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Federal Register / Vol. 71, No.

88 / Monday, May 8, 2006 / Proposed Rules 26723

not institute a second comment period. http://www.regulations.gov index. policy and requirements for contractor
Any parties interested in commenting Although listed in the index, some internal audits, through the use of
on this action should do so at this time. information is not publicly available, DOE’s Cooperative Audit Strategy. The
DATES: Comments must be received in i.e., CBI or other information whose amendments would ensure that internal
writing by June 7, 2006. disclosure is restricted by statute. contractor audits are conducted in a
ADDRESSES: Submit your comments, Certain other material, such as manner that ensures reliability.
identified by Docket ID Number EPA– copyrighted material, is not placed on DATES: Comments should be submitted
R03–OAR–2006–0314, by one of the the Internet and will be publicly on or before July 7, 2006.
following methods: available only in hard copy form. ADDRESSES: You may submit comments,
A. http://www.regulations.gov. Follow Publicly available docket materials are identified by RIN number 1991–AB67,
the on-line instructions for submitting available either electronically in http:// by any of the following methods:
comments. www.regulations.gov or in hard copy • Federal eRulemaking Portal: http://
B. E-mail: morris.makeba@epa.gov. during normal business hours at the Air www.regulations.gov. Follow the
C. Mail: EPA–R03–OAR–2006–0314, Protection Division, U.S. Environmental instructions for submitting comments.
Makeba Morris, Chief, Air Quality Protection Agency, Region III, 1650 • E-mail: helen.oxberger@hq.doe.gov.
Planning Branch, Mailcode 3AP21, U.S. Arch Street, Philadelphia, Pennsylvania Include RIN number 1991–AB67 in the
Environmental Protection Agency, 19103. Copies of the State submittal are subject line of the message.
Region III, 1650 Arch Street, available at the Maryland Department of • Mail: Helen Oxberger, Mail Code
Philadelphia, Pennsylvania 19103. the Environment, 1800 Washington MA–61, U.S. Department of Energy,
D. Hand Delivery: At the previously- Boulevard, Suite 705, Baltimore, 1000 Independence Avenue, SW.,
listed EPA Region III address. Such Maryland 21230. Washington, DC 20585.
deliveries are only accepted during the FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT:
Docket’s normal hours of operation, and Catherine L. Magliocchetti, (215) 814– Helen Oxberger, (202) 287–1332.
special arrangements should be made 2174, or by e-mail at SUPPLEMENTARY INFORMATION:
for deliveries of boxed information. magliocchetti.catherine@epa.gov. I. Background
Instructions: Direct your comments to SUPPLEMENTARY INFORMATION: For II. Section-by-Section Analysis
Docket ID No. EPA–R03–OAR–2006– further information, please see the III. Procedural Requirements
0314. EPA’s policy is that all comments information provided in the direct final A. Review Under Executive Order 12866
received will be included in the public B. Review Under the Regulatory Flexibility
action, with the title, ‘‘Approval and Act
docket without change, and may be Promulgation of Air Quality
made available online at http:// C. Review Under the Paperwork Reduction
Implementation Plans; Maryland; Act
www.regulations.gov, including any Amendments to Stage II Vapor Recovery D. Review Under the National
personal information provided, unless at Gasoline Dispensing Facilities,’’ that Environmental Policy Act
the comment includes information is located in the ‘‘Rules and E. Review Under Executive Order 13132
claimed to be Confidential Business Regulations’’ section of this Federal F. Review Under Executive Order 12988
Information (CBI) or other information Register publication. Please note that if G. Review Under the Unfunded Mandates
whose disclosure is restricted by statute. Reform Act of 1995
EPA receives adverse comment on an H. Review Under the Treasury and General
Do not submit information that you amendment, paragraph, or section of
consider to be CBI or otherwise Government Appropriations Act, 1999
this rule and if that provision may be I. Review Under the Treasury and General
protected through http:// severed from the remainder of the rule, Government Appropriations Act, 2001
www.regulations.gov or e-mail. The EPA may adopt as final those provisions J. Review Under Executive Order 13211
http://www.regulations.gov Web site is of the rule that are not the subject of an K. Approval by the Office of the Secretary
an ‘‘anonymous access’’ system, which adverse comment.
means EPA will not know your identity I. Background
or contact information unless you Dated: April 24, 2006. The Department contracts for the
provide it in the body of your comment. Donald S. Welsh, management and operation of its
If you send an e-mail comment directly Regional Administrator, Region III. Government owned or controlled
to EPA without going through http:// [FR Doc. 06–4198 Filed 5–5–06; 8:45 am] research, development, special
www.regulations.gov, your e-mail BILLING CODE 6560–50–P production, or testing facilities through
address will be automatically captured the use of management and operating
and included as part of the comment (M&O) contracts. The Department
that is placed in the public docket and DEPARTMENT OF ENERGY historically expends approximately 80%
made available on the Internet. If you of its annual appropriations through
submit an electronic comment, EPA 48 CFR Part 970 these M&O prime contracts. Thus, it is
recommends that you include your imperative for the Department to
name and other contact information in RIN 1991–AB67
develop approaches which permit
the body of your comment and with any oversight of M&O expenditures in order
Acquisition Regulation:
disk or CD–ROM you submit. If EPA for the Department to satisfy its
Implementation of DOE’s Cooperative
cannot read your comment due to oversight responsibility and to ensure
Audit Strategy for Its Management and
technical difficulties and cannot contact that DOE funds are expended on
Operating Contracts
you for clarification, EPA may not be allowable and reasonable costs.
able to consider your comment. AGENCY: Department of Energy. The creation and maintenance of
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Electronic files should avoid the use of ACTION: Notice of proposed rulemaking. rigorous business, financial, and
special characters, any form of accounting systems by contractors are
encryption, and be free of any defects or SUMMARY: The Department of Energy crucial to assuring the integrity and
viruses. (DOE) is proposing to amend the reliability of the cost data used by the
Docket: All documents in the Department of Energy Acquisition DOE’s Chief Financial Officer (CFO), the
electronic docket are listed in the Regulation (DEAR) to revise and expand Inspector General (IG), and contracting

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26724 Federal Register / Vol. 71, No. 88 / Monday, May 8, 2006 / Proposed Rules

officers (COs). To ensure the reliability implementation design would describe August 16, 2002), DOE published
of these systems, DOE requires some of (i) the internal audit activity’s procedures and policies to ensure that
its contractors to maintain an internal placement within the contractor’s the potential impacts of its draft rules
audit activity, that is, an internal audit organization and reporting on small entities are properly
organization, which is responsible for: requirements; (ii) the size, experience, considered during the rulemaking
(i) Performing operational and financial and educational standards of the process (68 FR 7990, February 19, 2003),
audits including incurred cost audits, internal audit staff; (iii) the relationship and has made them available on the
and (ii) assessing the adequacy of of the internal audit activity to corporate Office of General Counsel’s Web site:
management control systems. entities; if any; (iv) the standards to be http://www.gc.doe.gov. DOE has
The Cooperative Audit Strategy is a used for conducting the audits; (v) the reviewed today’s proposed rule under
program that the IG, partnering with overall internal audit strategy for the the provisions of the Regulatory
contractors’ internal audit groups, the performance period of the contract, Flexibility Act and the procedures and
CFO, and the Office of DOE considering particularly the method of policies published on February 19,
Procurement and Assistance auditing costs incurred; (vi) the 2003. The proposed rule would amend
Management, developed and intended use of external audit resources; procurement policies that apply only to
implemented in October 1992 to (vii) the plan for internal audits of DOE M&O contracts and would impact
maximize the overall audit coverage of subcontracts, both pre- and post-award; only DOE’s M&O contractors none of
M&O contractors’ operations and to and (viii) the schedule for peer reviews. whom are small entities. This rule
fulfill the IG’s responsibility for auditing B. Annually, the contractor shall would not have a significant economic
the costs incurred by major facilities submit a summary of the previous fiscal impact on small entities. On the basis of
contractors. The Cooperative Audit year’s internal audits, reflecting the the foregoing, DOE certifies that the
Strategy enhances the DOE’s efficient results of those audits, and actions, proposed rule, if promulgated, would
use of available audit resources by proposed or taken to resolve any not have a significant economic impact
allowing the IG to rely on the work of identified weaknesses. on a substantial number of small
contractors’ internal audit organization. C. Annually, the contractor shall entities. Accordingly, DOE has not
The IG has adopted the Cooperative submit an audit plan for internal audits prepared a regulatory flexibility analysis
Audit Strategy at most major contractor for the next fiscal year. for this rulemaking.
locations. D. All such documents shall be
The success of the Cooperative Audit C. Review Under the Paperwork
satisfactory to the contracting officer. Reduction Act
Strategy depends on the IG and 3. Section 970.5232–3 is amended by
contractor internal audit groups working adding a new paragraph (j) which states Any additional information collection
closely with DOE. The contractor that upon discovery the contractor has requirements subject to the Paperwork
internal audit groups are committed to claimed unallowable costs, the Reduction Act, 44 U.S.C. 3501 et seq.,
a continuing evaluation of the process contracting officer may (i) direct the reflected by today’s regulatory action are
and have established the Steering contractor to cease using, in whole or in insignificant. Existing burdens
Committee for Quality Auditing to part, the DOE special financial associated with the collection of certain
address current issues and implement institution account, (ii) require a refund, contractor compensation data have been
on-going improvements. (iii) reduce the contractor’s fee, or (iv) previously cleared under OMB control
Currently, the Cooperative Audit take any other action authorized in law, number 1910–4100 which expires on
Strategy is implemented under an regulations, or this contract. April 30, 2008.
alternative clause in the Accounts, D. Review Under the National
records, and inspection contract clause III. Procedural Requirements
Environmental Policy Act
at 970.5232–3. The proposed rule would A. Review Under Executive Order 12866
eliminate the alternative and amend the DOE has concluded that promulgation
contract clause to require the use of the This regulatory action has been of this proposed rule falls into a class of
Cooperative Audit Strategy in all M&O determined not to be a significant actions that would not individually or
contracts. regulatory action under Executive Order cumulatively have a significant impact
12866, Regulatory Planning and Review on the human environment, as
II. Section-by-Section Analysis (58 FR 51735, October 4, 1993). determined by DOE’s regulations
DOE is proposing to amend the DEAR Accordingly, this proposed rule is not implementing the National
as follows: subject to review under the Executive Environmental Policy Act of 1969 (42
1. Section 970.5203–1, Management Order by the Office of Information and U.S.C. 4321 et seq.). Specifically, this
controls, paragraph (a)(4) would be Regulatory Affairs (OIRA) within the proposed rule deals only with agency
amended by adding a sentence which Office of Management and Budget. procedures, and; therefore, is covered
requires the contractor to annually, or at B. Review Under the Regulatory under the Categorical Exclusion in
other times as directed by the Flexibility Act paragraph A6 to subpart D, 10 CFR part
contracting officer, provide copies of 1021. Accordingly, neither an
reports on the status of audit The Regulatory Flexibility Act (5 environmental assessment nor an
recommendations. U.S.C. 601 et seq.) requires preparation environmental impact statement is
2. Section 970.5232–3, Accounts, of an initial regulatory flexibility required.
records, and inspection, would be analysis for any rule that by law must
amended by removing Alternative II and be proposed for public comment, unless E. Review Under Executive Order 13132
by adding a new paragraph (i) which the agency certifies that the rule, if Executive Order 13132, ‘‘Federalism’’
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would establish requirements that: promulgated, will not have a significant (64 FR 43255, August 4, 1999) imposes
A. Upon contract award, exercise of economic impact on a substantial certain requirements on agencies
any contract option, or the extension of number of small entities. As required by formulating and implementing policies
the contract, the contractor shall submit Executive Order 13272, ‘‘Proper or regulations that preempt State law or
to the contracting officer an internal Consideration of Small Entities in that have federalism implications.
audit implementation design. The audit Agency Rulemaking’’ (67 FR 53461, Agencies are required to examine the

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Federal Register / Vol. 71, No. 88 / Monday, May 8, 2006 / Proposed Rules 26725

constitutional and statutory authority G. Review Under the Unfunded OIRA as a significant energy action. For
supporting any action that would limit Mandates Reform Act of 1995 any proposed significant energy action,
the policymaking discretion of the Title II of the Unfunded Mandates the agency must give a detailed
States and carefully assess the necessity Reform Act of 1995 (Pub. L. 104–4) statement of any adverse effects on
for such actions. The Executive Order requires each Federal agency to assess energy supply, distribution, or use
also requires agencies to have an the effects of a Federal regulatory action should the proposal be implemented,
accountability process to ensure on State, local, and tribal governments, and of reasonable alternatives to the
meaningful and timely input by State and the private sector. The Department action and their expected benefits on
and local officials in the development of has determined that today’s regulatory energy supply, distribution, and use.
regulatory policies that have federalism action does not impose a Federal Today’s regulatory action is not a
implications. On March 14, 2000, DOE mandate on State, local or tribal significant energy action. Accordingly,
published a statement of policy governments or on the private sector. DOE has not prepared a Statement of
describing the intergovernmental Energy Effects.
H. Review Under the Treasury and
consultation process it will follow in the General Government Appropriations K. Approval by the Office of the
development of such regulations (65 FR Act, 1999 Secretary
13735). DOE has examined today’s
proposed rule and has determined that Section 654 of the Treasury and The Office of the Secretary has
it does not preempt State law and does General Government Appropriations approved issuance of this proposed rule.
not have a substantial direct effect on Act, 1999 (Pub. L. 105–277) requires List of Subjects in 48 CFR Part 970
the States, on the relationship between Federal agencies to issue a Family
Policymaking Assessment for any rule Government procurement.
the national government and the States,
that may affect family well-being. This Issued in Washington, DC, on April 27,
or on the distribution of power and
proposed rule would not have any 2006.
responsibilities among the various
impact on the autonomy or integrity of Edward R Simpson,
levels of government. No further action
the family as an institution. Director, Office of Procurement and
is required by Executive Order 13132. Accordingly, DOE has concluded that it Assistance Management, Department of
F. Review Under Executive Order 12988 is not necessary to prepare a Family Energy.
Policymaking Assessment. Robert C. Braden, Jr.,
With respect to the review of existing Director, Office of Procurement and
regulations and the promulgation of I. Review Under the Treasury and
General Government Appropriations Assistance Management, National Nuclear
new regulations, section 3(a) of Security Administration.
Act, 2001
Executive Order 12988, ‘‘Civil Justice
The Treasury and General For the reasons set forth in the
Reform’’ (61 FR 4729, February 7, 1996),
Government Appropriations Act, 2001 preamble, chapter 9 of title 48 of the
imposes on Federal agencies the general Code of Federal Regulations is proposed
duty to adhere to the following (44 U.S.C. 3516, note) provides for
agencies to review most disseminations to be amended as set forth below:
requirements: (1) Eliminate drafting
errors and ambiguity; (2) write of information to the public under
PART 970—DOE MANAGEMENT AND
regulations to minimize litigation; and guidelines established by each agency
OPERATING CONTRACTS
(3) provide a clear legal standard for pursuant to general guideline issued by
affected conduct rather than a general OMB. OMB’s guidelines were published 1. The authority citation for part 970
standard and promote simplification at 67 FR 8452 (February 22, 2002), and continues to read as follows:
and burden reduction. Section 3(b) of DOE’s guidelines were published at 67 Authority: 42 U.S.C. 2201, 2282a, 2282b,
Executive Order 12988 specifically FR 62446 (October 7, 2002). DOE has 2282c; 42 U.S.C. 7101 et seq.; 41 U.S.C. 418b;
requires that Executive agencies make reviewed today’s notice under the OMB 50 U.S.C. 2401 et seq.
every reasonable effort to ensure that the and DOE guidelines and has concluded
that it is consistent with applicable 2. Section 970.5203–1 is amended by
regulation: (1) Clearly specifies the adding a sentence to the end of
policies in those guidelines.
preemptive effect, if any; (2) clearly paragraph (a)(4).
specifies any effect on existing Federal J. Review Under Executive Order 13211
law or regulation; (3) provides a clear 970.5203–1 Management controls.
Executive Order 13211, ‘‘Actions
legal standard for affected conduct Concerning Regulations That * * * * *
while promoting simplification and Significantly Affect Energy Supply, (a) * * *
burden reduction; (4) specifies the Distribution, or Use’’ (66 FR 28355, May (4) * * * Annually, or at other
retroactive effect, if any; (5) adequately 22, 2001) requires Federal agencies to intervals directed by the contracting
defines key terms; and (6) addresses prepare and submit to the Office of officer, the contractor shall supply to
other important issues affecting clarity Information and Regulatory Affairs the contracting officer copies of the
and general draftsmanship under any (OIRA), Office of Management and reports reflecting the status of
guidelines issued by the Attorney Budget, a Statement of Energy Effects for recommendations resulting from
General. Section 3(c) of Executive Order any proposed significant energy action. management audits performed by its
12988 requires Executive agencies to A ‘‘significant energy action’’ is defined internal audit activity and any other
review regulations in light of applicable as any action by an agency that audit organization. This requirement
standards in section 3(a) and section promulgated or is expected to lead to may be satisfied in part by the reports
3(b) to determine whether they are met promulgation of a final rule, and that: required under paragraph (i) of DEAR
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or it is unreasonable to meet one or (1) Is a significant regulatory action 970.5232–3, Accounts, records, and
more of them. DOE has completed the under Executive Order 12866, or any inspection.
required review and determined that, to successor order; and (2) is likely to have * * * * *
the extent permitted by law, this a significant adverse effect on the 3. Section 970.5232–3 is amended by
proposed rule meets the relevant supply, distribution, or use of energy, or revising the date of the clause, adding
standards of Executive Order 12988. (3) is designated by the Administrator of new paragraphs (i) and (j), and removing

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26726 Federal Register / Vol. 71, No. 88 / Monday, May 8, 2006 / Proposed Rules

Alternative II, and adding new submitted under paragraphs (i)(1), (i)(2),proposes that the possession limits for
paragraphs (i) and (j) to read as follows: and (i)(3) of this clause, including the dogfish be set at 600 lb (272 kg) for both
design plan for the internal audits, the quota periods 1 and 2 of the fishery.
970.5232–3 Accounts, records, and
annual report, and the annual internal DATES: Public comments must be
inspection.
audits. received (see ADDRESSES) no later than
* * * Accounts, Records, and (j) Remedies. If at any time during 5 p.m. eastern standard time on May 23,
Inspection (XX XXXX) contract performance, the contracting 2006.
* * * * * officer determines that unallowable ADDRESSES: Copies of supporting
(i) Internal audit. The contractor costs were claimed by the contractor to documents used by the Mid-Atlantic
agrees to design and maintain an the extent of making the contractor’s Fishery Management Council (Council),
internal audit plan and an internal audit management controls suspect, or the including the Environmental
organization. contractor’s management systems that Assessment (EA) and Regulatory Impact
(1) Upon contract award, the exercise validate the costs incurred and claimed Review (RIR)/Initial Regulatory
of any contract option, or the extension suspect, the contracting officer may, in Flexibility Analysis (IRFA), are
of the contract, the contractor must his or her sole discretion, require the available from: Daniel Furlong,
submit to the contracting officer for contractor to cease using the special Executive Director, Mid-Atlantic
approval an Internal Audit financial institution account in whole or Fishery Management Council, Room
Implementation Design to include the with regard to specified accounts, 2115, Federal Building, 300 South New
overall strategy for the internal audits. requiring reimbursable costs to be Street, Dover, DE 19904–6790. The EA/
The Audit Implementation Design must claimed by periodic vouchering. In RIR/IRFA is accessible via the Internet
describe: addition, the contracting officer, where at http://www.nero.nmfs.gov.Written
(i) The internal audit organization’s he or she deems it appropriate, may; comments on the proposed rule may be
placement within the contractor’s impose a penalty under DEAR sent by any of the following methods:
organization and its reporting 970.5242–1, Penalties for unallowable • Mail to Patricia A. Kurkul, Regional
requirements; costs; require a refund; reduce the Administrator, NMFS, Northeast
(ii) The audit organization’s size and contractor’s otherwise owed fee; and Regional Office, One Blackburn Drive,
the experience and educational take such other action as authorized in Gloucester, MA 01930. Mark the outside
standards of its staff; law, regulation, or this contract. of the envelope ‘‘Comments 2006–2008
(iii) The audit organization’s Dogfish Specifications’’;
[FR Doc. E6–6736 Filed 5–5–06; 8:45 am]
relationship to the corporate entities of
BILLING CODE 6450–01–P
• Fax to Patricia A. Kurkul (978) 281–
the contractor; 9135;
(iv) The standards to be used in • E-mail to the following address:
conducting the internal audits; DogfishSpecs2006@noaa.gov. Include in
(v) The overall internal audit strategy DEPARTMENT OF COMMERCE the subject line of the e-mail comment
of this contract, considering particularly the following document identifier:
the method of auditing costs incurred in National Oceanic and Atmospheric
Administration ‘‘Comments 2006–2008 Dogfish
the performance of the contract; Specifications.’’
(vi) The intended use of external audit • Electronically through the Federal
resources; 50 CFR Part 648
e-Rulemaking portal: http://
(vii) The plan for audit of [Docket No. 060418103–6103–01; I.D. www.regulations.gov.
subcontracts, both pre-award and post- 040706F]
award; and FOR FURTHER INFORMATION CONTACT: Eric
(viii) The schedule for peer review of RIN 0648–AT59 Jay Dolin, Fishery Policy Analyst,
internal audits by other contractor (978)281–9259, fax (978)281–9135.
Fisheries of the Northeastern United SUPPLEMENTARY INFORMATION: Spiny
internal audit organizations.
States; Proposed 2006 Through 2008 dogfish were declared overfished by
(2) By each January 31 of the contract
Specifications for the Spiny Dogfish NMFS on April 3, 1998, and added to
performance period, the contractor must
Fishery that year’s list of overfished stocks in
submit an annual audit report,
providing a summary of the audit AGENCY: National Marine Fisheries the Report on the Status of the Fisheries
activities undertaken during the Service (NMFS), National Oceanic and of the United States, prepared pursuant
previous fiscal year. That report shall Atmospheric Administration (NOAA), to section 304 of the Magnuson-Stevens
reflect the results of the internal audits Commerce. Fishery Conservation and Management
during the previous fiscal year and the ACTION: Proposed rule; request for Act (Magnuson-Stevens Act).
actions to be taken to resolve comments. Consequently, the Magnuson-Stevens
weaknesses identified in the Act required the preparation of
contractor’s system of business, SUMMARY: NMFS proposes specifications measures to end overfishing and to
financial, or management controls. for the spiny dogfish fishery for the rebuild the spiny dogfish stock. A joint
(3) By each June 30 of the contract 2006 through 2008 fishing years (May 1, FMP was developed by the Mid-Atlantic
performance period, the contractor must 2006, through April 30, 2009). The and New England Fishery Management
submit to the contracting officer an implementing regulations for the Spiny Councils (Councils) during 1998 and
annual audit plan for the activities to be Dogfish Fishery Management Plan 1999. The Mid-Atlantic Fishery
undertaken by the internal audit (FMP) require NMFS to publish Management Council (MAFMC) was
organization during the next fiscal year specifications for up to a period of 5 designated as the administrative lead on
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that is designed to test the costs years and to provide an opportunity for the FMP.
incurred and contractor management public comment. The intent of this The regulations implementing the
systems described in the internal audit rulemaking is to specify the commercial FMP at 50 CFR part 648, subpart L,
design. quota and other management measures, outline the process for specifying the
(4) The contracting officer may such as possession limits, to rebuild the commercial quota and other
require revisions to documents spiny dogfish resource. NMFS also management measures (e.g., minimum

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