 

under Office of Management and Budget 

(OMB) paperwork clearance package 

number 0704–0194 for facility 

clearances processed by the Department 

of Defense for Standard Form (SF) 283, 

or package number 3206–0007 

processed by the Office of Personnel 

Management for personnel access 

authorizations using SF 86. 

E. Review Under the National 

Environmental Policy Act 

DOE has concluded that promulgation 

of this rule falls into a class of actions 

which would not individually or 

cumulatively have significant impact on 

the human environment, as determined 

by DOE’s regulations (10 CFR Part 1021, 

Subpart D) implementing the National 

Environmental Policy Act (NEPA) of 

1969 (42 U.S.C. 4321 et seq.). 

Specifically, this rule is categorically 

excluded from NEPA review because 

the amendments to the DEAR would be 

strictly procedural (categorical 

exclusion A6). Therefore, this rule does 

not require an environmental impact 

statement or environmental assessment 

pursuant to NEPA. 

F. Review Under Executive Order 13132 

Executive Order 13132 (64 FR 43255, 

August 4, 1999) imposes certain 

requirements on agencies formulating 

and implementing policies or 

regulations that preempt state law or 

that have federalism implications. 

Agencies are required to examine the 

constitutional and statutory authority 

supporting any action that would limit 

the policymaking discretion of the states 

and carefully assess the necessity for 

such actions. DOE has examined today’s 

rule and has determined that it does not 

preempt state law and does not have a 

substantial direct effect 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. No further action 

is required by Executive Order 13132. 

G. Review Under the Unfunded 

Mandates Reform Act of 1995 

The Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4) requires a 

federal agency to perform a detailed 

assessment of costs and benefits of any 

rule imposing a federal mandate with 

costs to state, local or tribal 

governments, or to the private sector, of 

$100 million or more in any single year. 

This rule does not impose a federal 


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23124 Federal Register / Vol. 74, No. 94 / Monday, May 18, 2009 / Rules and Regulations 

mandate on state, local or tribal 

governments or on the private sector. 

H. Review Under the Treasury and 

General Government Appropriations 

Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277), requires 

federal agencies to issue a Family 

Policymaking Assessment for any rule 

or policy that may affect family wellbeing. This rule will have no impact on 

family well being. 

I. Review Under Executive Order 13211 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use (66 FR 28355, May 

22, 2001), requires federal agencies to 

prepare and submit to the Office of 

Information and Regulatory Affairs 

(OIRA), OMB, a Statement of Energy 

Effects for any significant energy action. 

A ‘‘significant energy action’’ is defined 

as any action by an agency that 

promulgates or is expected to lead to 

promulgation of a final rule, and that: 

(1) Is a significant regulatory action 

under Executive Order 12866, or any 

successor order; (2) is likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy; or (3) is 

designated by the Administrator of 

OIRA as a significant energy action. For 

any significant energy action, the agency 

must give a detailed statement of any 

adverse effects on energy supply, 

distribution, or use should the proposal 

be implemented, and of reasonable 

alternatives to the action and their 

expected benefits on energy supply, 

distribution, and use. 

Today’s rule is not a significant 

energy action. Accordingly, DOE has not 

prepared a Statement of Energy Effects. 

J. Review Under the Treasury and 

General Government Appropriations 

Act, 2001 

The Treasury and General 

Government Appropriations Act, 2001, 

44 U.S.C. 3516 note, provides for 

agencies to review most disseminations 

of information to the public under 

implementing guidelines established by 

each agency pursuant to general 

guidelines issued by OMB. OMB’s 

guidelines were published at 67 FR 

8452 (February 22, 2002), and DOE’s 

guidelines were published at 67 FR 

62446 (October 7, 2002). DOE has 

reviewed today’s notice under the OMB 

and DOE guidelines and has concluded 

that it is consistent with applicable 

policies in those guidelines. 

K. Review Under the Small Business 

Regulatory Enforcement Fairness Act of 

1996 

As required by 5 U.S.C. 801, the 

Department will report to Congress 

promulgation of this rule prior to its 

effective date. The report will state that 

it has been determined that the rule is 

not a ‘‘major rule’’ as defined by 5 

U.S.C. 804(3). 

L. Approval by the Office of the 

Secretary of Energy. 

The Office of the Secretary of Energy 

has approved issuance of this final rule. 

List of Subjects in 48 CFR Parts 904, 

952 and 970 

Government procurement. 

Issued in Washington, DC, on May 13, 

2009. 

Edward R. Simpson, 

Director, Office of Procurement and 

Assistance Management, Office of 

Management, Department of Energy. 

David O. Boyd, 

Director, Office of Acquisition and Supply 

Management, National Nuclear Security 

Administration. 

■ For the reasons set out in the 

preamble, DOE amends Chapter 9 of 

Title 48 of the Code of Federal 

Regulations as set forth below: 

PART 904—ADMINISTRATIVE 

MATTERS 

■ 1. The authority citations for parts 904 

and 952 continue to read as follows: 

Authority: 42 U.S.C. 7101, et seq.; 41 

U.S.C. 418(b); 50 U.S.C. 2401, et seq. 

■ 2. In section 904.401, add in 

alphabetical order, new definitions for 

‘‘applicant’’ and ‘‘review or background 

review’’ and revise the definitions of 

‘‘classified information’’ and ‘‘restricted 

data’’ to read as follows: 

904.401 Definitions. 

* * * * * 

Applicant means an individual who 

has submitted an expression of interest 

in employment; who is under 

consideration by the contractor for 

employment in a particular position; 

and who has not removed himself or 

herself from further consideration or 

otherwise indicated that he or she is no 

longer interested in the position. 

Classified information means 

information that is classified as 

restricted data or formerly restricted 

data under the Atomic Energy Act of 

1954, or information determined to 

require protection against unauthorized 

disclosure under Executive Order 

12958, Classified National Security 

Information, as amended, or prior 

executive orders, which is identified as 

national security information. 

* * * * * 

Restricted data means all data 

concerning design, manufacture, or 

utilization of atomic weapons; 

production of special nuclear material; 

or use of special nuclear material in the 

production of energy, but excluding 

data declassified or removed from the 

restricted data category pursuant to 

Section 142, as amended, of the Atomic 

Energy Act of 1954 (42 U.S.C. 2162). 

* * * * * 

Review or background review means a 

Contractor’s assessment of the 

background of an uncleared applicant or 

uncleared employee for a position 

requiring a DOE access authorization 

prior to selecting that individual for 

such a position. 

904.404 [Amended] 

■ 3. Section 904.404 is amended by 

adding the words ‘‘, access to special 

nuclear materials or the provision of 

protective services’’ after the words 

‘‘classified information’’ at the end of 

the first sentence of paragraph (d)(1). 

PART 952—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 4. Section 952.204–2 is revised to read 

as follows: 

952.204–2 Security. 

As prescribed in 904.404(d)(1), the 

following clause shall be included in 

contracts entered into under section 31 

(research assistance, 42 U.S.C. 2051), or 

section 41 (ownership and operation of 

production facilities, 42 U.S.C. 2061) of 

the Atomic Energy Act of 1954, and in 

other contracts and subcontracts which 

involve or are likely to involve 

classified information or special nuclear 

material. 

SECURITY (JUNE 2009) 

(a) Responsibility. It is the Contractor’s 

duty to protect all classified information, 

special nuclear material, and other DOE 

property. The Contractor shall, in accordance 

with DOE security regulations and 

requirements, be responsible for protecting 

all classified information and all classified 

matter (including documents, material and 

special nuclear material) which are in the 

Contractor’s possession in connection with 

the performance of work under this contract 

against sabotage, espionage, loss or theft. 

Except as otherwise expressly provided in 

this contract, the Contractor shall, upon 

completion or termination of this contract, 

transmit to DOE any classified matter or 

special nuclear material in the possession of 

the Contractor or any person under the 

Contractor’s control in connection with 

performance of this contract. If retention by 


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the Contractor of any classified matter is 

required after the completion or termination 

of the contract, the Contractor shall identify 

the items and classification levels and 

categories of matter proposed for retention, 

the reasons for the retention, and the 

proposed period of retention. If the retention 

is approved by the Contracting Officer, the 

security provisions of the contract shall 

continue to be applicable to the classified 

matter retained. Special nuclear material 

shall not be retained after the completion or 

termination of the contract. 

(b) Regulations. The Contractor agrees to 

comply with all security regulations and 

contract requirements of DOE in effect on the 

date of award. 

(c) Definition of Classified Information. 

The term Classified Information means 

information that is classified as Restricted 

Data or Formerly Restricted Data under the 

Atomic Energy Act of 1954, or information 

determined to require protection against 

unauthorized disclosure under Executive 

Order 12958, Classified National Security 

Information, as amended, or prior executive 

orders, which is identified as National 

Security Information. 

(d) Definition of Restricted Data. The term 

Restricted Data means all data concerning 

design, manufacture, or utilization of atomic 

weapons; production of special nuclear 

material; or use of special nuclear material in 

the production of energy, but excluding data 

declassified or removed from the Restricted 

Data category pursuant to 42 U.S.C. 2162 

[Section 142, as amended, of the Atomic 

Energy Act of 1954]. 

(e) Definition of Formerly Restricted Data. 

The term ’’Formerly Restricted Data’’ means 

information removed from the Restricted 

Data category based on a joint determination 

by DOE or its predecessor agencies and the 

Department of Defense that the information: 

(1) Relates primarily to the military 

utilization of atomic weapons; and (2) can be 

adequately protected as National Security 

Information. However, such information is 

subject to the same restrictions on 

transmission to other countries or regional 

defense organizations that apply to Restricted 

Data. 

(f) Definition of National Security 

Information. The term ‘‘National Security 

Information’’ means information that has 

been determined, pursuant to Executive 

Order 12958, Classified National Security 

Information, as amended, or any predecessor 

order, to require protection against 

unauthorized disclosure, and that is marked 

to indicate its classified status when in 

documentary form. 

(g) Definition of Special Nuclear Material. 

The term ‘‘special nuclear material’’ means: 

(1) Plutonium, uranium enriched in the 

isotope 233 or in the isotope 235, and any 

other material which, pursuant to 42 U.S.C. 

2071 [section 51 as amended, of the Atomic 

Energy Act of 1954] has been determined to 

be special nuclear material, but does not 

include source material; or (2) any material 

artificially enriched by any of the foregoing, 

but does not include source material. 

(h) Access authorizations of personnel. (1) 

The Contractor shall not permit any 

individual to have access to any classified 

information or special nuclear material, 

except in accordance with the Atomic Energy 

Act of 1954, and the DOE’s regulations and 

contract requirements applicable to the 

particular level and category of classified 

information or particular category of special 

nuclear material to which access is required. 

(2) The Contractor must conduct a 

thorough review, as defined at 48 CFR 

904.401, of an uncleared applicant or 

uncleared employee, and must test the 

individual for illegal drugs, prior to selecting 

the individual for a position requiring a DOE 

access authorization. 

(i) A review must: Verify an uncleared 

applicant’s or uncleared employee’s 

educational background, including any high 

school diploma obtained within the past five 

years, and degrees or diplomas granted by an 

institution of higher learning; contact listed 

employers for the last three years and listed 

personal references; conduct local law 

enforcement checks when such checks are 

not prohibited by state or local law or 

regulation and when the uncleared applicant 

or uncleared employee resides in the 

jurisdiction where the Contractor is located; 

and conduct a credit check and other checks 

as appropriate. 

(ii) Contractor reviews are not required for 

an applicant for DOE access authorization 

who possesses a current access authorization 

from DOE or another Federal agency, or 

whose access authorization may be 

reapproved without a federal background 

investigation pursuant to Executive Order 

12968, Access to Classified Information 

(August 4, 1995), Sections 3.3(c) and (d). 

(iii) In collecting and using this 

information to make a determination as to 

whether it is appropriate to select an 

uncleared applicant or uncleared employee 

to a position requiring an access 

authorization, the Contractor must comply 

with all applicable laws, regulations, and 

Executive Orders, including those: (A) 

Governing the processing and privacy of an 

individual’s information, such as the Fair 

Credit Reporting Act, Americans with 

Disabilities Act (ADA), and Health Insurance 

Portability and Accountability Act; and (B) 

prohibiting discrimination in employment, 

such as under the ADA, Title VII and the Age 

Discrimination in Employment Act, 

including with respect to pre- and post-offer 

of employment disability related questioning. 

(iv) In addition to a review, each candidate 

for a DOE access authorization must be tested 

to demonstrate the absence of any illegal 

drug, as defined in 10 CFR Part 707.4. All 

positions requiring access authorizations are 

deemed testing designated positions in 

accordance with 10 CFR Part 707. All 

employees possessing access authorizations 

are subject to applicant, random or for cause 

testing for use of illegal drugs. DOE will not 

process candidates for a DOE access 

authorization unless their tests confirm the 

absence from their system of any illegal drug. 

(v) When an uncleared applicant or 

uncleared employee receives an offer of 

employment for a position that requires a 

DOE access authorization, the Contractor 

shall not place that individual in such a 

position prior to the individual’s receipt of a 

DOE access authorization, unless an approval 

has been obtained from the head of the 

cognizant local security office. If the 

individual is hired and placed in the position 

prior to receiving an access authorization, the 

uncleared employee may not be afforded 

access to classified information or matter or 

special nuclear material (in categories 

requiring access authorization) until an 

access authorization has been granted. 

(vi) The Contractor must furnish to the 

head of the cognizant local DOE Security 

Office, in writing, the following information 

concerning each uncleared applicant or 

uncleared employee who is selected for a 

position requiring an access authorization: 

(A) The date(s) each Review was 

conducted; 

(B) Each entity that provided information 

concerning the individual; 

(C) A certification that the review was 

conducted in accordance with all applicable 

laws, regulations, and Executive Orders, 

including those governing the processing and 

privacy of an individual’s information 

collected during the review; 

(D) A certification that all information 

collected during the review was reviewed 

and evaluated in accordance with the 

Contractor’s personnel policies; and 

(E) The results of the test for illegal drugs. 

(i) Criminal liability. It is understood that 

disclosure of any classified information 

relating to the work or services ordered 

hereunder to any person not entitled to 

receive it, or failure to protect any classified 

information, special nuclear material, or 

other Government property that may come to 

the Contractor or any person under the 

Contractor’s control in connection with work 

under this contract, may subject the 

Contractor, its agents, employees, or 

Subcontractors to criminal liability under the 

laws of the United States (see the Atomic 

Energy Act of 1954, 42 U.S.C. 2011 et seq.; 

18 U.S.C. 793 and 794). 

(j) Foreign Ownership, Control, or 

Influence. (1) The Contractor shall 

immediately provide the cognizant security 

office written notice of any change in the 

extent and nature of foreign ownership, 

control or influence over the Contractor 

which would affect any answer to the 

questions presented in the Standard Form 

(SF) 328, Certificate Pertaining to Foreign 

Interests, executed prior to award of this 

contract. In addition, any notice of changes 

in ownership or control which are required 

to be reported to the Securities and Exchange 

Commission, the Federal Trade Commission, 

or the Department of Justice, shall also be 

furnished concurrently to the Contracting 

Officer. 

(2) If a Contractor has changes involving 

foreign ownership, control, or influence, DOE 

must determine whether the changes will 

pose an undue risk to the common defense 

and security. In making this determination, 

DOE will consider proposals made by the 

Contractor to avoid or mitigate foreign 

influences. 

(3) If the cognizant security office at any 

time determines that the Contractor is, or is 

potentially, subject to foreign ownership, 

control, or influence, the Contractor shall 

comply with such instructions as the 

Contracting Officer shall provide in writing 


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to protect any classified information or 

special nuclear material. 

(4) The Contracting Officer may terminate 

this contract for default either if the 

Contractor fails to meet obligations imposed 

by this clause or if the Contractor creates a 

foreign ownership, control, or influence 

situation in order to avoid performance or a 

termination for default. The Contracting 

Officer may terminate this contract for 

convenience if the Contractor becomes 

subject to foreign ownership, control, or 

influence and for reasons other than 

avoidance of performance of the contract, 

cannot, or chooses not to, avoid or mitigate 

the foreign ownership, control, or influence 

problem. 

(k) Employment announcements. When 

placing announcements seeking applicants 

for positions requiring access authorizations, 

the Contractor shall include in the written 

vacancy announcement, a notification to 

prospective applicants that reviews, and tests 

for the absence of any illegal drug as defined 

in 10 CFR 707.4, will be conducted by the 

employer and a background investigation by 

the Federal government may be required to 

obtain an access authorization prior to 

employment, and that subsequent 

reinvestigations may be required. If the 

position is covered by the 

Counterintelligence Evaluation Program 

regulations at 10 CFR Part 709, the 

announcement should also alert applicants 

that successful completion of a 

counterintelligence evaluation may include a 

counterintelligence-scope polygraph 

examination. 

(l) Flow down to subcontracts. The 

Contractor agrees to insert terms that conform 

substantially to the language of this clause, 

including this paragraph, in all subcontracts 

under its contract that will require 

Subcontractor employees to possess access 

authorizations. Additionally, the Contractor 

must require such Subcontractors to have an 

existing DOD or DOE facility clearance or 

submit a completed SF 328, Certificate 

Pertaining to Foreign Interests, as required in 

DEAR 952.204–73 and obtain a foreign 

ownership, control and influence 

determination and facility clearance prior to 

award of a subcontract. Information to be 

provided by a Subcontractor pursuant to this 

clause may be submitted directly to the 

Contracting Officer. For purposes of this 

clause, Subcontractor means any 

Subcontractor at any tier and the term 

‘‘Contracting Officer’’ means the DOE 

Contracting Officer. When this clause is 

included in a subcontract, the term 

‘‘Contractor’’ shall mean Subcontractor and 

the term ‘‘contract’’ shall mean subcontract. 

(End of Clause) 

PART 970—DOE MANAGEMENT AND 

OPERATING CONTRACTS 

■ 5. The authority citation for part 970 

continues to read as follows: 

Authority: 42 U.S.C. 2201, 2282a, 2282b, 

2282c; 42 U.S.C. 7101 et seq.; 41 U.S.C. 418b; 

50 U.S.C. 2401 et seq. 

970.0470–1 [Amended] 

■ 6. Section 970.0470–1(b) is amended 

by revising both mentions of ‘‘Directives 

System’’ to read ‘‘Directives Program.’’ 

970.2201–1 [Amended] 

■ 7. Section 970.2201–1–1 is amended 

by removing the term ‘‘guidance’’ and 

adding in its place ‘‘requirements.’’ 

■ 8. In section 970.2201–1–2, 

paragraphs (a)(1)(i), (ii) and (iii) are 

revised and paragraphs (a)(1)(iv), (v) and 

(vi) are added to read as follows: 

970.2201–1–2 Policies. 

(a)(1) * * * 

(i) Management and operating 

contractors are expected to bring 

experienced, proven personnel from 

their private operations to staff key 

positions on the contract and to recruit 

other well-qualified personnel as 

needed. Such personnel should be 

employed and treated during 

employment without discrimination by 

reason of race, color, religion, sex, age, 

disability, or national origin. 

Contractors shall be required to take 

affirmative action to achieve these 

objectives. 

(ii) The Contractor must conduct a 

thorough review, as defined at 48 CFR 

904.401, of an uncleared applicant’s or 

uncleared employee’s background, and 

test the individual for illegal drugs, as 

part of its determination to select that 

individual for a position requiring a 

DOE access authorization. 

(A) A review must: Verify an 

uncleared applicant’s or uncleared 

employee’s educational background, 

including any high school diploma 

obtained within the past five years, and 

degrees or diplomas granted by an 

institution of higher learning; contact 

listed employers for the last three years 

and listed personal references; conduct 

local law enforcement checks when 

such checks are not prohibited by state 

or local law or regulation and when the 

uncleared applicant or uncleared 

employee resides in the jurisdiction 

where the contractor is located; and 

conduct a credit check and other checks 

as appropriate. 

(B) Contractor reviews are not 

required for an applicant for DOE access 

authorization who possesses a current 

access authorization from DOE or 

another federal agency, or whose access 

authorization may be reapproved 

without a federal background 

investigation pursuant to Executive 

Order 12968, Access to Classified 

Information (August 4, 1995), Sections 

3.3(c) and (d). 

(C) In collecting and using this 

information to make a determination as 

to whether it is appropriate to select an 

uncleared applicant or uncleared 

employee for a position requiring an 

access authorization, the contractor 

must comply with all applicable laws, 

regulations, and Executive Orders, 

including those: 

(1) Governing the processing and 

privacy of an individual’s information 

by employers, such as the Fair Credit 

Reporting Act, Americans with 

Disabilities Act (ADA), and Health 

Insurance Portability and 

Accountability Act; and 

(2) Prohibiting discrimination in 

employment, such as under the ADA, 

Title VII and the Age Discrimination in 

Employment Act, including with 

respect to pre- and post-offer of 

employment disability related 

questioning. 

(iii) In addition to a review, each 

candidate for a DOE access 

authorization must be tested to 

demonstrate the absence of any illegal 

drug, as defined in 10 CFR Part 707.4. 

All positions requiring access 

authorizations are deemed testing 

designated positions in accordance with 

10 CFR Part 707. All employees 

possessing access authorizations are 

subject to applicant, random or for 

cause testing for use of illegal drugs. 

DOE will not process candidates for a 

DOE access authorization unless their 

tests confirm the absence of any illegal 

drug. 

(iv) When an uncleared applicant or 

uncleared employee is hired specifically 

for a position that requires a DOE access 

authorization, the contractor shall not 

place that individual in that position 

prior to the access authorization being 

granted by DOE, unless an approval has 

been obtained from the contracting 

officer, acting in consultation for these 

purposes with the head of the cognizant 

local security office. If an uncleared 

employee is placed in that position 

prior to an access authorization being 

granted by the contracting officer, the 

uncleared employee may not be 

afforded access to classified information 

or matter or special nuclear material (in 

categories requiring access 

authorization) until the contracting 

officer notifies the employer that an 

access authorization has been granted. 

(v)(A) The contractor must furnish to 

the head of the cognizant local DOE 

Security Office, in writing, the following 

information concerning each uncleared 

applicant or uncleared employee who is 

selected for a position requiring an 

access authorization: 

(1) The date(s) each review was 

conducted; 


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(2) Each entity contacted that 

provided information concerning the 

individual; 

(3) A certification that the review was 

conducted in accordance with all 

applicable laws, regulations, and 

Executive Orders, including those 

governing the processing and privacy of 

an individual’s information collected 

during the review; 

(4) A certification that all information 

collected during the review was 

reviewed and evaluated in accordance 

with the contractor’s personnel policies; 

and 

(5) The results of the test for illegal 

drugs. 

When a DOE access authorization will 

be required, the aforementioned review 

must be conducted and the required 

information forwarded to DOE before a 

request is made to DOE to process the 

individual for an access authorization. 

(vi) Management and operating 

contractors and other contractors 

operating DOE facilities shall include 

the requirements set forth in this 

subsection in subcontracts 

(appropriately modified to identify the 

parties) wherein subcontract employees 

will be required to hold DOE access 

authorizations in order to perform onsite duties, such as protective force 

operations. 

* * * * * 

[FR Doc. E9–11522 Filed 5–15–09; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 09100091344–9056–02] 

RIN 0648–XN93 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Northern Rockfish, 

Pacific Ocean Perch, and Pelagic Shelf 

Rockfish in the Western Regulatory 

Area and West Yakutat District of the 

Gulf of Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for northern rockfish, Pacific 

ocean perch, and pelagic shelf rockfish 

for catcher vessels subject to sideboard 

limits established under the Central 

GOA Rockfish Program in the Western 

Regulatory Area and West Yakutat 

District of the Gulf of Alaska (GOA). 

This action is necessary to prevent 

exceeding the sideboard limits of 

northern rockfish, Pacific ocean perch, 

and pelagic shelf rockfish established 

for catcher vessels in the Western 

Regulatory Area and West Yakutat 

District of the GOA. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), July 1, 2009, through 2400 

hrs, A.l.t., July 31, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Obren Davis, 907–586–7228. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

GOA exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Gulf of 

Alaska (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 2009 sideboard limits established 

for catcher vessels subject to sideboard 

limits in the Central GOA Rockfish 

Program in the West Yakutat District are 

32 metric tons (mt) for Pacific ocean 

perch and 4 mt for pelagic shelf 

rockfish. In addition, the 2009 sideboard 

limits established for catcher vessels 

subject to sideboard limits under the 

Central GOA Rockfish Program in the 

Western Regulatory Area are 0 mt for 

northern rockfish, Pacific ocean perch, 

and pelagic shelf rockfish. The 

sideboard limits are established by the 

final 2009 and 2010 harvest 

specifications for groundfish of the GOA 

(74 FR 7333, February 17, 2009). 

In accordance with 

§ 679.82(d)(7)(i)(B), the Administrator, 

Alaska Region, NMFS (Regional 

Administrator), has determined that 

these sideboard limits are insufficient to 

support a directed fishing allowance for 

Pacific ocean perch and pelagic shelf 

rockfish in the West Yakutat District, as 

well as insufficient to support a directed 

fishing allowance for Pacific ocean 

perch, pelagic shelf rockfish, and 

northern rockfish in the Western 

Regulatory Area. Therefore, the Regional 

Administrator is setting a directed 

fishing allowance of 0 mt for each of 

these sideboard species in the West 

Yakutat District and Western Regulatory 

Area. Consequently, pursuant to 

§ 679.82(d)(7)(ii) NMFS is prohibiting 

directed fishing for Pacific ocean perch 

and pelagic shelf rockfish in the West 

Yakutat District and for northern 

rockfish, Pacific ocean perch, and 

pelagic shelf rockfish in the Western 

Regulatory Area by catcher vessels 

subject to sideboard limits in the Central 

GOA Rockfish Program, effective 1200 

hrs, A.l.t, July 1, 2009, through 2400 hrs, 

A.l.t., July 31, 2009. 

After the effective date of this closure 

the maximum retainable amounts at 

§ 679.20(e) and (f) apply at any time 

during a trip. 

Classification 

This action responds to the best 

available information recently obtained 

from the fishery. Pursuant to 5 U.S.C. 

553 (b)(B), the Assistant Administrator 

for Fisheries, NOAA (AA) finds good 

cause to waive prior notice and an 

opportunity for public comment on this 

action, as notice and comment is 

unnecessary. Notice and comment is 

unnecessary because the closure is non– 

discretionary; pursuant to 

§ 679.82(d)(7)(ii), the Regional 

Administrator has no choice but to 

prohibit directed fishing once it is 

determined that the directed fishing 

sideboard limit has been attained. 

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. 

This action is required by § 679.82 

and is exempt from review under 

Executive Order 12866. 

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

Dated: May 11, 2009. 

Kristen C. Koch, 

Acting Director, Office of Sustainable 

Fisheries, National Marine Fisheries Service. 

[FR Doc. E9–11539 Filed 5–15–09; 8:45 am] 

BILLING CODE 3510–22–S 


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