        DEPARTMENT OF ENERGY
        48 CFR Parts 902, 909, 916, 917, 922, 925, 931, 936, 942, 952, and 970
        RIN 1991-AC00
        Acquisition Regulation: Technical and Administrative Changes to Department of Energy Acquisition Regulation

          AGENCY:
          Office of Acquisition and Project Management, Department of Energy.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          The Department of Energy (DOE) is proposing to amend the Department of Energy Acquisition Regulation (DEAR) to make technical and administrative changes to the DEAR, including changes to conform to the Federal Acquisition Regulation (FAR), remove out-of-date coverage, update references, and correct minor errors and omissions. This proposed rule does not alter substantive rights or obligations under current law.

          DATES:
          Written comments on the proposed rulemaking must be received on or before close of business April 24, 2015.

          ADDRESSES:
          You may submit comments, identified by: Technical and Administrative Changes to Department of Energy Acquisition Regulation and RIN 1991-AC00, by any of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Email to: DEARrulemaking@hq.doe.gov Include DEAR: Small Business and other Socioeconomic Programs and RIN 1991-AC00 in the subject line of the message.
          • Mail to: U.S. Department of Energy, Office of Acquisition and Project Management, MA-611, 1000 Independence Avenue SW., Washington, DC 20585. Comments by email are encouraged.

          FOR FURTHER INFORMATION CONTACT:

          Lawrence Butler, U.S. Department of Energy, Office of Acquisition and Project Management, MA-611, 1000 Independence Avenue SW., Washington, DC 20585-0121. Telephone: (202) 287-1945. Email: lawrence.butler@hq.doe.gov.

        SUPPLEMENTARY INFORMATION:

          I. Background
          II. Section-by-Section Analysis
          III. Procedural Requirements
          A. Review Under Executive Order 12866 and 13563
          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. Approval by the Office of the Secretary of Energy

        I. Background
        The DEAR has outdated citations and minor errors of a technical nature. The objective of this proposed rule is to update the outdated citations and correct the errors and omissions in the existing DEAR to conform to the FAR. None of these changes are substantive or of a nature to cause any significant expense for DOE or its contractors.
        II. Section-by-Section Analysis
        DOE proposes to amend the DEAR as follows:
        Part 902—DEFINITIONS OF WORDS AND TERMS
        1. Section 902.101, paragraph (2), is revised to change the title of the National Nuclear Security Agency (NNSA) Senior Procurement Executive (SPE).
        Part 909—CONTRACTOR QUALIFICATIONS
        2. Section 909.403, paragraphs (1) and (2), are revised to change the title of the NNSA SPE.
        Part 916—TYPES OF CONTRACTS
        3. Section 916.505, paragraph (b)(6)(i), is revised to change the title of the NNSA SPE.
        Part 917—SPECIAL CONTRACTING METHODS
        4. Section 917.602, paragraph (a), is revised to remove language that is no longer needed in the DEAR.
        Part 922—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION
        5. Section 922.804 is no longer needed in the DEAR and is removed.
        Part 925—FOREIGN ACQUISITION
        6. Section 925.103, paragraph (a), is revised to correct the CFR reference.
        7. Section 925.1001, paragraph (b), is revised to change the title of the NNSA SPE.
        Part 931—CONTRACT COST PRINCIPLES AND PROCEDURES

        8. Section 931.205-18, paragraph (c)(2), is deleted in its entirety and replaced with a new paragraph (c).

        Part 936—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
        9. Section 936.202-70 is no longer needed in the DEAR and is removed.
        Part 942—CONTRACT ADMINISTRATION AND AUDIT SERVICES
        10. Section 942.705-3 is revised to update the circular number and remove the paragraph numbering.
        Part 952—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
        11. Section 952.204-2, paragraph (j), is revised to inform contractors of the format for submitting Foreign Ownership, Control or Influence (FOCI) information. Paragraph (h)(2)(vi), is revised to remove Contractor requirement for submitting in writing information to the head of the cognizant local DOE Security Office concerning each uncleared applicant or uncleared employee who is selected for a position requiring an access authorization.
        12. Section 952.204-73, paragraph (a), is revised to inform contractors of the format for submitting FOCI information.
        13. Section 952.236-72 is no longer needed in the DEAR and is removed.
        14. Section 952.250-70, paragraph (d)(1), is revised to raise the threshold as required by the Energy Policy Act of 2005.
        Part 970—DOE MANAGEMENT AND OPERATING CONTRACTS
        15. Section 970.5215-3 is revised to update the Order number.
        16. Section 970.5223-1 is revised to correct the prescription.
        17. Section 970.5244-1, paragraph (f) is revised to reflect threshold increase in 48 CFR 28.102-2. Paragraph (g) is revised to reflect the threshold increase in DOE's class deviation for DEAR 970.5244-1.
        18. Section 970.5245-1, Alternate I, paragraph (j)(3), is revised to update the Order number and to add language that clarifies the sentence.
        III. Procedural Requirements
        A. Review Under Executive Order 12866 and 13563
        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 proposed rule is not subject to review under that Executive Order by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB).
        DOE has also reviewed this regulation pursuant to Executive Order 13563, issued on January 18, 2011 (76 FR 3281 (Jan. 21, 2011)). Executive Order 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, agencies are required by Executive Order 13563 to: (1) Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.
        DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. DOE believes that this final rule is consistent with these principles, including the requirement that, to the extent permitted by law, agencies adopt a regulation only upon a reasoned determination that its benefits justify its costs and, in choosing among alternative regulatory approaches, those approaches maximize net benefits.
        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; and (3) provide a clear legal standard for affected conduct rather than a general standard and 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 United States 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 if 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, this proposed rule meets the relevant standards of Executive Order 12988.
        C. Review Under the Regulatory Flexibility Act
        The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE has made its procedures and policies available on the Office of General Counsel's Web site at http://www.energy.gov/gc/office-general-counsel.

        This notice of proposed rulemaking is to amend the DEAR to make technical and administrative changes as described in the summary. This rule would not have a significant economic impact on small entities because it imposes no significant burdens. No substantive rights or obligations are altered by the proposed amendment. Consequently, this proposed rule is exempt from the requirements of the Regulatory Flexibility Act.
        D. Review Under the Paperwork Reduction Act

        This proposed rule does not impose a collection of information requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Existing burdens associated with the collection of certain contractor data under the DEAR have been cleared under OMB control number 1910-4100, with an expiration date of October 31, 2014.
        E. Review Under the National Environmental Policy Act

        DOE has concluded that promulgation of this proposed 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 proposed rule is categorically excluded from NEPA review because the amendments to the DEAR are strictly procedural (categorical exclusion A6). Therefore, this proposed 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. The Executive Order requires agencies to have an accountability process to ensure meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.
        On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations (65 FR 13735). DOE has examined the proposed 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) generally requires a Federal agency to perform a written 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. This rulemaking does not impose a Federal 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 rulemaking or policy that may affect family well-being. This rulemaking will have no impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.
        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 Office of Information and Regulatory Affairs (OIRA), of the Office of Management and Budget (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. This proposed 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 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 this proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
        K. Approval by the Office of the Secretary of Energy
        Issuance of this proposed rule has been approved by the Office of the Secretary of Energy.

          List of Subjects in 48 CFR Parts 902, 909, 916, 917, 922, 925, 931, 936, 942, 952 and 970
          Government procurement.

          Issued in Washington, DC on March 16, 2015.
          Patrick M. Ferraro,
          Deputy Director, Office of Acquisition and Project Management, Department of Energy.
          Joseph Waddell,
          Deputy Associate Administrator, Acquisition and Project Management, National Nuclear Security Administration.

        For the reasons set out in the preamble, the Department of Energy proposes to amend Chapter 9 of Title 48 of the Code of Federal Regulations as set forth below.
        Title 48—Federal Acquisition Regulations System
        1. The authority citation for parts 902, 903, 916, 917, 922, 925, 931, 936 and 942 continues to read as follows:

          Authority:
           42 U.S.C. 7101 et seq. and 50 U.S.C. 2401 et seq.

          PART 902—DEFINITIONS OF WORDS AND TERMS

            902.101
            [Amended]

        2. Section 902.101 is amended in the definition of “Senior Procurement Executive”, by removing “Director, Office of Acquisition and Supply Management” and adding in its place “Deputy Associate Administrator for Acquisition and Project Management”.

          PART 909—CONTRACTOR QUALIFICATIONS

            909.403
             [Amended]

        3. Section 909.403 is amended in paragraphs (1) and (2), by removing “Director, Office of Acquisition and Supply Management” and adding in its place “Deputy Associate Administrator for Acquisition and Project Management”.

          PART 916—TYPES OF CONTRACTS

            916.505
             [Amended]

        4. Section 916.505 is amended in paragraph (b)(6)(i), by removing “Director, Office of Acquisition and Supply Management,” and adding in its place “Deputy Associate Administrator for Acquisition and Project Management,”.

          PART 917—SPECIAL CONTRACTING METHODS

            917.602
             [Amended]

        5. Section 917.602 is amended in paragraph (a), by removing “, Deputy Secretary or Under Secretary”.

          PART 922—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION

            922.804
            [Removed and Reserved]

        6. Section 922.804 is removed and reserved.

          PART 925—FOREIGN ACQUISITION

        7. Section 925.103 is amended by removing paragraph (a), and revising paragraph (b)(2)(ii) to read as follows:

          925.103
          Exceptions.
          (b) Nonavailabilty.

          (2)(i) Individual determinations. Contracting officers may make the determination required by 48 CFR 25.103(b)(2)(i), provided such determination is factually supported in writing. If the contract is estimated to exceed $1 million, the Head of the Contracting Activity must approve the determination.
          (ii) Proposals to add an article to the list of nonavailable articles at 48 CFR 25.104, with appropriate justifications, must be submitted for approval by the Senior Procurement Executive and submission to the appropriate council.

          925.1001
           [Amended]

        8. Section 925.1001 is amended in paragraph (b), by removing “Director, Office of Acquisition and Supply Management” and adding in its place “Deputy Associate Administrator for Acquisition and Project Management”.

          PART 931—CONTRACT COST PRINCIPLES AND PROCEDURES

        9. Section 931.205-18 is revised to read as follows:

          931.205-18
           Independent research and development (IR&D) and bid and proposal (B&P) costs.
          (c) In addition to all the other FAR requirements for allowability of IR&D costs, costs for IR&D are allowable under DOE contracts to the extent: they are not otherwise unallowable; and they have potential benefit or relationship to the DOE program. The term “DOE program” encompasses the DOE total mission and its objectives. In addition to all the other FAR requirements for allowability of B&P costs, costs for B&P are allowable under DOE contracts to the extent they are not otherwise unallowable.

          PART 936—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

            936.202-70
             [Removed and Reserved]

        10. Section 936.202-70 is removed and reserved.

          PART 942—CONTRACT ADMINISTRATION AND AUDIT SERVICES

            942.705-3
             [Amended]

        11. Section 942.705-3 is amended by:
        a. Removing the paragraph numbering “(a)(2)”; and
        b. Removing “A-88” and adding in its place “A-21”.

          PART 952—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

        12. The authority citation for part 952 continues to read as follows:

          Authority:
           42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.

        13. Section 952.204-2 is amended by:
        a. Revising the section heading;
        b. Revising the clause heading and clause date; and
        c. Revising introductory paragraph (h)(2)(vi) and paragraph (j)(1).
        The revisions read as follows:

          952.204-2
          Security requirements.

          Security Requirements ([(XXX 20XX)])

          (h) * * *
          (2) * * *
          (vi) The Contractor must maintain a record of information concerning each uncleared applicant or uncleared employee who is selected for a position requiring an access authorization. Upon request only, the following information will be furnished to the head of the cognizant local DOE Security Office:

          (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. The Contractor will submit the Foreign Ownership, Control or Influence (FOCI) information in the format directed by DOE. When completed the Contractor must print and sign one copy of the SF 328 and submit it to the Contracting Officer. 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.

        14. Section 952.204-73 is amended by:
        a. Revising the date of the clause; and
        b. Revising paragraph (a)(1).
        The revisions read as follows:

          952.204-73
          Facility clearance.

          Facility Clearance ([(XXX 20XX)])

          (a) Use of Certificate Pertaining to Foreign Interests, Standard Form 328. (1) The contract work anticipated by this solicitation will require access to classified information or special nuclear material. Such access will require a Facility Clearance for the Contractor's organization and access authorizations (security clearances) for Contractor personnel working with the classified information or special nuclear material. To obtain a Facility Clearance the Contractor must submit the Standard Form 328, Certificate Pertaining to Foreign Interests, and all required supporting documents to form a complete Foreign Ownership, Control or Influence (FOCI) Package. The Contractor will submit the Foreign Ownership, Control or Influence (FOCI) information in the format directed by DOE. When completed the Contractor must print and sign one copy of the SF 328 and submit it to the Contracting Officer.

          952.236-72
          [Removed and Reserved]

        15. Section 952.236-72 is removed and reserved.

          952.250-70
          [Amended]

        16. Section 952.250-70 is amended by:
        a. Revising the date of the clause; and
        b. Removing in paragraph (d)(1), “$100 million” and adding in its place “$500 million”.
        The revision reads as follows:

          952.250-70
          Nuclear hazards indemnity agreement.

          Nuclear Hazards Indemnity Agreement ([(XXX 20XX)])

          PART 970—DOE MANAGEMENT AND OPERATING CONTRACTS

        17. 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.; 50 U.S.C. 2401 et seq.

          970.5215-3
           [Amended]

        18. Section 970.5215-3, paragraphs (c)(1)(i) and (c)(2)(i) are amended by removing “DOE Order 225.1A” and adding in its place “DOE Order 225.1B, or successor version”.

          970.5223-1
          [Amended]

        19. Section 970.5223-1 is amended by removing “970.2303-3(b)” in the clause introductory paragraph and adding in its place, “970.2303-3(a)”.
        20. Section 970.5244-1 is amended by:
        a. Revising the clause date;
        b. Removing in paragraphs (f)(1) and (f)(2) “$100,000” and adding in its place “$150,000”; and
        c. Removing in paragraph (g) “$100,000” in both occurrences and adding in its place “$500,000”.
        The revision read as follows:

          970.5244-1
          Contractor purchasing system.

          Contractor Purchasing System ([(XXX 20XX)])

        21. Section 970.5245-1 is amended by:
        a. Revising the clause date;
        b. Revising Alternate I heading and date; and
        c. Removing in Alternate I paragraph (j)(3),
        a. “Major System Acquisition or Major Project” and adding in its place “Major System Project”, and
        b. “DOE Order 4700.1” and adding in its place “DOE Order 413.3B, or successor version”.
        The revisions read as follows:

          970.5245-1
          Property.

          Property ([(XXX 20XX)])

          Alternate I ([(XXX 20XX)]).

      [FR Doc. 2015-06564 Filed 3-24-15; 8:45 am]
       BILLING CODE 6450-01-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 120417417-2417-01]
        RIN 0648-BB35
        Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Exempted Fishery for the Southern New England Skate Bait Trawl Fishery

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

          ACTION:
          Proposed rule, request for comments.

          SUMMARY:
          NMFS proposes to modify the regulations implementing the Northeast (NE) Multispecies Fishery Management Plan (FMP) to allow vessels issued a Federal skate permit and a Skate Bait Letter of Authorization to fish for skates in a portion of southern New England from July through October of each year, outside of the NE multispecies days-at-sea (DAS) program. This action would allow vessels to harvest skates in a manner that is consistent with the bycatch reduction objectives of the NE Multispecies FMP.

          DATES:
          Comments must be received no later than 5 p.m., eastern daylight time, on May 14, 2012.

          ADDRESSES:

          An environmental assessment (EA) was prepared for the Secretarial Amendment that describes the proposed action and other considered alternatives, and provides an analysis of the impacts of the proposed measures and alternatives. Copies of the Secretarial Amendment, including the EA and the Initial Regulatory Flexibility Analysis (IRFA), are available on request from Daniel Morris, Acting Regional Administrator, Northeast Regional Office, 55 Great Republic Drive, Gloucester, MA 01930. These documents are also available online at http://www.nero.noaa.gov.

          You may submit comments, identified by FDMS docket number NOAA-NMFS-2012-0098, by any one of the following methods:
          • Written comments (paper, disk, or CD-ROM) should be sent to Paul J. Howard, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. Mark the outside of the envelope, “Comments on Skate Bait Exempted Fishery.”
          • Comments also may be sent via facsimile (fax) to (978) 465-3116.

          • Submit all electronic public comments via the Federal e-Rulemaking Portal: http://www.regulations.gov.

          Instructions: Comments will be posted for public viewing as they are received. 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 (for example, name, address, etc.) 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). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

          FOR FURTHER INFORMATION CONTACT:

          Travis Ford, Fishery Management Specialist, 978-281-9233; fax 978-281-9135; email: travis.ford@noaa.gov.

        SUPPLEMENTARY INFORMATION:
        Background
        Current regulations, implemented under Framework Adjustment 9 (60 FR 19364, April 18, 1995) and expanded under Amendment 7 to the FMP (61 FR 27710, May 31, 1996), contain a NE multispecies fishing mortality and bycatch reduction measure that is applied to the Gulf of Maine (GOM), Georges Bank (GB), and Southern New England (SNE) Exemption Areas found in 50 CFR 648.80. A vessel may not fish in these areas unless it is fishing under a NE multispecies or a scallop DAS allocation, is fishing with exempted gear, is fishing under the Small Vessel Handgear (A or B) or Party/Charter permit restrictions, or is fishing in an exempted fishery. The procedure for adding, modifying, or deleting fisheries from the list of exempted fisheries is found in § 648.80. A fishery may be exempted by the Regional Administrator (RA), after consultation with the New England Fishery Management Council (Council), if the RA determines, based on available data or information, that the bycatch of regulated species is, or can be reduced to, less than 5 percent by weight of the total catch and that such exemption will not jeopardize the fishing mortality objectives of the FMP.

        Representatives from the NE multispecies sector fleet submitted an exempted fishery request to the RA on April 1, 2011. The petitioners requested that NMFS consider an exempted fishery for trawl vessels using 6.5-inch mesh nets and targeting skate bait in a portion of SNE from June through November of each year (referred to in the EA and in this proposed rule as Alternative 2). Sector vessels targeting skate bait and fishing on a trip in SNE are currently required to declare a NE multispecies DAS trip. These vessels are charged a discard rate that is determined by the Northeast Fisheries Observer Program (NEFOP) and at-sea monitoring (ASM) discard data. The discard rate is based on the sector, area fished, and gear type, referred to as a discard stratum. Because “target species” is not part of each discard stratum, vessels that are targeting skate bait (and catching very little to no groundfish) are being charged the same discard rate as all other declared groundfish trips in that discard stratum. This has led to higher than observed discard rates of groundfish when targeting skate bait when compared to actual discard rates on observed skate bait trips. Forfeiting the value of discards at a higher rate than is actually occurring has imposed an economic burden on sector fishermen, as the discarded fish that are charged to the sector's Annual Catch Entitlement (ACE) could otherwise be landed for sale. Reducing a sector's ACE by a higher rate than is actually occurring has particularly adversely affected the sector's “choke stocks,” i.e., fish for which the sector has a small amount of ACE, either because of a low catch history or a small annual catch limit (ACL) for the stock.
        NEFOP and ASM data were compiled and analyzed with reference to groundfish vessels targeting skate in the area and months requested for the exemption. A second alternative was assessed that reduced both the size of the exempted area and the requested season to July through October (referred to in the EA and in this proposed rule as Alternative 1). The data best supported Alternative 1, revealing that bycatch of regulated species (primarily winter flounder and windowpane flounder) was substantially reduced from the original proposal by reducing the area and contracting the time period. It is important to note that large portions of the original area requested by industry had no associated observer data, and thus could not be evaluated. Therefore, the size of the exemption area was reduced to cover only areas where ASM and NEFOP covered trips existed.
        For Alternative 1, all large mesh (6.5-inch mesh) DAS trips from 2010 to 2011 were analyzed, and the data showed that no trips caught more than 5 percent groundfish. Therefore, there were no trips that caught over 5 percent NE multispecies that would be exempted under this action. The data indicate that Alternative 2 (the non-preferred alternative) would likely result in a higher percentage of groundfish catch in the months of June and November than in July through October.
        Exempted fisheries have a maximum allowable bycatch of 5 percent regulated groundfish under § 648.80(a)(8)(i). For the months of July through October, from 2006 to 2011, the average percentage of regulated groundfish catch for trips in the directed SNE skate bait fishery was 1.25 percent, well under the 5 percent limit for an exempted fishery. No single month's average NE multispecies catch exceeded 2 percent of the total catch. The vast majority of groundfish bycatch species in the skate bait fishery are SNE winter flounder and southern windowpane flounder. Following a recent assessment, SNE winter flounder is no longer experiencing overfishing but remains overfished. Recent information has changed the status of the Southern windowpane flounder stock, which was previously experiencing overfishing but not overfished; it is currently not overfished, is no longer experiencing overfishing, and was rebuilt in 2009. The discards expected from this exemption should not cause the ACL for these species to be exceeded.
        Further, because of the relationship between the skate bait fishery and the lobster fishery, this action is not likely to increase effort in the skate bait fishery. Although this action would exempt vessels targeting skate bait from the NE multispecies regulations, the demand for skate bait is dependent on the lobster fishery's demand for bait. Consequently, this exemption is not expected to increase the demand for skate bait. Further, the skate bait fishery is controlled by a Total Allowable Landing (TAL) limit that prevents the overharvesting of skate bait. Because it would neither increase demand for skate bait nor significantly affect other regulated species, this action is not expected to jeopardize mortality objectives of any stock and would ease some of the burdens on vessels participating in the NE multispecies fishery.
        Proposed Measures
        Southern New England Skate Bait Trawl Exemption Area
        The RA has determined that an exempted skate bait trawl fishery in a specifically defined portion of SNE meets the exemption requirements in § 648.80(a)(8)(i) because, based on the analysis of available data, the bycatch of regulated species by vessels targeting skate bait in a portion of SNE is less than 5 percent, by weight, of the total catch. Therefore, this rule proposes to implement an exempted fishery for eligible vessels when using 6.5-inch mesh trawl gear in a portion of SNE from July through October of each year. The area of this proposed exempted fishery would be referred to as the SNE Skate Bait Trawl Exemption Area.
        The SNE Skate Bait Trawl Exemption Area is defined by the straight lines connecting the following points in the order stated (copies of a chart depicting the area are available from the RA upon request):

            Point
            N. lat.
            W. long.

            SBT 1
            Southeastern MA
            71/00′

            SBT 2
            41/00′
            71/00′

            SBT 3
            41/00′
            72/05′

            SBT 4
            Southern CT
            72/05′

        As required by existing regulations, Vessels participating in the exempted skate fishery would need to hold a Federal skate permit and a valid Skate Bait Letter of Authorization (LOA) from the RA containing an exemption from the skate wing possession limits, which allows them to land whole skates for use as bait. A participating vessel may possess and land up to 20,000 lb (9,072 kg) of whole skates of less than 23 inches (59 cm) total length. In addition, vessels would be limited by the skate bait TAL that is divided into three seasons to help maintain a supply of bait throughout the fishing year. When 90 percent of the seasonal quota is landed in either Season 1 or 2, or when 90 percent of the annual skate bait TAL is landed, the RA would close the directed fishery by reducing the skate bait possession limit to the whole weight equivalent of the skate wing possession limit in effect at that time (either 5,902 lb (2,677 kg), 9,307 lb (4,222 kg), or 1,135 lb (515 kg)).
        Granting the SNE Skate Bait Trawl Exemption Area should result in a more accurate discard calculation for skate bait and NE multispecies DAS trips. Exempted skate bait trips would be exempt from NE multispecies regulations. Discards of regulated NE multispecies from skate bait trips would no longer be deducted from sector or common pool sub-ACLs that make up the commercial groundfish sub-ACL. Instead, the calculated discards would be deducted from the “other subcomponents” sub-ACL.

        In the NE multispecies fishery, calculated discard rates for regulated species are calculated over an entire discard stratum, i.e., sector, area, and gear type. Currently, when SNE skate bait vessels are fishing on declared groundfish trips, they are charged a calculated discard rate equivalent to trips targeting groundfish in the same discard stratum. For example, a skate bait vessel catching 20,000 pounds of skate is charged a groundfish discard rate as if that vessel caught 20,000 pounds of groundfish and results in the resulting amount being deducted from the sector or common pool sub-ACL. The data analyzed from observed SNE skate bait trips, however, showed that skate bait trips averaged a catch of 1.25% of multispecies (250 pounds). Calculating discards using this more accurate rate results in a lower deduction from the sub-ACL than applying the groundfish discard rate to 20,000 pounds of catch. Granting this exemption would provide vessels the opportunity to catch the groundfish formerly counted as discarded. Conversely, because the lower multispecies discards observed on skate bait trips will no longer be included when determining the groundfish discard rate for targeted groundfish trips, the actual amounts discarded on declared groundfish trips will be more accurately reflected. The increase in the calculated discard rate for targeted groundfish trips is not expected to be significant.
        Classification
        NMFS has determined that this proposed rule is consistent with the FMP and preliminarily determined that the rule is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.
        This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        Pursuant to 5 U.S.C. 603, an IRFA has been prepared, which describes the economic impacts that this proposed rule, if adopted, would have on small entities. A description of the reasons why this action is being considered, as well as the objectives of and legal basis for this proposed rule, can be found in the preamble to this proposed rule and are not repeated here. There are no Federal rules that duplicate, overlap, or conflict with the proposed rule. This proposed rule does not include any new reporting, recordkeeping or other compliance requirements. This action proposes to create a new skate bait trawl exemption area for trawl vessels targeting skate bait in SNE.
        This action was compared to two different alternatives for the exemption. Alternatives to the proposed exemption include exempting a larger portion of SNE for a longer period of time, from June through November, and a No Action alternative, which would continue to require vessels targeting skate bait in this area to be on a declared NE multispecies trip from July through October.
        Description and Estimate of the Number of Small Entities to Which This Proposed Rule Would Apply
        The Small Business Administration (SBA) defines a small commercial fishing entity as a firm with gross receipts not exceeding $4 million. In Rhode Island, there are two major dealers involved in the skate bait market. One reports supplying skate bait to 100 lobster businesses located in Point Judith, Wickford, Newport, Westerly, and Jamestown, RI, along with businesses scattered throughout Connecticut and Massachusetts. The company buys skate bait from 12-15 vessels throughout the year. The lobster businesses supplied by the company employ between 2-4 crewmembers per vessel. The other major skate dealer in Rhode Island supplies local Newport, Sakonnet, and New Bedford, MA vessels and numerous offshore lobster vessels fishing in the Gulf of Maine. Skates are supplied to this dealer from draggers working out of Newport and Tiverton, RI, and New Bedford, MA.

        Due to direct, independent contracts between draggers and lobster vessels, landings of skates are estimated to be under-documented. While skate bait is always landed (rather than transferred at sea), it is not always reported because it can be sold directly to lobster vessels by non-federally permitted vessels, which are not required to report as dealers. A more complete description of the skate bait fishery can be found in Amendment 3 to the NE Skate Complex FMP, available from the Council (http://www.nefmc.org).
        Economic Impacts of This Proposed Action
        Compared to the No Action alternative, the Preferred Alternative (Alternative 1) is expected to benefit the local fishing communities that have historically depended on the skate bait fishery in SNE. This exemption was requested by members of the NE multispecies fishing industry, specifically members of a sector in the SNE area. The cost of fishing for skate bait has become increasingly high primarily due to the deduction of calculated discards from each vessel's sector ACE when fishing under a groundfish DAS. Thus, the proposed exemption will allow vessels to target skate bait outside of the DAS program, which will prevent the discards being deducted from their sector's ACE at a higher rate than is actually occurring. The EA for this proposed action estimates that the exemption could save the fleet approximately $24,490 a year in discards and DAS alone.
        With the elimination of these low discard trips from the sector's discard stratum, the overall discard rate for the sector will likely increase because skate bait trips that were observed were keeping the discard rate for trips targeting groundfish artificially low. While this change will result in an increase of the overall sector's discard rate, the increase will not represent a significant cost to the SNE sector vessels that are not participating in the exemption. In addition, the calculated discard rates for both groundfish vessels and skate bait vessels will be more accurate as a result of the exemption; more accurate discards are not expected to have an economic effect on the fishing community as a whole.
        Economic Impacts of Alternatives to the Proposed Action
        The impacts of Alternative 2, which extends the exemption an additional 2 months over a larger area, would be expected to be similar to the impacts of the Preferred Alternative, but the expanded area and time would allow more vessels a greater opportunity to participate in the exempted fishery. The EA for this action estimates that Alternative 2 would save the industry an additional $ 3,739.37 compared to Alternative 1. However, the months of June and November showed an increased number of trips that caught over 5 percent groundfish, and a large portion of the area could not be evaluated because there was no observer or ASM data available. Providing an exemption for trips that caught over 5 percent groundfish, or areas where no data is available, would be contrary to the purpose and requirements of the Magnuson Stevens Conservation and Management Act and its implementing regulations. For these reasons, this alternative was not selected.

        The No Action Alternative would have a negative economic impact on SNE skate bait vessels relative to the preferred alternative. This exemption was requested because of the economic burden that the cost of DAS and calculated discards had on sector fishermen targeting skate bait. As described above it is estimated that this exemption could save the fleet approximately $24,490 a year in discards and DAS alone compared to the No Action alternative. Under the No Action Alternative, sector fishermen targeting skate bait would continue fishing on DAS only to be charged a higher than observed groundfish discard rate for their trip targeting skate bait. The skate bait fishery is a valuable resource to those in SNE. The groundfish discards that are attributed to these trips come directly out of the vessel's sector's ACE, which takes away the opportunity to catch these fish in the future.

          List of Subjects in 50 CFR Part 648
          Fisheries, Fishing, Reporting and recordkeeping requirements.

          Dated: April 23, 2012.
          Alan D. Risenhoover,
          Acting Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

        For the reasons stated in the preamble, 50 CFR part 648 is proposed to be amended as follows:

          PART 648—FISHERIES OF THE NORTHEASTERN UNITED STATES
          1. The authority citation for part 648 continues to read as follows:

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

          2. In § 648.14, paragraph (k)(5)(i) is revised to read as follows:

            § 648.14
            Prohibitions.

            (k) * * *
            (5) * * *
            (i) Violate any of the provisions of § 648.80, including paragraphs (a)(5), the Small-mesh Northern Shrimp Fishery Exemption Area; (a)(6), the Cultivator Shoal Whiting Fishery Exemption Area; (a)(9), Small-mesh Area 1/Small-mesh Area 2; (a)(10), the Nantucket Shoals Dogfish Fishery Exemption Area; (a)(11), the GOM Scallop Dredge Exemption Area; (a)(12), the Nantucket Shoals Mussel and Sea Urchin Dredge Exemption Area; (a)(13), the GOM/GB Monkfish Gillnet Exemption Area; (a)(14), the GOM/GB Dogfish Gillnet Exemption Area; (a)(15), the Raised Footrope Trawl Exempted Whiting Fishery; (a)(16), the GOM Grate Raised Footrope Trawl Exempted Whiting Fishery; (a)(18), the Great South Channel Scallop Dredge Exemption Area; (b)(3), exemptions (small mesh); (b)(5), the SNE Monkfish and Skate Trawl Exemption Area; (b)(6), the SNE Monkfish and Skate Gillnet Exemption Area; (b)(8), the SNE Mussel and Sea Urchin Dredge Exemption Area; (b)(9), the SNE Little Tunny Gillnet Exemption Area; (b)(11), the SNE Scallop Dredge Exemption Area; or (b)(12), the SNE Skate Bait Trawl Exemption Area. Each violation of any provision in § 648.80 constitutes a separate violation.

            3. In § 648.80, paragraph (b)(2)(vi) is revised, and paragraph (b)(12) is added to read as follows:

            § 648.80
            NE Multispecies regulated mesh areas and restrictions on gear and methods of fishing.

            (b) * * *
            (2) * * *
            (vi) Other restrictions and exemptions. A vessel is prohibited from fishing in the SNE Exemption Area, as defined in paragraph (b)(10) of this section, except if fishing with exempted gear (as defined under this part) or under the exemptions specified in paragraphs (b)(3), (b)(5) through (9), (b)(11), (b)(12), (c), (e), (h), and (i) of this section; or if fishing under a NE multispecies DAS; or if fishing on a sector trip; or if fishing under the Small Vessel or Handgear A permit specified in § 648.82(b)(5) and (6), respectively; or if fishing under a Handgear B permit specified in § 648.88(a); or if fishing under a scallop state waters exemption specified in § 648.54; or if fishing under a scallop DAS in accordance with paragraph (h) of this section; or if fishing under a General Category scallop permit in accordance with paragraphs (b)(11)(i)(A) and (B) of this section; or if fishing pursuant to a NE multispecies open access Charter/Party or Handgear permit specified in § 648.88; or if fishing as a charter/party or private recreational vessel in compliance with the regulations specified in § 648.89. Any gear on a vessel, or used by a vessel, in this area must be authorized under one of these exemptions or must be stowed as specified in § 648.23(b).

            (12) SNE Skate Bait Trawl Exemption Area. Vessels issued an open access skate permit and a skate bait Letter of Authorization as specified in § 648.322(c) that have declared out of the DAS program as specified in § 648.10, or that have used up their DAS allocations, may fish in the SNE Skate Bait Trawl Exemption Area as defined under paragraph (b)(12)(i) of this section, when not under a NE multispecies or scallop DAS, provided the vessel complies with the requirements specified in paragraph (b)(1)(ii) of this section.
            (i) Area definition. The SNE Skate Bait Trawl Exemption Area is defined by the straight lines connecting the following points in the order stated (copies of a chart depicting the area are available from the Regional Administrator upon request):

              SNE Skate Bait Trawl Exemption Area
              [July 1 through October 31]

                Point
                N. lat.
                W. long.

                SBT 1
                Southeastern MA
                71/00′

                SBT 2
                41/00′
                71/00′

                SBT 3
                41/00′
                72/05′

                SBT 4
                Southern CT
                72/05′

            (ii) Requirements. (A) A vessel fishing in the SNE Skate Bait Trawl Exemption Area specified in this paragraph (b)(12) may not fish for, possess on board, or land any NE regulated species.
            (B) Vessels must use trawl gear, as specified in § 648.80(b)(2)(i).
            (C) Vessels must possess an active skate bait letter of authorization issued by the Regional Administrator, as specified in § 648.322(c) and fish pursuant to the terms of authorization.
            (D) Fishing may only occur from July 1 through October 31 of each fishing year.

      [FR Doc. 2012-10121 Filed 4-26-12; 8:45 am]
      BILLING CODE 3510-22-P