        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 648
        [Docket No. 150205118-5290-01]
        RIN 0648-BE87
        Fisheries of the Northeastern United States; Small-Mesh Multispecies Specifications

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          The purpose of this action is to set the small-mesh multispecies specifications for the 2015-2017 fishing years, clarify what measures can be modified in a specifications package, and to correct the northern red hake accountability measure trigger rate. This action is necessary to implement the Council's recommended measures intended to reduce the risk of continuing overfishing of northern red hake and set catch and possession limits for the 2015-2017 fishing years. The proposed specifications are designed to help achieve sustainable yield and to inform the public of these measures.

          DATES:
          Public comments must be received by April 23, 2015.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2012-0170, by any of the following methods:

          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2012-0170, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to John K. Bullard, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930-2276. Mark the outside of the envelope: “Comments on Whiting Specifications.”

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          New England Fishery Management Council staff prepared an environmental assessment (EA) for the small-mesh multispecies specifications that describes the proposed action and other considered alternatives. The EA provides a thorough analysis of the biological, economic, and social impacts of the proposed measures and other considered alternatives. An Initial Regulatory Flexibility Analysis (IRFA) was also prepared for this action. The IRFA is contained in the EA prepared for this action, but also is summarized in the Classification section of this proposed rule. Copies of the specifications EA are available on request from Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Newburyport, MA 01950. This document is also available from the following internet addresses: www.greateratlantic.fisheries.noaa.gov/ or www.nefmc.org.

          FOR FURTHER INFORMATION CONTACT:
          Jason Berthiaume, Fishery Management Specialist, (978) 281-9177.

        SUPPLEMENTARY INFORMATION:
        Background
        The New England Fishery Management Council manages the small-mesh multispecies fishery primarily through a series of exemptions from the Northeast Multispecies Fishery Management Plan (FMP). The small-mesh multispecies fishery is composed of five stocks of three species of hakes (northern and southern silver hake, northern and southern red hake, and offshore hake). It is managed separately from the other stocks of groundfish such as cod, haddock, and flounders, primarily because the fishing is prosecuted with much smaller mesh and does not generally result in the catch of these other stocks. Amendment 19 to the Northeast Multispecies FMP (April 4, 2013; 78 FR 20260) established a process and framework for setting the small-mesh multispecies catch specifications, as well as set the specifications for the 2012-2014 fishing years.
        The purpose of this action is to set the specifications for the 2015-2017 fishing years, based on the New England Fishery Management Council's recommendation. In 2012 and 2013, northern red hake catch rates exceeded the annual catch limits (ACL) and the acceptable biological catch (ABC). As a result, northern red hake was determined to be experiencing overfishing. To reduce the risk of continued overfishing of northern red hake and constrain catch within the proposed ACL, this action proposes to adopt the Council's recommended measures to adjust the northern red hake possession limits per trip and trigger points at which possession limits are reduced in-season.
        This proposed rule also includes a correction to the small-mesh accountability measures and clarifies what measures can be modified in a small-mesh multispecies specifications action.
        Proposed Measures
        1. 2015-2017 Small-Mesh Multispecies Specifications
        The Council's Scientific and Statistical Committee (SSC) met on August 26, 2014, to discuss the specifications and to recommend ABCs for the 2015-2017 small-mesh fishery. The FMP's implementing regulations require the involvement of an SSC in the specification process. Following the SSC, the Whiting Oversight Committee met on September 9 and October 30, 2014, to discuss and recommend small-mesh specifications. The Council approved the final specifications on November 17, 2014.

        This action proposes new specifications for the 2015-2017 fishing years, derived from a stock assessment update for northern and southern red and silver hakes. The recent stock assessment was updated with survey data through spring 2014 for red hake, and through fall 2013 for silver hake. Reported landings and estimated discards were updated through calendar year 2013. Limits on fishing year catches for northern and southern stocks of red and silver hakes are based on the recommendations from the SSC and Committee to the Council which, in turn, recommended measures to NMFS for review and implementation. Changes to the total allowable landings (TAL) are needed to respond to changes in the discard rate of red and silver hakes. These specifications would remain effective for fishing years 2015-2017 unless otherwise changed during that time.

          Table 1—Summary of the Small-Mesh Multispecies Specifications for 2015-2017

            Stock
            Overfishing limit (OFL) (mt)

            ABC (mt)

            ACL (mt)

            Percent change from 2012-2014
            Discard rate (percent)
            TAL
            Percent change from 2012-2014

            N. Silver Hake
            43,608
            24,383
            23,161
            85
            11.2
            19,948.7
            122.3

            N. Red Hake
            331
            287
            273
            2.6
            60.6
            104.2
            15.4

            S. Whiting *
            60,148
            31,180
            29,621
            −8.2
            17.1
            23,833.4
            −12.6

            S. Red Hake
            3,400
            3,179
            3,021
            −2.4
            55.3
            1,309.4
            −2.0

          * Southern whiting includes southern silver hake and offshore hake

        2. Northern Red Hake Possession Limit Reduction
        This action proposes to reduce the northern red hake possession limit from 5,000 lb (2,268 kg) to 3,000 lb (1,361 kg). This reduction in possession limit is intended to delay the in-season accountability measure (AM) until later in the year and to reduce the potential for northern red hake catches to exceed the ACL (as occurred in fishing years 2012 and 2013). Lowering the possession limit is expected to discourage the targeting of red hake and to encourage fishing in areas, seasons, or ways that avoid catching excess red hake. Compared to starting the fishing year with a 5,000 lb (2,268 kg) possession limit, it is expected that the in-season AM would be delayed, possibly increasing revenue for trips taken later in the year to target silver hake, and reducing discarding. This measure is intended to be combined with the proposed northern red hake possession limit reduction trigger to effectively constrain catch of northern red hake to the ACL and to slow catch rates to extend the fishing season.
        3. Additional Northern Red Hake Possession Limit Reduction Trigger
        This measure would implement an additional possession limit reduction trigger for northern red hake of 1,500 lb (680 kg) when 45 percent of the TAL is reached. When the in-season possession limit reduction triggers were initially implemented, the trigger was set at 90 percent of the TAL. When landings reach the 90-percent trigger, the red hake possession limit would be reduced to the incidental level of 400 lb (181 kg). In both 2012 and 2013, the 90-percent trigger was reached and the ACL was still exceeded. As a result, in 2014, the 90-percent trigger was reduced to 45 percent in accordance with the AM regulations. However, this rule's proposed regulatory correction would increase the 45-percent trigger to 62.5 percent. Because this trigger did not function as well as intended to ensure that the ACL is not exceeded, this rule proposes a second, earlier possession limit reduction trigger of 1,500 lb (680 kg) when 45 percent of the TAL is reached. For clarity, as a result of these proposed specifications, there would be two in-season possession limit triggers for northern red hake: At 45 percent of the TAL, the per-trip possession limit would be decreased from 3,000 lb (1,361 kg) to 1,500 lb (680 kg); and then when 62.5 percent of the TAL is reached, the per-trip possession limit would be decreased from 1,500 lb (680 kg) to 400 lb (181 kg).
        As previously discussed, this additional possession limit trigger is intended to slow catch of northern red hake and to reduce the potential for northern red hake catch from exceeding the ACL.
        4. Clarification on Modifications in a Specifications Action
        When developing the rulemaking for this action, we determined that the current regulations governing the specifications process as recommended in Amendment 19 do not fully reflect the Council's intent regarding the scope of measures that can be implemented pursuant to the specifications process. Amendment 19 specified that the Council shall specify on at least a 3-year basis the OFL, ABC, ACLs, and TALs for each small-mesh multispecies stock as well as the corresponding possession limits, including in-season possession limit triggers to be consistent with the revised specification recommendations and estimates of scientific and management uncertainty from the SSC. However, the implementing regulations for Amendment 19 inadvertently failed to specify that adjustments to possession limits and the in-season possession limit triggers were among the items that could be modified in a specifications action. This rule proposes to correct this problem by including possession limits and in-season possession limit triggers in small-mesh multispecies specifications regulations. The Magnuson-Stevens Act at section 305(d) grants the agency the authority to promulgate regulations necessary to carry out any FMP or amendment to an FMP.
        5. Regulatory Correction

        When the specifications were being developed, the Whiting Plan Development Team identified an error in the previous set of specifications (i.e., fishing years 2012-2014). This error resulted in a 39-mt underestimate of the ABC for northern red hake and a 552-mt underestimate for southern red hake ABC. Due to the 39-mt underestimate, fishing year 2012 catches were actually only 27.5 percent over the ACL rather than 45 percent as previously announced. As a result, the northern red hake post-season accountability measure that was triggered for fishing year 2014 used the incorrect catch and landings limits. Using Magnuson-Stevens Act section 305(d) authority, this action would correct the AM based on the corrected information. No correction is required for the southern red hake error, because only a small fraction of the southern red hake ABC was caught and an increase in the ABC would have no effect.

        Currently, the northern red hake accountability measure trigger is 45 percent, which would reduce the possession limit to 400 lb (181 kg) when 45 percent of the TAL is landed. This correction would increase the 400-lb (181-kg) possession limit trigger point from 45 percent of the TAL to 62.5 percent. This correction would result in a 1,500-lb (680-kg) possession limit when 45 percent of the TAL is landed and a subsequent possession limit reduction to 400 lb (181 kg) when 62.5 percent of the TAL is landed.
        Future AMs for fishing years in which the catch exceeds the ACL would be deducted from the corrected 62.5-percent trigger, pursuant to the small-mesh AM regulations at § 648.90.
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator has determined that this proposed rule is consistent with the Northeast Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.
        The Office of Management and Budget has determined that this action is not significant for the purpose of E.O. 12866.
        An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA), which describes the economic impact this proposed rule, if adopted, would have on small entities.
        Description of the Reasons Why Action by the Agency Is Being Considered

        A description of the action and why it is being considered are contained at the beginning of this preamble and in the SUMMARY.
        Statement of the Objectives of, and Legal Basis for, This Proposed Rule

        The statement of the objective and the legal basis for this action are contained at the beginning of this preamble and in the SUMMARY.
        Description and Estimate of the Number of Small Entities to Which This Proposed Rule Would Apply
        On June 12, 2014, the Small Business Administration (SBA) issued an interim final rule revising the small business size standards for several industries effective July 14, 2014 (79 FR 33467). The rule increased the size standard from $19.0 million to $20.5 million for finfish fishing, from $5.0 to $5.5 million for shellfish fishing, and from $7.0 million to $7.5 million for other marine fishing, for-hire businesses, and marinas. The small-mesh multispecies fishery falls under the finfish category and, thus, has a threshold of $20.5 million for determining small versus large entities. However, having different size standards for different types of commercial fishing activities creates difficulties in categorizing business that participate in multiple fishing related activities, which is typically the case in the fishing industry.
        In order to fish for small-mesh multispecies, a vessel owner must be issued either a limited access Northeast multispecies permit or an open access Northeast Multispecies Category K Permit; however, there are many vessels issued both of these types of permits that may not actually fish for small-mesh multispecies. Based on ownership data for 2011-2013, there were 1,087 distinct ownership entities based on calendar year 2013 permits that could potentially target small mesh multispecies. Of these, 1,069 are categorized as small and 18 are categorized as large entities per the SBA guidelines. While 1,087 commercial entities are directly regulated by the proposed action, not all of these entities land small-mesh multispecies and would, therefore, not be directly impacted by this action. To estimate the number of commercial entities that may experience impacts from the proposed action, active small-mesh multispecies entities are defined as those entities containing permits that are directly regulated and that landed any silver hake or red hake in 2013 for commercial sale. There are 298 potentially impacted, directly regulated commercial entities, 295 (99 percent) of which are classified as small entities.
        According to SBA's new size standards, a business involved in harvesting finfish is classified as small business if it is independently owned and operated, not dominant in its field of operation, with receipts not exceeding $20.5 million for all its affiliated operations worldwide. To identify an independent business, ownership information was used. The ownership data identifies individuals who own multiple vessels or a single vessel with multiple owners. This methodology assigns all the vessels owned by an individual into the same entity and including the co-owners in the same pool of affiliation following SBA's criteria for affiliation based on the principle of control that “may arise through ownership, management, or other relationships or interactions between the parties” even when the control is not exercised. Section 8.9 in the specifications EA describes the vessels, key ports, and revenue information for the small-mesh multispecies fishery, and is not repeated here.
        Description of the Projected Reporting, Record-Keeping, and Other Compliance Requirements of This Proposed Rule
        This action does not introduce any new reporting, recordkeeping, or other compliance requirements. This proposed rule does not duplicate, overlap, or conflict with other Federal rules.
        Federal Rules Which May Duplicate, Overlap, or Conflict With This Proposed Rule
        NMFS is not aware of any relevant Federal rules that may duplicate, overlap, or conflict with this proposed rule.
        Description of Significant Alternatives to the Proposed Action Which Accomplish the Stated Objectives of Applicable Statutes and Which Minimize Any Significant Economic Impact on Small Entities

        The Council conducted a comprehensive evaluation of the potential socioeconomic impacts of the specifications in the EA (see ADDRESSES), and a discussion of this evaluation follows.

        Overall, the expected impact from the proposed changes to the ACL specifications is neutral to low positive, relative to the no-action alternative. The proposed specifications in this action would revise the ACL specifications for northern and southern stocks of silver and red hakes for fishing years 2015-2017 based on updated stock assessments. The proposed specifications would increase the northern red and silver hake TALs, but reduce the TALs of the southern red and silver stocks. Landings of southern red hake and both stocks of silver hake were well below the 2013 TALs and the proposed 2015-2017 TALs. Therefore, the proposed limits would not be restrictive for the fishery and as a result, compared to taking no action, impact on revenues would be neutral. In 2013, landings of northern red hake exceeded the TAL and also exceed the proposed 2015-2017 TAL. Thus, if the fishery stays under the TAL to prevent overfishing as is expected, the impacts on revenue from northern red hake landings would be negative, but insignificant when compared with status quo. Compared to the no action alternative, the status quo northern red hake TAL is 15 percent lower than the proposed TAL. Because the proposed specifications generally increase quotas, compared to taking no action the proposed specifications would be positive, but insignificant. However, over the long term, the proposed limits are intended to reduce the risk of overfishing to maintain a healthy, sustainable stock which would in turn maximize revenues. Thus, compared to taking no action, the proposed specifications would have positive long term impacts on revenues.
        This action also proposes to reduce the possession limit for northern red hake from 5,000 lb (2,268 kg) to 3,000 lb (1,361 kg). The preferred alternative may reduce catch and landings (on trips targeting red hake) early in the season. However, the alternative may also potentially delay the time when the AM is triggered, allowing more red hake catch to be landed later in the season. It is expected, based on input from industry advisors, that the in-season AM trigger would be delayed with a lower initial possession limit, increasing revenue for trips taken later in the fishing year and reducing discards. Compared to taking no action, reducing the northern red hake possession limit is intended to prevent early closures, thus extending the season and fishing opportunity. This alternative is intended to support better market conditions by allowing small-mesh vessels to operate at a more consistent level for a longer period of time. As such, although this measure reduces a possession limit, the reduction is intended to prolong the fishing season and provide for better and more consistent market conditions, thus increasing overall revenues. As such, the preferred alternative's impact on profitability is expected to be neutral to low positive relative to the no-action alternative. Actual impact will depend on how fishermen who target this species in the northern area adapt their targeted fishing activity (and discarding activity) to the proposed lower initial possession limit and in-season accountability measures.
        This action also proposes to implement an additional in-season possession limit reduction trigger for red hake. This proposed measure would reduce the possession limit to 1,500 lb (680 kg) when landings reach 45 percent of the TAL. This measure, in conjunction with the measure to reduce the initial northern red hake possession limit to 3,000 lb (1,361 kg) are designed to slow catches of northern red hake. Although this would implement an additional possession limit reduction trigger, further reducing possession limits, the reduction is intended to extend the overall season and delay the reduction to incidental levels. Compared to taking no action, implementing an additional northern red hake possession limit trigger at 45 percent is intended to prevent early closures, thus extending the season. Without this additional trigger, possession limits could likely be reduced to the incidental limit trigger earlier in the year. Similar to the reduction in northern red hake possession limit, this alternative is expected to have neutral to slightly positive impacts compared to taking no action.

        In regard to correcting the accountability measure trigger for northern red hake, when the specifications were being developed the Whiting Plan Development Team identified an error in the previous set of specifications (i.e., fishing years 2012-2014). As a result, the northern red hake post-season accountability measure was triggered for fishing year 2014 using the incorrect catch and landings limits. This action would correct the AM trigger rate from 45 to 62.5 percent based on the corrected information. This should be beneficial for the industry and is not expected to have any negative economic impacts. Not doing this correction would result in the trigger rate remaining at 45 percent. This would result in the possession limit being reduced to the incidental level of 400 lb (181 kg) earlier in the season at 45 percent of the TAL compared to 62.5 percent. Reducing the possession limit to the incidental level earlier in the season would not only reduce landings, but would also be damaging to market conditions as it would likely result in a shorter season, and less consistent catch rates. Therefore, this measure is expected to delay reducing possession limits, increase landings, and provide for better market conditions. Compared to taking no action, the proposed correction would have positive impacts.

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

          Dated: April 2, 2015.
          Eileen Sobeck,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

        For the reasons set out 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 § 648.86, revise paragraphs (d)(1)(i) introductory text, (d)(1)(ii) introductory text, (d)(1)(iii) introductory text, and (d)(4) introductory text, and add paragraph (d)(5) to read as follows:

          § 648.86
          NE Multispecies possession restrictions.

          (d)  * * *
          (1)  * * *
          (i) Vessels possessing on board or using nets of mesh size smaller than 2.5 in (6.35 cm). Owners or operators of a vessel may possess and land not more than 3,000 lb (1,361 kg) of red hake, and not more than 3,500 lb (1,588 kg) of combined silver hake and offshore hake, if either of the following conditions apply:

          (ii) Vessels possessing on board or using nets of mesh size equal to or greater than 2.5 in (6.35 cm) but less than 3 in (7.62 cm). An owner or operator of a vessel that is not subject to the possession limit specified in paragraph (d)(1)(i) of this section may possess and land not more than 3,000 lb (1,361 kg) of red hake, and not more than 7,500 lb (3,402 kg) of combined silver hake and offshore hake if either of the following conditions apply:

          (iii) Vessels possessing on board or using nets of mesh size equal to or greater than 3 in (7.62 cm). An owner or operator of a vessel that is not subject to the possession limits specified in paragraphs (d)(1)(i) and (ii) of this section may possess and land not more than 3,000 lb (1,361 kg) of red hake, and not more than 30,000 lb (13,608 kg) of combined silver hake and offshore hake when fishing in the Gulf of Maine or Georges Bank Exemption Areas, as described in § 648.80(a), and not more than 40,000 lb (18,144 kg) of combined silver hake and offshore hake when fishing in the Southern New England or Mid-Atlantic Exemption Areas, as described in § 648.80(b)(10) and (c)(5), respectively, if both of the following conditions apply:

          (4) Accountability measure in-season adjustment of small-mesh multispecies possession limits. If the Regional Administrator projects that an in-season adjustment TAL trigger level for any small-mesh multispecies stock, as specified in § 648.90(b)(5)(iii), has been reached or exceeded, the Regional Administrator shall reduce the possession limit of that stock to the incidental level for that stock, as specified in this paragraph (d)(4), for the remainder of the fishing year through notice consistent with the Administrative Procedure Act, unless such a reduction in the possession limit would be expected to prevent the TAL from being reached.

          (5) In-season adjustment of northern red hake possession limits. In addition to the accountability measure in-season adjustment of small-mesh multispecies possession limits specified in § 648.86(d)(4), if the Regional Administrator projects that 45 percent of the northern red hake TAL has been reached or is exceeded, the Regional Administrator shall reduce the possession limit for northern red hake to 1,500 lb (680 kg) for the remainder of the fishing year unless further reduced to the incidental possession limit according to the accountability measure in-season adjustment of small-mesh multispecies possession limits specified in § 648.86(d)(4).

         3. In § 648.90, revise paragraphs (b)(4)(i) and (b)(5)(iii) to read as follows:

          § 648.90
          NE multispecies assessment, framework procedures and specifications, and flexible area action system.

          (b) * * *
          (4) * * *
          (i) The Whiting PDT shall prepare a specification package, including a SAFE Report, at least every 3 years. Based on the specification package, the Whiting PDT shall develop and present to the Council recommended specifications as defined in paragraph (a) of this section for up to 3 fishing years. The specifications package shall be the primary vehicle for the presentation of all updated biological and socio-economic information regarding the small-mesh multispecies fishery. The specifications package shall provide source data for any adjustments to the management measures that may be needed to continue to meet the goals and objectives of the FMP. The specifications package may include modifications to the OFL, ABC, ACL, TAL, possession limits, and in-season possession limit triggers.

          (5)  * * *
          (iii) Small-mesh multispecies in-season adjustment triggers. The small-mesh multispecies in-season accountability measure adjustment triggers are as follow:

              Species
              In-seasonadjustment
                trigger
                (percent)

              Northern Red Hake
              62.5

              Northern Silver Hake
              90

              Southern Red Hake
              90

              Southern Whiting
              90

      [FR Doc. 2015-08078 Filed 4-7-15; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF ENERGY
        48 CFR Parts 904, 952 and 970
        RIN 1991-AB85
        Acquisition Regulation: Access to and Ownership of Records

          AGENCY:
          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 revise the applicability and the policies and procedures involving the access to and ownership of records. Much work at DOE facilities is performed by contractor and subcontractor personnel and involves hazardous materials or the possibility of exposure to radioactive materials. It is necessary for the contractors and subcontractors to maintain extensive records for the Government involving these workers and processes, in particular, personnel; facility; occupational safety and health; environment; and medical records. DOE is proposing to amend these clauses for consistent inclusion in all applicable contracts, not just management and operating (M&O) contracts, based on the type of work being performed, to ensure preservation and Government ownership of records. Additionally, the proposed revisions address inconsistencies relating to DOE contractor and subcontractor efforts in managing records in accordance with DOE retention requirements. The proposed revisions are being made to establish consistent records maintenance, retention, and disposal; and to ensure certain records generated on groups of individuals in the performance of the contract are maintained as DOE Privacy Act Systems of Records.

          DATES:
          Written comments on the proposed rulemaking must be received on or before close of business June 23, 2010.

          ADDRESSES:

          This proposed rule is available and comments may be submitted to the Federal Electronic Rulemaking Portal at http://www.regulations.gov. Comments may also be submitted electronically to Richard.Langston@hq.doe.gov Comments may be mailed to: Richard Langston, Procurement Policy Analyst; MA-61; U. S. Department of Energy; 1000 Independence Avenue, SW.; Washington, DC 20585.

          FOR FURTHER INFORMATION CONTACT:
          Richard Langston at 202-287-1339 or Richard.Langston@hq.doe.gov.

        SUPPLEMENTARY INFORMATION:

          I. Background
          II. Section-by-Section Analysis
          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. Approval by the Office of the Secretary of Energy

        I. Background
        The Access to and Ownership of Records clause, at 48 CFR 970.5204-3, raises a number of concerns, including the lack of inclusion of the clause in non-M&O contracts; records systems identified as contractor-owned may not be operated and records may not be maintained appropriately as Privacy Act Systems of Records and for the required retention period; and the need for the Government to maintain personnel; facility; occupational safety and health; environment; and medical records on contractors and subcontractors long-term based on NARA-approved DOE Records Disposition Schedules and to support the Energy Employees Occupational Illness Compensation Program Act (EEOICPA), the DOE Former Worker Medical Screening Program (FWP) and other records requests.
        In light of the fact that most of the DOE sites have been in existence for as many as 60 years, there are inherent variations in quality, complexity, and completeness of recordkeeping practices. While DOE cannot recreate records that no longer exist, it is vital that DOE preserve ownership of, and access to, records in accordance with laws and regulations. In particular preservation of records that are vital to the safety, health and well being of past, present and future workers and the surrounding communities.

        The proposed revisions address inclusion of the clause in all applicable contracts, not just M&O contracts, based on the type of work being performed, provides clarity to the DOE contractor and subcontractor on their records management responsibilities, in particular the maintenance, retention, disposition, and Government ownership of records [see 44 U.S.C. chapters 21, 29, 31, 33, and 35, and 36 CFR chapter 12, subchapter B], including operating and maintaining records as DOE Privacy Act Systems of Records [FAR 52-224-2]; ensures preservation and ownership of personnel, facility; occupational safety and health, environment, medical records [see 10 CFR part 850, 10 CFR part 851, 29 CFR part 1904, and 29 CFR part 1910] and facility records required for decision-making and in support of the administration of the EEOICPA allows for DOE to identify and contact individuals in the future for participation in the FWP; and to meet other future records requests.
        These revisions will also serve to stress the importance of complete and accurate documentation and proper recordkeeping to adequately document Government funded activities, preserve institutional memory, protect the legal and financial rights of the Government, and preserve worker and facility records to ensure records are available to the Government when needed.
        II. Section-by-Section Analysis
        The Department proposes to amend the DEAR as follows.

          1. Subpart 904.7—The clause applicability specification for Contractor Records Retention at 904.702 has been revised to update the name of the Integration of Environment, Safety and Health into Work Planning and Execution clause, delete the reference to the obsolete Nuclear Safety clause, add a requirement to include the Access to and Ownership of Records clause, and specifically reference the “DOE Records Disposition Schedules” in applicable DOE Directives. These changes are being made to ensure that all contracts that generate records include the requirements of the Access to and Ownership of Records clause to ensure Government ownership and access to these records and to establish consistent records management practices in the retention of records.

          2. Section 952.223-75—DOE added language to the preservation of individual occupational radiation exposure records that requires such records be operated and maintained by contractors as a DOE Privacy Act Systems of Records (i.e., as DOE-35 Personnel Radiation Exposure Records) and emphasizes the requirement to maintain these records in accordance with the NARA-approved DOE Records Disposition Schedules.

          3. Section 970.0407-1-3—The prescription of the Access to and Ownership of Records clause has been expanded to require inclusion in more than just M&O contracts, but must also be included in contracts that contain the Integration of Environment, Safety, and Health into Work Planning and Execution clause at 48 CFR 952.223-71, and the Radiation Protection and Nuclear Criticality clause at 48 CFR 952.223-72. This change is made to ensure that the Access to and Ownership of Records clause is included consistently in all applicable contracts based on the type of work being performed (e.g., work that exposes personnel to hazardous material, radiation or long-term health issues), not just M&O contracts. In addition, the FAR Privacy Act clause at 48 CFR 52.224-2 must also be included in all contracts that include the Access to and Ownership of Records clause as records systems are to be operated, and records generated on groups of individuals in the performance of the contract are to be maintained by the contractor as a DOE Privacy Act Systems of Records.

          4. Section 970.5204-3(a)—Language was added to require contractors to operate and maintain certain records classified as Government-owned records as DOE Privacy Act Systems of Records as determined by the Contracting Officer. The Contracting Officer will tailor the list of Government-owned records to be operated and maintained by the contractor as Privacy Act Systems of Records using DOE's most recent compilation of the Privacy Act Systems of Records (see 74 FR 994, January 9, 2009).

          5. Section 970.5204-3(b)(1)—The words “non-contract related” were added before the words “medical/health-related records” to make it clear that those personnel medical records that are not collected by the contractor in the direct performance of its contract (i.e., corporate wellness programs) could be considered separate and distinct from contract-related personnel medical records.

          6. Section 970.5204-3(b)(2)—The words “internal corporate governance records” was added to the list of confidential contractor financial information to make it clear that these types of records should be considered to be confidential contractor records.

          7. Section 970.5204-3(c)—Language was added to clarify the disposition of both Government-owned and contractor-owned records at contract completion or termination. An option was added to allow contractors to deliver “original” records to the Government in lieu of copying these records with assurance that the contractor will have rights to access and copy the records as needed.

          8. Section 970.5204-3(e)—The applicability of the Access to and Ownership of Records clause was modified to make it clear that the records maintained by the contractor, whether they be Government-owned or contractor-owned, include all records in the possession of the contractor regardless of the date of origin and include those records acquired from a predecessor contractor. Therefore, this paragraph has been updated to not specify just particular paragraphs but the entire clause.

          9. Section 970.5204-3(f)—The title of this paragraph has been modified to read “Records maintenance and retention” and expanded to more specify the contractors records management responsibilities for the creation, maintenance, and disposition of records in accordance with applicable federal laws, regulations and DOE Directives. The proposed revision provides clear direction to the contractor and subcontractor on their records management responsibilities, in particular maintenance, disposition and ownership of records. The language was also revised to clearly link retention of records to the DOE Records Disposition Schedules and DOE removed language that singles out individual radiation exposure records as such records will be operated and maintained by the contractor as Government-owned DOE Privacy Act Systems of Records.

          10. Section 970.5204-3(g)—This paragraph is revised to eliminate the $2 Million threshold for flow down of the Access to and Ownership of Records clause as its applicability is more appropriately determined by the nature of the work not the cost of the contract (i.e., subcontracts in which contract performance exposes personnel to hazardous material, radiation, or long-term health issues). Therefore, this paragraph has been modified and expanded to require inclusion in subcontracts that contain the Integration of Environment, Safety and Health into work Planning and Execution clause at 952.223-71 or the Radiation Protection and Nuclear Criticality clause at 952.223-72, consistent with the prescription for prime contracts in DEAR 970.0407-1-3, and the contractor records retention applicability in DEAR 904.702. This paragraph has also been modified to include flow down of the Privacy Act clause into subcontracts.
        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 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 proposed regulations meet the relevant standards of Executive Order 12988.
        C. Review Under the Regulatory Flexibility Act

        This proposed 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 is likely to have a significant economic impact on a substantial number of small entities. The proposed rule would not have a significant economic impact on small entities because it imposes no significant burdens.
        Accordingly, DOE certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities, and, therefore, no regulatory flexibility analysis has been prepared.
        D. Review Under Paperwork Reduction Act
        This rulemaking contains no new information collection or recordkeeping requirements. Existing information collections imposed by the Department of Energy Acquisition Regulation are covered by OMB Control Number 1910-4100.
        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 would be 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. DOE has examined today's 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) 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 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 rule or policy that may affect family well-being. 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 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; and (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 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. Approval by the Office of the Secretary of Energy
        The Office of the Secretary of Energy has approved issuance of this proposed rule.

          List of Subjects in 48 CFR Parts 904, 952 and 970
          Government procurement.

          Issued in Washington, DC, on May 18, 2010.
          Patrick M. Ferraro,
          Acting Director, Office of Procurement and Assistance Management, Office of Management, Department of Energy.
          Joseph F. Waddell,
          Acting Director, Office of Acquisition and Supply Management, National Nuclear Security Administration.

        For the reasons set out in the preamble, DOE proposes to amend 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. and 50 U.S.C. 2401, et seq.

          2. Revise section 904.702, to read as follows:

            904.702
             Applicability.
            (b) Contracts containing the Integration of Environment, Safety and Health into Work Planning and Execution clause at 952.223-71, or the Radiation Protection and Nuclear Criticality clause at 952.223-72 must also include the Preservation of Individual Occupational Radiation Exposure Records clause at 952.223-75, and the Access to and Ownership of Records clause at 970.5204-3, which will necessitate retention of records in accordance with DOE Records Disposition Schedules contained in applicable DOE Directives, rather than those found at FAR Subpart 4.7.

          PART 952—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
          3. In section 952.223-75, the clause paragraph is revised to read as follows:

            952.223-75
             Preservation of individual occupational radiation exposure records.

              Individual occupational radiation exposure records generated in the performance of work under this contract shall be maintained by the contractor and related contractor record systems shall be operated as DOE Privacy Act Systems of Records, in accordance with the NARA-approved DOE Records Disposition Schedules contained in applicable DOE Directives.

          PART 970—DOE MANAGEMENT AND OPERATING CONTRACTS
          4. 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.

          5. Revise section 970.0407-1-3 to read as follows:

            970.0407-1-3
             Contract clause.
            The contracting officer shall insert the clauses at 48 CFR 970.5204-3, Access to and Ownership of Records and 48 CFR 52.224-2, Privacy Act, including the listing of pertinent Privacy Act Systems of Records, in management and operating contracts and all contracts that contain the Integration of Environment, Safety, and Health into Work Planning and Execution clause at 48 CFR 952.223-71 or the Radiation Protection and Nuclear Criticality clause at 48 CFR 952.223-72.
            6. Amend 970.5204-3 by:
            a. Revising the clause date;
            b. Revising paragraph (a);
            c. Adding in paragraph (b)(1), the words “non contract related” before the words “medical/health-related records)” and removing the words “described by the contract as being maintained in” and adding in its place, the words “operated and maintained by the contractor in a DOE” in the last sentence;
            d. Adding in paragraph (b)(2) the words “internal corporate governance records,” after the word “information” in the first sentence;
            e. Revising paragraphs (c), (e), (f) and (g).

            The revisions read as follows:

            970.5204-3
             Access to and ownership of records.

              Access to and Ownership of Records (XXX 20XX)
              (a) Government-owned records. Except as provided in paragraph (b) of this clause, all records acquired or generated by the contractor in its performance of this contract, shall be the property of the Government. The contractor, where applicable, shall maintain DOE Privacy Act Systems of Records in accordance with requirements of FAR 52.224-2 “Privacy Act.”
              The contractor shall operate and maintain the following DOE Privacy Act Systems of Records: [The Contracting Officer shall insert the list of Government-owned records to be operated and maintained by the contractor as a DOE Privacy Act Systems of Records using DOE's most recent compilation of its Privacy Act Systems of Records.]

              (c) Contract completion or termination. Upon contract completion or termination, the contractor shall ensure final disposition of all Government-owned records to a Federal Record Center, the National Archives and Records Administration, to a successor contractor, its designee, or other destinations, as directed by the Contracting Officer. Upon the request of the Government, the contractor shall provide either the original contractor-owned records or copies of the records identified in paragraph (b) of this clause, to DOE or its designees, including successor contractors. Upon delivery, title to such records shall vest in DOE or its designees, and such records shall be protected in accordance with applicable federal laws (including the Privacy Act) as appropriate. If the contractor chooses to provide its original contractor-owned records to the Government or its designee, the contractor shall retain future access rights to copy such records.

              (e) Applicability. This clause applies to all records maintained by the contractor without regard to the date or origination of such records including all records acquired from a predecessor contractor.
              (f) Records maintenance and retention. Contractor shall create, maintain, safeguard, and disposition records in accordance with 36 CFR, Chapter 12, Subchapter B and the National Archives and Records Administration (NARA)-approved records disposition schedules (DOE Records Disposition Schedules), contained in applicable DOE Directives. Records retention standards are applicable for all classes of records described therein, whether or not the records are owned by the Government or the contractor. The Government may waive application of these records disposition schedules, if, upon termination or completion of the contract, the Government exercises its right under paragraph (c) of this clause to obtain copies and delivery of records described in paragraphs (a) and (b) of this clause.
              (g) Subcontracts. The contractor shall include the requirements of this clause and the Privacy Act clause of FAR 52.224-2 (pursuant to FAR 24.104) in all subcontracts that contain the Integration of Environment, Safety and Health into Work Planning and Execution clause at 952.223-71 or, the Radiation Protection and Nuclear Criticality clause at 952.223-72.

            (End of Clause)

      [FR Doc. 2010-12404 Filed 5-21-10; 8:45 am]
      BILLING CODE 6450-01-P