Notices. Proposed rule; request for comments

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BILLING CODE 4910-59-M 72 103 Wednesday, May 30, 2007 Proposed Rules Part II Department of Commerce National Oceanic and Atmospheric Administration 50 CFR Part 679 Fisheries of the Exclusive Economic Zone Off Alaska; Allocating Bering Sea/Aleutian Islands Fishery Resources; American Fisheries Act Sideboards; Proposed Rule DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 070430096-7096-01; I.D. 041307D] RIN 0648-AU68 Fisheries of the Exclusive Economic Zone Off Alaska;

Allocating Bering Sea/Aleutian Islands Fishery Resources; American Fisheries Act Sideboards AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: NMFS issues a proposed rule to implement Amendment 80 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). Amendment 80 (hereinafter the “Program”) primarily would allocate several Bering Sea and Aleutian Islands

(BSAI)non-pollock trawl groundfish fisheries among fishing sectors, and facilitate the formation of harvesting cooperatives in the non-American Fisheries Act

(AFA)trawl catcher/processor sector. The Program would establish a limited access privilege program

(LAPP)for the non-AFA trawl catcher/processor sector. This proposed action is necessary to increase resource conservation and improve economic efficiency for harvesters who participate in the BSAI groundfish fisheries. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), the FMP, and other applicable law. DATES: Comments must be received no later than June 29, 2007. ADDRESSES: Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. Comments may be submitted by: • *Mail:* P.O. Box 21668, Juneau, AK 99802. • *Hand Delivery to the Federal Building:* 709 West 9th Street, Room 420A, Juneau, AK. • *Fax:* 907-586-7557. • *E-mail: 0648-AU68PR80@noaa.gov.* Include in the subject line of the e-mail the following document identifier: “Amendment 80 RIN 0648-AU68.” E-mail comments, with or without attachments, are limited to 5 megabytes. • *Webform at the Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions at that site for submitting comments. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to NMFS (see ADDRESSES ) and by e-mail to *David_Rostker@omb.eop.gov* or by fax to 202-395-7285. Copies of Amendment 80 and the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) for this action may be obtained from the NMFS Alaska Region at the address above or from the Alaska Region Web site at *http://www.fakr.noaa.gov/sustainablefisheries.htm.* FOR FURTHER INFORMATION CONTACT: Glenn Merrill, 907-586-7228 or *glenn.merrill@noaa.gov.* SUPPLEMENTARY INFORMATION: The North Pacific Fishery Management Council (Council) has submitted Amendment 80 for review by the Secretary of Commerce (Secretary), and a notice of availability of the FMP amendment was published in the **Federal Register** on April 30, 2007 (72 FR 21198) with comments on the FMP amendment invited through June 29, 2007. Table of Contents I. Development of the Program A. History of Bycatch and Discard Reduction Efforts in the BSAI B. The Non-Pollock Trawl Groundfish Fisheries C. Limited Access Privilege Programs (LAPPs) D. LAPPs, Groundfish Retention Standard (GRS), and Reduced Prohibited Species Catch

(PSC)E. Overview of the Program II. Legislation Affecting the Program A. The Capacity Reduction Program

(CRP)B. The Coast Guard Act C. The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006

(MSRA)III. Nonspecified Reserve and the Community Development Quota

(CDQ)Program A. Nonspecified Reserve B. CDQ Reserves C. Prohibited Species Quota

(PSQ)Allocations D. Monitoring and Enforcement (M&E) E. Other Revisions IV. Allocations of Initial Total Allowable Catch

(ITAC)and PSC A. Apportionment of ITAC Between the Sectors B. PSC Apportionment to the CDQ Program and Between the Sectors C. Rationale for Allocations D. Integrating Amendment 85 and the Program V. BSAI Trawl Limited Access Sector A. Allocations to the BSAI Trawl Limited Access Sector B. Calculation of AFA Groundfish Sideboard Limits in the BSAI C. AFA Sideboard Limits for Halibut and Crab PSC in the BSAI D. AFA Yellowfin Sole Sideboard Limit in the BSAI E. Reallocating Pacific Cod Among the Trawl Sectors F. Calculation of the Crab PSC Limit in the Red King Crab Savings Subarea (RKCSS) G. Effects on Non-AFA Trawl Catcher Vessels H. Processing and Receiving Catch VI. Amendment 80 Quota Share

(QS)A. Eligibility to Receive Amendment 80 QS B. Method for Allocating Amendment 80 QS—General Provisions C. Application for Amendment 80 QS D. Reviewing and Appealing a QS Application E. Assigning Amendment 80 QS Permit to an Amendment 80 Vessel Owner F. Assigning an Amendment 80 QS Permit to an Amendment 80 License Limitation Program

(LLP)License for Lost or Ineligible Vessels G. Transferring QS H. Issuance of QS After the Fishing Year Begins I. Method for Allocating QS—Specific Provisions VII. Amendment 80 Cooperatives A. Requirements for Forming an Amendment 80 Cooperative B. Application for Cooperative Quota

(CQ)C. Economic Data Report

(EDR)Submission and CQ D. Issuing Amendment 80 Species CQ E. Issuing PSC CQ F. Restrictions While Fishing for Amendment 80 Cooperatives G. Joint and Several Liability H. Rollover of ITAC, Incidental Catch Allowance (ICA), and PSC from the BSAI Trawl Limited Access Sector I. CQ Transfers J. Fishing Non-Allocated Groundfish Species VIII. Amendment 80 Limited Access Fishery A. Membership in the Amendment 80 Limited Access Fishery B. Application for the Amendment 80 Limited Access Fishery C. Management of the Amendment 80 Limited Access Fishery D. ITAC and PSC Assigned to the Amendment 80 Limited Access Fishery E. Fishing Non-Allocated Groundfish Species IX. Use Caps A. LAPPs and Use Caps B. Person Use Caps C. Vessel Use Cap D. Transfer Limitations X. Gulf of Alaska

(GOA)Sideboard Limits A. Need for GOA Sideboard Limits B. GOA Sideboard Management C. GOA Groundfish Sideboard Limits D. GOA Halibut PSC Sideboard Limits E. GOA Flatfish Fisheries Prohibition F. Provisions for the F/V GOLDEN FLEECE XI. Example of Allocations Under the Program A. Example of Annual TAC and PSC Allocations B. Example of Amendment 80 QS Allocations C. Example of Allocations to an Amendment 80 Cooperative and the Amendment 80 Limited Access Fishery D. Example of AFA Sideboard Limits XII. Monitoring and Enforcement (M&E) A. Observers B. Flow Scales C. Observer Sampling Station D. Special Catch Handling Requirements for Non-AFA Trawl Catcher/Processors E. M&E Requirements for Amendment 80 Vessels in the GOA F. M&E Requirements for the F/V GOLDEN FLEECE in the GOA G. Consistency with Central GOA Rockfish Program M&E Requirements H. Summary Table XIII. Economic Data Report A. Background B. Information Collected C. Who Must Provide an EDR D. Submission Deadlines for EDRs E. Verification of Data XIV. Classification I. Development of the Program A. History of Bycatch and Discard Reduction Efforts in the BSAI The Council has long recognized the need to reduce bycatch, minimize waste, and improve utilization of fish resources to the extent practicable in order to provide the maximum benefit to present and future generations of fishermen, associated fishing industry sectors, communities, and the Nation as a whole. The Council has recommended, and NMFS has approved numerous measures to reduce discards and bycatch of groundfish species over the past several years. The Council recommended and NMFS implemented management measures to establish retention and utilization standards for pollock and Pacific cod under Amendment 49 to the FMP (62 FR 63880; January 3, 1998). More recently, in June 2003, the Council recommended Amendment 79 to the FMP to improve retention of groundfish species by implementing a GRS. The GRS applies to catcher/processor vessels using trawl gear that are greater than or equal to 125 ft. (38.1 m) and not specifically defined as catcher/processors listed as eligible to participate in the directed pollock fishery under section 208(e) of the AFA. These catcher/processors are commonly referred to as non-AFA trawl catcher/processors. The Council's analysis of groundfish retention rates in the BSAI groundfish fishery revealed that vessels in the non-AFA trawl catcher/processor sector had the lowest retained catch rates of any groundfish trawl fishery in the BSAI. This analysis also noted that non-AFA trawl catcher/processors equal to or greater than 125 ft (38.1 m) in length overall

(LOA)contributed the majority of the harvest and discarded catch by the non-AFA trawl catcher/processor fleet. Given the smaller, but still considerable, proportion of overall bycatch and discard of groundfish by non-AFA trawl catcher/processors less than 125 ft (38.1 m) LOA to the overall bycatch and discard of groundfish by all non-AFA trawl catcher/processors, and recognizing that compliance costs associated with observers and scale monitoring requirements would be relatively higher for vessels less than 125 ft (38.1 m) LOA, non-AFA trawl catcher/processor vessels that are less than 125 ft (38.1 m) LOA were excluded from the GRS. The GRS requires each non-AFA trawl catcher/processor greater than or equal to125 ft (38.1 m) LOA to retain specific groundfish species at a specified minimum rate. The minimum retention rate is lower for the first year the GRS is effective in 2008 and is gradually increased to a maximum retention rate for 2011 and in all years thereafter. This graduated approach to increasing the minimum GRS rate was designed to facilitate industry compliance with the GRS by providing vessel operators several years to modify and adapt fishing operations. Amendment 79 was approved by the Secretary on August 31, 2005, and NMFS published regulations to implement the GRS on April 6, 2006 (71 FR 17362). Those regulations will be effective on January 20, 2008. Amendment 79 authorizes groundfish retention standards as a tool for further increasing the retention and utilization of groundfish and responding to bycatch reduction goals described in National Standard 9 of the MSA. The GRS balanced the requirements for conservation and management of the groundfish fisheries under the MSA with the requirements to minimize bycatch under National Standard 9 and minimize economic burdens under National Standard 7 (minimize costs and avoid unnecessary duplication) of the MSA. The Council took final action to recommend Amendment 80 on June 9, 2006. Amendment 80 and the implementing Program would continue initiatives by the Council and NMFS to reduce bycatch and discard of fish species in the BSAI non-pollock trawl groundfish fisheries. The Program would

(1)Extend the application of the GRS to non-AFA trawl catcher/processor vessels of all sizes by including catcher/processor vessels under 125 ft (38.1 m) LOA; and

(2)reduce the amount of halibut and crab bycatch known as prohibited species catch

(PSC)that may be taken while non-AFA trawl catcher/processors are groundfish fishing in the BSAI. These measures would consider efficiency in utilization of fishery resources, minimize costs, and further minimize bycatch to the extent practicable, thereby meeting the objectives of National Standards 5, 7, and 9 of the MSA. The Program would facilitate this improved retention and utilization of groundfish resources through specific economic incentives provided by a LAPP. It is anticipated that LAPPs would encourage improved retention and utilization of fishery resources by allocating specific amounts of certain non-pollock groundfish species, halibut PSC, and crab PSC to non-AFA trawl catcher processors; and permit the formation of cooperatives that would receive exclusive harvest privileges for a portion of these fishery resources. The ways in which the use of exclusive harvest privileges would improve the retention and utilization of fishery resources by non-AFA trawl catcher/processors are described in Parts B and C of Section I below. B. The Non-Pollock Trawl Groundfish Fisheries One of the primary reasons for the relatively high discard rates of groundfish by non-AFA trawl catcher/processors is the nature of the fisheries in which those vessels participate. The non-AFA trawl catcher/processor sector primarily participates in non-pollock groundfish fisheries. The non-pollock groundfish fisheries are primarily comprised of groups of species that share similar habitat (e.g., flatfish fisheries such as rock sole, flathead sole, and yellowfin sole). Because these species occur together, they are typically harvested together. When a non-AFA trawl catcher/processor retrieves its net, very often multiple species of fish are present. If a vessel operator is targeting only one species of fish, and other species are retrieved along with the desired catch, the vessel operator may have an incentive to discard the less valuable species and retain only the higher value species. The multi-species nature of these fisheries makes it difficult for vessel operators to target only one species, and an economic incentive is created to discard fish. NMFS establishes a total allowable catch

(TAC)for each of the non-pollock groundfish fisheries based on the species's annual biomass with the goal of providing a conservatively managed sustainable yield. Harvesters compete for the TAC, resulting in a “race for fish,” wherein vessels attempt to maximize their harvest in as little time as possible, in order to claim a larger share of the available TAC. This race for fish only increases the economic incentive to discard less valuable species in a multi-species harvest, and accelerates the harvest rate for the more valuable species. Because vessel operators are competing with each other for shares of a common TAC, a vessel operator has little economic incentive to undertake actions to reduce unwanted incidental catch, such as searching for fishing grounds with lower bycatch rates, or using gear modifications that may reduce bycatch but have lower harvest rates, if those actions would limit the ability of that vessel to effectively compete with other vessels. Additionally, a vessel operator has little incentive to process and store less valuable species if by doing so, he loses an opportunity to use that processing or storage capacity for more valuable catch. Therefore, an individual vessel operator has strong incentives to harvest fish as quickly as possible, and discard less valuable species before the TAC limit is reached because all vessel operators are competing for a limited TAC. Additionally, non-pollock groundfish fisheries are constrained by catch limits for non-target species, such as halibut, red king crab, *Chinocetes bairdi* crab, and *C. opilio* crab. Halibut and crab are harvested in other fisheries and cannot be retained by vessels using trawl gear. NMFS establishes PSC limits for halibut in the entire BSAI, and red king crab, *C. opilio* crab, and *C. bairdi* crab in specific areas of the BSAI to limit the adverse impact of harvesting operations on the long-term productivity of those species. NMFS monitors these PSC limits, and may close or otherwise restrict trawl harvests if PSC limits are projected to be reached. Fishery closures due to reaching PSC limits can limit harvest of the groundfish TAC and reduce overall revenue to vessel operators and crew. As vessel operators seek to maximize harvest of TAC, they may accelerate fishing operations to maximize harvest before a crab or halibut PSC limit is reached. A “race for PSC” further exacerbates competition and the incentives to harvest rapidly, resulting in greater potential waste and higher discard rates of less valuable groundfish species. The multi-species nature of non-pollock groundfish fisheries further limits the ability of a fisherman to specifically target valuable groundfish species as they race with their competitors. Vessel operators may discard considerable portions of their catch to maximize harvests of more valuable species even though the discarded species may have considerable market value. C. LAPPs The primary method to offset the economic incentives that lead to a race for fish and relatively high discard rates is to reduce the impact of those incentives through a LAPP. LAPPs have been used extensively in the North Pacific as a means to encourage economic efficiency and less wasteful harvest methods, and to resolve allocation disputes among harvesters by providing a group of harvesters with exclusive harvest privileges that can be traded. North Pacific LAPPs include

(1)The halibut and sablefish individual fishing quota

(IFQ)Program (November 9, 1993, 58 FR 59375);

(2)the AFA (December 30, 2002; 67 FR 69692);

(3)the BSAI Crab Rationalization Program (March 2, 2005; 70 FR 10174); and

(4)the Central GOA Rockfish Program (November 20, 2006; 71 FR 67210). An extensive discussion of LAPPs can be found in the EA/RIR/IRFA prepared for this action and in the National Research Council's publication *Sharing the Fish* which was consulted and considered during the development of the Program. A LAPP allows vessel operators to make operational choices to reduce discard of fish because the strong incentive to maximize catch in the minimum amount of time has been reduced. If a vessel operator receives an exclusive portion of the TAC for non-pollock groundfish species and the associated halibut and crab PSC, he knows that he need not compete with other harvesters. That vessel operator can then choose to fish in a slower, less wasteful fashion, use modified gear with a lower harvest rate but which reduces bycatch, coordinate with other vessel operators to avoid areas of high bycatch, process fish in ways that yield increased value but which are possible only by slowing the processing rate, or otherwise operate in ways that limit bycatch. The examples cited in this paragraph have been used by vessel operators in other LAPPs in the North Pacific, and NMFS anticipates non-AFA trawl catcher/processors would use similar techniques to reduce bycatch. LAPPs can improve the profitability of fishing operators holding the exclusive harvest privilege. In most cases, LAPPs provide harvesters greater flexibility in tailoring their fishing operations to specific fisheries which can reduce operational costs. Additionally, vessel operators may reduce costs by avoiding costly improvements in vessel size or fishing power designed to outcompete other harvesters. Slower fishing rates can improve product handling and quality and increase the exvessel price of product. Vessel operators can also choose to consolidate less profitable fishing operations onto one vessel. Other potential advantages to the holders of exclusive harvest privileges have been analyzed during the development of past LAPPs. LAPPs can increase the costs of entering the fishery substantially because the permits acquire value and must be purchased prior to entry. Consolidation can limit employment opportunities as well. Compliance costs can also increase to ensure that NMFS can monitor the harvesting and processing of fish. Administration of LAPPs typically require greater effort and cost than non-LAPP fisheries due to the greater precision in catch accounting required to track the harvest of fish and proper debiting of accounts. Participants in LAPPs may also use their excess fishing capacity to expand operations into other fisheries that are not managed by LAPPs and increase the race for fish in those fisheries unless they are constrained. These effects and others have been addressed in the design of previous LAPPs by limiting the amount of consolidation in the fishery. Entry costs for any LAPP are likely to be higher than in other non-LAPP fisheries, and those costs limit the ability of those operators without the financial wherewithal to participate in these fisheries. A loan program for entry level participants has been established in the Halibut and Sablefish IFQ Program to assist entry into that LAPP, but fishery participants in other LAPPs must rely on other sources of financing. Based on extensive experience with past LAPPs, and after weighing potential advantages and disadvantages, the Council recommended the Program to create economic incentives that provide additional opportunities to reduce bycatch while increasing the potential for greater economic returns to those holding the harvest privileges. The Program would provide an incentive for non-AFA trawl catcher/processors to harvest certain species of non-pollock groundfish in a less wasteful manner by granting an exclusive harvest privilege to a limited number of harvesters. The Program would encourage participants to harvest more efficiently and less wastefully by allowing them to choose to

(1)Form harvesting cooperatives with other harvesters that would receive an exclusive annual harvest privilege of specific groundfish species; or

(2)fish in a limited access fishery comprised of fishery participants that choose not to join a cooperative. The principal benefits from the Program would be realized by harvesters that choose to join a cooperative. D. LAPPs, GRS, and Reduced PSC The Council also recognized that some of the compliance costs associated with the GRS, particularly for non-AFA trawl catcher/processors less than 125 ft (38.1 m) LOA could be reduced under LAPP management. The Council recognized that if harvesters could apply the GRS to a cooperative in the aggregate, by aggregating retention rates by all vessels in a cooperative, owners of non-AFA trawl catcher/processors less than 125 ft (38.1 m) could choose to join a cooperative, assign their harvest privilege to the cooperative, and allow other larger vessels to harvest the cooperative's exclusive allocation of fish without incurring the compliance costs associated with monitoring the GRS. Non-AFA trawl catcher/vessels less than 125 ft (38.1 m) LOA would still receive economic benefits from their harvests but would not need to refit their vessels to meet the additional M&E requirements and pay the additional costs to fish in the BSAI. Those vessels could continue to participate in other fisheries in the GOA. Furthermore, the catch associated with smaller catcher/processor vessels would be subject to the GRS, thereby further improving retention of groundfish and reducing discards of fish. Additionally, for those non-AFA trawl catcher/processor vessels that do fish under a cooperative's exclusive harvest privilege, the costs associated with retaining less valuable fish required under the GRS may be offset by increased profitability from those vessels because they are no longer operating in a race for fish. The Council considered these factors in recommending that the GRS be extended to all non-AFA trawl catcher/processors under the Program. The Council also recognized that LAPP management under a cooperative allocation can encourage lower bycatch as described in Part D of Section I above. Because vessel operators in cooperatives are better able to target catch and can engage in voluntary agreements to avoid areas with higher PSC, the Council recommended an overall reduction in the amount of halibut and crab PSC that may be used by the non-AFA trawl catcher/processor sector. The Program would incorporate this recommendation, furthering the Council's goals to reduce bycatch and discard of fishery species. E. Overview of the Program The rationale behind specific aspects of the Program are provided in greater detail later in this preamble. The Council adopted the Program to meet the broad goals of

(1)Improving retention and utilization of fishery resources by the non-AFA trawl catcher/processor fleet by extending the GRS to non-AFA trawl catcher/processor vessels of all lengths in that sector;

(2)allocating fishery resources among BSAI trawl harvesters in consideration of historic and present harvest patterns and future harvest needs;

(3)authorizing the allocation of groundfish species to harvesting cooperatives and establishing a LAPP for the non-AFA trawl catcher/processors to encourage fishing practices with lower discard rates, and improve the opportunity for increasing the value of harvested species while lowering potential costs; and

(4)limiting the ability of non-AFA trawl catcher/processors to expand their harvesting capacity into other fisheries not managed under a LAPP. As with all other LAPPs in the North Pacific, the extensive changes to existing management of BSAI non-pollock trawl fisheries proposed by the Program would affect a wide range of fishing practices and regulations. The Program would affect management of the non-AFA trawl catcher/processors, other BSAI trawl fishery participants, and other harvesters in the North Pacific. As such, the Program proposes a complex suite of measures to ensure the goals of the Program are met and minimize potential adverse impacts on affected fishery participants. The following section provides an overview of the suite of measures the Program proposes to implement. Each Program element will be addressed in detail in subsequent sections of this preamble. 1. Community Development Quota

(CDQ)Program Changes The Program would incorporate statutory mandates in the MSA as amended by Section 416 of the Coast Guard and Maritime Transportation Act of 2006 (Pub. L. 109-241; July 11, 2006), and the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (Pub. L. 109-479, January 12, 2007). The proposed rule would modify the percentage of TAC for directed fisheries that are allocated to the CDQ Program, and the percentage of halibut, crab, and non-Chinook salmon PSC allocated to the CDQ Program as prohibited species quota (PSQ). The proposed rule includes other provisions necessary to bring Amendment 80 and the CDQ Program into compliance with applicable law as described in Section II of this preamble. 2. Amendment 80 Sector and Amendment 80 Vessels Eligible Program participants would be defined by applicable legislation and the Program. Applicable legislation is described in greater detail in Section II of this preamble. The Program would incorporate statutory mandates in section 219 of the Consolidated Appropriations Act of 2005 (Pub. L. 108-447; December 8, 2004) which defines who is eligible to harvest fish in the non-AFA catcher/processor sector for a defined list of non-pollock groundfish species. The Program would define the “Amendment 80 sector” as non-AFA trawl catcher/processor harvesters eligible to fish under this statutory mandate. The defined list of non-AFA trawl catcher/processor vessels that may be used to fish in the Amendment 80 sector are “Amendment 80 vessels.” 3. Amendment 80 Species The Program would allocate a specific portion of six non-pollock groundfish species among trawl fishery sectors. These six species would be the “Amendment 80 species,” and include Aleutian Islands

(AI)Pacific ocean perch (POP), BSAI Atka mackerel, BSAI flathead sole, BSAI Pacific cod, BSAI rock sole, and BSAI yellowfin sole. These Amendment 80 species would be allocated between the Amendment 80 sector and all other BSAI trawl fishery participants not in the Amendment 80 sector. These other trawl fishery participants include AFA catcher/processors, AFA catcher vessels, and non-AFA catcher vessels. Collectively, this group of trawl fishery participants comprises the “BSAI trawl limited access sector.” These six species are economically valuable and have historically been targeted by non-AFA trawl catcher/processors, but fisheries associated with these species have high rates of discard or waste relative to other groundfish fisheries. Other species, such as Alaska plaice, are occasionally harvested in the BSAI trawl fisheries, but these other species are a minor component of the overall biomass and value of non-pollock groundfish harvested, less subject to an intense race for fish, and would not be allocated under the Program. 4. Allocations of TAC and PSC in the BSAI Trawl Fisheries Each year, the Program would allocate an amount of Amendment 80 species available for harvest, called the initial total allowable catch (ITAC), and crab and halibut PSC to two defined groups of trawl fishery participants:

(1)The Amendment 80 sector; and

(2)the BSAI trawl limited access sector. Allocations made to one sector would not be subject to harvest by participants in the other fishery sector except under a specific condition. Fish that are allocated to the BSAI trawl limited access sector and projected to be unharvested could be reallocated to Amendment 80 cooperatives. The ITAC represents an amount of the TAC for each Amendment 80 species that is available for harvest, after accounting for allocations to the CDQ Program and the incidental catch allowance (ICA). The ICA is set aside for the incidental harvest of an Amendment 80 species while targeting other groundfish species in non-trawl fisheries (e.g., yellowfin sole incidental harvests in the hook-and-line Pacific cod fishery) and in the BSAI trawl limited access sector fisheries (e.g., rock sole incidentally harvested by AFA trawl catcher vessels in the Pacific cod fishery). The Program would allocate crab and halibut PSC to the Amendment 80 and BSAI trawl limited access sectors to accommodate PSC use by these sectors based on past PSC use with specific consideration given to possible future requirements. The Program would further address the Council's goals of reducing bycatch and discard of groundfish species by reducing the total amount of crab and halibut PSC assigned to the Amendment 80 sector. 5. BSAI Trawl Limited Access Sector The Program would provide a specific allocation of Amendment 80 species and crab and halibut PSC to this sector. The Program would modify the calculation of AFA sideboard limits for Amendment 80 species and crab and halibut PSC limits necessary to allow the efficient operation of AFA vessels. The Program would adjust the maximum limit for red king crab bycatch in the Red King Crab Savings Subarea (RKCSS). 6. Amendment 80 Quota Share The Program would assign Amendment 80 quota share

(QS)for Amendment 80 species to the owners of Amendment 80 vessels. The Amendment 80 QS could be used to yield an exclusive harvest privilege for a portion of the Amendment 80 sector ITAC. The Program would establish criteria for harvesters in the Amendment 80 sector to apply for and receive QS, criteria for initially allocating QS, and criteria for the transfer of QS. The Program would assign Amendment 80 QS based on historic catch patterns of an Amendment 80 vessel during 1998 through 2004. The Program would assign QS based on the relative proportion of an Amendment 80 species harvested by an Amendment 80 vessel compared to all other Amendment 80 vessels. The Program would assign Amendment 80 QS only to persons who submit a timely and complete application for Amendment 80 QS. In most cases, the Program would assign the Amendment 80 QS to the Amendment 80 vessel owner. In specific cases where an Amendment 80 vessel has been lost or is otherwise permanently ineligible to fish in U.S. waters, the Program would assign the Amendment 80 QS to the holder of the license limitation program

(LLP)license originally assigned to that Amendment 80 vessel. Once Amendment 80 QS is assigned based on the historic catch patterns of an Amendment 80 vessel, it could not be divided or transferred separately from that Amendment 80 vessel. If the Amendment 80 QS is assigned to the LLP license originally issued for that Amendment 80 vessel, it could not be transferred separately from that LLP license. 7. Amendment 80 Cooperatives Persons that receive Amendment 80 QS would be able to join a cooperative to receive an exclusive harvest privilege for a portion of the ITAC. Amendment 80 QS holders would be able to form a cooperative with other Amendment 80 QS holders on an annual basis, provided they meet specific criteria. Each Amendment 80 cooperative would receive an annual cooperative quota (CQ), an amount of Amendment 80 species ITAC that would be for the exclusive use by that cooperative for harvest in a given year. The Program would establish requirements for forming an Amendment 80 cooperative with other Amendment 80 QS holders, the allocation of annual CQ to a cooperative, and transfers of CQ among cooperatives. A cooperative would receive an amount of CQ equivalent to the proportion of QS held by all of the members of the cooperative relative to the total QS held by all Amendment 80 QS holders. Each Amendment 80 cooperative would receive an annual CQ with an exclusive limit on the amount of crab and halibut PSC the cooperative can use while harvesting in the BSAI. This halibut and crab PSC CQ would be assigned to a cooperative proportional to the amount of Amendment 80 QS held by the members, and would not be based on the amount of crab or halibut PSC historically used by the cooperative members. This provision would not reward harvesters with high PSC rates with large amounts of PSC. Instead, PSC would be issued in proportion to the amount of Amendment 80 species that are assigned for harvest to a cooperative. The Program would provide opportunities for Amendment 80 sector participants to trade harvest privileges among cooperatives to further encourage economically efficient fishing operations. An Amendment 80 cooperative would not be able to transfer CQ to the Amendment 80 limited access fishery, or to the BSAI trawl limited access sector. A cooperative structure may allow Amendment 80 vessel operators to manage PSC rates more efficiently. By reducing PSC through more efficient cooperative operations, such as through gear modifications, Amendment 80 vessel operators may also increase the harvest of valuable targeted groundfish species and improve revenues that would otherwise be foregone if a fishery were closed due to reaching PSC limits. The Program would allow Amendment 80 cooperatives to receive a rollover of an additional amount of CQ, if a portion of the Amendment 80 species or crab or halibut PSC allocated to the BSAI trawl limited access sector is projected to go unharvested. This rollover to the Amendment 80 cooperatives would be at the discretion of NMFS based on projected harvest rates in the BSAI trawl limited access sector and other criteria. Each Amendment 80 cooperative would receive an additional amount of CQ that is based on the proportion of the Amendment 80 QS held by that Amendment 80 cooperative as compared with all other Amendment 80 cooperatives. Fishery participants in a cooperative could consolidate fishing operations on a specific Amendment 80 vessel or subset of Amendment 80 vessels, thereby reducing M&E and other operational costs, and harvest fish in a manner more likely to be economically efficient and less wasteful. 8. Amendment 80 Limited Access Fishery Amendment 80 QS holders that choose not to join an Amendment 80 cooperative would be able to participate in the Amendment 80 limited access fishery. The Program would assign the Amendment 80 limited access fishery the amount of the Amendment 80 sector's allocation of Amendment 80 species ITAC and halibut and crab PSC that remains after allocation to all of the Amendment 80 cooperatives. Participants fishing in the Amendment 80 limited access fishery would continue to compete with each other; would not realize the same potential benefits from consolidation and coordination; and would not receive an exclusive harvest privilege that accrues to members of an Amendment 80 cooperative. 9. Use Caps The Council considered the effect of consolidation with the allocation of an excessive share of harvest privileges to Amendment 80 cooperatives. In response, the Program would implement use caps to limit the amount of Amendment 80 QS a person could hold, the amount of CQ they could use, and the amount of ITAC an Amendment 80 vessel could harvest. These use caps would moderate some of the potentially adverse effects of excessive consolidation of fishing operations on fishery participants, such as lost employment opportunities for fishing crew while recognizing the desire to provide economic efficiencies to Amendment 80 QS holders. 10. Gulf of Alaska

(GOA)Sideboard Limits Catch limits, commonly known as sideboards, would limit the ability of participants eligible for this Program to expand their harvest efforts in the GOA. The Program is designed to provide certain economic advantages to participants. Program participants could use this economic advantage to increase their participation in other fisheries, primarily in the GOA fisheries, adversely affecting the participants in those fisheries. GOA groundfish and halibut PSC sideboards would limit the catch by Amendment 80 vessels to historic levels in the GOA. The Program would limit the total amount of catch in other groundfish fisheries that could be taken by Amendment 80 vessels, including harvests made in the State of Alaska (State) waters which are open during Federal fishing seasons to allow the harvest of fish assigned to the Federal TAC—the “parallel” groundfish fisheries. Sideboards would limit harvest of Pacific cod, pollock, and rockfish fisheries in the GOA, the eligibility of Amendment 80 vessels to participate in GOA flatfish fisheries, and the amount of halibut PSC that Amendment 80 vessels could catch when harvesting groundfish in the GOA. Sideboards would apply to all Amendment 80 vessels and all LLP licenses that can be used on an Amendment 80 vessel. 11. Monitoring and Enforcement (M&E) M&E provisions are necessary for accurate catch accounting and compliance with the Program to ensure that Amendment 80 QS holders maintain catches within annual CQ and ITAC allocations in the BSAI and do not exceed sideboard limits in the GOA. The M&E measures proposed for the Program are similar to those currently required for compliance with Amendment 79, and mirror those in place for catcher/processor vessels participating in the Central GOA Rockfish Program (see regulations in § 679.84 for additional detail). 12. GRS Requirements Under the Program, all non-AFA trawl catcher/processor vessels, which includes all Amendment 80 vessels, regardless of size, would be required to meet GRS requirements in the BSAI. For Amendment 80 vessels harvesting in the BSAI under the authority of an Amendment 80 cooperative, GRS requirements would apply collectively to all vessels harvesting under the authority of the cooperative rather than on a vessel-specific basis. An Amendment 80 cooperative would be required to meet the GRS on an aggregate basis for all vessels in the Amendment 80 cooperative. The Program would modify some of the GRS provisions scheduled for implementation on January 20, 2008 (April 6, 2006; 71 FR 17362). Specifically, the Program would modify the GRS by extending the GRS to all non-AFA trawl catcher/processor vessel sizes and calculate the GRS for Amendment 80 vessels assigned to an Amendment 80 cooperative on an aggregate basis. 13. Economic Data Report

(EDR)The Program would implement an economic data collection program to assess the impacts of Amendment 80 on various components of the fishery, including skippers and crew. The Program would establish a process for collecting and reviewing economic data generated under Amendment 80 by requiring the annual submission of an EDR from each Amendment 80 QS holder. II. Legislation Affecting the Program Eligibility to participate in the Program and ITAC allocation under the Program are affected by several pieces of recent legislation: • Section 219 of the Consolidated Appropriations Act of 2005 (Pub. L. 108-447; December 8, 2004), referred to in this proposed rule as the Capacity Reduction Program (CRP), which defined the Amendment 80 sector and implemented a capacity reduction program for several catcher/processor sectors; • Section 416 of the Coast Guard and Maritime Transportation Act of 2006 (Pub. L. 109-241; July 11, 2006), referred to in this proposed rule as the Coast Guard Act, which amended provisions of the CDQ Program in the MSA; and • The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (Pub. L. 109-479, January 12, 2007), referred to in this proposed rule as the MSRA, which modified provisions related to the CDQ Program and instituted other measures applicable to LAPPs. The following sections detail the effects of the CRP, Coast Guard Act, and MSRA on the development of the Program and this proposed rule. These pieces of legislation directly dictate specific elements of the Program. A. The Capacity Reduction Program

(CRP)Among other things, the CRP legislates who may participate in the non-AFA trawl catcher/processor sector in the BSAI for “non-pollock groundfish fisheries;” and defines the non-pollock groundfish fisheries in the BSAI as “target species of Atka mackerel, flathead sole, Pacific cod, Pacific ocean perch, rock sole, turbot, or yellowfin sole harvested in the BSAI.” Because all of the Amendment 80 species are included in the CRP's definition of non-pollock groundfish fishery, the CRP's eligibility requirements for the non-AFA trawl catcher/processor sector apply to the Program's eligibility criteria for the Amendment 80 sector. Therefore, the Program would incorporate the CRP's definition of a non-AFA trawl catcher/processor. 1. Eligibility To Participate in the Non-AFA Trawl Catcher/Processor Sector (Amendment 80 Sector) The CRP defines the non-AFA trawl catcher/processor sector as the owner of each trawl catcher/processor that • Is not an AFA trawl catcher/processor listed in paragraphs

(1)through

(20)of section 208(e) of the AFA; • Was issued a valid LLP license endorsed for Bering Sea or Aleutian Islands trawl catcher/processor fishing activity; and • The Secretary determines has harvested with trawl gear and processed not less than a total of 150 mt of non- pollock groundfish during the period January 1, 1997, through December 31, 2002. Based on a review of harvest data from 1997 through 2002, NMFS has identified 28 vessels that appear to meet the requirements of the CRP listed above. Those 28 vessels are identified in the following Table 1. Table 1.—List of Amendment 80 Vessels Name of Amendment 80 vessel USCG documentation number ALASKA JURIS 569276 ALASKA RANGER 550138 ALASKA SPIRIT 554913 ALASKA VICTORY 569752 ALASKA VOYAGER 536484 ALASKA WARRIOR 590350 ALLIANCE 622750 AMERICAN NO I 610654 ARCTIC ROSE 931446 ARICA 550139 BERING ENTERPRISE 610869 CAPE HORN 653806 CONSTELLATION 640364 DEFENDER 665983 ENTERPRISE 657383 GOLDEN FLEECE 609951 HARVESTER ENTERPRISE 584902 LEGACY 664882 OCEAN ALASKA 623210 OCEAN PEACE 677399 PROSPERITY 615485 REBECCA IRENE 697637 SEAFISHER 575587 SEAFREEZE ALASKA 517242 TREMONT 529154 U.S. INTREPID 604439 UNIMAK 637693 VAERDAL 611225 The Program would define “Amendment 80 vessel” as the vessels listed in this table, or because there may be additional eligible vessels that NMFS is unaware of at this time, any vessel that meets the CRP's eligibility criteria for the non-AFA trawl catcher/processor sector. NMFS welcomes comment from members on the accuracy of this list of Amendment 80 vessels. 2. Cooperatives and ITAC Assigned to the Amendment 80 Sector The CRP does not limit the ability for the Council to recommend, nor the Secretary to approve and implement, management measures that define the amount of ITAC assigned to the Amendment 80 sector, or other management measures for the Amendment 80 sector not in conflict with the CRP or other law. Any such management measures would include: Establishing Amendment 80 cooperatives; allocating only some of the “non-pollock groundfish species” to the Amendment 80 sector; or otherwise proposing measures to manage the Amendment 80 sector, or other non-Amendment 80 sector participating in the BSAI trawl fisheries. B. The Coast Guard Act The Coast Guard Act amended section 305(i)(1) of the MSA by removing all of the CDQ Program-related requirements in effect at the time the legislation was enacted and replacing them with new requirements. The amendments to section 305(i)(1) addressed all aspects of management and oversight of the CDQ Program including the purpose of the CDQ Program; allocations of groundfish, halibut, and crab to the CDQ Program; allocations of quota among the CDQ groups; management of the CDQ fisheries; eligibility criteria for participation in the CDQ Program; limits on allowable investments; the creation of a CDQ administrative panel; compliance with State reporting requirements; a decennial review and allocation adjustment process; and other aspects of program administration and oversight by the State and NMFS, on behalf of the Secretary. The elements of the Coast Guard Act relevant to the Program are the species or species groups allocated to the CDQ Program under section 305(i)(1)(B)(i) and the regulation of harvest of these allocations under section 305(i)(1)(B)(iv). Section 305(i)(1)(B)(ii) affects the percentage allocations of all of the groundfish species allocated to the CDQ Program, except pollock and sablefish. Because this section was further amended under the MSRA, it is discussed in more detail in Part C of this section below. 1. Groundfish Species or Species Groups Allocated to the CDQ Program The first provision from the Coast Guard Act that affects the CDQ Program and the Program is section 305(i)(1)(B)(i), which requires that “the annual percentage of the total allowable catch, guideline harvest level, or other annual catch limit allocated to the program in each directed fishery of the Bering Sea and Aleutian Islands shall be the percentage approved by the Secretary, or established by Federal law, as of March 1, 2006.” Prior to this amendment, the MSA stated that “a percentage of the total allowable catch of any Bering Sea fishery is allocated to the program.” Since 1998, NMFS has allocated to the CDQ Program a percentage of each groundfish TAC category, except squid. The amended language in the MSA requires that only those species or species groups with a directed fishery in the BSAI be allocated to the CDQ Program. This is a more limited list of species or species groups than has been allocated to the CDQ Program in the past. Congress did not define the phrase “directed fishery” in the Coast Guard Act. However, based on the statutory language and the legislative history, NMFS determined that the phrase directed fishery for purposes of section 305(i)(1) of the MSA means a fishery for which sufficient TAC exists to open a directed fishery, and the species or species group is economically valuable enough for vessel operators to conduct directed fishing for that species or species group. NMFS applied this interpretation in the 2007 and 2008 final harvest specifications for the groundfish of the BSAI (March 2, 2007; 72 FR 9451). The groundfish species and species groups that meet this definition and those that do not are shown in Table 2. Table 2.—Groundfish Species and Species Groups Allocated and Not Allocated to the CDQ Program Species and species groups allocated to the CDQ Program Management area or subarea Species or species group Bering Sea

(BS)and AI Pollock. BSAI Pacific cod. BS and AI Sablefish (from both the hook-and-line and pot gear allocation and the trawl allocation of the sablefish TAC). Eastern Aleutian Islands/Bering Sea (EAI/BS), Central Aleutian Islands (CAI), Western Aleutian Islands

(WAI)Atka mackerel. EAI, CAI, WAI Pacific ocean perch. BSAI Flathead sole. BSAI Rock sole. BSAI Yellowfin sole. BSAI Arrowtooth flounder. BS Greenland turbot. Species and species groups not allocated to the CDQ Program Management area or subarea Species or species group Bogoslof Pollock. BSAI Alaska plaice. BSAI Other flatfish. AI Greenland turbot. BS Pacific ocean perch. BSAI Northern rockfish. BSAI Shortraker rockfish. BSAI Rougheye rockfish. BS and AI Other rockfish. BSAI Other species. BSAI Squid. As described in the 2007 and 2008 final harvest specifications, and proposed under the Program, catch of species and species groups that are not allocated to the CDQ Program would be managed under the regulations and fishery status that applies to that species or species group in the non-CDQ groundfish fisheries. Retention of non-allocated species that are closed to directed fishing would either be limited to maximum retainable amounts or all catch of the species will be required to be discarded. Notices of closures to directed fishing and retention requirements for these species would apply equally to both the CDQ and non-CDQ sectors. The Program would revise regulations at § 679.20 that govern the annual specifications process for the CDQ Program. The list of species or species groups allocated to the CDQ Program in § 679.20 must be consistent with the definition of directed fishery for purposes of section 305(i)(1) of the MSA. This proposed rule would establish the list of species and species groups allocated to the CDQ Program in regulation. The allocated species or species groups could be revised in the future through rulemaking if circumstances change so that

(1)a species or species group that currently is not allocated to the CDQ Program becomes a “directed fishery” in the future, or

(2)a species or species group currently allocated to the CDQ Program is no longer a “directed fishery” in the future. In addition to the species and species groups allocated to the CDQ Program, the percentage allocation of the TAC for each species or species group in § 679.20 also must be consistent with the MSA. The percentage allocations of pollock and sablefish to the CDQ Program are governed by section 305(i)(1)(B)(i) which was implemented through the Coast Guard Act. Because section 305(i)(1)(B)(i) maintains current percentage allocations of pollock and sablefish to the CDQ Program, the percentage allocations for these species will continue to be those percentage allocations in effect on March 1, 2006. Ten percent of the Bering Sea subarea and Aleutian Islands subarea pollock TACs will continue to be allocated to the CDQ Program as directed fishing allowances. Twenty percent of the hook-and-line and pot gear (fixed gear) allocation of sablefish and 7.5 percent of the trawl allocation of sablefish will continue to be allocated to the CDQ Program. The percentage allocations of all of the other groundfish species allocated to the CDQ Program are addressed under section 305(i)(1)(B)(ii) of the MSA, which was last amended through the MSRA. These allocations are discussed in more detail in *The MSRA* below. 2. Regulation of CDQ Program Harvests The Coast Guard Act created a new section 305(i)(1)(B)(iv) of the MSA that requires that “the harvest of allocations under the [CDQ] program for fisheries with individual quotas or fishing cooperatives shall be regulated by the Secretary in a manner no more restrictive than for other participants in the applicable sector, including with respect to the harvest of nontarget species.” If Amendment 80 is approved, the authorization for allocations of Amendment 80 species to fishing cooperatives triggers the requirements of section 305(i)(1)(B)(iv). Therefore, the regulation of harvest in a CDQ fishery may be no more restrictive than the regulation of the harvest in the fisheries in which the Amendment 80 cooperatives participate. Consistent with the requirements of section 305(i)(1)(B)(iv), NMFS proposes to apply to any non-AFA trawl catcher/processors harvesting groundfish in the CDQ Program the same M&E and GRS requirements that would apply to Amendment 80 vessels harvesting groundfish in the BSAI. The proposed regulations for harvest by non-AFA trawl catcher/processor vessels in the CDQ Program are detailed in Sections III and XII of this preamble. C. The MSRA The MSRA substantially amends the MSA. Pertinent to the Program, the MSRA includes amendments relating to LAPPs, the CDQ Program, and cost recovery and fee collection provisions. The MSRA includes provisions that affect the Program primarily by

(1)adding definitions of a limited access privilege, limited access system, and a new section, 303A—Limited Access Privilege Programs, to the MSRA;

(2)specifying the percentage of each TAC, except pollock and sablefish, that will be allocated to the CDQ Program starting January 1, 2008;

(3)extending the management costs for which NMFS may collect fees to recover costs related to LAPPs; and

(4)expanding the authority and requirements to collect economic data from fishery participants. 1. LAPP Provisions The MSRA amended the MSA under section 3(26) to define a “limited access privilege” as “a Federal permit, issued as part of a limited access system under section 303A to harvest a quantity of fish expressed by a unit or units representing a portion of the total allowable catch of the fishery that may be received or held for exclusive use by a person; and includes an individual fishing quota; but does not include community development quotas as described in section 305(i).” The MSRA amended the MSA under section 3(27) to define a “limited access system” as “a system that limits participation in a fishery to those satisfying certain eligibility criteria of requirements contained in a fishery management plan or associated regulation.” The Program is specifically included as a LAPP under section 303A under the provisions of section 303A(i) which reads as follows:

(i)TRANSITION RULES.—(1) IN GENERAL.—The requirements of this section shall not apply to any quota program, including any individual fishing quota program, cooperative program, or sector allocation for which a Council has taken final action or which has been submitted by a Council to the Secretary, or approved by the Secretary, within 6 months after the enactment of the [MSRA] except that—

(A)The requirements of section 303(d) of this Act [the MSA] in effect on the day before the date of enactment of that Act [the MSRA] shall apply to any such program;

(B)The program shall be subject to review under subsection (c)(1)(G) of this section not later than 5 years after the program implementation; and

(C)Nothing in this subsection precludes a Council from incorporating criteria in this section into any such plans. The Council took final action to recommend Amendment 80 to the FMP on June 9, 2006. Therefore, section 303(i)(1) would not require the Program to comply with the provisions of section 303A of the MSA, other than a review of the Program five years after implementation under section 303A(i)(1)(B). The review process required under section 303A(i)(1)(B) does not require immediate action by the Council or implementing regulations by the Secretary to ensure compliance with the MSA and those provisions are not incorporated in this proposed rule. Section 303A(i)(1)(C) would permit the Council to recommend incorporating other provisions of section 303A into the Program. Any such recommendations would be developed through a separate FMP amendment and subject to a separate rule making process in the future. 2. CDQ Provisions The MSRA amended section 305(i)(1)(B)(ii)(I) of the MSA to require that the allocation of TAC to the CDQ Program “for each directed fishery of the Bering Sea and Aleutian Islands (other than a fishery for halibut, sablefish, pollock, and crab) shall be a total allocation of 10.7 percent effective January 1, 2008.” The term “directed fishery” for purposes of this requirement is interpreted as described under Part B of this section above. Therefore, this requirement means that 10.7 percent of the TAC for Pacific cod, Atka mackerel, yellowfin sole, rock sole, Bering Sea Greenland turbot, arrowtooth flounder, flathead sole, and AI Pacific ocean perch will be allocated to the CDQ Program annually. Allocations of these species to the CDQ Program are known as “CDQ reserves.” As required by section 305(i)(1)(C) of the MSA, each of these allocations to the CDQ Program are further allocated among the CDQ groups based on the percentage allocations that were in effect on March 1, 2006. A table listing the percentage allocations among the CDQ groups was published in the **Federal Register** on August 31, 2006 (71 FR 51804). All catch of each groundfish species allocated to the CDQ Program will continue to accrue against the CDQ group's allocation regardless of whether that fish was caught while directed fishing for that species or is incidentally caught while fishing for another species. Current regulations at § 679.7(d)(5) prohibit each CDQ group from exceeding its allocation of any groundfish CDQ species, crab, halibut, or salmon PSQ. Exceeding an allocation of any groundfish CDQ or PSQ is a violation of 50 CFR part 679 and can result in enforcement action. These regulations create what is known as “hard cap” management for the groundfish CDQ species allocated under section 305(i)(1)(B)(ii)(I) and

(II)of the MSA. Each CDQ group must manage all of their CDQ fisheries to maintain catch within all of these CDQ groundfish and PSQ allocations. Reaching an allocation of one groundfish species limits further CDQ fishing because such fishing likely will result in additional catch of the groundfish species for which the allocation has already been reached. Section 305(i)(B)(ii) of the MSA was amended by the MSRA to require that the CDQ allocations of the species allocated under section 305(i)(1)(B)(ii)(I) and

(II)may not be exceeded. This requirement maintains the existing “hard cap” management for these CDQ allocations. NMFS would continue to allocate these CDQ reserves among the CDQ groups based on the percentage allocations required by the MSA. All catch by vessels fishing on behalf of a CDQ group would accrue against that CDQ group's allocation. Each CDQ group would continue to be prohibited from exceeding the amount of each CDQ reserve allocated to it annually. Therefore, no changes to regulations are needed to implement this provision of the MSRA. Section 305(i)(1)(C) was amended by the MSRA to require that 0.7 percent of the 10.7 percent allocated to the CDQ Program for all of the groundfish species, except pollock and sablefish, shall be allocated among the CDQ groups by the CDQ administrative panel (CDQ Panel). The CDQ Panel was created under the Coast Guard Act in section 305(i)(1)(G) of the MSA. Each CDQ group has a representative on the CDQ Panel and the panel may only make decisions by unanimous vote of all six members. NMFS anticipates that the CDQ Panel will submit its decision about how to allocate the 0.7 percent of each groundfish CDQ reserve, except pollock and sablefish, to NMFS prior to January 1, 2008, so that NMFS can establish quota account balances for each of the CDQ groups. However, if the CDQ Panel does not submit its percentage allocations to NMFS, the MSA requires the Secretary to allocate this portion of the CDQ reserves based on the nontarget needs of the CDQ groups. Regulations to implement this provision of the MSA are not included in this proposed rule because they are outside of the scope of MSA requirements directly necessary to implement Amendment 80. 3. Cost Recovery The MSRA amended several provisions in the MSA concerning the collection of fees for LAPPs. Section 304(d)(2)(A) of the MSA as amended by the MSRA reads as follows: (2)(A) Notwithstanding paragraph (1), the Secretary is authorized and shall collect a fee to recover the actual costs directly related to the management, data collection, and enforcement of any—

(i)limited access privilege program; and

(ii)community development quota program that allocates a percentage of the total allowable catch of a fishery to such program. This provision applies to LAPPs that meet the definitions of a “limited access privilege” and a “limited access system.” Should NMFS determine that the Program meets these definitions and the MSA does not otherwise prohibit collection of fees in this Program, the Secretary would be authorized to collect fees to recover costs not to exceed three percent of the exvessel value of fish harvested under Program under section 304(d)(2)(B). NMFS is reviewing these provisions of the MSA. Pending this review, NMFS may develop future rule making to implement fee collection. 4. Economic Data Collection The MSRA amended several provisions under section 303 of the MSA by expanding the authority and the requirements for the Secretary to collect economic data when developing and implementing FMPs and accompanying regulations. The MSA requires that any FMP, including Amendment 80, which is prepared by any Council or the Secretary, with respect to any fishery, shall— • Specify the pertinent data which shall be submitted to the Secretary with respect to commercial, recreational, charter fishing, and fish processing in the fishery, including but not limited to economic information necessary to meet the requirements of the MSA (Section 303(a)(5)); • Include a fishery impact statement which shall assess, specify, and analyze the likely effects, if any, including the cumulative conservation, economic, and social impacts, of conservation and management measures (Section 303(a)(9)); and • Include a description of the commercial, recreational, and charter fishing sectors which participate in the fishery, including its economic impact (Section 303(a)(13)). The Program would address these statutory mandates through the implementation of an economic data collection program. See Section XIII of this preamble for additional detail. III. Nonspecified Reserve and CDQ Program The Program would

(1)Modify allocations to the nonspecified reserve and the CDQ reserves;

(2)increase PSQ allocations for halibut, crab, and non-Chinook salmon;

(3)apply the same M&E requirements applicable to non-AFA trawl catcher/processors while participating in the non-CDQ groundfish fisheries when these vessels participate in the CDQ fisheries; and

(4)remove requirements for the CDQ delivery report and the CDQ catch report, and remove prohibitions limiting the retention of species not allocated to the CDQ Program. A. Nonspecified Reserve Current regulations allocate 15 percent of the TAC for each groundfish TAC category, except pollock and the hook-and-line and pot gear allocation of sablefish, to the nonspecified reserve before any further allocation of the TACs are made. The nonspecified reserve serves as a buffer to ensure that harvest levels do not exceed the TAC. A portion of the nonspecified reserve is set aside for allocation to the CDQ Program. For most groundfish species, one-half of the nonspecified reserve, or 7.5 percent of the TAC, currently is allocated to the CDQ Program. The remaining amount of the nonspecified reserve, 7.5 percent of the TAC, can be released by NMFS for use in the non-CDQ fisheries to provide additional harvest opportunities. Because the Program would establish exclusive harvest privileges that are carefully monitored, the Program would provide greater certainty that TAC levels would not be exceeded. Therefore, the allocation of 15 percent of the TAC of the Amendment 80 species to the nonspecified reserve would not be required to ensure harvests are maintained with the TAC. Removing the nonspecified reserve for species managed under a LAPP is consistent with the management of other BSAI groundfish species managed under a LAPP. A nonspecified reserve is not established for pollock managed under the AFA, nor for fixed gear sablefish managed under the CDQ and IFQ Programs. The Program would not modify the current allocation of 15 percent of the TAC for non-Amendment 80 species to the nonspecified reserve. The total metric tons of biomass that would be assigned to the nonspecified reserve on an annual basis would be expected to be small relative to current allocations to the nonspecified reserve because it would not include a portion of the TAC from Amendment 80 species. The TAC from the Amendment 80 species comprise the majority of the TAC currently assigned to the nonspecified reserve. Because the total amount of the nonspecified reserve would not be expected to be large, and would not include TAC from the Amendment 80 species, the Program would not reassign this nonspecified reserve for use by the Amendment 80 or BSAI trawl limited access sectors for use as Amendment 80 species. Table 3 summarizes the allocation of BSAI groundfish species to the nonspecified reserve. B. CDQ Reserves As noted in Section II of this preamble, the Program would allocate 10.7 percent of the TAC for all groundfish species allocated to the CDQ Program, other than pollock and sablefish. This allocation would occur before allocations to the other fishery participants. The specific BSAI groundfish species allocated to the CDQ Program are described in Section II of this preamble. Table 3 summarizes the proposed allocation of BSAI groundfish species and species groups to the nonspecified reserve and the CDQ Program reserve. Table 3.—Nonspecified and CDQ Program Reserves in the BSAI Species or species groups Allocation to the . . . Nonspecified reserve CDQ reserves BS and AI pollock None 10% of the TAC as a directed fishing allowance. Fixed gear sablefish (IFQ and CDQ sablefish) None 20% of the TAC. Trawl sablefish 15% of the TAC 7.5% of the TAC (7.5% of the TAC remains in the nonspecified reserve). Amendment 80 species None 10.7% of the TAC. Arrowtooth flounder and BS Greenland turbot 15% of the TAC 10.7% of the TAC (4.3% of the TAC remains in the nonspecified reserve). Species or species groups not allocated to the CDQ Program (See Table 2 for a list) 15% of the TAC None. C. PSQ Allocations 1. Halibut PSQ The Program would increase the allocation of halibut PSQ to the CDQ Program by 50 mt in 2010, the third year after the implementation of the Program. This increase would accommodate projected increases in halibut PSQ needs by the CDQ Program to fully prosecute the increased CDQ allocation of Amendment 80 species. Currently, the CDQ Program is allocated 7.5 percent of the halibut PSC limit under § 679.21(e)(1) for a total of 343 mt. This total is made up of 7.5 percent of the 3,675 mt of halibut PSC allocated to trawl gear, or 276 mt, and 7.5 percent of the 900 mt of halibut PSQ allocated to nontrawl gear, or 67 mt. Generally, less than half of the halibut PSQ allocation to the CDQ Program has been used in any fishing year. However, CDQ groups have not traditionally harvested their full allocations of species such as rock sole, yellowfin sole, or other Amendment 80 species with higher halibut PSQ use rates. With the implementation of the Program, Amendment 80 vessels may have more flexibility to contract with CDQ groups to fully harvest the CDQ Program groundfish allocations, which may result in higher halibut bycatch. Therefore, the Program would revise § 679.21(e)(1) to continue to allocate 276 mt of the halibut PSC limit allocated to trawl gear to the CDQ Program in 2008 and 2009. This amount would be increased by 50 mt to 326 mt in 2010 and future years. When combined with the 67 mt of halibut PSQ derived from the fixed gear sector, the CDQ Program would receive 343 mt of halibut PSQ in 2008 and 2009, and 393 mt in 2010 and in all future years. Although halibut PSQ is assigned to the CDQ Program from trawl and non-trawl PSC limits, once assigned it is not required to be used in the specific fishery or gear PSC limit from which it is derived. The amount of trawl halibut PSC for allocation to the Amendment 80 sector and the BSAI trawl limited access sector is described in Section IV of this preamble. The amount of halibut PSC remaining for use by non-trawl gear in non-CDQ Program fisheries would be 833 mt. 2. Non-Chinook Salmon PSQ The Program would increase the allocation of non-Chinook salmon in proportion to the allocation of Amendment 80 species. Currently, 29,000 non-Chinook salmon are allocated as PSC for use in BSAI trawl fisheries, and 7.5 percent of the total non-Chinook salmon PSC, or 2,175 salmon, is allocated to the CDQ Program as PSQ. The remaining 26,825 non-Chinook salmon are available for use by non-CDQ trawl vessels. Under the Program, the Council recommended that non-Chinook PSQ be increased to levels proportional to the CDQ allocation of Amendment 80 species. Section 305(i)(1)(B)(ii) of the MSA establishes the allocation of Amendment 80 species to the CDQ Program at 10.7 percent of TAC, therefore the Program would allocate a proportional amount of non-Chinook PSQ equal to 10.7 percent of the trawl PSC limit would be allocated to the CDQ Program. The increase of non-Chinook PSQ would accommodate the larger allocation of BSAI groundfish TAC to the CDQ Program and anticipated increases in PSQ use. The remaining amount of non-Chinook PSC would be assigned to non-CDQ fisheries. The Council did not recommend that the Council increase the Chinook salmon PSQ allocation to the CDQ Program under the Program primarily because Chinook salmon are not typically caught while harvesting Amendment 80 species and an increase in PSQ was not anticipated to be required to accommodate the larger allocation of Amendment 80 species to the CDQ Program. 3. Crab PSQ Crab PSC for red king crab, *C. bairdi* crab, and *C. opilio* crab is determined during annual harvest specification process based on the biomass of those species. Regulations in § 679.23(e) determine the amount of the crab biomass that may be assigned as a PSC limit. The Program would increase the allocation of crab PSC assigned to the CDQ Program as PSQ in proportion to the allocation of Amendment 80 species. Under the Program, the Council recommended that the CDQ Program's allocation of crab PSQ be increased to levels proportional to the CDQ allocation of Amendment 80 species, which is 10.7 percent of the TAC as established under section 305(i)(1)(B)(ii) of the MSA. Crab species are occasionally caught while fishing for Amendment 80 species and an increase in PSQ would accommodate the increased allocation of Amendment 80 species TAC to the CDQ Program. Therefore, each year, 10.7 percent of each trawl PSC limit for BSAI crab species would be allocated to the CDQ Program and the remaining amount of crab PSC would be apportioned to the Amendment 80 sector and BSAI trawl limited access sector as described in Section IV of this preamble. D. Monitoring and Enforcement (M&E) The Program would require that non-AFA trawl catcher/processors participating in the CDQ Program be subject to the same M&E requirements that apply to these vessels while participating in the non-CDQ fisheries in the BSAI. This proposal is consistent with the MSA because it does not result in the regulation of harvest in CDQ fisheries that is more restrictive than the regulation of harvest in the comparable non-CDQ fisheries. The allocation of Amendment 80 species and PSC to the CDQ Program and the Program both require similarly precise management to ensure that the allocations are monitored with sufficient precision to track catch relative to the allocations and assist the management and enforcement of allocations that are exceeded. Allocations to the CDQ Program, and to specific CDQ groups, are similar to allocations to Amendment 80 cooperatives in that the allocations cannot be exceeded. Additionally, it is highly likely many Amendment 80 vessels would be used to fish Amendment 80 species assigned to Amendment 80 cooperatives and the CDQ Program during the same fishing year. Consistent M&E requirements would reduce confusion among industry participants and ensure that Amendment 80 vessels have uniform M&E whenever they are used to fish in the BSAI for both CDQ and non-CDQ fisheries, which simplifies compliance and compliance monitoring. Current regulations governing harvest by trawl catcher/processors while participating in the CDQ fisheries are found at § 679.32(d)(4) and § 679.50(c)(4)(i)(A). Vessel operators are required to provide

(1)at least two level 2 observers, one of whom must be certified as a lead level 2 observer;

(2)an observer sampling station;

(3)data entry software to transmit observer data to NMFS; and

(4)prior notice to the observer of the CDQ group number associated with the catch. In addition, the vessel operator is required to weigh unsorted catch from each CDQ haul on a scale approved by NMFS. Estimates of catch weight by species based on observer data is required to be used to accrue catch against the CDQ group's allocations. The proposed M&E requirements developed for the Program include additional elements that currently are not in effect for the non-AFA trawl catcher/processors fishing for groundfish CDQ. These additional requirements include special catch handling requirements and a pre-cruise meeting among NMFS staff, the vessel operator, and the observer(s). The rationale for these additional requirements is described in detail in Section XII of this preamble. Applying these standards to catcher/processor trawl vessels fishing in the CDQ Program would ensure a uniform degree of management precision that NMFS has determined is necessary for the management of multispecies groundfish fisheries and PSC limits with exclusive allocations that cannot be exceeded. E. Other Revisions Three other revisions would be made to the CDQ Program regulations. References to the pollock CDQ reserve in § 679.31 would be moved to § 679.20(b) along with specification of all of the other CDQ reserves. This revision would consolidate regulations concerning the groundfish CDQ reserves to one location but would not change the amount of pollock allocated to the CDQ reserves. Requirements at § 679.5(n)(1) and

(2)for the CDQ delivery report and the CDQ catch report would be removed. These reports are required to be submitted by shoreside processors taking deliveries of CDQ groundfish (the CDQ delivery report) or from the CDQ groups (CDQ catch report). All of the information necessary to manage the CDQ fisheries and the individual quota accounts for each CDQ group is already available from the Observer Program or through the Interagency Electronic Reporting System (IERS). Therefore, there reports would no longer be necessary. Three prohibitions in § 679.7(d) specifically described below would be removed to allow vessels fishing on behalf of the CDQ groups to retain catch of species not allocated to the CDQ Program under the same regulations that apply to the retention of these species in the non-CDQ fisheries. Failure to remove these prohibitions would require vessels fishing on behalf of the CDQ groups to discard all catch of species not allocated to the CDQ Program. In 2006, the CDQ groups caught approximately 3,100 mt of groundfish species that will no longer be allocated to the CDQ Program. Section 679.7(d)(16) prohibits the operator of a vessel participating in the CDQ fisheries from using any groundfish accruing against a CDQ reserve as a basis species for calculating retainable amounts of non-CDQ species. Species that are not allocated to the CDQ Program are considered “non-CDQ species.” This prohibition requires discard of all species not allocated to the CDQ Program, even if retention of this species is allowed in the non-CDQ fisheries. Sections 679.7(d)(13) and

(14)prohibit catcher vessels from retaining onboard CDQ species together with license limitation groundfish, and prohibit catcher/processors from catching groundfish CDQ species together with license limitation groundfish in the same haul, set, or pot. The intent of these regulations was to separate CDQ and non-CDQ fishing so that all catch while CDQ fishing accrued against CDQ allocations. Now that some of the groundfish species that would be caught in the CDQ fisheries would no longer be considered CDQ species, these prohibitions require that they be discarded. Removal of these prohibitions would allow retention of the species not allocated to the CDQ Program to be managed under existing regulations that apply to the retention of these species in the non-CDQ fisheries. If the species is open to directed fishing, vessels CDQ fishing may retain as much of the species as they want under the same regulations that apply to vessels participating in the non-CDQ fisheries. If the species is closed to directed fishing but some retention is allowed, vessels CDQ fishing may use retained catch of the species allocated to the CDQ Program as basis species and apply the retainable percentages in Table 40 to part 679 to determine the maximum retainable amount of the species not allocated to the CDQ Program. If the species not allocated to the CDQ Program is on prohibited status, any vessel CDQ fishing would be required to discard all catch of this species, as are all other vessels in the non-CDQ fisheries. NMFS also proposes removing specific references to groundfish CDQ reserve allocations in § 679.31. Currently, § 679.31 contains only limited regulation concerning the management of non-pollock groundfish CDQ reserves. Currently, the allocation of non-pollock groundfish species TAC to the CDQ Program is primarily regulated in § 679.20. Section 679.20 contains most of the regulations addressing CDQ reserve management. To reduce redundancy in regulations, and combine the allocation of TAC into one section, NMFS proposes removing specific references to non-pollock groundfish in § 679.31(c) and (f). IV. Allocations of ITAC and PSC A. Apportionment of ITAC Between the Sectors 1. Species Allocated The Council recommended that five species, AI Pacific ocean perch, Atka mackerel, flathead sole, rock sole and yellowfin sole be allocated between the Amendment 80 and BSAI trawl limited access sectors. A large proportion of the TAC of these five species have been caught by Amendment 80 vessels, and those species comprise the majority of the catch by these vessels. A smaller portion of the TAC has been caught by the BSAI trawl limited access sector. The catch of these five species by non-trawl vessels is minimal. Greater detail about the historic and recent catch of these species can be found in the EA/RIR/IRFA prepared for this action (see ADDRESSES ). The Council motion recommending the Program did not explicitly refer to Pacific cod as an Amendment 80 species. The Council motion recommended that “in the event that the [Amendment 80] sector receives an exclusive allocation of Pacific cod, that allocation would be divided between the cooperatives and the [Amendment 80] sector's limited access fishery in the same manner (and based on the same history) as the division of other allocated species within the [Amendment 80] sector.” Amendment 85 as approved by the Secretary establishes allocations for the non-CDQ fishery sectors and specifically an allocation to the non-AFA trawl catcher/processors (i.e., Amendment 80 sector). The Council's recommendation to allocate a percentage of the Pacific cod TAC to the Amendment 80 sector was provided in Amendment 85 to the FMP. The Secretary approved the portion of Amendment 85 that allocates a portion of the Pacific cod TAC to the Amendment 80 sector on March 7, 2007. As a result of the Secretary's decision on Amendment 85, this proposed rule would include Pacific cod as an Amendment 80 species. The draft EA/RIR/IRFA prepared for the Program notes that Pacific cod would be allocated and largely managed as all other Amendment 80 species pending Secretarial approval of Amendment 85. Specific detail concerning the management of Pacific cod under the Program is provided in Part D of this section of the preamble. 2. ITAC Allocation Process During the annual harvest specification process, NMFS would establish the TAC for all Amendment 80 species. After accounting for allocations to the CDQ Program as described in Section II to this preamble, and the ICA set aside for the incidental harvests of Amendment 80 species by the non-trawl gear sectors (e.g., pot, and hook-and-line gear) and the BSAI trawl limited access fishery while targeting other groundfish species, the remaining amount of the TAC, the ITAC, would be apportioned to the Amendment 80 and BSAI trawl limited access sectors in proportions recommended by the Council. The Council recommended establishing an ICA for the non-trawl and BSAI trawl limited access sector before allocating a portion of the TAC to the Amendment 80 and BSAI trawl limited access sector for several reasons. First, because the Program would allocate a fixed amount of the TAC to the Amendment 80 and BSAI trawl limited access sectors, NMFS would need to account for any ICA in the non-trawl fisheries before those apportionments could be made. Otherwise, incidental catch by non-trawl vessels could reduce the amount of TAC available to the trawl sectors. This would be particularly problematic for Amendment 80 cooperatives that would be allocated a fixed percentage of the TAC as CQ. If that CQ amount were reduced by incidental catch in non-trawl fisheries, an Amendment 80 cooperative theoretically would have its exclusive allocation reduced by persons who are not members of the cooperative. Second, the Council perceived the percentage of the TAC assigned to the BSAI trawl limited access sector as an amount necessary to support directed fishing, not as an amount intended to support both directed and incidental catch. Therefore, the Program would establish an ICA to accommodate incidental catch for non-trawl gear and BSAI trawl limited access fisheries. For most species, the allocations of ITAC to the Amendment 80 and BSAI trawl limited access sectors would be apportioned as fixed percentages of the ITAC, with the exception of Atka mackerel, AI POP, and yellowfin sole. A portion of the Amendment 80 sector's allocation of Atka mackerel and AI POP ITAC would be gradually increased for the BSAI trawl limited access sector, and decreased for the Amendment 80 sector until a fixed percentage of the ITAC is assigned to each sector after several years. Table 4 details the allocations of Amendment 80 species, except yellowfin sole. Table 4.—Annual Apportionment of Amendment 80 Species ITAC Between the Amendment 80 and BSAI Trawl Limited Access Sectors (Except Yellowfin Sole) Fishery Management area Year Percentage of ITAC allocated to the Amendment 80 sector Percentage of ITAC allocated to the BSAI trawl limited access sector Atka mackerel 543 All years 100 0 542 2008 98 2 2009 96 4 2010 94 6 2011 92 8 2012 and all future years 90 10 541/EBS 2008 98 2 2009 96 4 2010 94 6 2011 92 8 2012 and all future years 90 10 Aleutian Islands 543 All years 98 2 Pacific ocean perch 542 2008 95 5 2009 and all future years 90 10 541 2008 95 5 2009 and all future years 90 10 Pacific cod BSAI All years 13.4 N/A Rock sole BSAI All years 100 0 Flathead sole BSAI All years 100 0 The proportion of yellowfin sole ITAC allocated between the Amendment 80 and BSAI trawl limited access sectors would fluctuate with the TAC. Table 34 to part 679 in the proposed regulatory text details the incremental increase of reallocation of yellowfin sole ITAC from the Amendment 80 sector to the BSAI trawl limited access sector as ITAC increases. The proportion of the ITAC assigned to the BSAI trawl limited access sector increases as ITAC increases. Section XI of this preamble provides an example of the calculation of the yellowfin sole ITAC and Table 5 describes the calculation process. Table 5.—Annual Apportionment of BSAI Yellowfin Sole Between the Amendment 80 and BSAI Trawl Limited Access Sectors Row No. If the yellowfin sole ITAC is between. . . and. . . then the yellowfin sole ITAC rate for the Amendment 80 sector is. . . and the amount of yellowfin sole ITAC allocated to Amendment 80 Sector is. . . and the amount of yellowfin sole ITAC allocated to the BSAI trawl limited access sector is. . . Column A Column B Column C Column D Column E Row 1 0 mt 87,499 mt 0.93 ITAC × Row 1, Column C ITAC—Row 1, Column E. Row 2 87,500 mt 94,999 mt 0.875 (Amount of ITAC greater than 87,499 mt and less than 95,000 mt × Row 2, Column c) + (Row 1, Column D) ITAC—Row 2, Column D. Row 3 95,000 mt 102,499 mt 0.82 (Amount of ITAC greater than 94,999 mt and less than 102,500 mt × Row 3, Column C) + ( ∑ Column D, Rows 1 and 2) ITAC—Row 3, Column D. Row 4 102,500 mt 109,999 mt 0.765 (Amount of ITAC greater than 102,499 mt and less than 110,000 mt × Row 4, Column C) + ( ∑ Column D, Rows 2 through 3) ITAC—Row 4, Column D. Row 5 110,000 mt 117,499 mt 0.71 (Amount of ITAC greater than 109,999 mt and less than 117,500 mt × Row 5, Column C) + ( ∑ Column D, Rows 2 through 4) ITAC—Row 5, Column D. Row 6 117,500 mt 124,999 mt 0.655 (Amount of ITAC greater than 117,499 mt and less than 125,000 mt × Row 6, Column C) + ( ∑ Column D, Rows 2 through 5) ITAC—Row 6, Column D. Row 7 125,000 mt and greater 0.60 (Amount of ITAC greater than 124,999 mt × Row 7, Column C) + ( ∑ Column D, Rows 2 through 6) ITAC—Row 7, Column D. B. PSC Apportionment to the CDQ Program and Between the Sectors Based on the rationale provided during the development of the Program, and in consideration of the MSRA, PSC would be assigned to the CDQ Program, and apportioned between the Amendment 80 sector and BSAI trawl limited access sector as described in Table 6. Table 6.—Apportionment of BSAI Crab and Halibut PSC Fishery Year Halibut PSC limit in the BSAI Zone 1 Red king crab PSC limit . . . *C. opilio* bycatch limitation zone (COBLZ) PSC limit . . . Zone 1 *C. bairdi* crab PSC limit . . . Zone 2 *C. bairdi* crab PSC limit . . . as a percentage of the total BSAI trawl PSC limit . . . CDQ Program 2008 and 2009 2010 and future 343 mt 393 mt 10.7% 10.7% 10.7% 10.7% as a percentage of the total BSAI trawl PSC limit after subtraction for the allocation to the CDQ Program as PSQ . . . Amendment 80 sector 2008 2,525 mt 62.48% 61.44% 52.64% 29.59% 2009 2,475 mt 59.36% 58.37% 50.01% 28.11% 2010 2,425 mt 56.23% 55.30% 47.38% 26.63% 2011 2,375 mt 53.11% 52.22% 44.74% 25.15% 2012 and future 2,325 mt 49.98% 49.15% 42.11% 23.67% BSAI trawl limited access sector All years 875 mt 30.58% 32.14% 46.99% 46.81% Unassigned-reduction in PSC 2008 0 mt 6.94% 6.42% 0.37% 23.60% 2009 50 mt 10.06% 9.49% 3.00% 25.08% 2010 50 mt 13.19% 12.56% 5.63% 26.56% 2011 100 mt 16.31% 15.64% 8.27% 21.66% 2012 and future 150 mt 19.44% 18.71% 10.90% 29.52% As is evident from Table 6, a portion of the annual halibut PSC and crab PSC available for use by the Amendment 80 sector would be reduced over time and a portion of this PSC would not be assigned for use. This unassigned halibut and crab PSC is “left in the water” and may contribute to the overall halibut and crab biomass available for future recruitment or harvest. The halibut PSC assigned to the CDQ Program as halibut PSQ would increase in third year after implementation of the Program (see Section III for more detail). Overall, the portion of the halibut PSC limit for trawl gear that would not be assigned on an annual basis is shown in the “Unassigned-Reduction in PSC” row in Table 6. This unassigned halibut PSC represents an overall savings in the amount of trawl halibut PSC used by the trawl fisheries. Fishing practices by Amendment 80 cooperatives (e.g., avoiding areas of high bycatch through voluntary intercooperative arrangements, modifying fishing gear, etc.) could result in additional reductions in crab PSC or halibut PSC use, but those amounts cannot be predicted at this time. C. Rationale for Allocations The Program would allocate a specific proportion of the annual ITAC and PSC to the Amendment 80 sector and BSAI trawl limited access sector. Generally, the Council used historic groundfish catch and PSC use patterns during the 1998 through 2004 time period as the basis for recommended allocations, with modifications made to accommodate specific harvest patterns and fishery dependent communities. The Council also considered more recent harvest patterns (2005 and 2006). Table 7 provides key rationale developed by the Council for the specific allocations of ITAC and PSC to the Amendment 80 and BSAI trawl limited access sectors that would be implemented by the Program. Additional details on the basis for the allocations between the Amendment 80 and BSAI trawl limited access sectors are provided in the draft EA/RIR/IRFA prepared for this action (see ADDRESSES ). Table 7.— Key Rationale for ITAC and PSC Allocations to the Amendment 80 and BSAI Trawl Limited Access Sectors Amendment 80 species Rationale Yellowfin sole

(1)Historic (1998 through 2004) and recent (2005 and 2006) catch data indicate that Amendment 80 vessels caught and retained a high proportion (on average in excess of 90 percent during the 1998 through 2004 and 2005 and 2006 time periods) of the yellowfin sole TAC.

(2)Prior to 1998, and the current high pollock TAC levels, yellowfin sole comprised a larger proportion of the overall BSAI groundfish biomass. During this time the BSAI trawl limited access sector relied more heavily on yellowfin sole harvests and caught and retained a greater proportion of the yellowfin sole TAC than currently.

(3)Apportioning ITAC on a sliding scale between the Amendment 80 and BSAI trawl limited access sectors as yellowfin sole biomass increases would accommodate potential future changes in the relative TACs of pollock and yellowfin sole and would provide greater harvest opportunities to the BSAI trawl limited access sector that are similar to pre-1998 harvest patterns. Pacific cod Pacific cod allocations to the Amendment 80 sector are based on the criteria and rationale established under Amendment 85 to the FMP (Notice of Availability of Amendment 85 to the FMP

(NOA)published December 7, 2006; 71 FR 70943) and approved by the Secretary on March 7, 2007. AI POP and Atka mackerel

(1)Historic (from 1998 through 2004) and more recent (2005 and 2006) catch data indicate that the Amendment 80 sector caught and retained nearly 100 percent of the TAC of these species in all management areas.

(2)AI POP in Areas 541 and 542, and Atka mackerel in Areas BS/541 and 542 may be harvested by smaller trawl vessels, primarily operating out of Adak, Alaska. These smaller trawl vessel operators expressed a desire to harvest Atka mackerel during the development of the Program.

(3)A specific allocation to the BSAI trawl limited access sector would provide additional opportunities for harvest by smaller trawl vessels. The total allocation to the BSAI trawl limited access sector would increase slightly each year to provide the BSAI trawl limited access sector time to scale operations up to the level of the allocation. Flathead sole and rock sole

(1)Historic (from 1998 through 2004) and more current catch data (2005 and 2006) indicate that the Amendment 80 sector caught and retained nearly 100 percent of the TAC of these species.

(2)There was no clear indication that non-Amendment 80 sector participants intended to enter these fisheries in the foreseeable future. Halibut PSC

(1)Halibut PSC would be assigned to the BSAI trawl limited access fishery at a percentage that would accommodate existing halibut PSC rates as well as increased halibut PSC use if the yellowfin sole ITAC increases and a larger proportion of yellowfin sole is assigned to the sector.

(2)Halibut PSC would be assigned to the Amendment 80 sector at an amount above current use, therefore accommodating existing and projected halibut PSC needs.

(3)Starting in 2009, the allocation of halibut PSC to the Amendment 80 sector would be reduced in a stepwise manner ultimately resulting in an annual reduction of 200 mt of halibut PSC from the Amendment 80 sector. Combined with all other halibut PSC allocations to the CDQ program and the BSAI trawl limited access sector, the halibut PSC allocation proposed by the Program results in a total reduction of the annual trawl halibut PSC limit by 150 mt after 2011. This reduction would meet a clear goal for the Program to reduce the use of halibut PSC by the Amendment 80 sector. The step-wise reduction would provide the Amendment 80 sector time to adjust fishing operations through more efficient operations (e.g., cooperative management) to offset any additional potential costs.

(4)The halibut PSC savings resulting from the reduced trawl halibut limit assigned to the Amendment 80 sector would represent a savings of halibut biomass that could contribute to future halibut recruitment. Crab PSC

(1)Crab PSC assigned to the BSAI trawl limited access fishery would accommodate existing and projected PSC use. The amount of crab PSC allocated is equal to the sum of the AFA catcher/processor and catcher vessel crab PSC sideboard limits. 2) Crab PSC assigned to the Amendment 80 sector would accommodate existing and projected future PSC use. Starting in 2009, the amount allocated would be reduced by five percent of the initial allocation for four years (until 2012) resulting in a 20 percent reduction in the amount of crab PSC allocated to the Amendment 80 sector. This reduction would meet a clear goal for the Program to reduce the use of crab PSC by the Amendment 80 sector. The step-wise reduction would provide the Amendment 80 sector time to adjust fishing operations through more efficient operations (e.g., cooperative management) to offset any additional potential costs.

(3)The crab PSC savings resulting from the reduced trawl crab limit assigned to the Amendment 80 sector would represent a savings of crab biomass that could contribute to future crab recruitment. D. Integrating Amendment 85 and the Program 1. Overview During the development of Amendment 80, the Council recommended a separate action, Amendment 85 to the FMP, to revise allocations of Pacific cod among the many BSAI groundfish sectors. The Council took final action to recommend Amendment 85 in April 2006, and final action to recommend the Program in June 2006. NMFS published a NOA for Amendment 85 to the FMP on December 7, 2006 (71 FR 70943). The public comment period for the NOA ended on February 5, 2007. NMFS published a proposed rule to implement Amendment 85 on February 7, 2007 (72 FR 5654). The public comment period for the proposed rule ended on March 26, 2007. Amendment 85 was partially approved by the Secretary on March 7, 2007. The Secretary approved all of the provisions concerning allocation of Pacific cod to the non-CDQ sectors. Public comments on the proposed rule have been received, NMFS is reviewing those comments, and the final rule implementing Amendment 85 is anticipated to be published in July 2007. The Council and NMFS recognized that specific aspects of Amendment 85 would need to be integrated with the Program if allocations of Pacific cod under Amendment 85 were approved. The following section describes NMFS' attempt to coordinate the proposed implementation of Amendment 85 and the Program to be consistent with the intent of both actions. The five key elements of Amendment 85 that would be addressed in this proposed action are

(1)The allocation of Pacific cod to the Amendment 80 sector;

(2)the seasonal apportionment of Pacific cod allocated to the Amendment 80 sector;

(3)the rollover of unused Pacific cod to the Amendment 80 sector;

(4)PSC apportionment; and

(5)the AFA sideboard limits that apply to Pacific cod. 2. Allocation of Pacific Cod to the Amendment 80 Sector Amendment 85 as approved by the Secretary defines the allocations of BSAI Pacific cod to nine harvesting sectors which are listed in Table 8. The non-AFA trawl catcher/processor sector as defined in Amendment 85 is identical to the Amendment 80 sector proposed under the Program. Table 8.—Percent Sector Allocations of BSAI Pacific Cod Non-CDQ TAC Approved Under Amendment 85 Sector Percent allocation Jig 1.4 Hook-and-line & pot catcher vessels <60 ft LOA 2.0 Hook-and-line catcher vessels ≥60 ft LOA 0.2 Hook-and-line catcher/processors 48.7 Pot catcher vessels ≥60 ft LOA 8.4 Pot catcher/processors 1.5 AFA trawl catcher/processors 2.3 Non-AFA trawl catcher/processors (Amendment 80 Sector) 13.4 Trawl catcher vessels 22.1 The Program would not modify the allocations of Pacific cod to the Amendment 80 sector or other fishing sectors as approved under Amendment 85. The Program would incorporate Amendment 85's allocation of 13.4 percent of the non-CDQ TAC as the Amendment 80 sector ITAC. Amendment 85 did not establish an ICA for Pacific cod that is deducted before the allocation of the non-CDQ TAC. The Program does establish an ICA for all Amendment 80 species except Pacific cod that is subtracted from the non-CDQ TAC before it is assigned to the Amendment 80 and BSAI trawl limited access sectors. The Council did not recommend that the Program establish an ICA for Pacific cod that would be deducted from the TAC before allocation to the Amendment 80 sector. Therefore, the Program would not establish an ICA that would be deducted prior to allocation of Pacific cod among the sectors. Amendment 85 would establish an ICA specific to the pot and hook-and-line sector, but that ICA is derived from the allocation to those sectors and is not deducted from the non-CDQ TAC before allocations to the Amendment 80 sector. The pot and hook-and-line ICA proposed under Amendment 85 would not affect the allocation of Pacific cod TAC to the Amendment 80 sector. Based on the allocations proposed under Amendment 85 and approved by the Secretary and the lack of any contrary guidance under the Council's recommendation for the Program, NMFS does not propose modifying the allocation of Pacific cod to the non-CDQ sectors as approved under Amendment 85. Further, NMFS would not propose establishing a Pacific cod ICA that would be deducted from the TAC prior to allocation among the trawl sectors under the Program. 3. Seasonal Apportionment of Pacific Cod Allocated to the Amendment 80 Sector The Program recommended by the Council would not propose changing the current seasonal apportionment of Pacific cod established in regulation at § 679.23(e)(5). Currently, there are three seasons (A, B, and C season) for Pacific cod applicable to non-AFA catcher/processor vessels using trawl gear (i.e., the Amendment 80 sector). However, the proposed rule to implement Amendment 85 would modify the current seasonal apportionment of Pacific cod to establish two seasons (A and B seasons) for non-AFA trawl catcher/processors. This seasonal apportionment would supersede existing regulations. If the proposed rule for Amendment 85 is implemented as proposed, NMFS would modify the seasonal apportionment of Pacific cod for non-AFA trawl catcher/processors (i.e., the Amendment 80 sector) in the final rule for Amendment 80 to ensure compliance with the regulations that may be implemented for Amendment 85. Seasonal apportionment of Pacific cod for all other non-Amendment 80 sectors would not be modified by the Program. 3. Rollover of Unused Pacific Cod to the Amendment 80 Sector The proposed rule for Amendment 85 would create a complex mechanism to redistribute, or rollover, Pacific cod that is projected to be unharvested by a sector. If the rollover provisions in the proposed rule for Amendment 85 are implemented as proposed, NMFS anticipates that the final rule to implement the Program would modify these rollover provisions in the following manner. First, Pacific cod would not be rolled over from the Amendment 80 sector to other sectors listed in Table 8 above. This would be consistent with the approach the Council recommended for all other Amendment 80 species. Additionally, as described in more detail in the draft EA/RIR/IRFA prepared for the Program, NMFS has identified the particular difficulties that would arise in determining amounts of Pacific cod that would go unharvested when that Pacific cod is assigned as CQ to an Amendment 80 cooperative. Briefly, NMFS could not easily establish criteria to determine that CQ would not be used. An amount of CQ can be harvested throughout the year and can be traded among cooperatives reducing the likelihood that it would not be harvested. Second, rollovers of unharvested Pacific cod to the Amendment 80 sector from any of the eight other sectors listed in Table 8 above would be assigned only to Amendment 80 cooperatives. This approach would be consistent with the mechanism to rollover to the Amendment 80 sector other Amendment 80 species that are unharvested in the BSAI trawl limited access sector. The Council did not provide specific guidance to suggest that Pacific cod would be subject to different reallocation procedures than other species. Section VII of this preamble provides additional detail on the reallocation of Amendment 80 species to the Amendment 80 sector. 4. PSC Apportionment The proposed rule for Amendment 85 would create a complex mechanism for apportioning crab PSC and halibut PSC among the nine sectors listed in Table 8. If the halibut PSC and crab PSC provisions in the proposed rule for Amendment 85 are implemented as proposed, NMFS anticipates that the final rule to implement the Program would modify the PSC apportionments. During the development of the Program, the Council deliberated extensively on the method to apportion crab PSC and halibut PSC among the trawl sectors. During these deliberations, the Council noted that many of the crab PSC and halibut PSC apportionments proposed under Amendment 85 would be superceded by the Program. The Council motion recommending the Program specifically noted that “upon implementation of [the Program], no allocation of PSC will be made to the [Amendment 80] sector under Amendment 85.” Should the PSC apportionments in proposed rule for Amendment 85 be implemented, the final rule to implement the Program would substantially revise those regulations to be consistent with the Council's clear intent for the Program. Additionally, because the Program recommended specific allocations of crab PSC and halibut PSC to the BSAI trawl limited access sector, the PSC apportionments for the trawl fisheries contemplated in the proposed rule for Amendment 85 may need to be revised in the a final rule that would implement the Program. 5. Pacific Cod AFA Sideboard Limits The Council extensively reviewed Pacific cod AFA sideboard limits during the development of Amendment 85. The proposed rule for Amendment 85 would modify Pacific cod AFA sideboard limits for the AFA catcher/processor sector. The proposed rule for Amendment 85 would not modify existing regulations for AFA catcher vessels. NMFS does not propose modifying the AFA Pacific cod sideboard limits with this action. Although the Council recommended that the Program would modify the AFA sideboard limits for all Amendment 80 species, it is not clear that the Council considered Pacific cod to be an Amendment 80 species for purposes of applying this provision. Clearly, the Council intended to allocate Pacific cod to the Amendment 80 sector and assign QS pending the Secretarial approval of Amendment 85 that provided an allocation of Pacific cod to the Amendment 80 sector. However, it does not appear the Council intended to apply all of the provisions applicable to other species (i.e., AI POP, Atka mackerel, flathead sole, rock sole, and yellowfin sole) that were clearly identified by the Council during the development of the Program as being “Amendment 80 species,”including proposing a new method to calculate AFA sideboard limits. Additionally, it does not appear to be the intent of the Council action recommending the Program in June 2006 to supersede the action recommended by the Council in Amendment 85 in April 2006. Therefore, AFA sideboard limit calculations for Pacific cod would not be modified under the Program consistent with the apparent intent of the Council. Additionally, this approach would avoid confusion that may arise if a final rule to implement Amendment 85 is published that eliminates AFA catcher/processor sideboards, only to be superseded shortly thereafter by a final rule to implement the Program that would reinstate the AFA catcher/processor sideboard limits and change the means to calculate that limit. Section XI of this preamble provides an example of the Pacific cod AFA sideboard limits that would apply in 2008 should this aspect of the final rule for Amendment 85 be implemented as proposed. 6. Regulatory Text Contained in This Proposed Rule To minimize potential confusion and better coordinate Amendment 85 and this proposed action, NMFS proposes the following modifications in this proposed rule:

(1)Remove and reserve those sections of the regulations in § 679.20(a)(7)(i), (a)(7)(ii), (a)(7)(iii)(B), and (a)(7)(iv) that are proposed to be modified by the proposed rule for Amendment 85;

(2)insert regulatory text to implement the allocation of Pacific cod to the Amendment 80 sector in § 679.20(a)(7)(v);

(3)insert regulatory text in § 679.20(a)(7)(v) that references the existing seasonal apportionment of Pacific cod;

(4)insert regulatory text in § 679.20(a)(7)(v) addressing the reallocation of unharvested Pacific cod to Amendment 80 cooperatives; and

(5)remove references to the apportionment of Pacific cod from the nonspecified reserve in § 679.20(b)(1)(iv) consistent with the management of the nonspecified reserve for all other Amendment 80 species (see Section III of this preamble for more detail). In addition, if the proposed rule for Amendment 85 is implemented as proposed, the changes to Pacific cod seasonal apportionments proposed in the Program would need to be revised. Regulatory text to allocate Pacific cod QS among Amendment 80 sector participants, assign Pacific cod ITAC to Amendment 80 cooperatives and the Amendment 80 limited access sector, and assign PSC to support Pacific cod fisheries by Amendment 80 sector participants is proposed in § 679.90 and § 679.91 of this proposed rule and would not be affected by the provisions in the final rule for Amendment 85. 7. Summary Table Table 9 summarizes the proposed integration of key components of Amendment 85 and the Program rule making process. Table 9.—Integration of Regulatory Text for Amendment 85 and the Program Issue Proposed rule for Amendment 85 Proposed rule for the Program (Amendment 80) Allocation of Pacific cod to the Amendment 80 sector Allocations described in Table 8 have been approved by the Secretary 13.4% of the BSAI TAC after subtraction of the allocation to the CDQ Program would be allocated to the Amendment 80 sector The proposed rule would not modify the allocations approved by the Secretary under Amendment 85 described in Table 8. Seasonal apportionment of Pacific cod The proposed rule would change seasonal apportionments for the CDQ Program, Amendment 80 sector, and other participants in the Pacific cod fishery from the status quo. The proposed rule would apportion the Amendment 80 allocation into two seasons: 75 percent to an A season, and 25 percent to a B season. These seasons would be defined in the annual harvest specification process The proposed rule would not change the status quo seasonal apportionment of Pacific cod to the Amendment 80 sector. If the proposed rule for Amendment 85 is implemented as proposed, NMFS would modify the seasonal apportionment for Pacific cod for non-AFA trawl catcher/processors (i.e., Amendment 80 sector) in the final rule for Amendment 80. Seasonal apportionment of Pacific cod for all other sectors would not be modified by the Program. Rollover of unused Pacific cod The proposed rule would require that Pacific cod unharvested by the trawl sectors (including the Amendment 80 sector) would be reallocated first to the non-trawl catcher vessel sectors defined in Table 8 above. Any Pacific cod that is unharvested by the non-trawl catcher vessel sectors, or non-trawl catcher/processors sectors could be reassigned to the Amendment 80 sector The proposed rule does not modify existing regulations. If the proposed rule for Amendment 85 is implemented as proposed, NMFS would modify the Pacific cod rollover provisions. The final rule for the Program would prohibit the reallocation of Pacific cod to the Amendment 80 sector. In addition, the final rule for the Program would require that any unharvested Pacific cod that is reallocated to the Amendment 80 sector be allocated only to Amendment 80 cooperatives. Allocations of crab PSC and halibut PSC The proposed rule would allocate halibut PSC and crab PSC for specific use by participants in each of the nine sectors defined in Table 8 above The proposed rule would allocate halibut and crab PSC to the Amendment 80 and BSAI trawl limited access sectors to support PSC needs in all fisheries for those sectors. The Program would supersede halibut PSC and crab PSC allocations for trawl gear sectors proposed that may be implemented with the final rule for Amendment 85. AFA sideboard limits for Pacific cod The proposed rule would eliminate the Pacific cod sideboard limits applicable to AFA catcher/processors. The proposed rule would not modify existing Pacific cod sideboard limits for AFA catcher vessels The proposed rule would not modify AFA sideboard limits for Pacific cod. V. BSAI Trawl Limited Access Sector The Program would affect the management of non-Amendment 80 sector trawl fisheries in several ways because it:

(1)Allocates a portion of the ICA and ITAC for Amendment 80 species, halibut PSC, and crab PSC limits to the BSAI trawl limited access sector;

(2)modifies AFA groundfish sideboard calculation methods for Amendment 80 species in the BSAI;

(3)modifies the AFA sideboard limits for halibut PSC and crab PSC in the BSAI;

(4)removes AFA sideboard limits for yellowfin sole at high ITAC levels in the BSAI;

(5)modifies the mechanism for reallocating Pacific cod within the trawl sector in the BSAI; and

(6)modifies the calculation for determining the maximum crab PSC use in the RKCSS. The Program's proposed allocation of ICA, ITAC, and PSC to the BSAI trawl limited access sector and the proposed changes on AFA sideboard calculations would have specific effects on non-AFA trawl catcher vessels. NMFS notes that AFA sideboard limits for groundfish and PSC in the GOA would not be affected by the Program. Finally, the proposed regulations would limit the ability of Amendment 80 vessels to process fish harvested in the BSAI trawl limited access sector. A. Allocations to BSAI Trawl Limited Access Sector 1. Amendment 80 Species Allocations For all Amendment 80 species, NMFS would assign ITAC to the Amendment 80 sector and the BSAI trawl limited access sector. Section IV of this preamble describes the specific allocation and rationale for the allocation of ITAC for each Amendment 80 species to the BSAI trawl limited access sector. For all Amendment 80 species except Pacific cod, NMFS would allocate a portion of the ICA for use by non-trawl gear and the BSAI trawl limited access sector in the annual harvest specification process. The amount of ICA assigned for use by non-trawl fisheries and the BSAI trawl limited access sector would be based primarily on recent and anticipated incidental catch rates by the non-trawl fisheries and BSAI trawl limited access sector of that Amendment 80 species. To ensure adequate flexibility in managing incidental harvests in the BSAI, NMFS proposes to combine the ICA required for the non-trawl fisheries for each Amendment 80 species, except Pacific cod, into the ICA required for the BSAI trawl limited access sector and establish a single combined trawl and non-trawl ICA in the annual harvest specifications. Given the small incidental harvest rates of Amendment 80 species anticipated in non-trawl fisheries ( *e.g.* , yellowfin sole incidentally harvested in the hook-and-line Pacific cod fishery), the portion of the ICA that is required for use in the non-trawl fisheries would be small relative to the total combined ICA. The portion of the combined ICA not intended for use by non-trawl fisheries would be intended for use by the BSAI trawl limited access sector. The portion of the ICA that is intended for use by the BSAI trawl limited access sector would be subject to rollover to Amendment 80 cooperatives, as discussed in Section VII of this preamble. NMFS would ensure that adequate ICA is available to the non-trawl fisheries and BSAI limited access sector before conducting any rollover of unused ICA to Amendment 80 cooperatives. Section XI of this preamble provides a specific example of assigning an ICA to each Amendment 80 species. As discussed in Section IV of this preamble, NMFS would not establish a Pacific cod ICA for use by trawl gear. 2. Halibut PSC Allocation The halibut PSC limit for the BSAI trawl limited access sector would be a fixed amount of 875 metric tons (mt). This amount is deemed necessary to support all halibut PSC needs for harvest of pollock, Amendment 80 species and non-Amendment 80 species ( *e.g.* , Alaska plaice). The Council recommended that the allocation be based on historic halibut PSC use rates from 1998 through 2004, with an additional amount allocated that would support future increased harvests of Amendment 80 species with higher halibut PSC use rates ( *e.g.* , yellowfin sole). The halibut PSC allocated to the BSAI trawl limited access sector under the Program would supercede any halibut trawl PSC allocation mechanism that may be implemented under Amendment 85 as discussed in Section IV of this preamble. 3. Crab PSC Allocations Crab PSC allocations to the BSAI trawl limited access sector would be based on the sum of the percentage of the trawl crab PSC sideboard limit assigned to the AFA catcher/processor and catcher vessel sectors. Crab PSC use in the BSAI trawl limited access sector, which includes AFA catcher/processors, AFA catcher vessels, and non-AFA catcher vessels, has been small relative to the total crab PSC assigned for use by vessels using trawl gear. The BSAI trawl limited access sector, which includes non-AFA catcher vessels, has consistently used less crab PSC than the combined percentage of the AFA catcher/processor and catcher vessel crab PSC sideboard limits. Therefore, an allocation of crab PSC to the BSAI trawl limited access sector based on the sum of the AFA crab PSC sideboard limits would be sufficient to accommodate current and future crab PSC use by the BSAI trawl limited access sector. The amount of crab PSC assigned to the BSAI trawl limited access sector would continue to be apportioned to specific trawl fisheries for the BSAI trawl limited access sector (e.g., crab PSC would be assigned for use in yellowfin sole fisheries) as part of the annual harvest specifications process. Section XI of this preamble provides a specific example of crab PSC allocation to the BSAI trawl limited access sector. B. Calculation of AFA Groundfish Sideboard Limits in the BSAI The Program would modify the calculation of BSAI groundfish sideboard limits for Amendment 80 species that apply to AFA vessels. AFA catcher/processor and AFA catcher vessel sideboard limits would remain in place to prevent the AFA sectors from exceeding their historical catch history prior to the implementation of the AFA. These limits would constrain AFA vessels participating in the BSAI trawl limited access sector relative to non-AFA catcher vessels. However, the method for calculating those sideboard limits would be modified to accommodate changes in allocations for Amendment 80 species. The Program would not modify the calculation of AFA sideboard limits for non-Amendment 80 species (e.g., arrowtooth flounder). Currently, NMFS calculates AFA sideboard limits for BSAI groundfish species by multiplying the AFA sideboard ratio for that species by the TAC available for harvest by trawl catcher/processors or catcher vessels in the year in which the harvest limit will be in effect. The exception to this rule is the calculation of the Atka mackerel sideboard limit for AFA catcher/processors, which is set as a fixed percentage of the TAC under regulations at § 679.64(a)(3). The Atka mackerel sideboard limit for AFA catcher/processors would not be modified by the Program. The Program would modify the Atka mackerel sideboard limit for AFA catcher vessels. The allocation of exclusive harvest privileges to the Amendment 80 sector substantially reduces the amount of ITAC available for harvest by other trawl vessels. The portion of the ITAC assigned to the Amendment 80 sector would not be available to other participants, thereby limiting the ITAC available to the BSAI limited access sector. If NMFS were to calculate the AFA groundfish sideboard limits for Amendment 80 species based only on the portion of the ITAC that would be assigned to the BSAI trawl limited access fishery, the AFA sideboard limits for Amendment 80 species would constrain the AFA fleet substantially beyond the degree intended under the AFA. Furthermore, this would create the potential for substantial portions of the BSAI trawl limited access sector allocation of Amendment 80 species to remain unharvested because only the limited number of non-AFA trawl catcher vessels would be able to harvest it once the AFA sideboard limits had been reached. The Council expressed concern over the potential for unharvested catch in the BSAI trawl limited access sector. The Program would address this concern by amending the AFA sideboard regulations. AFA sideboard limits for Amendment 80 species, except Pacific cod and AFA catcher/processor sideboards for Atka mackerel, would be calculated by multiplying the sideboard ratio for a given groundfish species set forth in § 679.64 by the TAC remaining after the allocation of 10.7 percent of the TAC to the CDQ Program has been deducted. Depending on the portion of ITAC allocated to the trawl limited access fishery, the sideboard limits for some of the Amendment 80 species will be greater than the allocation. For example, the combined AFA catcher/processor and AFA catcher vessel yellowfin sole sideboard limit for the AFA sectors is approximately 29 percent of the TAC after allocation to the CDQ Program. Any allocation of yellowfin sole to the BSAI trawl limited access sector less than 29 percent of the ITAC would result in sideboard limit amounts greater than the allocation and would not be constraining. The potential effects of modifying AFA sideboard limits on non-AFA trawl catcher vessels in the BSAI trawl limited access sector is addressed in Part G of this section of the preamble. C. AFA Sideboard Limits for Halibut and Crab PSC in the BSAI 1. AFA Halibut PSC Sideboard Limits The Program would modify AFA PSC sideboard limits in the BSAI. Under current regulations, AFA halibut PSC sideboard limits for catcher vessels are assigned to specific fishery complexes. A total of 875 mt of halibut PSC would be assigned to the BSAI trawl limited access sector, which would be further apportioned among specific fishery complexes (e.g., Pacific cod, yellowfin sole). Currently, AFA halibut PSC sideboard limits are calculated based on a proportion of the halibut PSC available to either catcher/processors or catcher vessels. As noted in the previous section, this calculation method would result in sideboard limits for AFA catcher vessels being set based on a proportion of the 875 mt limit established for the BSAI trawl limited access sector. Computing halibut PSC limits for AFA catcher vessels based on a proportion of 875 mt would result in small sideboard limits that would substantially constrain harvests by AFA catcher vessels. The Program would address this concern by fixing the halibut PSC sideboard limits for AFA catcher/processors and AFA catcher vessels in each fishery complex in the BSAI at the levels established in the 2006 and 2007 final harvest specifications (March 3, 2006; 71 FR 10894) and listed in Table 40 to part 679 in the proposed regulatory text. Once the overall AFA halibut PSC sideboard limit is established in regulation, NMFS would apportion the amount of halibut PSC sideboard for the yellowfin sole and the rock sole/flathead sole/other flatfish categories by season through the annual specification process, which is the current practice. Setting the AFA catcher vessel halibut PSC sideboard limit at a fixed limit reflective of past AFA sideboard limits would prevent AFA catcher vessels from being unduly constrained relative to PSC limits. Fixing the AFA catcher/processor sideboard limits at a fixed amount based on the 2006 and 2007 final harvest specifications would prevent AFA catcher/processors from being unduly constrained by halibut PSC sideboard limits. Current regulations in § 679.64(a)(5) compute the AFA catcher/processor halibut PSC sideboard limit as a fixed ratio based on halibut PSC use in 1995 through 1997 multiplied by “the PSC limit of [halibut] available to catcher/processors in the year in which the harvest limit will be in effect.” As noted in Table 6 of this preamble, the amount of halibut PSC that is “available to catcher/processors” decreases on an annual basis beginning in 2009 because a portion of the halibut PSC limit assigned to the Amendment 80 sector (i.e., catcher/processors) is decreased by 50 mt per year. This would result in a reduction of the AFA catcher/processor sideboard limit. It does not appear that the Council intended to reduce the AFA catcher/processor halibut PSC sideboard limit with this action, and fixing the AFA catcher/processor halibut PSC limit at the amount established in the 2006 and 2007 final harvest specifications would best meet the Council's apparent intent. 2. AFA Crab PSC Sideboard Limits in the BSAI The Program would also modify AFA crab PSC sideboard limits in the BSAI. The Program would assign each crab PSC to the BSAI trawl limited access fisheries equal to the sum of the AFA catcher/processor and AFA catcher vessel sideboard limits. Currently, crab PSC sideboard limits for the AFA catcher/processors are set at a percentage of the overall trawl crab PSC limit ( *e.g.* , a fixed percentage of the total Zone 1 *C. bairdi* trawl PSC limit is assigned as an AFA catcher/processor sideboard limit for that crab PSC). This amount is calculated annually by multiplying the AFA catcher/processor sideboard ratio for a crab PSC species which is described in regulation in § 679.64, by the trawl crab PSC limit “available to catcher/processors.” Currently, the amount of trawl crab PSC available to catcher/processors is based on the total crab PSC limit, prior to any allocations to the CDQ Program. The Program would clarify that the amount of crab PSC “available to catcher/processors” is the amount of the trawl PSC limit available after allocation to the CDQ Program as crab PSQ. This change in calculation would slightly reduce the amount of the trawl crab PSC limit that is available to AFA catcher/processors. This clarification would be consistent with the overall intent of the Program to assign AFA sideboard limits, other than halibut PSC, after allocation to the CDQ Program. As described in the draft EA/RIR/IRFA, this change in the method for calculating the AFA catcher/processor crab PSC sideboard limit is not likely to be more constraining on the fleet than the current method for calculating the sideboard limit. Crab PSC has not historically been a limiting factor for AFA trawl catcher/processors. Unlike the AFA catcher/processor crab PSC sideboard limits, the AFA catcher vessel crab PSC sideboard limits are calculated at the level of specified target fishery categories, with separate crab PSC sideboard amounts for each target fishery (e.g., a specific amount of the trawl red king crab PSC limit is assigned as an AFA catcher vessel red king crab PSC sideboard limit for use in the yellowfin sole fishery). For AFA catcher vessels, the ratio of a crab PSC species assigned as a sideboard limit is based on the proportion of groundfish harvested by AFA catcher vessels in a specific target fishery category. Annually, an AFA catcher vessel crab PSC sideboard amount is determined by multiplying the sideboard ratio for a target fishery category, which is calculated based on criteria specified in regulation at § 679.64, by the crab PSC limit apportioned to the target fishery category through the annual harvest specification process. The current method of calculating the crab PSC AFA catcher vessel sideboard becomes problematic with the changes proposed under the Program. The current sideboard calculation method is dependent on the distribution of trawl crab PSC among the target fishery categories, and the AFA catcher vessel sideboard limit cannot be calculated until those amounts are determined in the annual harvest specification process (i.e., the sideboard calculation requires the output of the annual specification process). The annual harvest specification process, however, requires the amount of available limited access trawl PSC as an input, prior to determining that distribution. For the harvest specification process to function effectively, the amount of available crab PSC must be known, as that process distributes crab PSC among fisheries based on their crab PSC demands. Because the AFA catcher vessel sideboard limit calculation requires the output of the harvest specification process, and the harvest specification process requires the output of the sideboard calculation, an alternative approach is needed. The Program would determine the AFA catcher vessel crab PSC sideboard limit in a manner similar to that used to initially compute the AFA catcher/processor crab PSC sideboard ratio. The proportion of the total trawl crab PSC limit attributed to AFA catcher vessels would be calculated as the sum of the AFA catcher vessel PSC sideboard limits for each crab PSC species in all target fisheries divided by the sum of the total trawl PSC limit for that crab PSC species as described in the annual harvest specification process in each year. The draft EA/RIR/IRFA prepared for this proposed action summarizes the average percentage of the total trawl crab PSC limit that was available to AFA catcher vessels for each crab PSC species. The specific years used to calculate the average amount of the trawl crab PSC limit assigned to AFA catcher vessels are described in the draft EA/RIR/IRFA prepared for this proposed action (see ADDRESSES ). The draft EA/RIR/IRFA notes that the average amount of the trawl red king crab AFA sideboard limit in all target fisheries from 2000 through 2002 was used as the basis for determining the total AFA red king crab sideboard limit. These years are the same years used to determine the amount of the trawl red king crab PSC limit assigned to the Amendment 80 sector. Presumably, the Council intended to apply the same baseline years for computing AFA sideboard limits as were used to assign Amendment 80 sector red king crab allocations. Similarly, NMFS assumes that the same years (1995 through 2002) used to assign *C. opilio* crab to the Amendment 80 sector would be used to assign an AFA catcher vessel sideboard limit. However, a trawl specific *C. opilio* PSC limit was not established prior to 1999. Therefore, NMFS would apply the sum of the average *C. opilio* trawl PSC limit that would have been assigned to AFA catcher vessels from 1999 through 2002 as the AFA catcher vessel sideboard limit. NMFS assumes that the same years (1995 through 2002) used to assign Zone 1 and Zone 2 *C. bairdi* crab to the Amendment 80 sector would be used to assign an AFA catcher vessel sideboard limit. Therefore, NMFS would apply the sum of the average *C. bairdi* trawl PSC limit that would have been assigned to AFA catcher vessels from 1995 through 2002 as the AFA catcher vessel sideboard limit for Zone 1 and Zone 2 *C. bairdi* . The results of this change in the AFA crab PSC sideboard limit calculation are shown in Table 41 to part 679 in the proposed regulatory text. This method for assigning the AFA catcher vessel crab PSC sideboard limit would continue to constrain AFA catcher vessels to historic crab PSC use, but the method for computing that limit would be based on the overall trawl crab PSC limit historically used by AFA catcher vessels. As with the AFA catcher/processors, the ratio of crab PSC assigned to AFA catcher vessels would be multiplied by the amount of crab PSC for use by trawl gear after deduction for allocation of crab PSQ to the CDQ Program, consistent with the approach used for AFA catcher/processors. D. AFA Yellowfin Sole Sideboard Limit in the BSAI The Program would relieve AFA sideboard limits for yellowfin sole when the yellowfin sole ITAC reaches or exceeds 125,000 mt. Existing yellowfin sole AFA sideboard harvest limits would constrain the ability of AFA vessels to catch yellowfin sole at higher ITAC levels. Because yellowfin sole would be allocated to the Amendment 80 sector for exclusive harvest, the need for AFA sideboard limits would be greatly reduced because AFA vessels would not be directly competing with the vast majority of harvesters active in the yellowfin sole fishery. A small proportion of the BSAI trawl limited access sector includes non-AFA trawl catcher vessels. However, this group of harvesters would not be expected to be adversely affected by relieving AFA yellowfin sole sideboard limits at high yellowfin sole ITAC levels because non-AFA trawl catcher vessels have not historically harvested yellowfin sole. E. Reallocating Unused Pacific Cod Among the Trawl Sectors As discussed in Section IV of this preamble, the Program would, if necessary, modify regulations implemented under Amendment 85 so that unused Pacific cod in the Amendment 80 sector would not be reallocated to either the AFA catcher/processor or trawl catcher vessel sectors, the equivalent of the proposed BSAI trawl limited access sector described under the Program. Pending the approval and publication of a final rule implementing Amendment 85, the Program would not modify the mechanism for reassigning Pacific cod that is projected to be unharvested from either the AFA catcher/processor or the trawl catcher vessel sectors as those sectors are defined under Amendment 85. The proposed rule to Amendment 85 details a complex suite of measures to reallocate unharvested Pacific cod from the trawl catcher vessel and AFA catcher/processor sectors. The Program would not modify this procedure. F. Calculation of the Crab PSC Limit in the Red King Crab Savings Subarea (RKCSS) Current regulations at § 679.21(e)(3)(ii)(B) set a limit on the amount of red king crab that may be taken in a specific area of the southeast Bering Sea known as the RKCSS. The limit is determined during the annual harvest specification process, but may not exceed an amount equal to 35 percent of the red king crab PSC limit assigned to the rock sole, flathead sole, and “other rockfish” complex. NMFS would modify this provision to conform with the extensive changes proposed for crab PSC management in general under the Program. Under the Program, NMFS would no longer allocate red king crab PSC to the Amendment 80 sector on a fishery-specific basis. Therefore, it would not be possible to base the RKCSS limit on the amount of red king crab PSC assigned to the rocksole or flathead sole fisheries. NMFS proposes to resolve this conflict by modifying the RKCSS regulations to set the limit of red king crab PSC that could be used in the RKCSS as a percentage of the historic overall trawl red king crab PSC limit. During the period from 1998 through 2006, the RKCSS red king crab PSC limit has been set at 35 percent of the rock sole, flathead sole, and “other rockfish” allocation. This limit has ranged from 26.2 percent to 23.3 percent of the total red king crab PSC limit assigned for trawl gear, and has averaged 24.2 percent during this time period. From 2002 through 2006, the RKCSS limit has consistently been set at an amount equivalent to 23.3 percent of the total trawl red king crab PSC limit for trawl gear. Based on historic RKCSS limits, NMFS proposes to set the RKCSS maximum limit at 25 percent of the red king crab PSC limit. This limit is slightly greater than the average amount of trawl red king crab PSC assigned to the RKCSS limit in 1998 through 2004, but less than the limit in 1998, 2000, and 2001. The Council and NMFS could choose to set the RKCSS limit at any level lower than or equal to 25 percent of the red king crab PSC limit each year through the annual harvest specification process. NMFS notes that the RKCSS limit would continue to apply to both the Amendment 80 sector and BSAI trawl limited access sector under the Program. Therefore, it is possible that fishing patterns by Amendment 80 vessels and other trawl vessels in the RKCSS could cause the limit to be reached and the RKCSS to be closed to all trawl vessels. G. Effects on Non-AFA Trawl Catcher Vessels The Program would substantially reduce potential competition between AFA participants and the Amendment 80 sector through the allocations provided. Any modifications of AFA sideboard limits would not be expected to affect the Amendment 80 sector. Similarly, although the Program substantially modifies the AFA sideboard limits, it would not be expected to have an adverse effect on current participation patterns by non-AFA catcher vessels that are also participants in the BSAI trawl limited access sector. Historically, non-AFA trawl catcher vessels have not substantially participated in the harvest of Amendment 80 species other than Pacific cod. Changes in AFA sideboard limits, for all species except Pacific cod, would not be expected to adversely affect the non-AFA trawl catcher vessel fleet due to their already limited participation in these fisheries as described in the draft EA/RIR/IRFA prepared for this action (see ADDRESSES ). The allocation of Pacific cod among trawl fishery participants was addressed during the development of Amendment 85 to the FMP and is detailed in the analyses prepared for that action (see the NMFS Web site at *http://www.fakr.noaa.gov* for additional detail on Amendment 85). During the development of Amendment 85, the Council considered allocation measures for the non-AFA trawl catcher vessel sector and recommended an allocation mechanism that would combine AFA and non-AFA catcher vessel allocations. This proposed action would not modify AFA sideboard limits for Pacific cod. Nothing proposed in the Program would modify the effects of Pacific cod allocations and competition among AFA and non-AFA vessels in a manner not previously considered during the development of Amendment 85. H. Processing and Receiving Catch The Council clearly recommended that persons who are not participants in the Amendment 80 sector be prohibited from catching Amendment 80 species assigned to the Amendment 80 sector. It is also clear that the Council intended to prohibit Amendment 80 vessels from catching Amendment 80 species assigned to the BSAI trawl limited access sector. The Council noted that Amendment 80 vessel owners and operators, specifically Amendment 80 vessel owners and operators participating in Amendment 80 cooperatives, could consolidate fishing operations, receive CQ from other cooperatives, and otherwise benefit from the exclusive harvesting privileges this proposed LAPP provides. Because Amendment 80 vessels could also process catch onboard, the allocation of a portion of the ITAC to the Amendment 80 sector would effectively provide exclusive processing opportunities for that amount of the ITAC to Amendment 80 vessels. Conceivably, Amendment 80 vessels in cooperatives could consolidate processing activities. It is not clear that the Council considered or intended that Amendment 80 vessels should serve as processing platforms for multiple cooperatives, harvesters in the Amendment 80 limited access fishery, and the BSAI trawl limited access sector. Processing restrictions for other cooperatives and the Amendment 80 limited access fishery are discussed in Sections VII and VIII of this preamble. Therefore, the proposed rule would prohibit any Amendment 80 vessel from catching, receiving, or processing fish assigned to the BSAI trawl limited access sector. NMFS has determined that this prohibition would best meet the Council's recommendation to provide an allocation of ITAC to the Amendment 80 sector, but not encourage the consolidation of fishing or processing operations in the BSAI trawl limited access sector. Additionally, allowing Amendment 80 vessels to receive or process fish caught by vessels in the BSAI trawl limited access sector could allow Amendment 80 vessels to serve as motherships (i.e., a processing platform that is not fixed to a single geographic location), or stationary floating processors, for the BSAI trawl limited access sector fleet. This could increase the potential that catch formerly delivered and processed onshore, or at specific facilities onshore, could be delivered and processed offshore. This change in processing operations could have economic effects. The Council did not specifically address these issues at the time of final Council action. Additionally, combining Amendment 80 and BSAI trawl limited access sector catch could increase the potential recordkeeping and reporting, and M&E complexities, that may arise from tracking catch derived from the Amendment 80 and BSAI trawl limited access sectors onboard one vessel. In particular, monitoring compliance with the GRS may prove problematic if catch is combined onboard a single vessel. NMFS does have some experience tracking catch delivered to a vessel from multiple vessels that are assigned to multiple cooperatives in the AFA. However, in most cases, the vessels receiving catch are not actively engaged in fishing operations at the same time and serve exclusively as a processing platform. Additionally, tracking pollock catch in the AFA and properly assigning it to a specific cooperative, is less difficult than tracking multiple species, halibut PSC, and crab PSC as would be required in the Program. If NMFS were to permit the delivery of catch from the BSAI trawl limited access sector to an Amendment 80 vessel, NMFS would likely have to limit the Amendment 80 vessel so that it could only operate as either a mothership or stationary floating processor or as a fishing vessel on a week-by-week basis consistent with the weekly production report

(WPR)reporting period. Additional changes in M&E requirements and recordkeeping and reporting for Amendment 80 vessels receiving catch may also be necessary. NMFS welcomes comment on this proposed prohibition from persons involved in existing and planned harvesting and processing operations for Amendment 80 species in the BSAI. VI. Amendment 80 QS NMFS proposes to use the term quota share

(QS)to describe the multi-year privilege that would enable a person to receive exclusive harvest privileges under the Program. QS assigned to a person would confer an opportunity for a person to receive an exclusive harvest privilege if certain conditions are met. QS would provide a harvest privilege, not a right, to its holder. NMFS would allocate QS for each of the Amendment 80 species to a person who is eligible to participate in the Amendment 80 sector as defined in the CRP (see Section II of this preamble for more detail) and who applies to receive Amendment 80 QS in a timely fashion. NMFS would base the amount of QS issued to a person on the amount of legal catch made by an Amendment 80 vessel according to the official record developed by NMFS. A. Eligibility To Receive Amendment 80 QS As noted in the discussion of the CRP, participation in the Amendment 80 sector is limited to persons who meet the qualifications under that statute. However, the CRP did not specifically define the criteria that may be used to allocate Amendment 80 QS among eligible participants in the Amendment 80 sector. The Program contains provisions that would allocate Amendment 80 QS in consideration of historic and recent harvest patterns, and would accommodate specific conditions that could adversely affect the ability of an Amendment 80 vessel from being used to harvest fish in the Amendment 80 sector. B. Method for Allocating Amendment 80 QS—General Provisions The Council considered a range of alternative methods for allocating QS to participants in the Amendment 80 sector in the development of the Program. These alternatives are addresses in the draft EA/RIR/IRFA developed to support this proposed action (see ADDRESSES ). The Program would balance allocation among recent and historic participants. As with other QS programs (e.g., BSAI Crab Rationalization, and IFQ halibut and sablefish), the Program would allocate QS based on historic and recent harvests rather than allocating QS to Amendment 80 sector participants based on alternative methods such as allocating equal shares or auctioning off QS. In other North Pacific LAPPs, the Council has recommended, and NMFS has allocated, QS based on landings that occurred during a specific time period as a means of equitably distributing QS to participants based on their relative dependance on the fishery. 1. Species Allocated QS Under the Program (Amendment 80 Species) The six non-pollock groundfish species that would be subject to an allocation of Amendment 80 QS under the Program are: AI POP, BSAI Atka mackerel, BSAI flathead sole, BSAI Pacific cod, BSAI rock sole, and BSAI yellowfin sole. The Program would allocate Amendment 80 QS only for these non-pollock groundfish species, which have historically been fully used and for which quota-based management is likely to result in reductions in the “race for fish.” Historic catch of non-Amendment 80 species would not result in Amendment 80 QS allocated to the Amendment 80 sector. The draft EA/RIR/IRFA prepared for this action details harvest rates and amounts for all of the non-pollock species (see ADDRESSES ). Several groundfish species ( *e.g.,* Alaska plaice, arrowtooth flounder, and Greenland turbot) are not fully harvested because markets for these species are nascent and economically viable product forms have not been developed. The Council did not recommend allocating these species under the Program while these markets and products are developed by the trawl and non-trawl fisheries. Other species ( *e.g.,* squid) have not been historically harvested by Amendment 80 vessels and the Council did not recommend allocating these species to the Amendment 80 sector because there is no clear historic or current fishing dependance on these species. Furthermore, it was not clear that allocation of these species to the Program would result in any clear conservation or management benefit; yet could adversely affect harvest patterns by other fishery participants ( *e.g.,* AFA catcher vessels) that are more likely to harvest these species. Other species ( *e.g.,* Aleutian Islands northern rockfish) are not open to directed fishing and are currently harvested incidental to other target species. Allocating those species based on historic catch would include incidental harvests, and in some cases a large percentage of those incidentally harvested fish were discarded. Allocating species such as Aleutian Islands northern rockfish could advantage harvesters who have high bycatch rates relative to harvesters using more selective methods to target catch. Allocating such species to Amendment 80 participants would reward harvesters with high incidental catch, and possibly high discard rates, and frustrate the intent of the Program to encourage lower bycatch and discard rates. The Council did note that if subsequent review indicates that other groundfish species could be more conservatively managed through the LAPP management, those species could be added to the Program through a separate FMP amendment and rulemaking process. 2. Pacific Cod as an Amendment 80 Species As noted in Section IV of this preamble, Pacific cod would be considered an Amendment 80 species for purposes of Amendment 80 QS allocation. The Program would allocate Pacific cod QS using the same years for determining qualifying harvests as applicable to the other Amendment 80 species ( *i.e.,* the highest tonnage of harvests during the five of seven years from 1998 through 2004). The draft EA/RIR/IRFA developed for the Program analyzed the effects of allocating Pacific cod to the Amendment 80 sector as QS (see ADDRESSES ). As noted earlier, Pacific cod would be subject to the same restrictions applicable to other Amendment 80 species ( *e.g.,* cooperatives would be issued TAC, rollover of unused BSAI trawl limited access sector ITAC could be rolled over to Amendment 80 cooperatives). 3. Years of Fishing Activity That Yield QS: 1998 Through 2004 The Program would implement an allocation of QS based on catch for each Amendment 80 species using an Amendment 80 vessel during the period from 1998 through 2004. After reviewing various catch patterns within the fishery, the Council selected this time period to accommodate historically and recently active fishery participants. The Council concluded that catch patterns during this seven-year period were considered to represent a reasonable range of catch and participation patterns in the fishery, and catch by Amendment 80 vessels before 1998 was not representative of the current catch patterns and its inclusion would unduly limit the allocation of QS to more recent participants. Harvest patterns from 1998 until 2004, the most recent available harvest data at the time of final Council action in June 2006, were selected to accommodate recent participants and harvest patterns. Furthermore, the range of harvest patterns reviewed by the Council and used as the basis for allocation of QS included the recommendations made by Amendment 80 participants during the development of the Program. The Council also recommended allocating QS based on a subset of catch from the seven years from 1998 through 2004. On occasion, a vessel or operator may have been unable to fish due to unforeseen circumstances ( *e.g.,* mechanical problems with the vessel, or medical emergencies that affected crew and limited catch), or had poor catch due to the conditions in the fishery for that year ( *e.g.,* lower TAC, unusual distribution of catch affecting harvest patterns, closure of the fishery before a vessel could maximize its harvest). The Council recommended accommodating these issues by having NMFS select the best five of seven years of catch, by tonnage, for each Amendment 80 species landed by an Amendment 80 vessel as the basis for allocating Amendment 80 QS. The net effect of this provision is that some years of poor catch would not be included in the calculation for allocating Amendment 80 QS. This provision would moderate the affect of poor harvests in some years and would weight the average catch by an Amendment 80 vessel to favor years with better overall catch. Generally, QS for a given Amendment 80 species would be allocated based on the percentage of the sum of the best five of seven years of harvest from a specific Amendment 80 vessel compared with the sum of the best five of seven years of harvest of that species by all Amendment 80 vessels. 4. Legal Landings that Result in QS The Program would base the allocation of QS on “legal landings.” The Program would define a legal landing as all catch made by an Amendment 80 vessel during the qualifying years (1998 through 2004), and reported in compliance with State and Federal regulations in effect at the time of landing. A legal landing would include only the catch of groundfish from the BSAI that is recorded on a NMFS weekly production report

(WPR)during the qualifying years. Catch that was not legally reported or caught would not be considered a legal landing. Additionally, Amendment 80 species caught under an experimental fishing permit, scientific research permit, or while participating in the CDQ Program would not be considered for allocation of Amendment 80 QS. Fishing opportunities under these permits or the CDQ Program were not available to all participants during the qualifying years and would provide undue advantage to a subset of fishery participants. Excluding catch under these conditions would be consistent with the approach used in other LAPPs (e.g., BSAI Crab Rationalization Program and Central GOA Rockfish Program). The Program would use WPRs as the basis to assign legal landings because they represent the most complete record of catch by a vessel. Although alternative methods could be used to assign catch to a vessel, such as using data blended from WPRs and observer reports, observer coverage on vessels varied widely. Under such an approach, an Amendment 80 vessel could be assigned a catch rate that could differ substantially from that vessel's WPR records. The most complete source of vessel-specific catch during the qualifying period. comes from WPR records because all vessels are required to submit WPRs. Unlike other LAPPs that exclude discarded catch as a legal landing, the Council recommended that the Program consider “total catch” as the basis for allocating QS for a variety of reasons. Total catch includes fish that are caught and retained, as well as fish that are caught and then discarded. The Program would not exclude catch incidentally caught in other fisheries or by a specific gear types. All legally reported catch on a WPR would be included for purposes of QS allocation. As an example, all of the Amendment 80 vessel operators recorded catch on WPRs using non-pelagic trawl gear. Several Amendment 80 vessels also recorded catch on their WPRs using pelagic trawl gear and hook-and-line gear. Although these catches represent a small proportion of the total catch, that catch would be considered an Amendment 80 legal landing and would be included for purposes of allocating Amendment 80 QS. A review of total catch versus retained catch data indicated that smaller Amendment 80 vessels (e.g., vessels under 200 ft (61 m) LOA) tended to discard a greater proportion of their catch relative to larger vessels. Most likely, this is due to reduced storage capacity on smaller vessels, particularly for species that were incidentally caught while directed fishing for different Amendment 80 target species (e.g., flathead sole may have been discarded while vessels targeted yellowfin sole). On average, smaller vessels would have a smaller proportion of the total retained landings, and therefore would be issued a smaller percentage of the total QS allocation, if retained catch were used instead of total catch to calculate the distribution of QS. NMFS would assign legal landings to the Amendment 80 vessel on which those landings were made and not to any other Amendment 80 vessel. Furthermore, NMFS would not consider Amendment 80 legal landings to be directly or indirectly transferrable from one Amendment 80 vessel to another Amendment 80 vessel. As an example, private contractual arrangements to assign legal landings from one Amendment 80 vessel to a specific groundfish vessel moratorium permit (for legal landings prior to 2000), or to a specific LLP license (for legal landings in 2000 through 2004), or any other contract or other legal instrument that might address assigning legal landings from an Amendment 80 vessel to another Amendment 80 vessel would not be considered by NMFS for the purposes of allocating QS. This restriction would

(1)Insure that claims for specific legal landings are not in dispute among Amendment 80 vessel owners;

(2)reduce the potential for complicated and lengthy appeals; and

(3)be consistent with the clear intent of the Program to assign legal landings to specific Amendment 80 vessels based on the catch physically made by an Amendment 80 vessel. 5. Amendment 80 Official Record As with other LAPPs developed by the Council, such as the BSAI Crab Rationalization Program, NMFS would establish an Amendment 80 official record containing all necessary information concerning Amendment 80 legal landings made by all Amendment 80 vessels during the seven-year qualifying period, Amendment 80 vessel ownership, Amendment 80 LLP license holdings, and any other information needed for assigning QS. NMFS would produce the official record from data including NMFS WPRs, LLP licenses assigned to the Amendment 80 sector, and other relevant information. NMFS would presume the official record is correct and an applicant wishing to amend the official record would have the burden of establishing otherwise through an evidentiary and appeals process. That process is described in Part D of this section below. The official record would also be used to establish the initial pool of QS that would be distributed to participants in the Amendment 80 sector. There are several methods that have been used in other LAPPs to establish an initial QS pool: Fixing the initial QS pool amounts based on past harvest patterns (e.g., BSAI Crab Rationalization Program), or using a baseline year of harvests and converting those harvests to quota share units (e.g., Central GOA Rockfish Program). Administratively, the simplest and clearest method for establishing the initial QS pool for a given Amendment 80 species is to set the initial QS pool at an amount equal to the sum of the highest five of seven years of legal landings, in metric tons (mt), for all Amendment 80 vessels. This method is similar to that used for establishing the QS pool in the halibut and sablefish IFQ program. Each metric ton of legal landing credited to an Amendment 80 vessel would result in one QS unit, with specific modifications for yellowfin sole, flathead sole, and rock sole, as discussed in Part I of this section below. This initial QS pool would be adjusted should the official record be amended through successful claims brought by Amendment 80 sector participants or other corrections to the underlying data. See Part D of this section below for more detail. As with other LAPPs (e.g., Central GOA Rockfish Program), NMFS would establish use caps using this initial QS pool. Use caps are described further under Section IX of this preamble. C. Application for Amendment 80 QS A person would be required to submit an application for Amendment 80 QS in order to receive Amendment 80 QS initially. NMFS would require an application to ensure that QS is assigned to the appropriate persons, and to provide a process for resolving claims for legal landings that are contrary to the official record. Once a person submits an application for QS that is approved by NMFS, that person would not need to resubmit an application for QS in future years. Unlike other LAPPs (e.g., Central GOA Rockfish Program) that provided only a single application period to receive QS after which no additional applications would be accepted by NMFS, NMFS would accept applications for Amendment 80 QS on an annual basis. This change is necessary to accommodate the specific statutory language in the CRP that does not grant NMFS the authority to permanently deny eligibility to participate in the Program for failure to meet an application deadline. NMFS would require that all applications for Amendment 80 QS be received not later than 5 p.m., Alaska local time, on October 15 or postmarked by that date if the application is mailed, to receive QS for use in the following calendar year. Although a person could apply to receive Amendment 80 QS by October 15 of the following year if they missed the application deadline for the previous year(s), once NMFS approves an application for QS, it would not need to be resubmitted annually. NMFS would mail an application package to all potentially eligible Amendment 80 vessel owners and Amendment 80 LLP holders based on the address on record at the time the application period opens. NMFS would facilitate the application process by making the application form available on the NMFS, Alaska Region Web site at *http://www.fakr.noaa.gov.* Interested persons also could contact NMFS to request an application package. An application could be submitted by mail, fax, or hand delivery. The proposed regulatory text at § 679.90(b) provides addresses and delivery locations. The proposed regulatory text at § 679.90(b) details the information required in an application. Briefly, the application would contain the following elements: • Identification and contact information for the applicant; • Information on the Amendment 80 vessel(s) owned by the applicant; • Amendment 80 LLP licenses held by the applicant; • If applicable, clear and unambiguous documentation that an Amendment 80 vessel that has suffered an actual total loss, constructive total loss, or is permanently ineligible to fish in U.S. waters; • If applicable, a copy of a written contract held by the applicant that clearly and unambiguously provides that the owner of the Amendment 80 vessel has transferred all eligibility to participate in the Program based on the Amendment 80 legal landings from that Amendment 80 vessel to the person holding the Amendment 80 LLP license originally assigned to that Amendment 80 vessel; • Any other information deemed necessary by NMFS for assigning QS; and • The applicant's signature and certification. If the application is completed on behalf of the potential QS recipient, authorization for that person to act on behalf of that person. D. Reviewing and Appealing a QS Application NMFS would evaluate applications submitted during the specified application period and compare all claims in an application with the information in the official record. NMFS would accept claims in an application it determines to be consistent with information in the official record. NMFS would not accept inconsistent claims in the applications, unless verified by documentation. An applicant who submits inconsistent claims, or an applicant who fails to submit information supporting his or her claims with their application, would be provided a single 30-day evidentiary period to submit the supporting information, evidence to verify his or her inconsistent claims, or a revised application with claims consistent with information in the official record. An applicant who submits claims that are inconsistent with information in the official record would have the burden of proving that the submitted claims are correct. NMFS would evaluate additional information or evidence to support an applicant's inconsistent claims submitted prior to or within the 30-day evidentiary period. If NMFS determines that the additional information or evidence proves that the applicant's inconsistent claims in his or her application were indeed correct, NMFS would amend the official record with that information or evidence. NMFS would use the amended official record to determine the applicant's eligibility. However, if after the 30-day evidentiary period, NMFS were to determine that the additional information or evidence did not prove that the applicant's inconsistent claims in his or her application were correct, NMFS would deny the appeal. NMFS would notify the applicant that the additional information or evidence did not meet the burden of proof to change the official record through an initial administrative determination (IAD). NMFS' IAD would indicate the deficiencies and discrepancies in the application, or revised application, including any deficiencies in the information or the evidence submitted in support of the information. NMFS' IAD would indicate which claims could not be approved based on the available information or evidence, and provide information on how an applicant could appeal an IAD. The appeals process is described under 50 CFR 679.43. An applicant who appeals an IAD would not receive any QS based on contested landing data unless and until the appeal was resolved in the applicant's favor. Once NMFS has approved an application for Amendment 80 QS in its entirety, an Amendment 80 QS permit with a specified amount of Amendment 80 QS units derived from the amount of legal landings of each Amendment 80 species attributable to a specific Amendment 80 vessel would be assigned to the applicant. E. Assigning an Amendment 80 QS Permit to an Amendment 80 Vessel Owner After reviewing applications for Amendment 80 QS, comparing those applications to the official record, and resolving inconsistencies in claims for legal landings, NMFS would issue an Amendment 80 QS permit that lists the total amount of QS units issued for each Amendment 80 species for each applicant. The legal landings from an Amendment 80 vessel would give rise to only one Amendment 80 QS permit. Given existing information, NMFS anticipates issuing 28 Amendment 80 QS permits based on the legal landings of the 28 Amendment 80 vessels that have been identified in NMFS's WPR database. If additional vessels not listed under Table 1 of this preamble are determined to be eligible for the Program, additional Amendment 80 QS permits could be issued to persons based on legal landings from those vessels. Once an Amendment 80 QS permit is issued, the QS units assigned to that QS permit would remain with that QS permit and could not be severed or otherwise be transferred independently from the rest of the QS permit. The Amendment 80 QS permit would be issued to the person identified in an approved application for QS. In most cases, the person receiving the QS would be the Amendment 80 vessel owner. F. Assigning an Amendment 80 QS Permit to an Amendment 80 LLP License for Lost or Ineligible Vessels The Program would ensure that an Amendment 80 QS permit resulting from the legal landings of an Amendment 80 vessel could be used even if an Amendment 80 vessel were lost or became permanently ineligible to fish in U.S. waters. Under certain conditions, NMFS would issue an Amendment 80 QS permit to the holder of the Amendment 80 LLP license originally assigned to an Amendment 80 vessel rather than the Amendment 80 vessel owner. The list of Amendment 80 LLP licenses originally assigned to an Amendment 80 vessel is provided in the proposed Table 31 to part 679. An Amendment 80 QS permit would be issued to the Amendment 80 LLP license holder either

(1)During the initial allocation of QS; or

(2)after the initial issuance of QS as described under the Part G of this section below. This provision is intended to allow a person to continue participation in the Amendment 80 sector if otherwise qualified. During the development of the Program, this provision was considered as a means for meeting the overall intent of the Program to allow a person to use QS under specific conditions without contravening the intent of the CRP. As an example, the F/V ARCTIC ROSE has sunk, and the F/V BERING ENTERPRISE cannot be documented as a U.S. fishing vessel and that vessel is not eligible for a fishery endorsement under fishing vessel documentation regulations at 46 U.S.C. 12108. The provision to assign a QS permit to an Amendment 80 LLP license would apply only if an Amendment 80 vessel suffered an actual total loss, constructive total loss, or became permanently ineligible to fish in the BSAI. The terms “actual total loss” and “constructive total loss” are commonly used in the business of insuring marine vessels. For additional clarity, NMFS is considering defining these terms in a separate rulemaking action that is anticipated to be effective before the Program. NMFS does not propose defining those terms in the regulatory text for the Program. Permanent ineligibility to fish in U.S. waters would apply only if an Amendment 80 vessel's USCG documentation has a permanent restriction prohibiting that vessel from holding a fishery endorsement under 46 U.S.C. 12108. Temporary conditions that limit the ability of an Amendment 80 vessel to fish would not constitute permanent ineligibility. As an example, an Amendment 80 vessel that is not designated on an LLP license, fails to maintain adequate observer coverage, is undergoing repair, fishes in another fishery outside the BSAI, or any similar temporary condition, would not be considered to be permanently ineligible to fish. All of the examples provided above are temporary and could be resolved. The Amendment 80 vessel could be designated on an LLP license, maintain adequate coverage, complete repair, transit to the BSAI and begin fishing, or otherwise address the temporary condition. NMFS welcomes comment on the proposed interpretation of this specific provision. NMFS would require that the following conditions be met to assign an Amendment 80 QS permit to an Amendment 80 LLP license: a. The Amendment 80 vessel has suffered an actual total loss, constructive total loss, or is permanently ineligible to fish and that fact can be verified by NMFS; b. The owner of the Amendment 80 vessel that has been lost or is permanently ineligible has transferred the rights to receive QS to the holder of the Amendment 80 LLP license originally assigned to that Amendment 80 vessel through a clear and unambiguous written contract, and a copy of that contract is provided to NMFS; and c. The holder of the Amendment 80 LLP license originally assigned to that Amendment 80 vessel applies to receive the QS in a timely fashion and provides the necessary information. Once an Amendment 80 QS permit is assigned to an Amendment 80 LLP license, it is permanently affixed to that LLP license. NMFS proposes to term this modified Amendment 80 LLP license with an affixed Amendment 80 QS permit an “Amendment 80 LLP/QS license.” G. Transferring QS 1. Limits on Transferring QS Permits Once issued, a QS permit assigned to a specific Amendment 80 vessel or to an Amendment 80 LLP license originally assigned to an Amendment 80 vessel could only be transferred in its entirety. The Program would not allow an Amendment 80 QS permit to be subdivided once allocated. Rather than allowing an Amendment 80 QS permit to be subdivided, participants could form Amendment 80 cooperatives and transfer the annual CQ among the cooperatives (see Section VII of this preamble). Subdivision of QS permits would subvert the clear intent of the Program to maintain a fixed number of Amendment 80 QS permits and to encourage QS holders to form cooperative harvest arrangements to meet specific harvesting goals. 2. Methods for Transferring QS Permits NMFS would approve all transfers of QS permits to properly track ownership and use cap accounting. Once issued, QS could be transferred in one of three ways: a. An Amendment 80 vessel owner assigned a QS permit could transfer (i.e., sell) the Amendment 80 vessel and the QS permit assigned to that Amendment 80 vessel to another person eligible to own a U.S. fishing vessel (i.e., document that Amendment 80 vessel under MARAD regulations); b. Upon the actual total loss, constructive total loss, or permanent ineligibility of an Amendment 80 vessel that is assigned a QS permit, the Amendment 80 vessel owner could transfer the QS permit to the Amendment 80 LLP license originally issued for that Amendment 80 vessel (see Table 31 to part 679 in the proposed regulatory text for a list of those LLP licences); or c. An Amendment 80 LLP license with a QS permit assigned to it could be transferred to another person through the existing LLP transfer provisions described in regulations at 50 CFR 679.4(k)(7). 3. Assigning an Amendment 80 QS Permit to an Amendment 80 LLP License During the development of the Program, the Council recommended that QS be permitted to be transferred to the LLP license originally issued for that vessel, if a vessel were lost or permanently ineligible to fish. NMFS has interpreted this provision to allow a QS permit to be assigned to the permanent fully transferrable LLP license that was originally derived from the Amendment 80 vessel used to originally qualify for the LLP in 2000, with one exception. All Amendment 80 vessels except the F/V ENTERPRISE had documented landings that resulted in an LLP license being issued in 2000 based on the fishing activities of those vessels. Using the terms in the LLP, all Amendment 80 vessels except the F/V ENTERPRISE were original qualifying vessels that gave rise to LLP licenses endorsed for trawl gear in the BSAI with a catcher/processor designation (see regulations at 50 CFR 679.4(k) for additional detail). The F/V ENTERPRISE did not give rise to an LLP license. Because the F/V ENTERPRISE did not give rise to an LLP license, if NMFS were to permit a QS permit to be transferred only to the LLP license originally issued to an Amendment 80 vessel, the QS permit issued to the owner of the F/V ENTERPRISE could not be assigned to any LLP license. If the F/V ENTERPRISE was lost or became permanently ineligible to fish in U.S. waters, the QS issued to the owner of the F/V ENTERPRISE could be extinguished. To address this apparently unique situation, NMFS would propose defining the LLP license to which the QS permit issued to the owner of the F/V ENTERPRISE could be transferred in the event that vessel is lost or becomes permanently ineligible to fish. Since the implementation of the LLP in 2000, the F/V ENTERPRISE has apparently fished under the authority of one LLP license (LLP license number LLG 4831). Therefore, NMFS would permit the transfer of an Amendment 80 QS permit assigned to the owner of the F/V ENTERPRISE to LLG 4831 should the F/V ENTERPRISE suffer an actual total loss, constructive total loss, or otherwise become permanently ineligible to fish in U.S. waters. NMFS welcomes comment on this proposed requirement. Table 31 to part 679 in the proposed regulatory text lists the LLP licenses originally assigned to each Amendment 80 vessel. An Amendment 80 QS permit assigned to an Amendment 80 vessel would only be assigned to these LLP licenses. 4. Application To Transfer Amendment 80 QS In order to transfer an Amendment 80 QS permit, an Amendment 80 QS holder would have to submit to NMFS an application to transfer Amendment 80 QS. NMFS would require that the following information be submitted as part of a transfer application: • Transferor identification; • Type of transfer (i.e., transfer of QS permit and Amendment 80 vessel to another person, transfer of QS to an Amendment 80 LLP license if a vessel has been lost); • Information for transfers of Amendment 80 QS to another person. If transferring Amendment 80 QS permit assigned to an Amendment 80 vessel to another person, a USCG abstract of title or certificate of documentation which clearly and unambiguously indicates that the Amendment 80 QS permit transferee is named on the abstract of title or USCG documentation as the owner of the Amendment 80 vessel to which that Amendment 80 QS permit is assigned would need to be attached; • Information for transfers of Amendment 80 QS permits to an Amendment 80 LLP license. If transferring Amendment 80 QS permit assigned to an Amendment 80 vessel to the Amendment 80 LLP license originally assigned to an Amendment 80 vessel, the applicant would need to provide clear and unambiguous written documentation that can be verified by NMFS that the Amendment 80 vessel is no longer able to be used in the Program due to the actual total loss, constructive total loss, or permanent ineligibility of that vessel; • Certification of transferor. The transferor must sign and date the application certifying that all information is true, correct, and complete to the best of his or her knowledge and belief; • Transferee information; and • Certification of transferee. The transferee must sign and date the application certifying that all information is true, correct, and complete to the best of his or her knowledge and belief. An application to transfer Amendment 80 QS could be submitted by mail, fax or hand delivered (see regulatory text at § 679.90(f) for detailed information). Transfer forms would also be posted on the NMFS Web site at *http://www.fakr.noaa.gov* . H. Issuance of QS After the Fishing Year Begins Any Amendment 80 QS permit, or any additional Amendment 80 QS units for an Amendment 80 species that is assigned to an Amendment 80 QS permit after NMFS has issued CQ or ITAC to the Amendment 80 limited access fishery for that calendar year would not result:

(1)In any additional CQ being issued to an Amendment 80 cooperative if that person has assigned his Amendment 80 QS to an Amendment 80 cooperative for that calendar year; or

(2)ITAC being issued to the Amendment 80 limited access fishery if that person has assigned his Amendment 80 QS to the Amendment 80 limited access fishery for that calendar year. This requirement would ensure that if an appeal, operation of law, or other fact amends an Amendment 80 QS permit after NMFS has issued CQ or ITAC for the calendar year, NMFS would not be required to remove a portion of the CQ or ITAC issued to other participants in the fishery during the fishing year, to accommodate a change in one person's QS holdings. Any such adjustment could adversely affect all other Amendment 80 sector participants. The following year, the person with the amended Amendment 80 QS permit could assign that permit to an Amendment 80 fishery that would result in either CQ if that QS was assigned to a cooperative, or ITAC if assigned to the Amendment 80 limited access fishery. I. Method for Allocating QS—Specific Provisions The Council recommended that the Program consider unique conditions that may exist in each Amendment 80 species fishery or that may apply to specific Amendment 80 vessels in the allocation of QS. In particular, the Program would establish specific mechanisms to

(1)Allocate Amendment 80 QS to Amendment 80 vessels that do not have Amendment 80 legal landings during the 1998 through 2004 period;

(2)assign legal landings and allocate QS for Amendment 80 species, other than Atka mackerel; and

(3)allocate Atka mackerel QS to accommodate the harvest patterns of smaller Amendment 80 vessels. 1. Allocating QS to Amendment 80 Vessels With No Legal Landings The CRP defines the Amendment 80 vessels eligible participate in the Amendment 80 sector on three criteria, one of which relates to the catch of BSAI non-pollock groundfish between 1997 and 2002. However, the Council recommended using catch during 1998 through 2004 as the qualifying years that would be used to allocate QS. As a result, NMFS has preliminarily identified three Amendment 80 vessels, the F/V BERING ENTERPRISE, F/V HARVESTER ENTERPRISE, and F/V PROSPERITY, that were not used to catch Amendment 80 species during 1998 through 2004. All three vessels are eligible to participate in the Amendment 80 sector because the vessels were active in 1997 and harvested more than 150 mt of non-pollock groundfish. This circumstance creates the odd condition of these vessels being eligible to be used to fish in the Amendment 80 sector, but not eligible to generate any QS based on their historic catch patterns. Rather than adjust the qualifying years for receiving QS, the Program would accommodate these Amendment 80 vessels by assigning a small percentage of the legal catch to them that would then result in QS. The amount selected would represent an amount that could still provide a limited economic benefit to the owners of the Amendment 80 vessels, but that would not unduly affect those fishery participants by reducing their QS allocations excessively. The Council selected the specific allocations based on recommendations provided by the affected industry during the development of the Program. Each of these three Amendment 80 vessels would be assigned legal landings equivalent to 0.5 percent of the total yellowfin sole legal landings, 0.5 percent of the total rock sole legal landings, and 0.1 percent of the flathead sole legal landings. NMFS would make this allocation to the three Amendment 80 vessels by a proportional reduction to the total legal landings of yellowfin sole, rock sole, and flathead sole for the remaining 25 Amendment 80 vessels that have been identified thus far. 2. Assigning Legal Landings and Allocating QS for an Amendment 80 Species For each Amendment 80 species, NMFS would assign legal landings to each Amendment 80 vessel based on the five of seven years of the greatest tonnage of legal landings for each Amendment 80 species from the official record to derive the “Highest Five Years” for that Amendment 80 species. This calculation would be based on all catch in all management areas. (the numerator in the following equation). If an Amendment 80 vessel was not used to make legal landings in at least five of the seven years, NMFS would include years with zero tons of legal landings, if necessary. NMFS would also calculate the five of seven years of the greatest tonnage of legal landings for all Amendment 80 vessels for that Amendment 80 species from the official record and sum that amount to derive the “Σ All Highest Five Years” for that Amendment 80 species (the denominator in the following equation). The result of this equation is the percentage of the total legal landings that would be assigned to a specific Amendment 80 vessel: Highest Five Years for an Amendment 80 vessel/Σ All Highest Five Years for all Amendment 80 vessels x 100 = Percentage of the total legal landings for that Amendment 80 vessel. To determine the amount of AI Pacific ocean perch and Pacific cod QS units derived from the legal landings made by an Amendment 80 vessel, NMFS would multiply the percentage of the total for an Amendment 80 vessel by the initial QS pool for that species. The amount of QS units derived from this calculation would be assigned to the Amendment 80 QS permit derived from that Amendment 80 vessel. However, to determine the amount of yellowfin sole, rock sole, and flathead sole QS units derived from the legal landings made by an Amendment 80 vessel, NMFS would first need to accommodate the three Amendment 80 vessels that would be assigned a defined percentage of the legal landings assigned to an Amendment 80 vessel for these species. NMFS would need to adjust the percentage of the total yellowfin sole, rock sole, and flathead sole legal landings for all Amendment 80 vessels that made legal landings from 1998 through 2004. Each of the three vessels without legal landings in 1998 through 2004 would receive 0.5 percent of the yellowfin sole legal landings, 0.5 percent of the rock sole legal landings, 0.1 of the flathead sole legal landings. All other Amendment 80 vessels would have their yellowfin sole and rock sole legal landings reduced by 1.5 percent, and flathead sole legal landings reduced by 0.3 percent to accommodate those three vessels. Once the legal landings for rock sole, yellowfin sole, and flathead sole have been adjusted for an Amendment 80 vessel, NMFS would calculate the initial allocation of QS units for these species by multiplying the Adjusted percentage for an Amendment 80 vessel by the initial QS pool for that species. The amount of QS units derived from this calculation would be assigned to the Amendment 80 QS permit derived from that Amendment 80 vessel. 3. Assigning Atka Mackerel QS Assigning Atka mackerel QS derived from the legal landings of an Amendment 80 vessel would require several additional steps. After the percentage of Atka mackerel legal landings derived from an Amendment 80 vessel has been determined using the process described above, the Program would accommodate specific harvesting conditions in the Atka mackerel fishery. NMFS allocates Atka mackerel TAC to three distinct management areas, Area BS/541, Area 542, and Area 543, in consideration of stock abundance, distribution, and dynamics. Generally, most of the Atka mackerel TAC available for harvest is located in the Central Aleutian Islands (Area 542) and the Western Aleutian Islands (Area 543) management areas. During the qualifying years, these Atka mackerel fisheries were typically prosecuted by larger Amendment 80 vessels that specifically targeted Atka mackerel. These vessels are able to harvest and process large quantities of fish in these remote locations without frequent and expensive trips to port facilities. A smaller proportion of the overall Atka mackerel TAC is available for harvest in the Bering Sea and Eastern Aleutian Islands management area (Area BS/541). During the qualifying years for the Program, a portion of the Atka mackerel TAC in Area BS/541 was harvested by relatively smaller Amendment 80 vessels. These smaller Amendment 80 vessels have not historically harvested Atka mackerel in Areas 542 or 543 due to the higher expenses associated with operating in more remote areas (e.g., increased fuel costs to travel to the Aleutian Islands). Many smaller vessels also targeted Bering Sea flatfish that were open during the same time as the Atka mackerel fishery during the qualifying years. In addition, smaller vessels are less well suited than larger vessels to operate in the adverse weather conditions typical in Areas 542 and 543. If Atka mackerel QS was allocated such that the CQ or ITAC resulting from that QS was divided proportionally over all three management areas, some smaller Amendment 80 vessels would be assigned Atka mackerel CQ or ITAC that could only be harvested in areas in which they have not historically been active. To address this concern, the Council recommended that the Program allocate Atka mackerel QS to smaller vessels with limited catch of Atka mackerel in proportion to the amount of legal landings made by these smaller vessels in specific management areas. After reviewing the available catch data in the draft EA/RIR/IRFA prepared for this action (see ADDRESSES ), the Council noted that Atka mackerel catch patterns indicated that Amendment 80 vessels less than 200 ft (61 m) LOA and with less than 2 percent of the overall “Atka mackerel history” caught a substantially greater proportion of their Atka mackerel catch in Area BS/541 and Area 542. For purposes of this proposed rule, NMFS would interpret the phrase “Atka mackerel history” used by the Council to mean an amount of catch of Atka mackerel that would generate less than 2 percent of the total Atka mackerel legal landings. This interpretation is consistent with the phrasing used in the Council's motion supporting this action. The Council termed Amendment 80 vessels less than 200 ft (61 m) LOA and less than 2 percent of the Atka mackerel legal landings as “non-mackerel vessels.” The Council termed Amendment 80 vessels greater than 200 ft (61 m) LOA or with catch resulting in more than two percent of the Atka mackerel legal landings as “mackerel vessels.” For purposes of consistency and clarity for the affected industry, these phrases are used in this proposed rule. To assign Atka mackerel QS, NMFS would first determine the number of Amendment 80 vessels with the size and percentage of Atka mackerel legal landings that would define them as non-mackerel vessels. NMFS would determine which Amendment 80 vessels are non-mackerel vessels based on the official record. If an Amendment 80 vessel is a non-mackerel vessel, NMFS would then determine the percentage of the legal landings from each Atka mackerel management area in each year from 1998 through 2004 for that non-mackerel vessel. For example, if a non-mackerel vessel were assigned 1 percent of the Atka mackerel QS based on its best five of seven years of legal landings, and during the period from 1998 through 2004, a total of 70 percent of its legal landings (this includes all seven years of legal landings, not only the best five of seven years) were made in Area BS/541 and 30 percent of its legal landings were made in Area 542, then 70 percent of its QS, or 0.7 percent of the total Atka mackerel QS, would be assigned as Area BS/541 QS, and 30 percent of its QS, or 0.3 percent of the total Atka mackerel QS, would be assigned as Area 542 QS. The specific amount of Atka mackerel QS units assigned to each Atka mackerel area would be noted on the Amendment 80 QS permit derived from a non-mackerel vessel. The sum of all Atka mackerel QS units derived from the legal landings of all non-mackerel vessels in all management areas is the non-mackerel QS pool. After NMFS assigns Atka mackerel QS to all non-mackerel vessels, NMFS would assign the remaining amount of the initial Atka mackerel QS pool to mackerel vessels. Atka mackerel QS derived from the legal landings of mackerel vessels would not be assigned by specific Atka mackerel management area. The sum of all Amendment 80 QS units derived from the legal landings of all mackerel vessels would be the mackerel QS pool. Additional detail on the non-mackerel and mackerel QS pool and the mechanism for allocating a portion of the annual Atka mackerel ITAC to non-mackerel and mackerel QS holders is detailed in Section VII of this preamble. A specific example describing allocation of mackerel and non-mackerel CQ and ITAC using the 2008 Atka mackerel TAC is provided in Section XI of this preamble. 4. The Initial QS pool The initial QS pool for each Amendment 80 species would be set at an amount equivalent to the sum of All Highest Five Years based on the official record as of December 1, 2007. Because the initial QS pool could be modified by appeal, operation of law, or amendment at a future date, NMFS would set the initial pool at a fixed amount prior to the 2008 fishing year so that NMFS could determine specific QS allocations for the 2008 fishing year. This would permit NMFS to issue QS and issue CQ to Amendment 80 cooperatives and ITAC to the Amendment 80 limited access fishery. An example of establishing an initial QS pool for each Amendment 80 species is provided in Section XI of this preamble. The initial QS pool would also be used as the basis for establishing use caps. Use caps are discussed in greater detail in Section X of this preamble. VII. Amendment 80 Cooperatives Once an Amendment 80 QS permit is assigned to a person, it would authorize that QS holder to fish in the Amendment 80 sector. On an annual basis, a QS holder would either have to assign that QS to a harvesting cooperative formed with other eligible QS holders, or assign that QS permit to the Amendment 80 limited access fishery. The QS holder would make this annual selection through an application process. An Amendment 80 cooperative would receive an exclusive privilege to catch a specific amount of Amendment 80 species and crab and halibut PSC. The QS holders who are members of an Amendment 80 cooperative would decide how to catch and who among them could catch the exclusive catch privilege granted to the cooperative. An Amendment 80 cooperative would allow the members of that cooperative to coordinate their fishing operations, potentially reduce operational expenses, possibly increase the quality and revenue from the product, and realize other benefits that a LAPP may provide. If an Amendment 80 QS permit is assigned to an Amendment 80 cooperative, the sum of the QS units of all of the members assigning QS permits to that cooperative would yield an exclusive annual catch limit of Amendment 80 species and crab and halibut PSC that could be harvested by the members of the Amendment 80 cooperative. A. Requirements for Forming an Amendment 80 Cooperative As with other cooperative-based LAPPs ( *e.g.* , Central GOA Rockfish Program), specific requirements would have to be met before QS holders could form an Amendment 80 cooperative. These requirements would ensure that the cooperative is comprised of multiple, independently operating businesses; the Program does not result in a level of consolidation that would unduly affect employment opportunities of vessel, crew; and that NMFS would be able to properly account for any amount of CQ assigned and used by a cooperative. During the development of the Program, the Council considered a range of alternative measures for forming a cooperative and allocating annual harvest privileges. A detailed discussion of the range of allocation and cooperative formation alternatives considered is contained in the draft EA/RIR/IRFA (see ADDRESSES ) and is not reiterated here. The following list details the primary requirements that would need to be met to form an Amendment 80 cooperative: • The cooperative must meet general membership and organizational requirements; • A minimum of at least three unique persons not affiliated with each other through direct or indirect ownership or control must assign their QS to an Amendment 80 cooperative; • At least nine QS permits, either assigned to an Amendment 80 vessel or an Amendment 80 LLP license ( *i.e.* , an Amendment 80 LLP/QS license) must be assigned to an Amendment 80 cooperative; • A complete application to join a cooperative must be submitted by November 1 of the year prior to fishing in a cooperative; and • Effective in 2009, a timely and complete EDR must be submitted by each cooperative member who wishes to assign QS to a cooperative, as discussed in Section XIII of this preamble. 1. Membership in an Amendment 80 Cooperative Membership in an Amendment 80 cooperative would be voluntary. No person may be required to join an Amendment 80 cooperative. Amendment 80 cooperatives would be required to allow an eligible person to join that cooperative upon receipt of written notification that a person is eligible and wants to join. All persons who join Amendment 80 cooperatives would be subject to the terms and agreements that apply to the members of the cooperative, as established in the contract governing the conduct of the Amendment 80 cooperative. All persons who wish to join a cooperative would be required to be listed on the annual application for CQ. NMFS proposes a November 1 deadline for the application for CQ so that NMFS could properly assign each person's QS permit and resulting CQ to the cooperative in time for the upcoming fishing year. Members of an Amendment 80 cooperative would be permitted to leave during a calendar year, but any CQ contributed to the cooperative by that member would remain with that Amendment 80 cooperative for the remainder of the calendar year. If a person becomes the owner of an Amendment 80 vessel or a holder of an Amendment 80 LLP/QS license that has been assigned to an Amendment 80 cooperative, then that person would be permitted to join that Amendment 80 cooperative upon receipt of that Amendment 80 vessel or Amendment 80 LLP/QS license. These provisions would ensure that a cooperative would not be adversely affected by the decisions of a member to end membership in the cooperative, or who is no longer able to maintain membership in the cooperative through the sale of vessels, death, or dissolution. Each cooperative may establish clauses in their cooperative contract that address these issues in specific detail. 2. Organizational Requirements An Amendment 80 cooperative would have to meet the following requirements before it would be eligible to receive CQ: a. Each Amendment 80 cooperative must be formed as a partnership, corporation, or other legal business entity that is registered under the laws of one of the 50 states or the District of Columbia; and b. Each Amendment 80 cooperative must appoint an individual as the designated representative. The designated representative would act on behalf of the Amendment 80 cooperative and serve as a contact for NMFS. The designated representative may be a member of the Amendment 80 cooperative, or some other individual designated by the Amendment 80 cooperative to act on its behalf. 3. Minimum Number of Persons Needed To Form a Cooperative A minimum number of unique QS holders would be required to ensure that the Amendment 80 cooperatives are truly comprised of multiple entities and not simply one entity with multiple QS permits. To form a cooperative, the Program would require that it be comprised of at least three unique persons (e.g., individuals or corporations) who do not share a 10 percent or greater direct or indirect ownership or control interest. This standard is intended to ensure that the persons are truly distinct and not merely commonly held corporations. The 10 percent common ownership and control standard has been commonly used in North Pacific LAPPs as a reasonable means of defining distinct corporate entities and ownership (i.e, AFA, BSAI Crab Rationalization Program), and is commonly referred to as the “AFA 10 percent threshold” after the first LAPP to apply this standard. NMFS would require ownership and control information from each QS holder to be submitted as part of the annual application for CQ to ensure that this standard is met. 4. Minimum Number of QS Permits Needed To Form a Cooperative As noted earlier, NMFS would issue only one QS permit based on the Amendment 80 legal landings from each Amendment 80 vessel. NMFS has initially identified a total of 28 Amendment 80 vessels with legal landings that would result in 28 unique Amendment 80 QS permits. The Council recommended that a minimum number of QS permits would be required to be assigned to a cooperative in order for it to be allowed to receive CQ. The Council recommended this requirement to ensure that cooperatives are comprised of a substantial number of the total number of the participants in the fishery. The Council wished to encourage economic efficiency in the Amendment 80 sector through cooperative harvesting arrangements, and to minimize the potential for small cooperatives to form, frustrating the goals of creating cooperation among participants in the Amendment 80 sector. The Council recommended that at least 30 percent of the QS permits issued, which includes Amendment 80 LLP/QS licenses, must be assigned to a cooperative for it to form, be approved by NMFS, and be assigned CQ. Thirty percent of the 28 (i.e., the number of QS permits that NMFS has initially identified that may be issued) is 8.4. In order to ensure that at least 30 percent of the QS permits are assigned to the cooperative, at least nine QS permits would need to be assigned to the cooperative to meet the minimum requirements recommended by the Council. Because QS permits may not be subdivided, eight QS permits would represent only 28.57 percent of all of the QS permits. Nine QS permits represents 32.14 percent of all of the QS permits, and is greater than the 30 percent of the total QS permit requirement recommended by the Council. Therefore, at least nine QS permits would have to be assigned to an Amendment 80 cooperative for it be approved by NMFS to receive CQ. B. Application for Cooperative Quota

(CQ)NMFS would require that QS holders wishing to form an Amendment 80 cooperative submit an annual application for CQ prior to the start of the fishing year to ensure that NMFS would know how much CQ would be assigned to cooperatives, how much of the Amendment 80 species ITAC would be assigned to the Amendment 80 limited access fishery, and which vessels would need to be tracked to properly account for all catch. As with other LAPPs ( *e.g.,* BSAI Crab Rationalization Program, Central GOA Rockfish Program), this application would be used to review ownership and control information for various QS holders to ensure that QS and CQ use caps are not exceeded. ( *See* Section IX of this preamble for additional detail on use caps). The application for CQ would need to be received by NMFS not later 5 p.m., Alaska local time, on November 1 of the year prior to fishing under the CQ permit to be considered timely. The cooperative's designated representative would be responsible for submitting the application for CQ on behalf of all the members. If the designated representative for the cooperative were to fail to submit a timely application for CQ, the members of the cooperative would not be permitted to assign their QS permits, any associated Amendment 80 vessels, or any Amendment 80 LLP licenses, to another Amendment 80 cooperative or the Amendment 80 limited access fishery the following year. This requirement would encourage all participants in the Amendment 80 sector to complete an application, and avoid actions that could delay the issuance of CQ or the Amendment 80 limited access fishery ITAC. NMFS would have limited time to issue CQ and establish the Amendment 80 limited access fishery ITAC and any delays could adversely affect other fishery participants. The application for CQ could be submitted by mail, fax, or in person ( *see* regulatory text at § 679.91(b) for more details). The information that would be required in the application is detailed in the proposed regulatory text at § 679.91(b). The following list summarizes the proposed information that would be required: • Applicant's information; • Amendment 80 Vessel identification; • Amendment 80 LLP identification; • Amendment 80 QS information (the Amendment 80 QS permit number(s) held by the members of the cooperative); • Amendment 80 QS ownership documentation; • Amendment 80 cooperative identification; • Members of the Amendment 80 cooperative; • Vessel identification, including the name(s) and USCG documentation number of vessel(s) on which the CQ issued to the Amendment 80 cooperative will be used; • Certification that an EDR has been submitted by all cooperative members; • Designated representative and cooperative members signatures and certification; and • Authorization for the designated representative to act on behalf of the cooperative to complete the application. Under the Program, if a person applies to fish for an Amendment 80 cooperative, NMFS would assign all Amendment 80 QS permits, Amendment 80 LLP licenses, and Amendment 80 vessels associated with the Amendment 80 QS permit held by that person to that Amendment 80 cooperative. Based on past experience, this “all in” requirement for assigning QS permits, LLP licenses, and vessels to a cooperative would encourage the cooperative behavior the Program is designed to achieve. This requirement would encourage the formation of cooperatives by reducing the incentives for persons with multiple QS permits from applying some QS permits and vessels to one, or several, cooperative(s) and others to the Amendment 80 limited access fishery in an effort to quickly harvest the Amendment 80 limited access fishery ITAC using vessels with greater fishing capacity. The Council recommended the Program specifically to discourage fishing practices that accelerate the race for fish in the Amendment 80 limited access fishery. Requiring a QS holder to fully commit to a cooperative would provide additional incentives to achieve the Program's objectives. C. Economic Data Report

(EDR)Submission and CQ Effective in 2009, NMFS would not issue CQ to an Amendment 80 cooperative derived from QS permits held by cooperative members who have not submitted a timely and complete EDR for each Amendment 80 QS permit they hold. The specific requirements for submitting an EDR are provided in Section XIII of this preamble. The EDR submission requirement would not penalize members of an Amendment 80 cooperative who have submitted an EDR, but would limit the ability of a cooperative to use CQ derived from a QS holder who fails to comply with this provision. D. Issuing Amendment 80 Species CQ Once NMFS has approved an application for CQ, NMFS would issue a CQ permit to the cooperative. The CQ permit would list the metric tons of Amendment 80 species that the cooperative may catch, and the metric tons of halibut PSC and number of crab PSC that the cooperative may use during the fishing year. The following is a brief description of the process NMFS would use for calculating the amount of CQ issued to a cooperative. This description assumes that NMFS has already determined the amount of ITAC that would be assigned to the Amendment 80 sector for the year (see Section IV of this preamble). A more detailed description with an example of CQ allocation to a hypothetical cooperative is provided in Section XI of this preamble. 1. Allocating CQ and ITAC for Amendment 80 Species Other than Atka Mackerel For each Amendment 80 species except Atka mackerel, the metric tons that the cooperative may harvest in a calendar year would be based on the following general formula: CQ for that Amendment 80 cooperative = Amendment 80 sector ITAC for a management area × (Σ Amendment 80 QS held by all cooperative members / Amendment 80 QS pool). Pacific cod, flathead sole, rock sole, or yellowfin sole CQ would be issued for use by the cooperative in the BSAI. These four species re not managed with separate TACs in each management area. AI POP CQ would be assigned to a cooperative for each management area in the Aleutian Islands subarea ( *i.e.* , Areas 541, 542, and 543) proportional to the amount of ITAC assigned to that area. For example, if an Amendment 80 cooperative is assigned 10 percent of the AI POP QS pool, that cooperative would receive 10 percent of the ITAC assigned to the AI POP fishery for the Amendment 80 sector in Areas 541, 542, and 543. A detailed example of CQ allocation is provided in Section XI of this preamble. Once NMFS determines the amount of CQ issued to each cooperative for each Amendment 80 species, the ITAC remaining in a management area would be assigned to the Amendment 80 limited access fishery as follows: Amendment 80 Limited Access Fishery ITAC in a management area = Amendment 80 Sector ITAC in a management area—(Σ CQ issued to all Amendment 80 cooperatives in a management area). 2. Allocating CQ and ITAC for Atka Mackerel As noted in Section VI of this preamble, specific provisions are proposed to allocate Atka mackerel QS derived from non-mackerel vessels. If an Amendment 80 QS permit with non-mackerel QS is assigned to a cooperative, NMFS would assign Atka mackerel CQ derived from that non-mackerel QS by management area first. NMFS would determine the amount of CQ for Atka mackerel assigned to each Amendment 80 cooperative in a management area as the sum of the CQ derived from non-mackerel QS and mackerel QS using the following process: • *Step 1: Assigning the non-mackerel and mackerel QS pools.* NMFS would first determine the total non-mackerel QS pool, and the percentage of the non-mackerel QS pool, and number of QS units that would be assigned to each management area. The remaining amount of Atka mackerel QS units would be assigned to the mackerel QS pool, which would not be designated for specific management areas. • *Step 2: Allocating CQ to each Amendment 80 cooperative.* For each Amendment 80 cooperative, NMFS would determine the amount of CQ assigned to that cooperative in each management area based on the amount of non-mackerel QS units and mackerel QS units assigned to that cooperative. The series of calculations that follow are shown in a specific example in Section XI of this preamble: First, NMFS would determine the amount of non-mackerel ITAC in each management area using the following equation: Non-mackerel ITAC in a management area = (Non-mackerel QS units designated for that management area / Total mackerel and non-mackerel QS pool) × Amendment 80 sector ITAC in all management areas. Second, NMFS would determine the amount of mackerel ITAC in each management area using the following equation: Mackerel ITAC in a management area = Amendment 80 sector ITAC in that management area − non-mackerel ITAC in that management area. Third, NMFS would determine the amount of non-mackerel CQ assigned to an Amendment 80 cooperative in a each Atka mackerel management area (i.e, Area BS/541, Area 542, and Area 543) using the following equation: Non-mackerel CQ assigned to that Amendment 80 cooperative = (Non-mackerel QS units designated for that management area assigned to that Amendment 80 cooperative / Non-mackerel QS pool in that management area) × Non-mackerel ITAC for that management area. Fourth, NMFS would determine the amount of mackerel CQ assigned to the Amendment 80 cooperative in each Atka mackerel management area using the following equation: Mackerel CQ in a management area = (Mackerel QS units assigned to that Amendment 80 cooperative / Mackerel QS pool) × Mackerel ITAC in that management area. Fifth, the total Atka mackerel CQ (non-mackerel CQ and mackerel CQ combined) assigned to a cooperative would be the sum of calculations presented in the third and fourth steps described above. Finally, NMFS would allocate the amount of ITAC remaining in a management area after allocation to all of the Amendment 80 cooperatives to the Amendment 80 limited access fishery as follows: Amendment 80 limited access fishery ITAC in a management area = Amendment 80 sector ITAC − Σ mackerel and non-mackerel CQ issued to all Amendment 80 cooperatives in that management area. E. Issuing Prohibited Species Catch

(PSC)CQ 1. Method for PSC CQ Issuance The Council considered various alternatives to assign crab and halibut PSC to the Amendment 80 cooperatives in the draft EA/RIR/IRFA (see ADDRESSES ) prepared for this action. The primary rationale for assigning PSC as proposed in the Program is to ensure that there is adequate PSC available to support existing PSC rates while fishing for non-pollock groundfish, with some reduction in the amount of PSC assigned to accommodate the anticipated improvements in bycatch rates made possible by cooperative management. The Program would authorize NMFS to issue halibut and crab PSC CQ to each Amendment 80 cooperative based on the following procedure:

(1)Determine the historic use of PSC by the Amendment 80 sector during the same period used to allocate Amendment 80 QS (1998 through 2004);

(2)determine the amount of halibut and crab PSC that has been historically used during the catch of each Amendment 80 species;

(3)assign each Amendment 80 cooperative an amount of PSC based on the proportion of QS assigned to that cooperative for that Amendment 80 species; and

(4)sum the result from each Amendment 80 species to derive a total PSC allocation that would be assigned as PSC CQ to Amendment 80 cooperative to support PSC needs for any groundfish fishing conducted by the cooperative in the BSAI. PSC assigned to a cooperative as CQ would be used while the cooperative catches any Amendment 80 species and any non-allocated groundfish species ( *e.g.* , Alaska plaice, arrowtooth flounder, and Greenland turbot). The amount of PSC assigned to the Amendment 80 sector would be based on the Amendment 80 sector's historic PSC use rates during the 1998 through 2004 time period, with adjustments to reduce PSC limits. Section IV of this preamble describes the amount of PSC allocated to the Amendment 80 sector in greater detail. The amount of PSC that is apportioned to each Amendment 80 species would be based on historic PSC use while Amendment 80 vessels were directed fishing for that Amendment 80 species during the 1998 through 2004 time period. The percentage of PSC used in each Amendment 80 fishery is shown in Section XI of this preamble. Amendment 80 species, such as Pacific cod, that have relatively high rates of halibut PSC use, would be apportioned a relatively greater portion of the total halibut PSC assigned to the Amendment 80 sector. Crab PSC and halibut PSC would be apportioned among cooperatives based on the amount of QS assigned to that cooperative. For example, a cooperative assigned a relatively greater amount of Pacific cod QS would receive a larger proportion of the PSC apportioned to Pacific cod than a cooperative assigned a lesser amount of Pacific cod QS. For each Amendment 80 species, NMFS would divide the amount of Amendment 80 QS that would be assigned to an Amendment 80 cooperative by the Amendment 80 QS pool for that species. This would yield the percentage of Amendment 80 QS units that would be assigned to that Amendment 80 cooperative. This percentage would be multiplied by the total PSC apportioned to that Amendment 80 species. This calculation would be repeated for each of the six Amendment 80 species. The sum of these calculations would result in an amount in metric tons that would be the total halibut or crab species PSC CQ issued to a specific Amendment 80 cooperative. After allocating PSC to each Amendment 80 cooperative, NMFS would allocate the remaining PSC to the Amendment 80 limited access fishery. A detailed example of this process of assigning PSC to an Amendment 80 cooperative is provided in Section XI of this preamble. Under this process, Amendment 80 cooperatives would receive an amount of PSC that reflects the aggregate historic use of PSC for each of the Amendment 80 species QS assigned to that cooperative. The PSC CQ that is derived from a specific Amendment 80 species would not be required to be used solely for the prosecution of that Amendment 80 species. As an example, halibut PSC attributed to a specific Amendment 80 species for a specific Amendment 80 cooperative is intended to be used to support the harvest of Amendment 80 species and non-Amendment 80 species (e.g., arrowtooth flounder and Greenland turbot) by that cooperative. 2. Use of Halibut PSC CQ by an Amendment 80 Cooperative Halibut PSC CQ issued to an Amendment 80 cooperative could only be used by the members of the Amendment 80 cooperative to which it is assigned, unless modified by transfer according to the procedures in the proposed regulatory text in § 679.91(f). (See Part I of this section below for more detail). Halibut PSC CQ would not be subject to seasonal apportionment. This flexibility would aid cooperatives by allowing them to minimize catch with high halibut PSC rates during specific time periods, modify fishing patterns, and fish in areas with lower halibut PSC rates to maximize the benefits derived from their halibut PSC CQ. 3. Use of Crab PSC CQ by an Amendment 80 Cooperative As with halibut PSC CQ, only cooperative members could use crab PSC CQ, unless transferred. Crab PSC QS would not be subject to seasonal apportionment. Because crab PSC would be assigned for use in specific to geographic regions, cooperative managers would need to properly track and monitor the use of crab PSC by cooperative vessels to ensure that adequate crab PSC CQ is available. For example, Zone 1 *C. bairdi* PSC CQ would be deducted when *C. bairdi* PSC CQ is used in Zone 1, and the Zone 2 *C. bairdi* PSC CQ would be deducted when *C. bairdi* PSC CQ is used in Zone 2. The specific geographic regions to which these crab PSC limits apply are defined in regulation in § 679.2. Any crab PSC caught by a vessel outside of these geographic areas would not be debited against the crab PSC CQ assigned to a cooperative. F. Restrictions While Fishing for Amendment 80 Cooperatives In addition to the M&E requirements described in Section XII of this preamble, several other requirements are proposed for Amendment 80 cooperatives and their members. These requirements would include the following: • Restrictions on vessels, QS, and LLP licenses assigned to an Amendment 80 cooperative; • Meeting the GRS at the cooperative level; • Fishing during the trawl fishing season; • Compliance with Steller sea lion protection measures; and • Recordkeeping and reporting requirements. 1. Restrictions on Vessels, QS, and LLP Licenses Assigned to an Amendment 80 Cooperative NMFS would prohibit the use of an Amendment 80 vessel, Amendment 80 LLP license, or Amendment 80 QS permit assigned to an Amendment 80 cooperative to harvest, process, receive, or use

(1)Any CQ assigned to any other Amendment 80 cooperative; or

(2)any Amendment 80 species, crab PSC, or halibut PSC assigned to the Amendment 80 limited access fishery. This prohibition would ensure that NMFS could track CQ assigned to a specific cooperative. This would not compromise the ability of an Amendment 80 cooperative to transfer catch to another Amendment 80 cooperative should such an arrangement be more profitable or necessary. Similarly, catch from the Amendment 80 limited access fishery could not be caught, processed, or received by a vessel assigned to an Amendment 80 cooperative to ensure that NMFS can track and assign catch to the appropriate CQ or limited access fishery account. Any Amendment 80 vessel that is used to catch CQ for a cooperative would have to carry a copy of the valid CQ permit onboard the vessel while the vessel is fishing in the BSAI and adjacent State waters during the parallel fishery. Because some Amendment 80 species, halibut PSC, and crab PSC CQ are likely to be harvested while fishing for non-Amendment 80 species (e.g., halibut PSC is used during the harvest of arrowtooth flounder), a CQ permit would need to be onboard an Amendment 80 vessel fishing for a cooperative whenever that vessel is fishing in the BSAI. An Amendment 80 cooperative could not catch in excess of the amount of Amendment 80 species, crab PSC CQ, or halibut PSC CQ assigned to the CQ permit for an Amendment 80 cooperative. If an Amendment 80 cooperative wished to catch more CQ than initially issued, additional CQ could be received by transfer. 2. Meeting the GRS at the Cooperative Level Under the Program, NMFS would apply the GRS to an Amendment 80 cooperative as an aggregate standard, and not as a vessel specific standard. Applying the GRS as an aggregate limit is likely to help reduce operational costs incurred for vessels in the cooperative to meet the GRS, particularly for vessels under 125 ft (38.1 m) LOA while continuing to achieve the goal of the GRS to increase retention and reduce discard of fish. Cooperative managers and members would need to track total and retained catch of all vessels fishing for the cooperative to ensure compliance with the GRS. NMFS would calculate the GRS based on the aggregate groundfish retention and catch by all vessels in the cooperative. Section 679.28 in the proposed regulatory text describes that calculation. NMFS would monitor the cooperative as a whole, and violations of the GRS applicable to the cooperative would be enforced on the cooperative and individual cooperative members through joint and several liability (see Part G of this section of the preamble below). Practically, this provision would require the Amendment 80 cooperative manager to monitor total catch by vessels in the cooperative, including Amendment 80 species caught under the CQ permit as well as non-allocated species (e.g., arrowtooth flounder), to ensure that the retention standard applicable for a given year is achieved by the cooperative as a whole. See § 679.27(j)(4) in the proposed rule text for additional detail. The specific method for negotiating and managing retention rates among the members of the cooperative could be addressed through private contractual arrangements. Vessels used by the cooperative that have higher groundfish retention rates in some fisheries (e.g., Atka mackerel) could offset lower retention rates in other fisheries, like rock sole, by the other vessels used by the cooperative. Because membership in a cooperative is voluntary, if the owner of an Amendment 80 vessel less than 125 ft (38.1 m) LOA chooses not to join a cooperative, that vessel would be subject to the GRS while fishing in the Amendment 80 limited access fishery and would have to comply with GRS requirements without the potential benefits of an aggregate retention rate. 3. Fishing During the Trawl Fishing Season Current regulations prohibit the use of trawl gear in the BSAI prior to January 20. Vessels harvesting CQ for an Amendment 80 cooperative would continue to be limited to fishing for CQ during the current open periods for vessels using trawl gear (from January 20 through December 31). The rationale for maintaining the current trawl fishing season for Amendment 80 vessels is based on the fact that the vast majority of the legal landings used to generate the QS allocated under the Program were caught during the trawl fishery. Allowing Amendment 80 vessels to harvest prior to January 20 would increase the risk for gear conflicts with existing fisheries (e.g., fixed gear Pacific cod fisheries), run counter to specific protection measures for Steller sea lions, and provide a harvest opportunity that was not previously available to non-AFA trawl catcher/processors. 4. Compliance With Steller Sea Lion Protection Measures Nothing in the Program would modify existing restrictions to protect Steller sea lions ( *Eumetopias jubatus* ). Amendment 80 cooperatives and vessels would continue to be subject to area closures and seasonal harvest limits established as part of the Steller sea lion protection measures. Primarily, these measures would continue to affect catch of Atka mackerel and Pacific cod because these species are identified as key prey species for Steller sea lions and are subject to more restrictive management than other groundfish species. As an example, Steller sea lion protection measures seasonally apportion the Atka mackerel and Pacific cod ITAC to disperse directed fishery harvests during the fishing year. Temporally dispersing harvests reduces potentially adverse effects on Steller sea lion populations from the groundfish fisheries. NMFS would issue an amount of “A season CQ”, and “B season CQ” for Atka mackerel in proportion to the amount of ITAC assigned to each season. A CQ permit issued for the B season could not be used to catch Atka mackerel in the A season. However, if a cooperative did not fully use it's A season CQ permit during that season, the remaining CQ amount could be used during the B season, subject to the total CQ limit for that cooperative. Similar measures would apply to Pacific cod CQ permits. These provisions would ensure that harvests of Atka mackerel and Pacific cod by Amendment 80 cooperatives do not exceed seasonal harvest limits consistent with the Steller sea lion protection measures. The seasonal and ITAC apportionments are specified in the general limitations at 50 CFR 679.20(a). Additionally, Amendment 80 vessels wishing to harvest Atka mackerel would continue to be subject to harvest limit area

(HLA)regulations under § 679.20(a)(8)(ii)(C). Those regulations require vessels to register to fish for Atka mackerel in either Area 542 or 543 and prohibit those vessels from participating in any groundfish directed fishery until the first HLA fishery is closed. For purposes of applying these restrictions, NMFS would continue to define directed fishing as that term is defined under § 679.2. Amendment 80 vessels harvesting CQ and ITAC in the Atka mackerel fishery in Area 542 or 543 must comply with the existing HLA requirements at § 679.20(a)(8)(iii)(E). Amendment 80 vessels fishing under a CQ permit could catch and retain Amendment 80 species, including Atka mackerel and Pacific cod during the entire fishing year provided there is adequate CQ. NMFS would not open and close directed fishing for Amendment 80 cooperatives. However, this condition would not alter the method NMFS uses to define directed fishing for purposes of applying Steller sea lion protection measures. Steller sea lion protection measures prohibit a vessel using trawl gear from directed fishing for Atka mackerel, Pacific cod, or pollock after November 1. (See § 679.23(e) for additional detail). For Amendment 80 vessel operators, this requirement would limit the retention of Pacific cod or Atka mackerel greater than an amount that would meet the definition of directed fishing. If an Amendment 80 vessel retains an amount of Atka mackerel or Pacific cod greater than 20 percent of the total groundfish open for directed fishing onboard the vessel, that Amendment 80 vessel would be considered directed fishing for Atka mackerel or Pacific cod for purposes of enforcing Steller sea lion protection measures. Additionally, Amendment 80 vessels using trawl gear would be restricted from directed fishing for Atka mackerel, Pacific cod, or pollock, as that term is defined in § 679.2, within a specific area during specific times of year. Directed fishing is defined as any fishing that results in retention of any species greater than the maximum retainable amount for that species. Areas subject to directed fishing closures to trawl gear to protect Steller sea lions are described under § 679.22. 5. Recordkeeping and Reporting Requirements Amendment 80 vessels assigned to Amendment 80 cooperatives would be required to submit catch reports necessary to track catch. In addition to specific M&E requirements detailed under Section XII of this preamble, Amendment 80 vessels would need to submit the following information, which is detailed in the regulatory text in § 679.5 of this proposed rule: a. Logbook; b. Check-in/check-out report; c. Weekly production report (WPR); and d. Product transfer report (PTR). NMFS intends to submit a separate proposed rule to require use of an Interagency Electronic Reporting System

(IERS)for BSAI groundfish fisheries. If approved, IERS would supersede some of the recordkeeping and reporting requirements proposed in this rule. The IERS is currently required in the BSAI crab fisheries, and is used by processors in the halibut and sablefish IFQ program to report catch electronically in a timely fashion. A detailed description of IERS is available on the NMFS Web site at: *http://www.fakr.noaa.gov/rr/default.htm.* An Amendment 80 cooperative would be required to submit by March 1 of each year an annual Amendment 80 cooperative report detailing the use of the cooperative's CQ and fishing activities during the prior calendar year. The first annual cooperative report would be due on March 1, 2009, and every March 1 thereafter. Section 679.5 in the proposed regulatory text details the information that would be required in the report. Briefly, this information includes the following: • The cooperative's actual retained and discarded catch of CQ, and GOA sideboard limited fisheries (if applicable) by statistical area and on a vessel-by-vessel basis; • A description of the method used by the cooperative to monitor fisheries in which cooperative vessels participated; and • A description of any actions taken by the cooperative in response to any members that exceeded their catch as allowed under the Amendment 80 cooperative agreement. G. Joint and Several Liability As with other cooperative-based LAPPs (e.g., Central GOA Rockfish Program) NMFS would enforce violations of an Amendment 80 cooperative jointly and severally on the members of the cooperative. Each member of an Amendment 80 cooperative would be subject to joint and several liability for any violations of the Program regulations while fishing under authority of a CQ permit. This liability could extend to any persons who are hired to catch or receive CQ assigned to a Amendment 80 cooperative. Each member of an Amendment 80 cooperative would be responsible for ensuring that all members of the cooperative comply with all regulations applicable to fishing under the Program. Joint and several liability encourages better compliance by ensuring that members of an Amendment 80 cooperative would not be immune from legal responsibility from violations of the regulations that would directly benefit them. H. Rollover of Initial Total Allowable Catch (ITAC), Incidental Catch Allowance (ICA), and PSC From the BSAI Trawl Limited Access Sector To reduce the possibility that a substantial portion of the ITAC of Amendment 80 species is unharvested, or PSC is unused, NMFS would have the authority to rollover any projected unharvested portion of ITAC or ICA or unused PSC from the BSAI trawl limited access sector to the Amendment 80 sector under specific conditions. Based on historic and current catch patterns analyzed in the draft EA/RIR/IRFA prepared for this action, a portion of the Amendment 80 species ITAC or ICA assigned to the BSAI trawl limited access sector is likely to be unharvested or unused. Similarly, it is possible that a portion of the halibut PSC or crab PSC assigned to the BSAI trawl limited access sector would not be fully used if that sector continues to target species such as pollock that have relatively low PSC use rates. The proposed rule would provide NMFS the flexibility to implement rollovers on a species-by- species basis, or to rollover different species at different times of the year to accommodate the fishing patterns of Amendment 80 cooperatives. Although the harvest patterns of non-pollock groundfish by participants in the BSAI trawl limited access sector have varied, the rollover provision would help ensure that fishery resources would be allocated and available for harvest to the extent practicable. Recently, favorable stock abundance and market conditions in other fisheries such as pollock and Pacific cod have encouraged non-Amendment 80 sector participants to target these stocks. These conditions are likely to continue for the foreseeable future and the emphasis on targeting pollock and Pacific cod is unlikely to shift soon. The Program would maximize the likelihood that a rollover would be used by assigning that rollover only to Amendment 80 cooperatives and not to the Amendment 80 limited access fishery. Amendment 80 cooperatives are likely to be more efficient at harvesting small allocations through their cooperative arrangements, whereas the Amendment 80 limited access fishery is likely to be less efficient as it harvests under a race for fish. The purpose of the rollover is to encourage efficient harvest of allocated resources, and allocating to the Amendment 80 limited access fishery would be unlikely to accomplish that goal. 1. Criteria for Rolling Over ITAC, ICA, or PSC Before rolling over any portion of ITAC, ICA, or PSC, NMFS would carefully review several criteria to ensure that the BSAI trawl limited access sector would not be adversely affected. Specifically, NMFS would consider the following factors: • The risk of biological harm to a groundfish species or species group; • The risk of socioeconomic harm to other domestic fishery participants; • The impact that the allocation might have on the socioeconomic well-being of Amendment 80 cooperatives; • Current catch and PSC use in the BSAI trawl limited access sector; • Historic catch and PSC use in the BSAI trawl limited access sector; • Harvest capacity and any stated intent on the future harvesting patterns of vessels in the BSAI trawl limited access sector; • Administrative requirements to reissue CQ permits; and • Any other relevant biological, socioeconomic, or administrative factors. NMFS would review the potential of rolling over ITAC, ICA, or PSC periodically during the year. The Council recommended reviews on or before May 1 and August 1 each year, and at other times after August 1 as NMFS deems appropriate. This phrasing used by the Council has been interpreted to give NMFS broad latitude in determining the timing of a rollover. NMFS would consider rollover provisions at its discretion. 2. Rollover Provisions for ITAC and ICA Other Than Pacific Cod The amount of ITAC or ICA of an Amendment 80 species assigned to the BSAI trawl limited access sector that would be reallocated as CQ to an Amendment 80 cooperative would equal the ratio of CQ initially assigned to the cooperative as a proportion of all CQ initially assigned to all cooperatives for that calendar year. For example, if NMFS rolled over Atka mackerel ICA from the BSAI trawl limited access sector to Amendment 80 cooperatives, a cooperative that was initially issued 10 percent of the Atka mackerel CQ at the start of the fishing year would receive 10 percent of this rollover CQ. This method for assigning rollover CQ would reduce administrative burdens and speed reissuance of CQ. For example, if an intercooperative transfer is pending at the time a CQ rollover is planned, apportioning the rollover CQ to cooperatives based on the amount of CQ initially issued to that cooperative would avoid potential delays. Otherwise, to ensure that the amount of rollover CQ is properly assigned, NMFS would likely wait until the transfer is reviewed and approved, which could further delay issuance of rollover CQ. The following formula describes the proposed rollover allocation to a cooperative: Amount of rollover CQ issued to an Amendment 80 cooperative = Amount of Amendment 80 species available for reallocation to Amendment 80 cooperatives × (Amount of CQ for that Amendment 80 species initially assigned to that Amendment 80 cooperative/Σ CQ for that Amendment 80 species initially assigned to all Amendment 80 cooperatives). 3. Rollover Provisions for Pacific Cod Section IV of this preamble describes in detail the rollover provisions that would apply to Pacific cod should Amendment 85 be implemented. That discussion is not repeated here. 4. Rollover Provisions for Halibut PSC If, during a fishing year, NMFS reallocates halibut PSC from the BSAI trawl limited access sector to Amendment 80 cooperatives as rollover CQ, NMFS would issue a revised CQ permit to each Amendment 80 cooperative according to the following procedure. First, NMFS would multiply the amount of halibut PSC limit to be reallocated by 95 percent (0.95). This yields the maximum amount of halibut PSC that may be rolled over to Amendment 80 cooperatives. The rollover amount of halibut PSC would be reduced by five percent as a means of reducing bycatch and leaving some additional halibut PSC unused or “in the water.” After this five percent deduction is made, the amount of halibut PSC rolled over to each Amendment 80 cooperative would be calculated using the following formula: Amount of halibut PSC rollover CQ reallocated to an Amendment 80 cooperative = Amount of halibut PSC CQ available for reallocation to Amendment 80 cooperatives × (Amount of halibut PSC CQ initially assigned to that Amendment 80 cooperative/Σ halibut PSC CQ assigned to all Amendment 80 cooperatives). 5. Rollover Provisions for Crab PSC If, during a fishing year, NMFS reallocates a crab PSC from the BSAI trawl limited access sector to Amendment 80 cooperatives as CQ, NMFS would issue a revised CQ permit to each Amendment 80 cooperative according to the following procedure: Amount of crab PSC rollover CQ reallocated to an Amendment 80 cooperative = Amount of crab PSC CQ available for reallocation to Amendment 80 cooperatives × (Amount of that crab PSC CQ initially assigned to that Amendment 80 cooperative / Σ that crab PSC CQ assigned to all Amendment 80 cooperatives). Because the Program substantially reduces the amount of crab PSC that is available for use by the Amendment 80 sector (see Section IV of this preamble), the Council determined that and additional PSC reductions would not be required when crab PSC is rolled over. Therefore, NMFS would not deduct a portion of the crab PSC that is rolled over to Amendment 80 cooperatives, as is proposed for halibut PSC rollovers (i.e., there is no five percent reduction). I. CQ Transfers An Amendment 80 cooperative may transfer all or part of its CQ to another Amendment 80 cooperative. Transfer provisions have been part of all LAPPs adopted by NMFS in the North Pacific, and the Program would provide the same flexibility for Amendment 80 cooperatives to trade species for harvest or PSC for use as required for particular fishing operations or to accommodate unforeseen circumstances. The CQ intercooperative transfer would require the submission of an application for CQ transfer which would be available on the NMFS Web site at *http://www.fakr.noaa.gov.* NMFS would review and approve the transfer application to ensure proper catch accounting. NMFS would notify the transferor and transferee once the application has been received and approved. A transfer of CQ would not be effective until approved by NMFS. The proposed regulatory text (see § 679.92(g)) details the information that would have to be submitted in an application for CQ transfer. The requirements are briefly summarized here: • Identification of transferor; • Identification of transferee; • Identification of CQ type and amount to be transferred; • Identification of Amendment 80 cooperative member receiving CQ. NMFS would require the name of the cooperative member(s) and the amount of Amendment 80 species CQ applied to each member, for purposes of applying Amendment 80 species use caps; • Certification of transferor. The Amendment 80 cooperative transferor's designated representative must sign and date the application certifying that all information is true, correct, and complete to the best of his or her knowledge and belief; and • Certification of transferee. The Amendment 80 cooperative transferee's designated representative must sign and date the application certifying that all information is true, correct, and complete to the best of his or her knowledge and belief. J. Fishing Non-Allocated Groundfish Species Non-pollock groundfish species not allocated as Amendment 80 species to the Program (e.g., Greenland turbot) could be harvested by vessels assigned to an Amendment 80 cooperative if NMFS establishes a TAC for those species that would be sufficient to allow directed fishing during the annual harvest specification process. An Amendment 80 cooperative could only directed fish on such non-pollock groundfish species if the cooperative has sufficient Amendment 80 species and PSC CQ to account for any incidental harvest of Amendment 80 species or PSC used while directed fishing for that non-allocated species. Although NMFS would monitor the use of any CQ assigned to a cooperative, vessel operators in an Amendment 80 cooperative could choose to use some amount of CQ for incidental catch needs while targeting non-allocated species. This could increase the potential for participants in Amendment 80 cooperatives to modify current harvest patterns or the share of harvests of non-allocated groundfish species among vessels using various gear types (e.g., a greater percentage of the Greenland turbot TAC could be harvested by Amendment 80 vessels using trawl gears than is currently the case). This issue was reviewed by the Council during the development of the Program. The Council did not recommend specifically restricting participation of Amendment 80 cooperatives in these non-allocated groundfish fisheries due to the limited percentage of the TAC currently harvested in these fisheries (e.g., Alaska plaice, arrowtooth flounder, Greenland turbot) and the lack of a clear race for fish. VIII. Amendment 80 Limited Access Fishery A. Membership in the Amendment 80 Limited Access Fishery The Amendment 80 limited access fishery would be comprised of Amendment 80 QS holders who are unwilling or unable to form cooperative arrangements with other Amendment 80 QS holders. The Amendment 80 limited access fishery would be assigned the amount of ITAC, crab PSC, and halibut PSC assigned to the Amendment 80 sector that remains after allocations of CQ have been made to Amendment 80 cooperatives. Unlike Amendment 80 cooperatives, participants in the Amendment 80 limited access fishery would not receive an exclusive harvest privilege and would continue to compete for the ITAC and use of crab PSC and halibut PSC. The specific process for issuing ITAC and PSC to cooperatives is described in Section VII of this preamble and is not reiterated here. Amendment 80 QS holders, vessel owners, and LLP license holders who participate in the Amendment 80 limited access fishery could not assign or otherwise use those QS permits, Amendment 80 vessels, or LLP licenses to fish for an Amendment 80 cooperative during the same calendar year for the remainder of the calendar year. B. Application for the Amendment 80 Limited Access Fishery Amendment 80 QS holders wishing to assign their QS to the limited access fishery would need to submit an annual application, by November 1 of the year prior to fishing. The application process and contents are similar to those proposed for the application for CQ described under Section VII of this preamble. Specific proposed requirements are described in § 679.91(b) of the proposed regulatory text. In order to participate in the Amendment 80 limited access fishery, a complete application would have to be submitted in a timely manner. Failure to submit a complete application would prevent the use of any QS permits, Amendment 80 vessels, or LLP licenses from being used to fish in the Amendment 80 sector. This requirement to submit a complete application would encourage compliance and ensure that Amendment 80 sector ITAC is properly allocated for the upcoming fishing season. C. Management of the Amendment 80 Limited Access Fishery 1. Fishery Openings and Closings NMFS would manage openings and closings of the Amendment 80 limited access fishery much as it currently manages the existing fisheries. NMFS would open directed fishing for an Amendment 80 species only if there is sufficient ITAC assigned to the Amendment 80 limited access fishery. In addition, halibut PSC and crab PSC assigned to the Amendment 80 limited access fishery would continue to be apportioned among target fishery categories, and halibut PSC would continue to be based on seasonal apportionments as established in § 679.21. NMFS would close a fishery for an Amendment 80 species if the ITAC assigned to the fishery is taken, or projected to be taken. Similarly, NMFS could close the Amendment 80 limited access fisheries if the halibut PSC or crab PSC limit assigned to a target fishery category within the Amendment 80 limited access fishery is taken, or projected to be taken. Catch or PSC use inside State waters would accrue against the ITAC or PSC limit assigned to an Amendment 80 limited access fishery consistent with the catch accounting procedures for CQ use by Amendment 80 cooperatives and other LAPPs (e.g., Central GOA Rockfish Program). 2. Steller Sea Lion Protection Measures Steller sea lion protection measures would continue to apply to Amendment 80 vessels assigned to the Amendment 80 limited access fishery, including seasonal harvest limits for Akta mackerel and Pacific cod, Atka mackerel HLA limits, and restrictions on directed fishing for Atka mackerel and Pacific cod using trawl gear after November 1, and in specific areas as described under § 679.22. See Section VII of this preamble for more detail on this issue. 3. GRS Requirements Amendment 80 vessels assigned to the Amendment 80 limited access fishery would be subject to the GRS on an individual vessel basis, including Amendment 80 vessels that are less than 125 ft (38.1 m) LOA. As noted in the IRFA prepared to support this action (see ADDRESSES ), under the Program, Amendment 80 vessels that were previously exempted from the GRS (i.e., non-AFA trawl catcher/processor vessels less than 125 ft (38.1 m) LOA) due to the compliance costs for these vessels would have the option of participating in a cooperative to help offset any costs that may be associated with the GRS. 4. Monitoring and Enforcement (M&E) Requirements The M&E requirements and recordkeeping and reporting provisions that would be applicable to Amendment 80 vessels assigned to an Amendment 80 cooperative also apply to the Amendment 80 limited access fishery. The specific M&E requirements applicable to Amendment 80 vessels fishing in the Amendment 80 limited access fishery are described in greater detail in Section XII of this preamble. NMFS notes that Amendment 80 vessels fishing in the Amendment 80 limited access fishery would be required to submit the same recordkeeping and reporting documents required for Amendment 80 vessels assigned to Amendment 80 cooperatives with one exception, the annual cooperative catch report would not be required. See Section VII of this preamble for a proposed list of recordkeeping and reporting requirements. D. ITAC and PSC Assigned to the Amendment 80 Limited Access Fishery 1. Amount of ITAC and PSC Assigned The Amendment 80 limited access fishery would be assigned that amount of Amendment 80 sector ITAC, crab PSC, and halibut PSC not assigned to the Amendment 80 cooperatives. Section VII of this preamble describes the allocation to cooperatives and the Amendment 80 limited access sector. Section IV of this preamble provides a detailed example of the allocation of ITAC and PSC to the Amendment 80 limited access fishery. As noted in Sections IV and VII of this preamble, Amendment 80 vessels assigned to the Amendment 80 limited access fishery would be restricted from processing catch assigned to either the BSAI trawl limited access fishery, or an Amendment 80 cooperative. This requirement would appear to best meet the Council intent of providing clear and distinct allocations, minimize the complexities of tracking multiple quota types onboard a single vessel, and reduce complications that could arise when assessing minimum GRS standards on a vessel that is receiving catch subject to different regulatory requirements. Specifically, Amendment 80 cooperatives are assessed the GRS on an aggregate basis, whereas Amendment 80 vessels in the Amendment 80 limited access fishery do not. NMFS has not proposed a mechanism to assess management of these conflicting GRS standards on the same vessel. 2. Economic Data Report

(EDR)Submission Effective in 2009, an Amendment 80 QS holder wishing to participate in the Amendment 80 limited access fishery would need to submit a timely and complete EDR, as described in Section XIII of this preamble. If an Amendment 80 QS holder failed to submit a timely and complete EDR, NMFS would not issue that person an Amendment 80 limited access fishery permit for that calendar year. E. Fishing for Non-Allocated Groundfish Species Non-pollock groundfish species not allocated to the Program would be subject to status quo management for participants in the Amendment 80 limited access fishery. NMFS would establish the TAC for these species during the annual harvest specification process. The Council would also recommend the amount of PSC that is assigned to the Amendment 80 limited access fishery participants while harvesting non-allocated groundfish fisheries through the annual specification process. IX. Use Caps A. LAPPs and Use Caps LAPPs developed in the North Pacific have included specific provisions to establish limits, or use caps, on the amount of consolidation of harvest or processing privileges. Use caps have been incorporated in LAPPs to reduce the risk of excessive consolidation to a few persons, which could unduly restrict the ability of smaller competitors to effectively compete. The Program would include use caps consistent with past practice and consistent with the MSA that requires consideration of use limits to prevent a person from holding an excessive share of any harvest privilege. The levels of the use caps established under the Program were deliberated throughout the Program's development (see draft EA/RIR/IRFA in ADDRESSES for additional detail). The specific use cap limits that would be established under the Program were designed with the goal of constraining the Amendment 80 QS holders likely to receive the greatest amount of QS in the initial allocation process from using more than this amount. The Program would establish use caps that apply to a person, and another use cap that applies to the operation of an Amendment 80 vessel. Specifically, there would be two types of person use caps: one type of person use cap would limit the amount of Amendment 80 QS units that a person could hold on his or her Amendment 80 QS permits; the other type of person use cap would limit the amount of Amendment 80 species CQ that may be used by a person. The vessel use cap would limit the amount of the Amendment 80 sector ITAC that could be harvested on an Amendment 80 vessel. The regulations would prohibit persons from exceeding the person and vessel use caps. The regulations would provide one exemption to this prohibition in the case of person use caps. A person could exceed a person use cap only if that person received an initial allocation of QS that exceeds the use cap. A provision that allows a person to exceed a person use cap is commonly known as a “grandfather clause” in other LAPPs. The Program's grandfather clause would apply only to person use caps, not to the vessel use cap. The Program would not apply a grandfather clause to the Amendment 80 vessel use cap because data reviewed by the Council and NMFS indicate that no Amendment 80 vessel been used to harvest more Amendment 80 species than the proposed vessel use cap historically, and there does not appear to be any need to exempt Amendment 80 vessels from this proposed restriction. B. Person Use Caps 1. QS Holding Cap—30 Percent Cap With the exception of person's qualifying under the proposed grandfather clause, a person would not be permitted to individually or collectively hold more than 30 percent of the aggregate Amendment 80 QS units initially assigned to the Amendment 80 sector. As with other LAPPs (e.g., Central GOA Rockfish Program), NMFS would use the Amendment 80 initial QS pool as the basis for calculating the person QS use cap. Because the Amendment 80 initial QS pool would not fluctuate due to appeals, enforcement actions, or other operations of law, it would provide a fixed measure of the maximum amount of QS that could be held by a person. The number of Amendment 80 QS units for each Amendment 80 species in the Amendment 80 initial QS pool would be based on the Amendment 80 official record as of December 31, 2007. Fixing the initial QS pool by this date would give NMFS time to review applications for QS, resolve those claims, and adjust the Amendment 80 official record accordingly. Once the Amendment 80 initial QS pool is determined, the person QS use cap would be set at 30 percent of the total aggregate QS units for all Amendment 80 species. Section XI of this preamble provides a detailed example of how the Amendment 80 initial QS pool would be established and provides an estimate of the 30 percent cap. 2. QS Holding Cap Exemption—The Grandfather Clause A person would be allowed to exceed the QS holding cap only if that person receives Amendment 80 QS permits based on Amendment 80 legal landings derived from Amendment 80 vessels owned, or Amendment 80 LLP licenses held by that person prior to June 9, 2006, and at the time of application for Amendment 80 QS. This provision is commonly known as a grandfather clause, and has been applied in all other North Pacific LAPPs to accommodate harvesters likely to receive relatively large harvest shares, but restrict them from increasing their QS holdings beyond the amount initially received. A person who wishes to acquire an Amendment 80 vessel or Amendment 80 LLP license and any legal landings assigned to that vessel or LLP license after June 9, 2006 (the date of final Council action recommending Amendment 80), would not be allowed to hold Amendment 80 QS in excess of the 30 percent cap. The Council recommended these conditions to prevent speculative purchases of any Amendment 80 vessels or Amendment 80 LLP licenses that could give rise to Amendment 80 QS after the date of final Council action. Prior to June 9, 2006, a person could not have reasonably predicted the precise cap that would apply, and the transfer of purchases of any Amendment 80 vessels or Amendment 80 LLP licenses prior to that date would not be limited. 3. CQ Use Cap—30 Percent Limit The second type of person use cap would limit the amount of CQ that a person could use. Each year QS could yield either CQ that would be assigned to a cooperative, or ITAC that would be assigned to the Amendment 80 limited access fishery. Because CQ could be used exclusively by one person within a cooperative, the Program would limit the amount of CQ that could be used by a person. The limit on the amount of CQ a person can use would be calculated by summing the total amount of CQ that is derived from 30 percent of the Amendment 80 initial QS pool. A person's CQ use would include the amount of CQ that results from a person's QS holdings, and any amount of CQ assigned to that person through an intercooperative transfer of CQ. Even though a member of a cooperative may not directly harvest the CQ derived from his or her QS allocation, NMFS would consider the act of assigning QS and generating CQ for use by a cooperative as that person's use of CQ. As part of an intercooperative transfer of CQ, NMFS would require CQ to be assigned to a specific member(s) of the cooperative receiving CQ to meet the overall goal of the CQ use cap—prevention of undue consolidation of harvest privileges. This would allow NMFS to track compliance with the use cap. Because ITAC can fluctuate, and therefore the amount of CQ derived from each QS unit would fluctuate, the amount of CQ used by a person would need to be scaled to the amount of QS that gave rise to that CQ. For example, 30 percent of the total Amendment 80 QS pool would be a fixed amount of QS units. However, the amount of CQ in metric tons that would be generated from that 30 percent of the Amendment 80 initial QS pool would vary with the total ITAC of all Amendment 80 species, and the relative ITAC among each Amendment 80 species. Determining how much CQ a person is using is particularly problematic in the case of assigning CQ to a person in an intercooperative transfer. The metric tons of CQ derived from one unit of Atka mackerel QS, may differ from the metric tons of CQ derived from one unit of Aleutian Islands POP QS. If a cooperative transferred 10 metric tons of Atka mackerel CQ, that amount of Atka mackerel CQ could have been derived from more QS units than a transfer of 10 metric tons of AI POP CQ. To ensure that CQ assigned to a cooperative member (i.e., used by that person) is not unduly affected by such fluctuations in ITAC, NMFS would calculate the CQ use cap by determining the amount of Amendment 80 QS units that were necessary to generate that amount of CQ for that Amendment 80 species. This amount of QS units would be added to the amount of aggregate Amendment 80 QS units held by the cooperative members to whom that CQ is assigned. If that summed amount of QS units is greater than 30 percent of the aggregate Amendment 80 initial QS pool for all Amendment 80 species, NMFS would not approve the intercooperative CQ transfer. For example, if the QS holding cap were 100 QS units, 100 QS units being equivalent to 30 percent of the Amendment 80 initial QS pool for all Amendment 80 species, and a cooperative member held 60 QS units, that cooperative member could not be assigned an amount of CQ that is greater than an amount derived from 40 QS units. If 80 Atka mackerel QS units yielded 10 metric tons of CQ, the cooperative member could only be assigned 40 QS units, equivalent to 5 metric tons of Atka mackerel CQ, in order to avoid exceeding the CQ use cap, and receive approval from NMFS for the transfer. C. Vessel Use Cap The Program would impose a 20 percent vessel use cap on Amendment 80 vessels. The vessel use cap would prevent consolidation of catch onboard Amendment 80 vessels. Unlimited consolidation could adversely affect harvesting crew through lost employment opportunities. In proposing the vessel use cap, the Council considered historic harvest levels aboard the existing Amendment 80 vessels to balance economic efficiency goals and employment opportunities. Those considerations are detailed in the draft EA/RIR/IRFA prepared for this proposed action (see ADDRESSES ). Vessel use caps would apply only to Amendment 80 species and would be calculated using the aggregate ITAC for all Amendment 80 species. An Amendment 80 vessel would be prohibited from catching an amount of Amendment 80 species in an amount greater than 20.0 percent of the aggregate Amendment 80 species ITACs assigned to the Amendment 80 sector. This amount would include ITAC that is assigned as CQ and to the Amendment 80 limited access fishery. To calculate the vessel use cap, NMFS would use the following procedure: a. Determine the ITAC assigned to the Amendment 80 sector for each Amendment 80 species; b. Sum the ITACs for each Amendment 80 species to derive a total Amendment 80 sector ITAC for all Amendment 80 species; and c. Multiply the total Amendment 80 sector ITAC by 20 percent (0.2). This amount would represent the maximum tonnage of all Amendment 80 species that an Amendment 80 vessel could catch. A vessel owner and operator would be subject to possible enforcement action if a vessel is used to catch more Amendment 80 species in excess of the vessel use cap in any calendar year. The vessel use cap would not apply to the halibut PSC or crab PSC assigned to the Amendment 80 sector or to non-allocated species in the BSAI, such as arrowtooth flounder. D. Transfer Limitations 1. QS Transfer Limitations NMFS would not approve transfers of Amendment 80 QS permits if the transfer would cause a person to exceed the 30 percent QS holding cap. If an Amendment 80 QS holder is grandfathered above the QS holding cap, NMFS would not approve any Amendment 80 QS permit transfers to that person unless and until that person's holdings of aggregate Amendment 80 QS in that sector are reduced to an amount below the QS use cap. If an Amendment 80 QS holder is grandfathered above the 30 percent QS holding cap and transfers an Amendment 80 QS permit to another person, the transferor could not hold more than the greater of either

(1)the amount of Amendment 80 QS units held by the transferor after the transfer if the amount of QS held is still greater than the use cap: or

(2)the amount equal to the use cap. 2. CQ Transfer Limitations NMFS would not approve transfers of CQ to a person if it would cause that person to exceed a CQ use cap. Specifically, NMFS would not approve an application to transfer CQ if that transfer application designated a person who is limited by the CQ use cap to receive that CQ. Any person limited by the CQ use cap could not receive any additional CQ unless and until the CQ assigned to that person is below the CQ use cap. X. Gulf of Alaska

(GOA)Sideboard Limits A. Need for GOA Sideboard Limits In the development of North Pacific LAPPs, NMFS and the Council have attempted to mitigate potentially adverse effects on non-LAPP fisheries that could be caused by the increased economic and operational efficiencies that LAPPs can provide participants. Specifically, once a harvest privilege is allocated, QS holders may consolidate their operations through cooperative management and use Amendment 80 vessels in other fisheries. This would increase competition and the race for fish in those fisheries. The Program would establish a suite of protection measures, commonly called sideboard limits, for non-Program participants in other federally managed groundfish fisheries. The Council identified the GOA as the area most likely to be at risk of increased harvest pressures with implementation of the Program. The GOA would likely be subject to increased fishing pressure from Amendment 80 vessels, without sideboards limiting their harvest, because of

(1)the harvest patterns of the Amendment 80 sector,

(2)the lack of other fisheries in the BSAI that can be targeted by Amendment 80 vessels (i.e, pollock is managed under the AFA, crab is managed under the BSAI Crab Rationalization Program, and Pacific cod is proposed to be allocated to specific sectors under Amendment 85), and

(3)the lack of specific gear or sector allocations for many species in the GOA. Therefore, the Program includes sideboard limit protections for the GOA groundfish fisheries. B. GOA Sideboard Management 1. Overview Generally, sideboard limits in other LAPPs, such as the Central GOA Rockfish Program, have been managed so that any vessel or license that gave rise to QS, would be subject to a sideboard limit. A linkage between vessel and LLP license prevents a vessel operator from assigning a license, derived from a vessel subject to sideboard limits, to a different vessel in order to circumvent sideboard restrictions. In most North Pacific fisheries, an LLP license with the necessary endorsement is more difficult to obtain than a vessel and limiting the use of LLP licenses is necessary to reduce the risk for an increased race for fish. The Program would maintain this method for managing sideboard limits. It is important to note that the number of Amendment 80 LLP licenses would be limited to the LLP licenses originally issued for an Amendment 80 vessel as shown in Table 31 to part 679 in the proposed regulatory text, and any LLP licenses named as Amendment 80 LLP licenses in an application for QS. Additionally, an Amendment 80 vessels would be required to use an Amendment 80 LLP while fishing in the BSAI or GOA. NMFS would apply GOA groundfish sideboard limits to all catch by Amendment 80 vessels in the GOA. Catch of a GOA sideboard species during a directed fishery as well as incidental catch of a GOA sideboarded species, such as Pacific cod caught during a rex sole fishery, would apply against the GOA sideboard limit for that species. In addition, any catch of a GOA sideboard species or halibut PSC used within State waters during the State parallel fishery would apply against the sideboard limit. State parallel fisheries occur in State waters and are opened at the same time as Federal fisheries in Federal waters. State parallel fishery harvests are considered part of the Federal TAC and federally permitted vessels move between State and Federal waters during the concurrent, or parallel, State and Federal fisheries. The State opens parallel fisheries through emergency order by adopting the groundfish seasons, bycatch limits, and allowable gear types that apply in the adjacent Federal fisheries. Accounting for catch in the State parallel fishery ensures that all catch is debited against a sideboard limit whether that harvest occurs in State or Federal waters. The Program would establish three types of GOA sideboard limits. • The GOA groundfish sideboard limit would restrict the maximum amount of pollock, Pacific cod, and rockfish that Amendment 80 vessels could harvest. The GOA groundfish sideboard limits would restrict the catch of Amendment 80 vessels to their average aggregate catch from 1998 through 2004. • The GOA halibut PSC limit, would restrict the maximum amount of halibut PSC that all Amendment 80 vessels could use based on historic halibut PSC use during 1998 through 2004 with some modification for specific conditions. • The GOA flatfish fishery prohibition, would restrict the number of Amendment 80 vessels and Amendment 80 LLP licenses that could be used to conduct directed fishing for flatfish. Detailed information about historic catch and halibut PSC use of the Amendment 80 sector in the GOA and the basis for these sideboard limits is included in the draft EA/RIR/IRFA prepared for this proposed action (see ADDRESSSES ). During the development of the Program, the data reviewed by the Council indicated that at least one Amendment 80 vessel had a unique harvest pattern in the GOA, that could warrant specific GOA sideboard measures for Amendment 80 vessels with similar harvest patterns. NMFS has initially identified one Amendment 80 vessel, the F/V GOLDEN FLEECE that met these criteria. The F/V GOLDEN FLEECE, and any other vessel with similar harvest patterns that has not yet been identified through NMFS's data, would be prohibited from directed fishing for GOA pollock, Pacific cod, and rockfish, but would be exempted from the GOA halibut PSC sideboard limit applicable to all other Amendment 80 vessels. NMFS notes that the proposed regulations refer specifically to the F/V GOLDEN FLEECE whose owner has identified his vessel as meeting these criteria. Should other vessels be determined to meet the criteria recommended by the Council for these specific GOA sideboard measures during the proposed rule comment period, NMFS would modify the regulations to accommodate any such vessel. Additionally, references to the F/V GOLDEN FLEECE in this preamble would apply to any similarly situated vessel that may be identified. C. GOA Groundfish Sideboard Limits All Amendment 80 vessels, other than the F/V GOLDEN FLEECE, would be collectively limited to catching an amount of groundfish no greater than the limits shown in Table 37 to part 679 in the proposed regulatory text. NMFS would manage the GOA groundfish sideboard limits in the aggregate for all Amendment 80 vessels. Once a sideboard limit for a groundfish species is reached, or projected to be reached, NMFS would close that fishery to directed fishing by Amendment 80 vessels. Amendment 80 vessels could retain incidental catch of that sideboard species subject to existing maximum retainable amount

(MRA)regulations while targeting other groundfish fisheries that are not closed to directed fishing. If the rate of incidental catch of a GOA groundfish sideboard limited species is expected to be high relative to the sideboard limit, NMFS would limit directed fishing for this species by Amendment 80 vessels to accommodate this incidental catch. NMFS would manage the GOA sideboard limits with the goal of keeping all directed and incidental catch of a sideboard species by Amendment 80 vessels below the sideboard limit. As noted in Table 37 to part 679 in the proposed regulatory text, catch of Central GOA Pacific ocean perch, pelagic shelf rockfish, and northern rockfish is subject to regulation under the Central GOA Rockfish Program. The Central GOA Rockfish Program limits directed fishing in these fisheries to participants qualified under that program. A number of Amendment 80 participants are qualified to participate in the rockfish program, and would be subject to the regulations in effect for that program when fishing. Amendment 80 participants not qualified under the rockfish program would be excluded from conducting directed fishing for Pacific ocean perch, pelagic shelf rockfish, and northern rockfish in the Central GOA. Under the Program, The F/V GOLDEN FLEECE would be prohibited from directed fishing for pollock, Pacific cod, Pacific ocean perch, pelagic shelf rockfish, and northern rockfish species in the GOA (see Part F of this section below). D. GOA Halibut PSC Sideboard Limits The Program would establish halibut PSC sideboard limits in the GOA for Amendment 80 vessels except the F/V GOLDEN FLEECE. NMFS manages halibut PSC limits in the GOA by setting a limit on halibut PSC use for trawl gear through the annual harvest specification process, currently 2,000 mt. NMFS subdivides this amount of halibut PSC by the number of seasons (currently five), and into two species complexes, the shallow-water and the deep-water fishery species complexes NMFS would establish Amendment 80 halibut PSC sideboard limits that are apportioned among seasons and fishery complexes through the annual specification process. A shallow-water halibut PSC sideboard limit would limit the use of halibut PSC in the shallow-water fishery complex, which includes pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka mackerel, and “other species.” A deep-water halibut PSC sideboard limit would limit the use of halibut PSC in the deep-water fishery complex which includes all species not in the shallow-water complex: all rockfish species, rex sole, deep-water flatfish, sablefish, and arrowtooth flounder. The proposed halibut PSC sideboard limits would be based on the historic use of halibut PSC of all Amendment 80 vessels, except the F/V GOLDEN FLEECE in each season, and by fishery complex during the period from 1998 through 2004. The halibut PSC sideboard limits that would be established are slightly lower than historic halibut PSC use by Amendment 80 vessels in the GOA from 1998 through 2004 to accommodate two factors: allocation of halibut PSC CQ under the Central GOA Rockfish Program; and the exemption of the F/V GOLDEN FLEECE from this restriction. Table 10 lists the proposed halibut PSC sideboard limits by fishery complex and season as a percentage of the GOA trawl halibut PSC limit. Table 10 also computes the metric ton amount of the halibut PSC sideboard limit by season based on the current 2,000 mt trawl halibut PSC limit. Because the annual halibut trawl PSC limit is subject to change through the annual harvest specification process, the metric tons displayed in Table 10 are only provided as an example. Table 10.—GOA Amendment 80 Sideboard Limit for Halibut PSC for the Amendment 80 Sector Using the Current 2,000 Metric Tons of Trawl Halibut PSC as an Example In the . . . The maximum percentage, and amount in mt, of the total GOA Pacific halibut PSC limit that may be used by all Amendment 80 qualified vessels subject to the halibut PSC sideboard limit in each season is . . . Season 1 Season 2 Season 3 Season 4 Season 5 Shallow-water species fishery complex in the GOA and State parallel fishery 0.48% 9.6 mt 1.89% 37.8 mt 1.46% 29.2 mt 0.74% 14.8 mt 2.27% 45.4 mt Deep-water species fishery complex in the GOA and State parallel fishery 1.15% 23 mt 10.72% 214.4 mt 5.21% 104.2 mt 0.14% 2.8 mt 3.71% 74.2 mt Many of the participants in the catcher/processor sector in the Central GOA Rockfish Program would be participants in the Amendment 80 Program. NMFS would need to coordinate catch accounting between the Central GOA Rockfish Program and the Amendment 80 sector to avoid unduly constraining participants in either LAPP. NMFS would coordinate management of the two LAPPs by reducing the third season deep-water halibut PSC sideboard limit under the Program by the amount of halibut PSC that is available for allocation as halibut PSC CQ under the Central GOA Rockfish Program. Deep-water halibut PSC from the third season is specifically assigned to support PSC CQ allocations to the catcher/processor sector under the Central GOA Rockfish Program. Additionally, NMFS would establish regulations that specify that the use of halibut PSC CQ in the Central GOA Rockfish Program would not be debited from the Amendment 80 halibut PSC sideboard limit. Some of the deep-water halibut PSC in the Central GOA is specifically assigned to support PSC CQ allocations to the catcher/processor sector under the Central GOA Rockfish Program. Much of the halibut PSC that was historically used in the deep-water complex during the third season, which begins on July 1, was used in the Central GOA rockfish fisheries. This adjustment would ensure that a Central GOA Rockfish Program participant fishing under a CQ permit would not be constrained by the GOA sideboard limits established under this Program. Amendment 80 vessels not fishing under a Central GOA Rockfish Program CQ permit would continue to be subject to the halibut PSC sideboard limit proposed under this Program. The percentages listed in Table 10 also have been modified to remove the historic use of halibut PSC attributed to the F/V GOLDEN FLEECE. The F/V GOLDEN FLEECE would not be subject to the Amendment 80 halibut PSC sideboard limits so the historic halibut PSC used by the F/V GOLDEN FLEECE would not be included in the halibut PSC sideboard limit. As with the GOA groundfish sideboard limits, use of halibut PSC in State parallel fisheries would count against the halibut PSC sideboard limit. NMFS would monitor halibut PSC use by fishery complex and season. If the shallow-water halibut PSC sideboard limit is reached, all directed fishing for all species in the shallow-water complex would be closed in the GOA for that season. Similarly, if the deep-water sideboard limit is met, all directed fishing for all species in the deep-water complex is closed in the GOA for that season. NMFS would reopen a fishery complex in the following season with the halibut PSC sideboard limit applicable for that season. E. GOA Flatfish Fisheries Prohibition The Program would limit the number of Amendment 80 vessels and Amendment 80 LLP licenses that could be used for directed fishing in GOA flatfish fisheries. During the development of the Program, the Council and NMFS reviewed historic harvest patterns during the 1998 through 2004 qualifying years. The EA/RIR/IRFA developed for this action clearly indicates that a specific group of Amendment 80 vessels traditionally had been used in GOA flatfish fisheries. Specifically, certain Amendment 80 vessels were clearly active in the GOA flatfish fisheries, with more than 10 weeks of conducting directed fishing in the GOA from 1998 through 2004 as recorded on WPRs, and appeared to be substantially more dependent on those fisheries than other Amendment 80 vessels with more sporadic participation. The Program would reduce fishing pressure in the GOA by Amendment 80 vessels on non-Amendment 80 sector harvesters with substantial flatfish participation by authorizing only those Amendment 80 vessels:

(1)With more than 10 weeks conducting directed fishing for GOA flatfish fisheries during 1998 through 2004; and

(2)that are designated on an Amendment 80 LLP license that was originally assigned to one of the Amendment 80 vessels meeting that 10 week minimum requirement to be used to directed fish for flatfish in the GOA. Based on the criteria recommended by the Council and NMFS' WPR records, NMFS would establish a list indicating those Amendment 80 vessels and Amendment 80 LLP licenses that could be used to directed fish for GOA flatfish. Table 11 identifies those Amendment 80 vessels and LLP licenses that meet the proposed criteria. NMFS encourages the public to review this proposed list and provide comments during the public comment period (see DATES) to ensure that the proposed list of Amendment 80 vessels and Amendment 80 LLP licenses eligible to directed fish for GOA flatfish is complete and accurate. Table 11.—Amendment 80 Vessels and Amendment 80 LLP Licenses That May Be Used to Directed Fish for Flatfish in the GOA Column A: Name of Amendment 80 vessels qualified to directed fish for GOA flatfish Column B: Amendment 80 LLP licenses that must be used on an Amendment 80 vessel listed in Column A to directed fish for GOA flatfish ALLIANCE LLG 2905. AMERICAN NO I LLG 2028. DEFENDER LLG 3217. GOLDEN FLEECE LLG 2524. LEGACY LLG 3714. OCEAN ALASKA LLG 4360. OCEAN PEACE LLG 2138. SEAFREEZE ALASKA LLG 4692. U.S. INTREPID LLG 3662. UNIMAK LLG 3957. VAERDAL LLG 1402. If an Amendment 80 vessel listed in Table 11 is not designated on an Amendment 80 LLP license also listed in Table 11, that vessel would be prohibited from directed fishing in GOA flatfish fisheries. Similarly, if an Amendment 80 vessel not listed in Table 11 is designated on an Amendment 80 LLP license also listed in Table 11, that vessel also would be prohibited from directed fishing in GOA flatfish fisheries. F. Provisions for the F/V GOLDEN FLEECE During the development of the Program, the Council analyzed harvest patterns of Amendment 80 vessels in the GOA. These data identified at least one vessel with historic harvest patterns during the 1998 through 2004 qualifying years that differed substantially from all other Amendment 80 vessels. Specifically, the Council reviewed catch data that identified at least one vessel with catch in GOA flatfish fisheries in far greater proportion to its catch in the BSAI. This Amendment 80 vessel fished in GOA flatfish fisheries for at least 80 percent of all weeks that the vessel was used to fish during the 2000 through 2003 time period. The draft EA/RIR/IRFA describes the unique harvest history of this vessel in greater detail. The Council recognized that any vessel that met the 2000 through 2003 GOA flatfish harvest criteria described above was an Amendment 80 vessel primarily dependent on GOA flatfish fisheries. To reduce the potentially adverse effects that the proposed GOA halibut PSC sideboard measures could have on the ability of such a vessel to continue fishing in GOA flatfish fisheries, the Council recommended an exemption to the GOA halibut PSC sideboard limits for any Amendment 80 vessel that met these criteria. Based on data currently available, NMFS has identified only one Amendment 80 vessel, the F/V GOLDEN FLEECE, with the distinctive harvest pattern that would qualify that vessel to be granted an exemption from the GOA halibut PSC sideboard limit. NMFS requests that the public provide comment during the public comment period if an Amendment 80 vessel other than the F/V GOLDEN FLEECE shares the same harvest pattern in the GOA flatfish fisheries and should be eligible for a similar exemption. The Program would accommodate the harvest activities of the F/V GOLDEN FLEECE by prohibiting the F/V GOLDEN FLEECE from directed fishing for Pacific cod, pollock, or in any rockfish fishery in the GOA. However, the F/V GOLDEN FLEECE would not be subject to the GOA halibut PSC sideboard limit. These restrictions would allow the F/V GOLDEN FLEECE to continue fishing as it has historically, while limiting the potential for the vessel to expand its effort into other groundfish fisheries in which it has not traditionally participated. The exemption to the halibut PSC sideboard limit would only apply if the F/V GOLDEN FLEECE used the LLP license originally issued for the F/V GOLDEN FLEECE (LLP license number LLG 2524). This provision would ensure that only the F/V GOLDEN FLEECE would be exempted from the halibut PSC sideboard limits. Exempting the F/V GOLDEN FLEECE from the halibut PSC limits would not be expected to increase the amount of halibut PSC used by Amendment 80 vessels overall. It is anticipated that the F/V GOLDEN FLEECE would maintain its current fishing patterns, including its halibut PSC use rates, and the overall use of PSC by all Amendment 80 vessels would not be expected to be greater than currently. Exempting the F/V GOLDEN FLEECE from the halibut PSC limits would ensure that the F/V GOLDEN FLEECE would not be adversely affected by other Amendment 80 vessels that could choose to fish in the GOA, use halibut PSC, and potentially, cause the GOA halibut PSC sideboard limit to be reached, thereby limiting the ability of the F/V GOLDEN FLEECE to fully harvest its traditional flatfish fisheries. Additionally the F/V GOLDEN FLEECE would not be subject to the proposed M&E requirements for other Amendment 80 vessels while fishing in the GOA. Many of the M&E requirements established for Amendment 80 vessels would be necessary to properly track halibut PSC use. This same degree of precision would not be required for the F/V GOLDEN FLEECE. The M&E requirements applicable to the F/V GOLDEN FLEECE are described in Section XII of this preamble. XI. Example of Allocations Under the Program To aid the reader, the following is an example of the process NMFS would follow to assign ITAC and PSC to the BSAI trawl limited access and Amendment 80 sectors; to allocate Amendment 80 QS permits; and to issue CQ to Amendment 80 cooperatives and ITAC to the Amendment 80 limited access fishery. This section also provides an example of assigning AFA sideboard limits in the BSAI. A. Example of Annual TAC and PSC Allocations The following section provides an example of TAC and PSC allocation to the CDQ Program and Amendment 80 and BSAI trawl limited access sectors. The TAC and PSC used in this example are based on the 2008 TACs and PSC limits established in the 2007 and 2008 final harvest specifications for groundfish of the BSAI (March 2, 2007; 72 FR 9451). The 2008 TACs, PSC limits, and ICA used in this example are subject to future regulatory change through the 2008 and 2009 annual harvest specification process. For purposes of this example, NMFS has assumed that

(1)The regulations allocating Pacific cod to specific sectors, Pacific cod ICA management, and seasonal apportionment of the Pacific cod ITAC to the Amendment 80 sector, would be the same as those described in the proposed rule to implement Amendment 85 to the FMP (February 7, 2007; 72 FR 5654), and

(2)the final regulations implementing Amendment 85 would be effective prior to the implementation of the Program. 1. Step 1: Allocate TAC to the CDQ Program First, NMFS would allocate portions of the 2008 TACs to the CDQ Program according to the procedure described in Section III of this preamble. The allocations of the 2008 TACs to the CDQ Program in this example are the same as the allocations in the 2007 and 2008 final harvest specifications. Table 13 below displays the allocation of TAC to the CDQ Program based on the 2008 TACs. 2. Step 2: Assign ICA and the Atka Mackerel Jig Allocation For all Amendment 80 species except Pacific cod, NMFS would establish, in the annual harvest specifications, an ICA for use by the BSAI trawl limited access sector and non-trawl fisheries. The ICA amounts specified in this example are subject to change through the annual harvest specification process and may not reflect actual ICA requirements or amounts established in subsequent adjustments to the 2008 TAC or PSC limits during the 2008 and 2009 annual harvest specification process. NMFS would establish the ICA amounts based on projected incidental catch needs in non-target fisheries. For simplicity, the ICA amounts used in this example are calculated based on a percentage of the TAC after allocation to the CDQ Program. The ICA percentages used in this example were based on a review of incidental catch patterns during 2002 through 2006 by the AFA catcher/processor, AFA catcher vessel, non-AFA catcher vessel trawl, and non-trawl sectors in the BSAI. In this example, NMFS has considered likely changes in ICA needs with the implementation of the Program. As noted in the draft EA/RIR/IRFA prepared for this proposed action (see ADDRESSES ), NMFS would set ICA amounts in a precautionary fashion during the first year of implementation of the Program and review future ICA needs during the annual harvest specification process. As described in Section IV of this preamble, NMFS would not establish an ICA amount for Pacific cod before allocating Pacific cod to the Amendment 80 sector and other trawl sectors. In this example, the Atka mackerel jig allocation required under existing regulations at § 679.20(a)(8)(i) is assigned before the Atka mackerel ITAC for Area BS/541 is allocated to the Amendment 80 and BSAI trawl limited access sectors. Current regulations allow NMFS to allocate up to two percent of the Atka mackerel TAC in Area BS/541 for harvest by jig gear. Based on historic harvest patterns by jig gear vessels and past recommendations by the Council during previous annual harvest specification processes, NMFS is likely to establish an Atka mackerel jig allocation of less than two percent of the TAC in Area BS/541. This example assumes an allocation for harvest by jig gear of one percent of Area BS/541 TAC after subtraction for allocation to the CDQ Program. This allocation is the same percentage of the Area BS/541 ITAC that is recommended for allocation for jig gear in the 2007 and 2008 final harvest specifications. Table 13 below displays the projected ICA amounts established for each Amendment 80 species except Pacific cod, and the Atka mackerel jig allocation based on the 2008 TACs. 3. Step 3: Apportion ITAC to the Amendment 80 and BSAI Trawl Limited Access Sector The ITAC for an Amendment 80 species is the amount of the TAC remaining after subtraction for CDQ allocations, ICA requirements for the BSAI trawl limited access sector and non-trawl fisheries, and the Atka mackerel jig allocation. Table 13 displays the allocation of ITAC for each Amendment 80 species based on the 2008 TACs. Table 13.—Projected Allocation of TAC, CDQ Reserves, ICA, Atka Mackerel Jig Allocation, and ITAC Using 2008 Harvest Specifications Amendment 80 species and area 2008 TAC

(mt)CDQ (10.7% TAC)

(mt)ICA (% of TAC after CDQ allocation)

(mt)ITAC = TAC−(CDQ & ICA)

(mt)Atka Mackerel BS/541 17,600 1,883 1,257 (8%) + 157 jig set-aside (1%) = 1,402 (A season = 50% of ITAC) 7,151. (B season = 50% of ITAC) 7,151. Area 542 22,000 2,354 196 (1%) (A season = 50% of ITAC) 9,725. (B season = 50% of ITAC) 9,725. Area 543 15,300 1,637 116 (1%) (A season = 50% of ITAC) 5,749. (B season = 50% of ITAC) 5,749. AI POP: Area 541 4,900 524 175 (4%) 4,201. Area 542 5,000 535 45 (1%) 4,420. Area 543 7,620 815 68 (1%) 6,737. Pacific cod 127,070 13,596 0 113,474. Flathead sole 45,000 4,815 3,215 (8%) 36,970. Rock sole 75,000 8,025 3,349 (5%) 63,626. Yellowfin sole 150,000 16,050 2,679 (2%) 131,271. Once ITAC is determined for each Amendment 80 species, NMFS would assign the ITAC to the Amendment 80 and BSAI limited access fishery sectors according to the proportions established in Table 33 and Table 34 to part 679 in the proposed regulatory text. For this example, NMFS has assumed that the seasonal apportionment of Pacific cod described in the proposed rule for Amendment 85 (February 9, 2007; 72 FR 5654) would be effective in 2008. The ITAC for Atka mackerel would be allocated for use during specific seasons as specified in § 679.20. Yellowfin sole ITAC would be assigned to the Amendment 80 sector according to the formula established in Table 34 to part 679 in the proposed regulatory text. The remaining ITAC would be assigned to the BSAI trawl limited access sector. The calculation based on the 2008 TAC and the formula set forth in Table 34 to part 679 in the proposed regulatory text is calculated below: Σ [(87,499 * 0.93) + (94,999−87,500) *0.875 + (102,499−95,000) * 0.82 + (109,999−102,500) * 0.765 + (117,499−110,000) * 0.71 + (124,499−117,500) * 0.655 + (131,271−125,000) * 0.6] = 113,493 mt to the Amendment 80 sector. Table 14 summarizes the amount of ITAC for each Amendment 80 species that would be assigned to the Amendment 80 and BSAI trawl limited access sectors. Table 14.—Projected ITAC Assigned to the Amendment 80 and BSAI Trawl Limited Access Sectors Amendment 80 species and management area 2008 ITAC in mt (from Table 13) Metric tons and % of ITAC assigned to the . . . BSAI trawl limited access sector Amendment 80 sector Atka Mackerel A season = 7,151 143 (2%) 7,008 (98%). BS/541 B season = 7,151 143 (2%) 7,008 (98%). Area 542 A season = 9,725 194 (2%) 9,530 (98%). B season = 9,725 194 (2%) 9,530 (98%). Area 543 A season = 5,749 0 (0%) 5,749 (100%) B season = 5,749 0 (0%) 5,749 (100%). AI POP 4,201 210 (5%) 3,991 (95%). Area 541 Area 542 4,420 221 (5%) 4,199 (95%). Area 543 6,737 135 (2%) 6,602 (98%). Pacific cod (Allocations and seasons based on Amendment 85) 15,205 N/A N/A A season = 11,404 (75% of allocation). B season = 3,801 (25% of allocation). Flathead sole 36,970 0 (0%) 36,970 (100%). Rock sole 63,626 0 (0%) 63,626 (100%). Yellowfin sole 131,271 17,778 (13.5%) 113,493 (86.5%). Total mt of ITAC allocated to the Amendment 80 sector 288,660. 20% of the total mt of ITAC allocated to the Amendment 80 sector: Amendment 80 vessel use cap 57,732. For this example, the total Amendment 80 sector ITAC for all Amendment 80 species is 288,660 mt, and 20 percent of that amount, which is the Amendment 80 vessel use cap, is 57,728 mt. 4. Step 4: Assign Halibut PSC and Crab PSC to the CDQ Program and Between the Sectors NMFS would allocate a portion of the halibut PSC limit to the CDQ Program according to the criteria described under Section III of this preamble. The remaining amount of the trawl halibut PSC limit set forth in regulations in § 679.21(e) would be assigned to the Amendment 80 and BSAI trawl limited access sector based on Table 35 to part 679 in the proposed regulatory text. For this example, the projected apportionment of halibut PSC for 2008 is described in Table 15. The crab PSC limit for Zone 1 red king crab, Zone 1 *C. bairdi* crab, Zone 2 *C. bairdi* crab, and *C. opilio* is based on a percentage of the crab abundance estimated for each crab species annually, as set forth in regulations in § 679.21(e). Once the crab PSC limit is established, NMFS would allocate a portion of the annual crab PSC limit as PSQ for the CDQ Program according to the criteria described under Section III of this preamble. The remaining amount of crab PSC limit would be assigned to the Amendment 80 and BSAI trawl limited access sectors according to the PSC allocation percentages listed in Table 35 to part 679 in the proposed regulatory text. For this example, the projected apportionment of crab PSC for 2008 is described in Table 15. Table 15.—Projected Apportionment of Halibut PSC and Crab PSC to the CDQ Program and Amendment 80 and BSAI Trawl Limited Access Sectors PSC species Total trawl PSC allocation

(mt)CDQ PSQ allocation

(mt)PSC remaining after CDQ PSQ allocation

(mt)Amendment 80 sector allocation

(mt)BSAI trawl limited access fishery allocation

(mt)Halibut n/a 343 n/a 2,525 875 Red king crab 182,225 19,498 (10.7%) 162,727 101,672 (62.48%) 49,761 (30.58%) *C. opilio* (COBLZ) PSC limit 4,023,750 430,541 (10.7%) 3,593,209 2,207,667 (61.44%) 1,154,857 (32.14%) Zone 1 *C. bairdi* crab PSC limit 906,500 96,996 (10.7%) 809,505 426,123 (52.64%) 380,386 (46.99%) Zone 2 *C. bairdi* crab PSC limit 2,747,250 293,956 (10.7%) 2,453,294 725,930 (29.59%) 1,148,387 (46.81%) B. Example of Amendment 80 QS Allocations NMFS has estimated the Amendment 80 QS pools for each Amendment 80 species to describe the allocation of Amendment 80 QS permits. NMFS has also created hypothetical QS permit holders and a cooperative. NMFS notes that the QS allocation to hypothetical persons is not based on specific Amendment 80 sector participants or actual data from specific persons. 1. Step 1: Determine the Total Legal Landings for All Amendment 80 Vessels Using the official record, NMFS would sum the best five of seven years of legal landings for all Amendment 80 vessels during the 1998 through 2004 qualifying years for each Amendment 80 species. NMFS's estimate of the best five of seven years of legal landings for all Amendment 80 vessels is detailed in Table 16. The legal landings shown in Table 16 are based on total catch data from WPRs for each Amendment 80 species for all known Amendment 80 vessels in metric tons. This estimate may not reflect an actual initial best five of seven years of legal landings for all Amendment 80 vessels due possible changes in the official record that may occur if the official record is adjusted based on information provided through the application for QS process. Table 16.—Estimated Sum of the Best Five of Seven Years of Catch From 1998 Through 2004 for Each Amendment 80 Species by All Known Amendment 80 Vessels Amendment 80 species Total legal landings (the sum of the best five of seven years) for all Amendment 80 vessels

(mt)Atka mackerel 256,438 AI POP 57,882 Pacific cod 155,280 Flathead sole 84,492 Rock sole 169,023 Yellowfin sole 350,173 Sum of all legal landings 1,073,287 2. Step 2: Assign a Percentage of the Total Legal Landings to Each Amendment 80 Vessel NMFS would determine the best five of seven years of legal landings for each Amendment 80 species for each Amendment 80 vessel and the percentage of the total legal landings for each Amendment 80 species attributed to each Amendment 80 vessel. This estimate assumes that 28 Amendment 80 vessels are qualified to receive QS, and that three Amendment 80 vessels had no legal landings during the qualifying period of 1998 through 2004. NMFS would assign each of the three Amendment 80 vessels without any legal landings 0.5 percent of the flathead sole and yellowfin sole total legal landings, and 0.1 percent of the rock sole total legal landings. All other Amendment 80 vessels would have their aggregate legal landings reduced by 1.5 percent for rock sole and yellowfin sole, and by 0.3 percent for flathead sole to accommodate these three Amendment 80 vessels. For legal landings from non-mackerel vessels, NMFS would determine the percentage of legal landings of Atka mackerel from 1998 through 2004 in each Atka mackerel management area made by that Amendment 80 vessel. 3. Step 3: Establish the Initial Amendment 80 QS Pools NMFS would determine the Amendment 80 initial QS pools based on the legal landings verified through the applications for Amendment 80 QS. NMFS would set the Amendment 80 initial QS pool for each Amendment 80 species equal to the sum of the best five of seven years of legal landings assigned to each Amendment 80 vessel in metric tons as of December 31, 2007. Each metric ton of legal landing in NMFS's official record on this date would yield one QS unit. For this example, NMFS has assumed that all potentially eligible persons applied, NMFS reviewed the applications, provided an opportunity for each applicant to challenge the official record, the official record was not challenged by any applicant, and NMFS did not amend the official record. Therefore, the initial QS pool would be equal to the amount of legal landings from WPRs for all Amendment 80 vessels from 1998 through 2004 as shown in Table 16 above. For this example, the total initial QS units for all Amendment 80 species is 1,073,287 QS units, and 30 percent of that amount, which is the Amendment 80 QS person use cap, is 321,986 QS units. 4. Step 4: Assign Legal Landings to an Amendment 80 Vessel This example follows four hypothetical qualified applicants; Andy, Jon, Mark, and Mary, who submitted complete applications for Amendment 80 QS by October 15, 2007. Andy and Mark each own one Amendment 80 vessel. Mary owns seven Amendment 80 vessels. Jon holds the LLP license originally issued to an Amendment 80 vessel that sank, therefore the vessel is an actual total loss. Jon also holds a contract from the owner of sunk Amendment 80 vessel stating that he holds the rights to receive any QS that may be derived from the vessel. All of these persons owned their vessels, and held their LLP licenses prior to June 9, 2006 and at the time of application. Therefore, if any of them receive an initial allocation of QS units in excess of the QS use cap, they would be subject to the grand father clause (see Section XI for more detail on use caps). NMFS would review each person's applications and determine the amount of legal landings and Amendment 80 QS units that would be derived from the Amendment 80 vessels they own, or, in Jon's case, from the Amendment 80 vessel for which he holds the right to receive QS. The percentage of the QS pool that would be assigned to each applicant is based on the legal landings assigned to each Amendment 80 vessel for which they have applied. For each Amendment 80 species, the five of seven years from 1998 through 2004 with the greatest amount of legal landings for each Amendment 80 vessel is divided by the sum of the best five of seven years from 1998 through 2004 for all Amendment 80 vessels (shown in Table 16 of this preamble). For purposes of this example, the flathead sole, rock sole, and yellowfin sole legal landings assigned to the Amendment 80 vessels for which Andy, Jon, Mark, and Mary have applied are assumed to have been adjusted to account for the three Amendment 80 vessels without any legal landings (see Section VI of this preamble for more detail on this adjustment process). At this time, NMFS would also determine if any of the Amendment 80 vessels for which Andy, Jon, Mark, or Mary have applied would qualify as non-mackerel vessels. For this example, the Amendment 80 vessels for which Andy, Jon, and Mary have applied are assumed to be mackerel vessels. Mark is assumed to own a non-mackerel vessel—an Amendment 80 vessel less than 200 ft (61 m) LOA that made less than two percent of the total Atka mackerel legal landings. Under this example, all of the Atka mackerel legal landings assigned to Mark's Amendment 80 vessel (1.0 percent of the total Atka mackerel legal landings in this example) would be assumed to be derived from Area BS/541. Mark would receive non-mackerel QS designated for Area BS/541 based on these legal landings. This example assumes that 6.0 percent of the total Atka mackerel legal landings would be assigned to non-mackerel vessels, of which 4.6 percent would be assigned to Area BS/541, 1.2 percent to Area 542, and the remaining 0.2 percent to Area 543. This estimate of the amount of legal landings assigned to non-mackerel vessels in each management area is consistent with the estimate provided in the draft EA/RIR/IRFA prepared for this action and on NMFS's WPR records. Once the percentage of the sum of the best five of seven years of legal landings for each Amendment 80 species for each Amendment 80 vessel for which Andy, Jon, Mark, and Mary have applied is known, that amount is multiplied by the initial QS pool. The percentage of the Amendment 80 initial QS pool for each Amendment 80 species and the total amount of Amendment 80 QS units that would be assigned to Andy, Jon, Mark, and Mary is shown in Table 17 of this preamble. 5. Step 5: Assign Amendment 80 QS Permits NMFS would assign an Amendment 80 QS permit to each person who submits a timely and complete application by October 15. The Amendment 80 QS permit would designate the number of QS units for each Amendment 80 species. Andy, Mark, and Mary would be issued an Amendment 80 QS permit for each Amendment 80 vessel they own. Jon would be issued an Amendment 80 QS permit that is permanently affixed to the LLP license originally assigned to the Amendment 80 vessel that sank. Jon holds an LLP license was originally assigned to an Amendment 80 vessel with legal landings, Jon submitted a timely and complete application to receive QS based on those legal landings, and Jon holds a contract to receive QS derived from those legal landings. Therefore, Jon's LLP license would be reissued as an Amendment 80 LLP/QS license. C. Example of Allocations to an Amendment 80 Cooperative and the Amendment 80 Limited Access Fishery 1. Step 1: Form a Cooperative In this example, Andy, Jon, Mark, and Mary form a corporation for a harvesting cooperative—Cooperative X, establish a membership agreement, and designate an individual to serve as the representative who is responsible for acting on behalf of the cooperative. The representative of Cooperative X submitted a complete application for CQ by November 1, 2007. For simplicity, this example assumes that only one Amendment 80 cooperative (Cooperative X) has formed in the Amendment 80 sector. Any ITAC or PSC allocated to the Amendment 80 sector and not assigned to Cooperative X would be assigned to the Amendment 80 limited access fishery. Andy, Jon, Mark, and Mary are not linked through a 10 percent or greater common ownership or control. All of the Amendment 80 QS permits, Amendment 80 vessels, and Amendment 80 LLP licenses they hold are assigned to Cooperative X. Andy, Jon, and Mark each hold one Amendment 80 permit. Mary holds seven Amendment 80 QS permits. A total of 10 Amendment 80 QS permits are assigned to the cooperative. This example assumes that no other sanctions or limits would prevent these four people from forming a cooperative. 2. Approve the Application for CQ NMFS would approve the application for CQ for Cooperative X because it meets the requirements of being a registered corporation with a designated representative, it is comprised of a minimum of three unique members, and more than the minimum of nine Amendment 80 QS permits have been assigned to Cooperative X. Table 17 displays the amount of QS units assigned to each member of Cooperative X, and the total amount of QS units assigned to the cooperative. Table. 17. Amendment 80 QS issued to Andy, Jon, Mark, and Mary and assigned to Cooperative X. Amendment 80 Species Andy Vessel A QS units and (% of QS pool) Jon Vessel B QS units and (% of QS pool) Mark Vessel C QS units and (% of QS pool) Mary Vessels D—I QS units and (% of QS pool) Cooperative X Total QS units and (% of QS pool) assigned to Cooperative X Atka mackerel 12,822 (5%) 12,822 (5%) 2,560 (1%) 64,110 (25%) 92,318. 36% of QS pool. AI POP 2,894 (5%) 579 (1%) 289 (0.5%) 14,760 (25.5%) 18,522. 37% of QS pool. Pacific cod 3,882 (2.5%) 8,540 (5.5%) 11,646 (7.5%) 44,255 (28.5%) 68,323. 44% of QS pool. Flathead sole 845 (1%) 3,380 (4%) 2,535 (3%) 31,262 (37%) 38,021. 45% of QS pool. Rock sole 5,071 (3%) 8,451 (5%) 8,451 (5%) 64,229 (38%) 86,202. 51% of QS pool. Yellowfin sole 14,007 (4%) 17,509 (5%) 17,50 (5%) 175,087 (50%) 224,111. 64% of QS pool. Total QS units (% of QS pool) 39,521 3.68% 51,281 4.78% 42,994 4.00% 393,701 36.68% 527,497. 49.15% of total aggregate QS units. Note that in this example, Mary has been allocated Amendment 80 QS permits with a sum of Amendment 80 QS units that is greater than 30 percent of the aggregate Amendment 80 initial QS pool. The use cap is 321,986 QS units (see Step 3 above for additional detail). NMFS would initially issue Mary more QS units than the QS unit cap because she is subject to the grandfather clause. Mary would not be eligible to receive any additional Amendment 80 QS permits by transfer unless and until she transfers a QS permit, or several QS permits, until she holds an amount of QS units on all of her QS permits that is less than 30 percent of the aggregate QS pool. (See Section IX of this preamble for more detail on use caps). Cooperative X would receive a specific amount of the Amendment 80 ITAC as CQ for each Amendment 80 species based on the proportion of the aggregate Amendment 80 QS pool assigned to the cooperative. 3. Step 3: Assign Atka Mackerel CQ to Cooperative X NMFS would need to calculate the allocation of Atka mackerel ITAC to non-mackerel QS holders first and then apportion the remaining amount of the ITAC to mackerel QS holders. For each management area, the Atka mackerel ITAC assigned to non-mackerel QS holders would be determined using the following formula: Non-mackerel ITAC in a management area = (Non-mackerel QS designated for that management area / Total mackerel and non-mackerel QS pool) x Amendment 80 sector ITAC in all management areas. Based on the assumed distribution of non-mackerel QS as a percentage of total non-mackerel and mackerel QS described in Step 4 in Part B of this section, and the amount of ITAC in each Atka mackerel management area described in Table 14 above, the result from this formula for this example is shown in Table 18. Table 18.—Example of Non-Mackerel ITAC Assigned to Each Management Area Area Column A Non-mackerel QS in an Area (% of total QS pool) Column B Total ITAC (mackerel and non-mackerel) in all areas Column C Non-mackerel ITAC in that area = (Column A × Column B) BS/541 4.6 % BS/541 A season = 1,041 mt. A season = 22,625 mt BS/541 B season = 1,041 mt. 542 1.2 % 542 A season = 271 mt. 542 B season = 271 mt. 543 0.2 % B season = 22,625 mt 543 A season = 45 mt. 543 B season = 45 mt. Mark holds Atka mackerel QS derived from a non-mackerel vessel that yielded 1 percent of the total Atka mackerel QS pool. All of Mark's QS units are assigned to Area BS/541. The amount of Area BS/541 CQ derived from Mark's non-mackerel QS and assigned to the cooperative as Area BS/541 CQ is shown in the following formula: Non-mackerel CQ assigned to that cooperative = (Non-mackerel QS designated for that management area assigned to that Amendment 80 cooperative / Non-mackerel QS pool in that management area) × Non-mackerel ITAC for that management area. In this example, 21.7 percent of the non-mackerel QS pool in Area BS/541 is assigned to Mark. The percent of the non-mackerel QS pool assigned to the cooperative is equal to one percent of Area BS/541 total QS pool, divided by 4.6 percent, which is the non-mackerel QS pool in management Area BS/541. This would result in 21.7 percent of the A and B season non-mackerel ITAC (1,041 mt × 21.7 percent = 226 mt per season) in Area BS/541 being assigned to Cooperative X as Area BS/541 Atka mackerel CQ based on Mark's non-mackerel QS holdings. Under this example, the remaining non-mackerel ITAC in Areas BS/541, Area 542, and Area 543 would be assigned to the Amendment 80 limited access fishery. The total amount of Area 541/BS ITAC assigned to the Amendment 80 limited access fishery from non-mackerel vessels is shown in the following equation: Non-mackerel ITAC assigned to the Amendment 80 limited access fishery in a management area = Non-mackerel ITAC in a management area—Σ of non-mackerel CQ assigned to all Amendment 80 cooperatives in that management area. After deducting the non-mackerel ITAC in Areas BS/541, 542, and 543 the remaining ITAC, the mackerel ITAC, would be assigned to mackerel QS holders in the cooperative (Andy, Jon, and Mary) in proportion to the mackerel QS assigned to the cooperative. The mackerel ITAC from all three management areas would be equally apportioned among these mackerel QS holders based on their percentage of the mackerel QS pool. The amount of Area BS/541, Area 542, and Area 543 mackerel ITAC assigned to the cooperative is computed using the following equation: Mackerel CQ in a management area = (Amendment 80 sector ITAC in a management area—Non-mackerel ITAC in a management area) × (Mackerel QS units assigned to that cooperative / Mackerel QS pool). For simplicity, the percentage of the total mackerel QS pool in each area can be shown as a percentage of the total QS pool (i.e, the combined mackerel and non-mackerel QS pools). In this example, the mackerel QS pool comprises 94 percent of the total Atka mackerel QS pool, and the non-mackerel QS pool comprises 6 percent of the total Atka mackerel QS pool. Therefore, if cooperative X is assigned 35 percent of the mackerel QS pool, and the mackerel QS pool is equal to 94 percent of the combined mackerel and non-mackerel QS pool, dividing 35 percent by 94 percent equals 37.2 percent, which is the percent of the mackerel QS pool assigned to Cooperative X. The following Table 19 shows the results of this calculation. In addition, Table 19 shows the total CQ assigned to Cooperative X that would be derived from mackerel Qs held by Andy, Jon, and Mary, and non-mackerel QS held by Mark. Table 19.—Example of Atka Mackerel CQ Assigned to Cooperative X Area Column A = Mackerel ITAC in an area Column B = Percentage of mackerel QS assigned to the cooperative Atka mackerel CQ = Non-mackerel CQ (Column A x Column B) + mackerel CQ from Mark in Area BS/541 BS/541 A and B seasons = 5,967 mt (7,008 mt—1,041 mt) 37.2% (35% of total QS pool / 94%) A season = 2,448 mt (2,222 mt + 226 mt from Mark). B season = 2,448 mt (2,222 mt + 226 mt from Mark). 542 A and B seasons = 9,259 mt (9,530 mt—271 mt) 37.2% (35% of total QS pool / 94%) A season = 3,447 mt. B season = 3,447 mt. 543 A and B seasons = 5,703 mt (5,749 mt—45 mt) 37.2% (35% of total QS pool / 94%) A season = 2,124 mt. B season = 2,124 mt. 4. Step 4: Assign Atka Mackerel ITAC to the Amendment 80 Limited Access Fishery After allocating Atka mackerel CQ to all cooperatives (there is only one cooperative, Cooperative X, in this example), the remaining Atka mackerel ITAC in each area, both the non-mackerel and mackerel ITAC would be allocated to the Amendment 80 limited access fisheries. Table 20 shows the amount of Atka mackerel ITAC assigned to the Amendment 80 limited access fishery. Table 20.—Total Atka Mackerel ITAC Assigned to the Amendment 80 Limited Access Fishery Area and season Column A Amendment 80 ITAC

(mt)Column B CQ assigned to Cooperative X

(mt)Column C ITAC for Amendment 80 limited access fishery

(mt)(Column A—Column B) BS/541 A season 7,008 2,448 4,560 B season 7,008 2,448 4,560 542 A season 9,530 3,447 6,083 B season 9,530 3,447 6,083 543 A season 5,749 2,124 2,124 B season 5,749 2,124 2,124 5. Step 5: Assign CQ to Cooperative X and ITAC to the Amendment 80 Limited Access Fishery (All Amendment 80 Species Except Atka Mackerel) NMFS would assign CQ for each Amendment 80 species, except Atka mackerel, to Cooperative X based on the percentage of that Amendment 80 species QS pool assigned to Cooperative X multiplied by the Amendment 80 sector ITAC. The Amendment 80 ITAC for AI POP in Areas 541, 542, and 543, would be assigned to the cooperative based on the percentage of that AI POP QS pool assigned to the cooperative (shown in Table 17 of this preamble). The ITAC for Pacific cod would be assigned to the cooperative based on the percentage of the Pacific cod QS pool held by the cooperative and assigned on a seasonal basis. Flathead sole, rock sole, and yellowfin sole would be assigned to the cooperative based on the percentage of the Amendment 80 QS held by the cooperative for those species. These three species are not currently subject to seasonal apportionment. The allocation of CQ to cooperative X is shown in Table 21. Table 21.—CQ Assigned to Cooperative X and the Amendment 80 Limited Access Fishery ITAC for All Amendment 80 Species, Except Atka Mackerel Amendment 80 species Amendment 80 Sector ITAC

(mt)CQ assigned to Cooperative X

(mt)and (% of Amendment 80 ITAC) Amendment 80 limited access fishery ITAC

(mt)and (% of Amendment 80 ITAC) AI POP Area 541 3,971 1,477 (37 %) 2,514 (63%). Area 542 4,194 1,554 (37%) 2,646 (63%). Area 543 6,594 2,443 (37%) 4,159 (63%). Pacific cod A season = 11,404 5,017 (44%) 6,387 (56%) . B season = 3,802 1,673 (44%) 2,129 (56%). Flathead sole 36,970 16,637 (45%) 20,334 (55%). Rock sole 63,626 32,449 (51%) 31,177 (49%). Yellowfin sole 113,493 72,635 (64%) 40,857 (36%). 6. Step 6: Attribute PSC to Each Amendment 80 Species NMFS would attribute the Amendment 80 sector halibut and crab PSC to each Amendment 80 species for purposes of determining how much halibut and crab PSC would be assigned to an Amendment 80 cooperative and the Amendment 80 limited access sector. The process for assigning an amount of halibut and crab PSC has been apportioned to the CDQ Program, Amendment 80 sector, and BSAI trawl limited access sector is described in Section IV of this preamble. The results of that process are shown in Table 15 of this preamble. The amount of the Amendment 80 sector halibut and crab PSC that is attributed to each Amendment 80 species, based on historic use of that PSC species by the Amendment 80 sector, is shown in Table 22. Table 22.—Percentage of PSC Limit Attributed to Each Amendment 80 QS Species For the following PSC species and Amendment 80 sector allocation . . . The amount (and percentage) of the Amendment 80 sector PSC limit attributed to each Amendment 80 QS species is . . . Atka mackerel AI POP Pacific cod Flathead sole Rock sole Yellowfin sole Row 1: Halibut 2,575 mt 102 mt (3.96%) 48 mt (1.87%) 638 mt (24.79%) 347 mt (13.47%) 623 mt (24.19%) 817 mt. (31.72%). Row 2: Red king crab Zone 1 101,672 animals 142 (0.14%) 569 (0.56%) 6,995 (6.88%) 448 (0.48%) 62,823 (61.79 %) 30,664. (30.16%). Row 3: *C. opilio* crab (COBLZ) 2,207,667 animals 0 (0%) 1325 (0.06%) 138,642 (6.28%) 395,393 (17.91%) 217,234 (9.84%) 1,455,074. (65.91%). Row 4: Zone 1 *C. bairdi* crab 426,123 animals 0 (0%) 0 (0%) 72,484 (17.01%) 13,338 (3.13%) 239,268 (56.15%) 101,034. (23.71%). Row 5: Zone 2 *C. bairdi* crab 725,930 animals 73 (0.01%) 218 (0.03%) 57,494 (7.92%) 270,844 (37.31%) 51,033 (7.03%) 346,269. (47.70%). Row 6: % of Amendment 80 QS assigned to Cooperative X 36% 37% 44% 45% 51% 64%. 7. Step 7: Assign PSC to the Cooperative NMFS would assign halibut and crab PSC to the cooperative in proportion to the amount of Amendment 80 QS held by the cooperative. The steps in this process include

(1)multiplying the amount of PSC attributed to each Amendment 80 QS species as shown in Table 22 by the percentage of the Amendment 80 QS assigned to Cooperative X for that Amendment 80 species (i.e., For each PSC species, multiply the amount of PSC listed in Rows 1 through 5 by the percentage of the Amendment 80 QS assigned to Cooperative X in Row 6); and

(2)summing the amount of PSC derived from all Amendment 80 species. The result of these calculations is the total PSC assigned to Cooperative X and is described in Table 23. Table 23.—Crab and Halibut PSC Assigned to Cooperative X PSC species Allocation to Cooperative X Row 1: Halibut 1,332 mt PSC CQ. Row 2: Red king crab Zone 1 55,224 animals. Row 3: *C. opilio* crab (COBLZ) 1,281,456 animals. Row 4: Zone 1 *C. bairdi* crab 224,583 animals. Row 5: Zone 2 *C. bairdi* crab 394,922 animals. NMFS notes that these amounts of PSC CQ would be used by Cooperative X while fishing for all groundfish in the BSAI. This would include Amendment 80 species and other non-pollock groundfish, if there is available TAC (e.g., Greenland turbot). NMFS would assign the amount of Amendment 80 halibut and crab PSC that remains after allocation to Cooperative X to the Amendment 80 limited access fishery. NMFS would further apportion the PSC assigned to the Amendment 80 limited access fishery by season and fishery according to the annual harvest specification process. PSC apportioned to the Amendment 80 limited access fishery would be managed by NMFS inseason staff. The seasonal and fishery specific apportionment of halibut and crab PSC for the Amendment 80 limited access fishery cannot be predicted at this time because that process is dependent on input from the regulated industry. Therefore, this example does not describe the seasonal or fishery apportionment of PSC to the Amendment 80 limited access fishery. 8. Step 8: Begin Fishing The members of Cooperative X could fish under its CQ permit beginning January 20, 2008. Cooperative X, would have to ensure that their vessels did not exceed the Amendment 80 vessel use cap of 57,732 mt of Amendment 80 species while catching their CQ. Any Amendment 80 vessels used by the cooperative members would need to meet all of the M&E requirements detailed in Section XII of this preamble. Effective with the 2009 fishing year, each cooperative member would have to submit a timely and complete EDR for the cooperative to receive any CQ derived from the QS permits held by those members (see Section XIII of this preamble for more detail). D. Example of AFA Sideboard Limits 1. AFA Groundfish Sideboard Limits The AFA sideboard limits for Amendment 80 species would be calculated based on the amount of TAC remaining after the deduction of 10.7 percent of the TAC for the CDQ Program, but prior to the designation of the ICA. This amount of the TAC is then multiplied by the AFA catcher/processor sideboard ratio and the AFA catcher vessel sideboard ratio established in regulation in § 679.64. The result of this calculation is the AFA groundfish sideboard limit for that Amendment 80 species for that AFA sector. For example, the AFA catcher/processor rock sole sideboard limit would be 2,478 mt: ((75,000 mt TAC−8,025 mt CDQ Program allocation) × AFA catcher/processor sideboard ratio of 0.037 = 2,478 mt). This calculation method would be used for establishing the AFA catcher/processor and AFA catcher vessel sideboard limits for all Amendment 80 species, except Atka mackerel for the AFA catcher/processor sector, and Pacific cod for the AFA catcher/processor and AFA catcher vessel sectors. Section V of this preamble notes that the BSAI Atka mackerel sideboard limit for AFA catcher/processors is not modified by the Program and would not be calculated using this method. Section IV of this preamble notes that the Program would not alter the existing method for calculating Pacific cod AFA sideboard limits. The proposed rule for Amendment 85 proposes to remove Pacific cod sideboard limits for the AFA catcher/processors (February 7, 2007; 72 FR 5654). Under this example, NMFS has assumed that a final rule implementing Amendment 85 as proposed has been published and Pacific cod AFA catcher/processor sideboards would not apply. This example also assumes that pending a final rule implementing Amendment 85, NMFS would calculate the AFA catcher vessel sideboards based on current regulations in § 679.64(b)(3)(ii). These regulations require NMFS to calculate the AFA catcher vessel sideboard limit for Pacific cod by multiplying the AFA catcher vessel Pacific cod sideboard ratio (i.e., 0.8609 based on calculations previously conducted) by the BSAI Pacific cod TAC available to catcher vessels in the year or season in which the harvest limit will be in effect. The amount of BSAI Pacific cod available to catcher vessels could be derived by reviewing the allocation of BSAI Pacific cod approved by the Secretary under Amendment 85 and described in Table 8 in this preamble. Table 8 displays the allocation of TAC among various fishery sectors. Exclusive allocations made for the CDQ Program would not be considered as available to catcher vessels because CDQ Program allocations are exclusive to specific vessels and are not accessible to catcher vessels generally. Based on the allocations detailed in Table 8, 65.9 percent of the BSAI Pacific cod TAC after allocation to the CDQ Program is assigned to catcher/processors (e.g., Amendment 80 sector, pot catcher/processors, etc.), the remaining 34.1 percent of the BSAI Pacific cod TAC may be harvested by catcher vessels (trawl catcher vessels, pot catcher vessels, etc.). Using the 2008 BSAI Pacific cod TAC, the AFA catcher vessel Pacific cod sideboard limit as proposed under Amendment 85 would be 38,695 mt (From Table 13: 113,474 mt of BSAI Pacific cod TAC remains after allocation to the CDQ Program × 34.1 percent = 38,695 mt). This example, assumes that the AFA catcher vessel sideboard limit for Pacific cod in the Program would be the same as that proposed under Amendment 85. Additionally, under this example, the yellowfin sole ITAC in 2008 would be greater than 125,000 mt. As noted in Section V of the preamble, at that yellowfin sole ITAC level, NMFS would not apply AFA sideboard limits for yellowfin sole. Tables 24 and 25 summarize the AFA groundfish sideboard limits in 2008 for Amendment 80 species based on the assumptions presented here. AFA sideboard limits for Atka mackerel and Pacific cod may be apportioned by season during the annual harvest specification process. For simplicity, Tables 24 and 25 do not apportion the AFA sideboard limits for Atka mackerel or Pacific cod by season. Presumably, the AFA sideboard limits for Atka mackerel and Pacific cod would continue to be apportioned by season. AFA sideboard limits that apply to non-Amendment 80 groundfish species would continue to be calculated under existing regulations. Non-Amendment 80 groundfish species AFA sideboard limits are not displayed in Tables 24 and 25. Table 24.—Projected AFA Catcher/Processor Sideboard Limits in the BSAI Species or species group TAC available for AFA catcher/processor sideboards

(mt)AFA catcher/processor sideboard ratio 2008 AFA catcher/processor sideboard limit

(mt)AI POP: Area 541 4,376 0.020 88 Area 542 4,465 0.001 4 Area 543 6,805 0.004 27 Flathead sole 40,185 0.036 1,447 Rock sole 66,975 0.037 2,478 Yellowfin sole 133,950 0.230 N/A (See above) Atka mackerel Sideboard limits subject to further seasonal apportionment Area BS/541 17,600 0 0 Area 542 22,000 0.115 2,530 Area 543 15,300 0.200 3,060 Pacific cod Sideboard limits subject to further seasonal apportionment BSAI N/A N/A N/A (Proposed under Amendment 85). Table 25.—Projected AFA Catcher/Processor Sideboard Limits in the BSAI Species or species group TAC available for AFA catcher vessel sideboards AFA catcher vessel sideboard ratio 2008 AFA catcher vessel sideboard limit

(mt)AI POP: Area 541 4,376 0.0077 34 Area 542 4,465 0.0025 11 Area 543 6,805 0 0 Flathead sole(BS trawl gear) 40,185 0.036 2,029 Rock sole 66,975 0.0341 2,284 Yellowfin sole 133,950 0.0647 N/A (See above). Atka mackerel Sideboard limits subject to further seasonal apportionment Area BS/541 15,717 0.0032 50 Area 542 19,646 0.0001 2 Area 543 13,663 0 0 Pacific cod (BSAI trawl gear) Sideboard limits subject to further seasonal apportionment 38,695 0.8609 33.313 2. AFA Halibut PSC Sideboard Limits AFA halibut PSC limits would be fixed in regulation as listed in Table 40 to part 679 in the proposed regulatory text. During the annual harvest specification process, the Council could recommend assigning halibut PSC by season (e.g., halibut PSC in the yellowfin sole fishery), if that is deemed necessary. 3. AFA Crab PSC Sideboard Limits AFA crab sideboard limits would be based on the AFA ratios as listed in Table 41 to part 679 in the proposed regulatory text multiplied by the amounts of crab PSC listed under the “PSC remaining after CDQ PSQ allocation” column in Table 15 of this preamble. The result of that calculation is shown in Table 26 below. Table 26.—Projected AFA Crab PSC sideboard limits [in numbers of animals] For the following crab species in the following areas . . . The AFA catcher/processor crab PSC sideboard limit is . . . The AFA catcher vessel crab PSC sideboard limit is . . . Red king crab Zone 1 1,140 48,660 *C. opilio* crab (COBLZ) 549,760 603,660 Zone 1 *C. bairdi* crab 113,330 267,140 Zone 2 *C. bairdi* crab 122,670 455,31 XII. Monitoring and Enforcement (M&E) As is the case for any LAPP, NMFS must be able to monitor the use of all CQ, catch relative to GOA sideboard limits, and use caps. The primary tools for monitoring the Program would include the following:

(1)The use of observers aboard vessels;

(2)weighing all catch on NMFS approved scales; and

(3)specified procedures when handling catch prior to processing. For purposes of this section, Amendment 80 vessels are referred to as non-AFA trawl catcher/processors when referring to M&E provisions applicable in the BSAI. The term “non-AFA trawl catcher/processor” includes all Amendment 80 vessels, and any non-AFA trawl catcher/processors that may enter the fishery, such as those that could be used by CDQ groups to harvest Amendment 80 species. In addition to the requirements listed above, all non-AFA trawl catcher/processors would continue to be subject to existing vessel monitoring system

(VMS)requirements described in § 679.28(f). A. Observers Observers would be required aboard vessels to adequately account for catch and bycatch in the fishery. Observer coverage would increase from existing coverage levels in most cases to ensure that catch accounting is adequate for a quota based fishery. Because this is a new program, ensuring adequate observer coverage would be particularly important for monitoring the complex suite of allocations and GOA sideboard limits. Adequate observer coverage would be essential to monitor halibut PSC rates in the fishery and ensure that a cooperative does not exceed its halibut PSC CQ allocation. Observer coverage also would be essential for monitoring the use of CQ by the Amendment 80 cooperatives, the amount of ITAC caught and PSC used in Amendment 80 limited access fishery, and to monitor GOA sideboard limits applicable to Amendment 80 vessels. Observer coverage would be increased from existing requirements on all non-AFA trawl catcher/processors while fishing under a CQ permit for a cooperative, in the Amendment 80 limited access fishery, for the CDQ Program, or when subject to GOA sideboard limits. Observer coverage requirements were discussed and reviewed during the development of the Program, and are described in the EA/RIR/IRFA analysis prepared to support this action (see ADDRESSES for more information). Generally, the level and type of observer coverage required under this Program follows models that have been developed for monitoring catcher/processor vessels under the Central GOA Rockfish Program (see § 679.84 for additional detail). Vessels would be required to fish in a manner such that observer workload restrictions are not exceeded. Additionally, NMFS proposes to revise regulations at § 679.50(a) to clarify observer coverage levels for individual management programs. Generally, observer coverage regulations for individual programs are outlined in § 679.50(c) and (d). As management programs which require additional or separate observer coverage are implemented, regulations governing observer coverage for each of these programs have been added to these sections. To assist the various program participants in finding the appropriate observer coverage, NMFS proposes to add a table to the introductory text of § 679.50 that provides the location of observer coverage regulations for each management program. Vessel owners and operators should note that if a vessel is subject to M&E requirements for more than one LAPP, (e.g., an Amendment 80 vessel is subject to observer requirements under the Central GOA Rockfish Program and the Program), the most restrictive observer coverage and M&E requirements would apply to that vessel. 1. Observer Coverage for All Non-AFA Catcher/Processors Fishing in the BSAI Observer coverage would differ in Amendment 80 cooperatives from the existing requirements for several reasons. As noted above, increased observer coverage is necessary to account for CQ. All catch of Amendment 80 species, and use of halibut and crab PSC in the BSAI must be debited from an Amendment 80 cooperative's CQ account. Additionally, the Program would provide exclusive harvest privileges for a multiple species fishery where catches generally consist of heterogeneously mixed Amendment 80 species and non-quota species or species groups (e.g., arrowtooth flounder) in the same haul. Under the Program, vessels engaged in fishing for Amendment 80 species may alter their fishing behavior to maximize their non-quota species (e.g., arrowtooth flounder). As the relative TACs and economic value of various groundfish targets change, the value of these non-allocated species could become significant. This could increase the harvest of non-allocated species and the halibut PSC CQ incidentally used during the harvest of non-allocated species. Because of the magnitude of hauls, diversity of species, and range of vessel characteristics, catch accounting would depend on species composition that is derived from observer samples. NMFS currently bases its calculation of species composition, including halibut and crab PSC, for catcher/processor vessels on basket samples of approximately 300 kg (approximately 660 lb) or less, depending on the time and space available to the observer. Catch composition data are extrapolated (the term commonly used is “expanded”) to determine species composition, and PSC use for the entire haul. The sampled hauls are expanded to determine the quantity of a given groundfish species and PSC that would be attributed to the unsampled hauls during a trip. NMFS then calculates the species composition and PSC catch rate from the sampled hauls for each directed fishery. These species composition estimates and PSC catch rates are then applied to all unobserved catch to determine total species composition and PSC use. The degree to which a given quantity of groundfish or PSC in a sample is expanded varies enormously depending on the fraction of total observed hauls and the fraction of sampled catch in each of the observed hauls. Increasing observer coverage so that most hauls are observed would decrease the proportion of unobserved hauls and the need to expand observer sample estimates. Additionally, unobserved vessels may have a strong incentive to under-report PSC. PSC may not be retained by the vessel and thus has no economic value. However, it is quite possible that the lack of sufficient PSC, specifically halibut PSC, could limit the amount of allocated species harvested by Program participants and under-reported halibut PSC could potentially allow the under-reporting vessel or Amendment 80 cooperative to harvest a larger amount of target species. This is particularly true for vessels in Amendment 80 cooperatives because this Program would allocate a share of available halibut PSC to the cooperatives as CQ. Lack of sufficient halibut PSC CQ could limit the ability of Amendment 80 cooperatives to fully harvest their CQ for Amendment 80 and non-Amendment 80 species, (e.g., Greenland turbot), that may be constrained by amount of PSC CQ held by the cooperative. This could create an incentive to under report PSC CQ. This incentive increases the need for monitoring catch composition. To ensure adequate observation and sampling of hauls for species composition and PSC use, observer coverage for Amendment 80 vessels fishing for Amendment 80 cooperatives would be similar to requirements for catcher/processor vessels fishing under a CQ permit under the Central GOA Rockfish Program. The specific level of observer coverage required for catcher/processor vessels is detailed in Table 27. Observer coverage requirements in the limited access fishery would be the same as those for vessels assigned to cooperatives. Observer coverage required for non-AFA trawl catcher/processors participating in limited access fisheries is detailed in Table 27. NMFS would require observer coverage adequate to ensure proper management of the TAC and PSC. This would be particularly critical in the limited access fisheries because the TAC assigned is likely to be small and could be prosecuted by relatively few vessels. Limited observer coverage could reduce the ability of NMFS to close fisheries in a timely manner, thereby increasing the potential for Amendment 80 vessels to catch more than the ITAC of Amendment 80 species, or PSC assigned to the Amendment 80 limited access sector. Should Amendment 80 vessels exceed the ITAC assigned to the Amendment 80 limited access fishery, NMFS could be required to limit harvest opportunities in other fisheries, including Amendment 80 cooperatives, should the excess catch approach the overfishing level

(OFL)for a given species. Increased observer coverage requirements would reduce that risk by providing more timely and complete data. Observer coverage requirements in the CDQ fishery would be the same as those for vessels assigned to cooperatives. Vessels fishing in the CDQ fishery are currently subject to these observer coverage requirements. Therefore, there would be no change for these vessels under this proposed action. The observer requirements for non-AFA trawl catcher/processors proposed for the Program would supercede the observer coverage requirements established under the GRS. The observer coverage requirements for vessels subject to the GRS are essentially the same as those under the Amendment 80 Program, except that under the GRS, both observers onboard non-AFA trawl catcher/processors are required to be level two observers specially trained in catcher/processor operations (i.e. two lead level two observers). That requirement is not necessary to effectively obtain catch data and would be removed under Amendment 80. If this action is approved, only one of the two required observers would be required to be a lead level 2 observer for vessels subject to the GRS. The other observer would not need to be a level two observer. Additionally, the GRS allows vessels to submit for approval to NMFS an alternative processing plan. An approved alternative processing plan would allow reduced observer coverage if the plan would allow sampling of all hauls by only one observer. However, according to some members of industry, these vessels must operate 24 hours a day to be profitable, and it is unlikely that they would utilize an alternative processing plan. Additionally, because all vessels subject to Amendment 80 would also be subject to the GRS program, allowing an alternative processing plans under the GRS program, but not Amendment 80, could result in considerable confusion for Amendment 80 participants. Therefore, this provision is removed from observer coverage regulations for non-AFA trawl catcher/processors in the BSAI. For these reasons and to avoid confusion among Amendment 80 participants, NMFS proposes to apply Amendment 80 observer coverage regulations to vessels subject to the GRS. 2. Observer Coverage for GOA Sideboard Fisheries With the exception of the F/V GOLDEN FLEECE, NMFS would require observers on all Amendment 80 vessels subject to GOA sideboard limits. Observer requirements applicable to the F/V GOLDEN FLEECE are addressed in Part F of this section. Observer coverage for Amendment 80 vessels fishing in the GOA would help to ensure that vessels do not exceed the GOA sideboard limits. Observer coverage is the only currently available method for gathering data on species composition and halibut PSC rates that are not self-reported. As noted above, NMFS would rely on expanded observer composition sampling to assess species composition and halibut PSC rates. Under current regulations, vessels under 125 ft (38.1 m) LOA have limited observer coverage which increases the amount of expansion required to estimate species composition and halibut PSC rates. Given the relatively small halibut PSC sideboard limit in the GOA under the Program, NMFS would require more timely and accurate observer data. NMFS proposes to increase the reliability of halibut PSC rates by requiring 100 percent observer coverage aboard the vessels subject to GOA sideboard limits. The level of observer coverage proposed under the Program provides a minimum amount of coverage necessary to track overall groundfish harvests and halibut PSC use by season with enough accuracy to manage the sideboard limits in the GOA for vessels that have substantial harvest and PSC use rates. NMFS notes that the observer coverage levels proposed for Amendment 80 vessels fishing in the GOA are identical to the observer coverage requirements necessary to manage groundfish and halibut PSC sideboard limits applicable to catcher/processor vessels participating in the opt-out fishery in the Central GOA Rockfish Program. An extensive discussion of observer coverage requirements for managing sideboard limits in the Central GOA Rockfish Program is provided in the final rule for that program (November 20, 2006; 71 FR 67210). The rationale for these observer coverage requirements is the same as the rationale for observer coverage levels to manage sideboard limits in the Amendment 80 program. Non-Amendment 80 trawl catcher/processors would continue to be subject to existing observer coverage levels in the GOA. Any such vessels are not subject to GOA sideboard limits and would not require the same intensive level of halibut PSC monitoring. Table 27 summarizes the observer monitoring requirements for the various components of the Program. Table 27.—Observer Requirements for Amendment 80 Vessels in the Program Fishing location Observer coverage requirements BSAI—All non-AFA trawl catcher/processors Must have aboard at least two NMFS-certified observers for each day that the vessel is used to harvest, receive, or process fish in the BSAI. At least one of these observers must be endorsed as a lead level 2 observer. More than two observers are required if observer workload restrictions would preclude adequate sampling (i.e., 200% observer coverage). GOA—All Amendment 80 vessels except for the F/V GOLDEN FLEECE Must have aboard at least one NMFS-certified observer for each day that the vessel is used to harvest, receive, or process fish in the GOA or any additional requirements applicable under the Central GOA Rockfish Program (i.e., 100% observer coverage, or other observer requirements applicable when fishing under the Central GOA Rockfish Program). GOA—F/V GOLDEN FLEECE only Subject to existing regulations in § 679.50(c)(1)(v) or (c)(7)(i) while fishing in the GOA (i.e., 30% observer coverage, or other requirements when fishing under the Central GOA Rockfish Program). B. Flow Scales Non-AFA trawl catcher/processors in the BSAI would be required to install and weigh each haul individually on a motion compensated flow scale. Flow scales are intended to provide accurate records of total catch, and have been used successfully in directed pollock fisheries and CDQ Program groundfish fisheries. NMFS-approved scales would be inspected annually and tested daily when in use to ensure they are accurate within an approved range. Because observer samples would be expanded to the entire haul, catch from each haul would be required to be weighed separately on the scale. To facilitate separate weighing, catch from each haul would be prohibited from being mixed with other hauls at any location prior to the scale and the location at which an observer would collect his or her sample. C. Observer Sampling Station Non-AFA trawl catcher/processors in the BSAI would be required to provide an observer work station where an observer can work safely and effectively. Observer sampling stations would need to meet specifications for size and location and be equipped with an observer sampling station scale, a table, adequate lighting, floor grating, and running water. Details of the sampling station requirements are included in § 679.28 of the proposed regulatory text. Each observer sampling station would be inspected and approved by NMFS annually. D. Special Catch Handling Requirements for Non-AFA Trawl Catcher/Processors 1. Rationale As discussed earlier, NMFS recognizes that there would be a strong incentive for Program participants to under-report the amount of halibut caught as bycatch. The opportunity to under-report halibut PSC CQ would be great on non-AFA trawl catcher/processors due to the current placement of observer sampling stations and construction of the vessels. These factors reduce the ability of observers to adequately monitor the passage of fish, particularly halibut PSC, from the codend throughout the processing facilities until that catch is available for sampling. 2. Movement of Fish In order to ensure proper catch accounting on non-AFA trawl catcher/processors, NMFS has developed a set of special catch handling requirements for these vessels. In brief, these special catch handling requirements would: a. Prohibit a vessel from having fish remain on deck outside of the codend; b. Prohibit the mixing of hauls; and c. Prohibit the use of multiple lines for conveying fish between the bins and the area where unsorted catch is sampled by the observer. Because the distribution of organisms by size and species often differs among hauls, an aggregation of hauls (i.e., mixing two or more hauls) could create errors in the calculation of total groundfish catch. For example, if a vessel mixes hauls from two different areas or depths, the species catch composition and relative weight of these hauls could differ substantially, and a composite sample taken at specific times as the catch moves through the processing facilities may not be representative of each individual haul. The lack of representative samples would increase the potential for erroneously assigning a specific species composition to a specific amount of fish. Any errors would be exacerbated as the composite sample is expanded to represent the total weight of the mixed hauls. Adequate accounting of CQ and PSC under the Program would rely heavily on observer species composition samples. NMFS must have confidence that the data collected represent random collections of catch and that potential sources of bias have been minimized. Because the mixing of hauls could create unrepresentative species composition samples as described above, NMFS would prohibit the mixing of hauls. Additionally, observers face many sampling difficulties when hauls are not kept separate inside fish bins. When multiple hauls are mixed, it is sometimes impossible for the observer to determine which catch is from a particular haul and the observer may not collect a discrete sample from each of the mixed hauls. As noted above, bias introduced into the sample by mixing of hauls is exacerbated when the sample is expanded to the weight of the entire hauls. Observers have several sampling tools available to them to determine the total catch of multiple mixed hauls. However, all of these tools result in reduced accuracy and precision for total catch determinations, especially when each of the mixed hauls has significantly different actual catch compositions. The prohibition of mixing hauls could be accommodated in a number of ways that would not result in loss of fish quality or affect overall vessel operations. For example, under the Program, vessels could slow fishing effort and the frequency with which gear is deployed. Recent enforcement actions concerning intentional presorting of catch to bias observed halibut PSC use rates document the practice of biasing observer samples to optimize groundfish catch relative to constraining PSC or other groundfish catch. However, NMFS expects that opportunities to bias observer samples would be reduced under the Program in comparison to the status quo because of the enhanced monitoring provisions established under this rule. The use of more than one operational line could lead to improperly sampled catch because catch could be diverted or otherwise conveyed in a manner that would limit adequate sampling. This could result in inaccurate accounting of CQ and PSC species. Therefore, vessels would be prohibited from the use of multiple lines for conveying fish between the bins and the area where unsorted catch is sampled by the observer. Unsorted catch could not remain on deck outside of the codend without an observer present, except for fish accidentally spilled from the codend during hauling and dumping. NMFS believes that fish that remain in a codend do not present a large opportunity for presorting activities. However, unsorted catch on deck outside of a codend could easily be presorted. 3. Bin Monitoring The Program would require observation and monitoring of all crew activities within any bin or tank prior to the observer sampling unsorted catch on all non-AFA trawl catcher/processors. This would reduce the incentive and ability to under-report halibut catch. Catcher/processors may facilitate observation and monitoring of crew activities within a bin or tank by using at least one of the three following options: a. Prohibit crew members from entering bins unless the observer is provided an opportunity to monitor all crew activities within the bin; b. Install viewing ports in the bins; or c. Install video monitoring system in the bins. Each vessel operator fishing in the BSAI must choose one of these options. Vessel operators that choose the first option must ensure that crew members do not enter a fish bin when fish are in it, unless the observer has been given a chance to observe the activities of the crew inside the bin. Based on conversations with vessel owners and operators in this sector, a crew member may be required to be inside the bin to facilitate the movement of fish from the bin. Crew members would be allowed inside bins if the flow of fish has been stopped between the tank and the location where the observer collects unsorted catch, all catch has been cleared from all locations between the tank and the location where the observer collects unsorted catch, and the observer has been given notice that the vessel crew must enter the tank. When informed by an observer that all sampling has been completed for a given haul, crew would be able to enter a tank containing fish from that haul without stopping the flow of fish or clearing catch between the tank and the observer sampling station. Vessel operators may be able to use water to facilitate the movement of fish in some fisheries. However, industry participants have indicated that water may degrade the quality and value of some fish species (e.g., AI POP). Therefore, NMFS developed options to allow an observer to see inside the bin while fish are exiting the bin, and ensure that presorting activities would not occur. Vessel operators that choose the second option would be required to provide a viewing window into the bin. The observer must be able to see all actions of the crew member inside the bin from the same position they are conducting their normal sampling duties. For example, while the observer is sorting catch at the observer sample station table, crew member activities inside the bin must be viewable by the observer from the sample station table. This option would be acceptable for vessels that may not need a crew member in the bin frequently or have uniformly shaped bins and an observer sampling station in close proximity to the bin area. Vessel operators that choose the third option would be required to develop and install a digital video monitoring system. The system would include a sufficient number of cameras to view all activities of anyone inside the bin. Video cameras would be required to record images in color and in low light conditions. To ensure that an observer can monitor crew member activities in the bin while sampling, a color monitor would be required to be located in the observer sampling station. An observer would be given the opportunity to review any video data at any time during a trip. Each video system would be required to provide enough storage capacity to store all video data for an entire trip. Because NMFS may not be aware of potential presorting violations until after an observer disembarks the vessel and is debriefed, the vessel must retain all data for a minimum of 120 days from the beginning of each trip, unless notified by NMFS that the data may be removed. Specific requirements for cameras, resolution, recording formats, and other technical information is detailed in the regulatory text under § 679.28(i)(1)(iii). If at any time during a trip, the viewing window or video options do not allow an observer to clearly identify and monitor crew activities within the fish bin or do not meet the required specifications, the vessel must revert to the first option and prohibit crew from entering the bin. The use of options two and three would be approved by NMFS during the vessel's annual observer sampling station inspection as described at § 679.28(d). Regulations governing these bin monitoring options were also implemented for non-AFA trawl catcher/processors participating in the Central GOA Rockfish Program. To avoid redundant regulations for multiple management programs, NMFS proposes to remove bin monitoring regulations from regulations governing the Central GOA Rockfish Program (see § 679.84(c)(9)(i) through (iii)), and add them to § 679.28(i). Section 679.28 has historically contained regulations that describe technical specifications for various equipment and monitoring tools for multiple management programs. Placing regulations that describe bin monitoring standards for non-AFA trawl catcher/processors participating in the Central GOA Rockfish Program or Amendment 80 is consistent with this intent. In addition to proposing to move bin monitoring regulations from § 679.84(c)(9) to § 679.28(i) and requiring all non-AFA trawl catcher/processors to meet these requirements, NMFS proposes several technical changes to the bin monitoring regulations set forth at § 679.28(i) of the proposed regulatory text. Non-AFA trawl catcher/processors participating in the Central GOA Rockfish Program or while fishing in the BSAI would be subject to these requirements. Proposed revisions to the current bin monitoring standards (currently found at § 679.84(c)(9), but proposed to be moved to § 679.28(i)) include correcting cross references and reorganizing the structure of several paragraphs to improve clarity and consistency with other related regulations. Additionally, regulations describing the process for arranging a bin monitoring inspection are proposed to be revised slightly, and owners would then be able to contact NMFS by e-mail. Because bin monitoring inspections would occur simultaneously with observer sampling sation inspections, regulations at § 679.28(d)(8)(i) would be revised to reflect these changes. Regulations at § 679.28(i)(1)(iii)(B) would describe minimum standards for video data storage. Currently, regulations governing this standard for the Central GOA Rockfish Program require the video system to include a USB hard drive, and do not allow NMFS to approve an alternate removable storage device. However, since implementation of this regulation, NMFS has found that video systems may not be available that meet this standard. Section 679.28(i)(1)(iii)(B) would be revised to require that the video system include at least one external USB hard drive (1.1 or 2.0), or other removable storage device approved by NMFS. If adopted, NMFS could approve alternative removable storage devices, thereby providing additional flexibility to vessel owners and operators who chose to use video monitoring. Finally, regulations at § 679.28(i)(1)(iii)(A) would be revised to clarify that video systems must record a time/date stamp for each frame in Alaska local time. 4. Pre-Cruise Meeting Operators of non-AFA trawl catcher/processors fishing in the BSAI would be required to provide the opportunity for a pre-cruise meeting for observers who have not been deployed on that vessel in the last 12 months. A pre-cruise meeting would include at least one NMFS staff member, the vessel operator, and the observer(s). NMFS has offered pre-cruise meetings to vessels on a voluntary basis for the last five years and observer and industry participants in these meetings have found them to be extremely beneficial. Given the new monitoring requirements under the Program, observers and vessel personnel would benefit from a mutual understanding of the observers' role. For the same reasons described above, pre-cruise meeting requirements were also implemented for non-AFA trawl catcher/processors participating in the Central GOA Rockfish Program. Regulations at § 679.84(c)(7) require non-AFA trawl catcher/processors subject to the Central GOA Rockfish Program to provide the opportunity for a pre-cruise meeting if an observer had never been deployed on that vessel. The proposed monitoring requirements are relatively new to non-AFA trawl catcher/processors participating in the Central GOA Rockfish Program or Amendment 80. A non-AFA trawl catcher/processor participating in the Central GOA Rockfish Program could avoid the pre-cruise meeting requirement if an observer assigned to his or her vessel were deployed on the vessel prior to implementation of the program. However, this would circumvent the intent of this regulation to orient any observers unfamiliar with the bin monitoring requirements on that particular vessel. Additionally, NMFS is striving to maintain consistency between the monitoring requirements for each of the two programs, to avoid confusion among program participants. For these reasons, NMFS proposes to revise regulations at § 679.84(c)(7) so that non-AFA trawl catcher/processors fishing in the Central GOA Rockfish Program would also be required to provide the opportunity for a pre-cruise meeting for observers who have not been deployed on that vessel in the last 12 months. E. M&E Requirements for Amendment 80 Vessels in the GOA With the exception of the F/V GOLDEN FLEECE, Amendment 80 vessels participating in GOA groundfish fisheries would be required to meet some of the M&E requirements applicable to non-AFA trawl catcher/processors in the BSAI. Specifically, operators of Amendment 80 vessels participating in GOA groundfish fisheries would be required to maintain 100 percent observer coverage, would be prohibited from mixing hauls inside the bin, would be subject to maintain bin monitoring requirements, may only have one operational line at the point the observer collects his or her samples, and would be prohibited from allowing fish on deck outside the codend. Maintaining these catch handling requirements for vessels in the GOA would ensure that GOA groundfish and halibut PSC limits are properly monitored. A detailed discussion for the need to maintain these M&E requirements is in the draft EA/RIR/IRFA prepared for this action and is not repeated here (see ADDRESSES ). NMFS notes that the M&E requirements for Amendment 80 vessels would be consistent with the same M&E requirements applicable to catcher/processor vessels to monitor sideboard limits in the opt-out fishery under the Central GOA Rockfish Program (November 20, 2006; 71 FR 67210). Flow scales and observer sample stations would not be required for Amendment 80 vessels to fish in the GOA. Flow scales and observer sampling stations assist observers to obtain accurate haul-by-haul accounting of total catch. However, NMFS would make fishery closure decisions for the entire Amendment 80 sector in the GOA. The high degree of precision that flow scales and observer sampling stations provide, and that is necessary for cooperative, limited access fishery management, fishing under the CDQ Program, or GRS monitoring, would not be required to monitor catch and PSC use by Amendment 80 vessels in the aggregate. Given the other M&E provisions described above, NMFS would be able to rely on observer estimates of total catch for catch accounting in the GOA. Inaccuracies associated with observer estimates, as well as any inaccuracies that result from the observer not having a sample station, would be expanded to all Amendment 80 vessels and averaged over multiple vessels. Because observer sample stations would not be required, Amendment 80 vessels fishing in the GOA would not be required to provide space for at least 10 observer baskets. F. M&E Requirements for the F/V GOLDEN FLEECE in the GOA As noted earlier, the Program would recognize the unique fishing patterns of the F/V GOLDEN FLEECE, prohibit the vessel from being used in specific groundfish fisheries that it has not historically fished and that are subject to a GOA sideboard limit, and exempt it from GOA halibut PSC sideboard limits. Because NMFS would not need to monitor catch and halibut PSC use for GOA sideboard limit management, the M&E requirements in the GOA applicable to other Amendment 80 vessels would not apply to the F/V GOLDEN FLEECE when fishing in the GOA. The F/V GOLDEN FLEECE would be managed under existing observer coverage and M&E requirements in the GOA. The Program would not exempt the F/V GOLDEN FLEECE from observer coverage requirements applicable under the Central GOA Rockfish Program which may be more restrictive. Additionally, if the F/V GOLDEN FLEECE chooses to fish in the BSAI, the vessel would have to comply with the monitoring requirements at § 679.93(c). G. Consistency With Central GOA Rockfish Program M&E Requirements Many of the Amendment 80 vessels are also qualified to fish under the requirements and restrictions of the Central GOA Rockfish Program. The Program does not relieve or otherwise modify M&E requirements under the Central GOA Rockfish Program (e.g., flow scales, observer sampling station requirements), except to move and revise slightly the bin monitoring standards to § 679.28. NMFS has attempted to conform M&E requirements applicable to non-AFA trawl catcher/processors fishing in the BSAI to the M&E requirements applicable to catcher/processor vessels fishing under a Central GOA Rockfish CQ permit or in the Central GOA Rockfish limited access fishery. Similarly, the M&E requirements applicable to Amendment 80 vessels in the GOA would conform to the M&E requirements applicable to catcher/processors in the Central GOA Rockfish opt-out fishery. Integrating M&E requirements between these LAPPs should reduce compliance costs and potential confusion that may arise with differing standards for the affected catcher/processor vessels. H. Summary Table Table 28 summarizes the specific M&E requirements that would apply to non-AFA trawl catcher/processors in the BSAI and GOA. Table 28.—Monitoring Requirements in the Program M&E requirement Fishing location BSAI (All non-AFA trawl catcher/processors) GOA—Except F/V GOLDEN FLEECE (Amendment 80 vessels) GOA—F/V GOLDEN FLEECE Observer coverage level 200% (Two observers) 100% (One observer) 30% (Status quo). Flow scale Yes No No. Observer sampling station Yes No No. One operational line Yes Yes No No mixing of hauls Yes Yes No. No fish on deck outside codend Yes Yes No. Bin monitoring Yes Yes No. Pre-cruise meeting required Yes No No. VMS Status quo, see regulations at § 679.28(f). XIII. Economic Data Report A. Background The Council recommended a socioeconomic data program to collect cost, revenue, and other economic data as part of the Program. This information would be used to better understand the economic effects of the Program on vessels or entities regulated by this action, and to assist the development of future management actions. NMFS would collect this information using an annual EDR. The EDR would help assess whether the Program mitigates the costs associated with bycatch reduction and improved utilization of groundfish. The EDR would provide information to review the Program unavailable through other means. To ensure that the necessary information would be collected, EDR data submission would be mandatory for all Amendment 80 QS holders. Information collected under the EDR would be confidential under the requirements of Section 402(b) of the MSA and would be considered confidential under NOAA Administrative Order 216-100, which sets forth procedures to protect the confidentiality of fishery statistics. B. Information Collected Economic data collected under this program include revenue and cost data associated with a specific Amendment 80 vessel owned by an Amendment 80 QS holder, or with an Amendment 80 LLP license in those limited cases when the Amendment 80 QS permit is assigned to an Amendment 80 LLP license. See Section VI of the preamble for more detail on Amendment 80 QS permits assigned to an Amendment 80 LLP license. The EDR would assist the Council and NMFS when analyzing changes in the use of fishery resources. The Program may change the use of fishery resources. As examples of change, fishery participants could choose to serve different markets with different species and products, or to idle vessels under the provisions of the Program. The EDR would provide necessary data to determine whether fishing and production choices are responses to market forces, and the extent to which increased changes in fishing behavior and resource use have reduced total average costs. Determining the bycatch reduction costs under the Program requires an examination of the extent to which targeting and production choices affect profitability and the economic performance of participants. The suite of revenue and cost information that would be required is detailed in § 679.94(b) and

(c)of the proposed regulatory text and is not repeated here. C. Who Must Provide an EDR Amendment 80 QS holders would be required to submit the EDR. An EDR would be required for each Amendment 80 QS permit held by a person. This ensures that a person holding multiple Amendment 80 QS permits would describe the full range of cost and revenue information attributable to a given permit, whether that permit is assigned to a specific vessel or to a cooperative. The Amendment 80 QS holder would be required to appoint a contact individual, called a “designated representative,” who on behalf of the QS holder, would respond to inquiries and NMFS regarding data and the EDR. Because EDR submission would be mandatory, NMFS would provide compliance incentives. In addition to incentives to avoid enforcement actions, another incentive would be to prohibit an Amendment 80 QS holder who did not submit an EDR from receiving an Amendment 80 limited access fishery permit or CQ derived from their Amendment 80 QS permits. D. Submission Deadlines for EDRs NMFS would require an annual EDR be submitted for the previous calendar year of activity no later than June 1 of the year following fishing. This filing deadline would provide the Amendment 80 QS holder at least five months to gather and review records from the previous year. The EDR form would be mailed to Amendment 80 QS holders, and be available on the NMFS Web site at *http://www.fakr.noaa.gov.* The address for EDR submission is provided in § 679.94 of the proposed regulatory text. The first EDR would be required on June 1, 2009, which is after the first year of fishing under the Program. An EDR would be due every June 1 after 2009. E. Verification of Data Measures to verify data accuracy of the data would be developed by NMFS economists and analysts. These measures would help NMFS to ascertain anomalies, outliers, and other deviations from averaged variables. NMFS would amend data in the EDR through this audit verification process. The principle means to verify data and resolve questions would be consultation between NMFS and the submitter. NMFS would contact the EDR submitter and request oral or written confirmation of data submissions. Further, NMFS would request copies of or review documents or statements that would substantiate data submissions. The person submitting the EDR would need to respond within 20 days of NMFS's information request. Responses after 20 days could be considered untimely and could result in a violation and enforcement action. NMFS would audit an EDR either through random selection or when circumstances require more thorough review of the submissions. In instances where a random audit occurs or an audit is otherwise justified, NMFS may retain a professional auditor/accounting specialist who would review the data submitted in the EDR. The auditory could request financial documents substantiating the data submitted in the EDR. An auditor/accounting specialist would be subject to strict confidentiality requirements. XIV. Classification At this time, NMFS has not determined that the FMP that this rule would implement, Amendment 80, is consistent with the national standards of the MSA and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period. Regulatory Impact Review

(RIR)An RIR was prepared to assess all costs and benefits of available regulatory alternatives. The RIR considers all quantitative and qualitative measures. The Program was chosen based on those measures that maximize net benefits to the affected participants in the Amendment 80 sector. Specific aspects of the RIR are discussed below in the IRFA section. Initial Regulatory Flexibility Analysis

(IRFA)An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). Copies of the EA/RIR/IRFA prepared for this proposed rule are available from NMFS (see ADDRESSES ). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, the reasons why it is being considered, and a statement of the objectives of, and the legal basis for, this action are contained in the SUMMARY section of the preamble. A summary of that analysis follows. Why Action by the Agency Is Being Considered and Objectives of, and Legal Basis for, the Proposed Rule The IRFA describes in detail the reasons why this action is being proposed, describes the objectives and legal basis for the proposed rule, and discusses both small and non-small regulated entities to adequately characterize the fishery participants. The MSA, CRP, Coast Guard Act, and MSRA provide the legal basis for the proposed rule, as discussed in Section II of this preamble. The objectives of the proposed rule are to reduce excessive fishing capacity, end the race for fish under the current management strategy, reduce bycatch, and reduce discards for commercial fishing vessels using trawl gear in the non-pollock groundfish fisheries in the BSAI. By ending the race for fish, NMFS expects the proposed action to increase resource conservation, improve economic efficiency, and address social concerns. Number of Small Entities to Which the Proposed Rule Would Apply For purposes of an IRFA, the Small Business Administration

(SBA)has established that a business involved in fish harvesting is a small business if it is independently owned and operated, not dominant in its field of operation (including its affiliates), and if it has combined annual gross receipts not in excess of $4.0 million for all its affiliated operations worldwide. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 500 or fewer persons on a full-time, part-time, temporary, or other basis, at all its affiliated operations worldwide. Because the SBA does not have a size criterion for businesses that are involved in both the harvesting and processing of seafood products, NMFS has in the past applied and continues to apply SBA's fish harvesting criterion for these businesses because catcher/processors are first and foremost fish harvesting businesses. Therefore, a business involved in both the harvesting and processing of seafood products is a small business if it meets the $4.0 million criterion for fish harvesting operations. NMFS currently is reviewing its small entity size classification for all catcher/processors in the United States. However, until new guidance is adopted, NMFS will continue to use the annual receipts standard for catcher/processors. NMFS plans to issue new guidance in the near future. Even if additional catcher/processors would have been identified as small entities under a revised small entity size classification for catcher/processors, NMFS would have analyzed the effect on small entities using the same methods that were used in the IRFA prepared for the proposed Program. NMFS considered the effects of the Program and attempted to reduce costs to all directly regulated entities regardless of the number of small entities. The IRFA contains a description and estimate of the number of small entities to which the proposed rule would apply. The IRFA estimates that as many as 28 entities, that own approximately 28 catcher/processor vessels, would be eligible to receive QS under the Program. Of the estimated 28 entities owning vessels eligible for fishing under the Program, one is estimated to be a small entity because it generated less than $4.0 million in gross revenue based on participation in 1998 through 2004. All other entities owning eligible catcher/processor vessels are non-small entities as defined by the RFA. One entity made at least one Amendment 80 landing from 1998 to 2004, but did not appear to qualify as an eligible Amendment 80 vessel. This entity is not a small entity by SBA standards. Moreover, this vessel that the IRFA considers “non-qualified” would not be allowed to continue fishing under the requirements imposed by the CRP. Therefore, the non-qualified vessels is not considered impacted by the proposed rule and is not discussed in this IRFA. The six CDQ groups participating in the CDQ Program are not-for-profit entities that are not dominant in the overall BSAI fishing industry. Thus, the six CDQ groups directly regulated by the proposed action would be considered small entities or “small organizations” under the RFA. Several communities (e.g., Dutch Harbor, Seattle) could be indirectly impacted by the Program. Most of the Amendment 80 vessels have home ports in Seattle, Washington, but operate throughout Alaska and rely on other communities for support services. The specific impacts on these communities cannot be determined until NMFS issues QS and eligible harvesters begin fishing under the Program. Other supporting businesses may also be indirectly affected by this action if it leads to fewer vessels participating in the fishery. These impacts are analyzed in the RIR prepared for this action (see ADDRESSES ). Impacts on Directly Regulated Small Entities While the proposed action is distributional in nature, the overall impact to small entities is expected to be positive. Impacts from the Program would accrue differentially (i.e., some entities could be negatively affected and others positively affected). The Council considered an extensive range of alternatives, options, and suboptions as it designed and evaluated the potential for changes to non-pollock groundfish management in the BSAI, including the “no action” alternative. The EA/RIR/IRFA presents four alternative programs for management of the non-pollock groundfish fisheries in the BSAI: Alternative 1-Status Quo/No Action; Alternative 2 allowing only multiple cooperatives; Alternative 3 allowing only a single Amendment 80 sector cooperative; and Alternative 4, the preferred alternative, for multiple cooperatives with an option for a limited access fishery. These alternative constitutes the suite of “significant alternatives” for the proposed action for the purposes of the RFA. Under the status quo, non-pollock groundfish fisheries harvested with trawl gear have followed the well known pattern associated with managed open access. These fisheries have been characterized by a “race-for-fish” capital stuffing behavior, excessive risk taking, and a dissipation of potential rents. Participants in these fisheries are confronted by significant surplus capacity, and widespread economic instability all contributing to resource conservation and management difficulties. In response to desires to improve economic, social, and structural conditions in many of the non-pollock trawl fisheries, the Council found that the status quo management structure was causing significant adverse impacts to the participants in these fisheries. As indicated in the IRFA, all the Amendment 80 sector companies and corporations would be considered to be directly regulated by this action. Based on a review of available data, only one of the Amendment 80 sector companies or corporations would be a small entity, as defined under RFA. This small entity and other entities are negatively impacted under current open access regulations. The management tools in the existing FMP (e.g., time, area, and gear restrictions, and LLP license requirements) do not provide managers with the ability to effectively solve these problems, thereby making MSA goals difficult to achieve and forcing reevaluation of the existing FMP. Bycatch reduction measures proposed under the Program reduce the potential discarding of fish and aid the directly regulated entities in meeting the requirements of the MSA. The costs for complying with these measures are offset by the ability of vessel operators to coordinate fishing operations in a cooperative, designate specific vessels better able to comply with M&E requirements thereby avoiding the costs of compliance for some vessels in the cooperative or sharing the remaining costs among cooperative members, and tailor fishing operations to maximize profit without the need to engage in less efficient practices in a race for fish. In an effort to alleviate the problems caused by excess capacity, the race for fish, and to reduce discards for commercial fishing vessels using trawl gear in the non-pollock groundfish fisheries in the BSAI, the Council determined that the institution of some form of LAPP was needed to improve fisheries management in accordance with the MSA. The cooperative alternative would allocate annual harvesting privileges of Amendment 80 species TAC and crab and halibut PSC to harvester cooperatives as CQ, creating a transferable access privilege as a share of the TAC, thus removing the “common property” attributes of the status quo on qualifying harvesters. These changes would likely benefit the regulated entities. In recent years, harvesters have competed in the race for fish against larger businesses. The cooperative alternative would allow entities to slow their rate of fishing and give more attention to efficiency and product quality. The participants would be permitted to form cooperatives that could lease or sell their allocations, and could obtain some return from their allocations. Differences in efficiency implications of the Program cannot be predicted. Some participants believe that smaller vessels could be more efficient than larger vessels under cooperative management because a vessel only needs to be large enough to harvest the cooperative's CQ. Conversely, under open access, a vessel has to be large enough to outcompete the other fishermen and, hence, contributes to the overcapacity problems under the race for fish. In addition, Alternative 4 holds promise by providing efficiency gains. Data on cost and operating structure are unavailable, so a quantitative evaluation of the size and distribution of these gains accruing to harvesters under this management regime cannot be provided. Nonetheless, it appears that Alternative 4 offers improvements over the status quo through the institution of a LAPP structure. Alternative 4 also includes provisions for the fishery participants that the Council expressly sought to include—specifically, harvesters that have been both historically and recently active. Alternative 4, which would be implemented by the Program, offsets compliance costs required to improve retention and utilization of fishery resources in several ways. By implementing a LAPP vessels can increase the value and associated revenue from harvested products through better quality control and developing additional product forms not possible under status quo management. Alternative 4 would also allow the directly regulated entities to join cooperatives, receive value from their catch through cooperative harvesting arrangements, and have other vessels harvest the allocation. Compliance costs for a cooperative member would be eliminated, or greatly reduced if those costs are shared over the entire cooperative. CDQ groups, which are small entities, would benefit under the Program by increasing the nonspecified reserve and the CDQ reserves, increasing PSQ allocations for halibut, crab, and non-Chinook salmon, reducing M&E requirements for CDQ vessels, and removing some reporting requirements. Alternative 4 appears to minimize negative economic impacts to the Amendment 80 sector to a greater extent than the status quo (Alternative 1), the multiple cooperative (Alternative 2), or single cooperative (Alternative 3) options. The Council concluded that the Program best accomplishes the stated objectives articulated in the purpose and need statement and applicable statutes, and minimizes to the extent practicable adverse economic impacts on the universe of directly regulated small entities. Projected Reporting, Recordkeeping and Other Compliance Requirements Implementation of the Program would change the overall reporting structure and recordkeeping requirements of the participants in BSAI and GOA groundfish fisheries. All participants would be required to provide additional reporting. Each harvester would be required to track harvests to avoid exceeding his or her allocation. NMFS would be required to develop new databases to issue QS and CQ and monitor harvesting and processing allocations. These changes could require the development of new reporting systems. To participate in the Program, persons would be required to complete application forms, transfer forms, reporting requirements, and other collections-of-information. These forms are either required under existing regulations or are required for the administration of the Program. These forms impose costs on small entities in gathering the required information and completing the forms. With the exception of specific equipment tests, which are performed by NMFS employees or other professionals, basic word processing skills are the only skills needed for the preparation of these reports or records. NMFS has estimated the costs of complying with the reporting requirements based on the burden hours per response, number of responses per year, and a standard estimate of $25 per burden hour. Persons would be required to submit an application for Amendment 80 QS the start of the Program. Persons would be required to complete additional forms every year, such as the applications to fish for an Amendment 80 cooperative or Amendment 80 limited access fishery. Additionally, reporting for purposes of catch accounting or transfer of CQ among Amendment 80 cooperatives would be completed more frequently. It would cost participants in the Program an estimated $56 to complete applications to participate in the Program, $55 for the annual application to participate in an Amendment 80 cooperative or limited access fishery, and $61 to complete a transfer of CQ. NMFS considered multiple alternatives to effectively implement specific provisions within the Program through regulation. In each instance, NMFS attempted to impose the least burden on the public, including the small entities subject to the Program. The groundfish landing report (Internet version and optional fax version) would be used to debit CQ and track catch in the Amendment 80 limited access fishery. All retained catch must be weighed, reported, and debited from the appropriate account under which the catch was harvested. Under recordkeeping and reporting, NMFS considered the options of a paper-based reporting system or an electronic reporting system. NMFS chose to implement an electronic reporting system as a more convenient, accurate, and timely method. Additionally, the proposed electronic reporting system would provide continuous access to accounts. These provisions would make recordkeeping and reporting requirements less burdensome on participants by allowing participants to more efficiently monitor their accounts and fishing activities. NMFS believes that the added benefits of the electronic reporting system outweigh any benefits of the paper-based system. However, NMFS would also provide an optional backup using existing telecommunication and paper-based methods, which would reduce the burden on small entities in more remote areas with limited electronic infrastructure. Under this proposed rule, catcher/processors would be required to purchase and install motion-compensated scales (i.e., flow scale) to weigh all fish at-sea. Currently approved flow scales cost approximately $50,000. Equipment to outfit an observer station, including a motion-compensated platform scale to verify the accuracy of the flow scale, costs between $6000 and $12,000. Due to space constraints on many catcher/processors, the need to relocate sorting space and processing equipment, and the wide range of configurations on individual vessels, the installation cost range for the scales and observer sample stations could cost between $20,000 and $250,000 per vessel. Installation costs exceeding $100,000 are expected to be rare. The total cost of purchasing and installing scales and sample stations may range between $76,000 and $300,000 per vessel. Based on discussions with equipment vendors, NMFS estimates that 10 catcher/processors, none of which are small entities, would choose to fish in the BSAI and would be required to have scales. This estimate does not include catcher/processor vessels that have already installed flow scales in compliance with other programs (i.e., CDQ Program and Central GOA Rockfish Program) and is likely to overestimate the total number of entities that will install this equipment based solely on the requirements for the Program. NMFS would increase observer coverage for Program participants in most cases. In similar NMFS-managed quota fisheries, NMFS requires that all fishing activity be observed. NMFS must maintain timely and accurate records of harvests in fisheries with small allocations that are harvested by a fleet with a potentially high harvest rate. Additionally, halibut PSC and crab PSC rates must be monitored. Such monitoring can only be accomplished through the use of onboard observers. Although this imposes additional costs, participants in the fishery can form cooperatives, which would limit the number of vessels required to harvest a cooperative's CQ, and organize fishing operations to limit the amount of time when additional observer coverage would be required and offset additional costs. The exact overall additional observer costs per vessel cannot be predicted because costs will vary with the specific fishing operations of that vessel. NMFS estimates that a requirement for increased observer coverage would cost approximately $355 per day. Additional costs may be incurred by owners of catcher/processors that reconfigure their vessels to ensure that adequate space is available for the additional observer. These costs cannot be predicted and will vary depending on specific conditions of each vessel. NMFS determined that a vessel monitoring system

(VMS)is essential to the proper enforcement of the Program. Therefore, owners and operators of vessels participating in the Program would be required to participate in a VMS program. Depending on which brand of VMS a vessel owner or operator chooses to purchase, NMFS estimates that this requirement would impose a cost of $2,000 per vessel for equipment purchase, $780 for installation and maintenance, and $5 per day for data transmission costs. NMFS does not estimate that any additional vessel owners or operators would incur these costs if they choose to participate in the Program. Those vessels that would be likely to participate in the Program are already subject to VMS requirements under existing regulations. NMFS has determined that special catch handling requirements for catcher/processors may subject vessel owners and operators to additional costs depending on the monitoring option chosen. The costs for providing line of sight for observer monitoring are highly variable depending on bin modifications the vessel may make, the location of the observer sampling station, and the type of viewing port installed. These costs cannot be estimated with existing information. Some vessel owners and operators that are eligible to participate in this Program may modify some of their vessels to meet these requirements in the Central GOA Rockfish Program and would not be expected to incur any additional costs for those vessels. Because NMFS would allow vessel owners and operators to select the video option using performance standards, the costs for a vessel to implement this option could be quite variable, depending on the nature of the system chosen. In most cases, the system would consist of one digital video recorder (DVR)/computer system and between two and eight cameras. DVR systems range in price from $1,500 to $10,000, and cameras cost from $75 to $300 each. Data storage costs will vary depending on the frame rate, color density, amount of compression, image size, and need for redundant storage capacity. NMFS estimates data storage will cost between $400 and $3,000 per vessel. Installation costs will be a function of where the DVR/computer can be located in relation to an available power source, cameras, and the observer sampling station. NMFS estimates that a fairly simple installation will cost approximately $2,000, a complex installation will cost approximately $10,000, per vessel. However, these costs could be considerably lower if the vessel owner chooses to install the equipment while upgrading other wiring. Thus, total system costs, including DVR/computer equipment, cameras, data storage, and installation would be expected to range between $4,050 per vessel for a very simple inexpensive system with low installation costs, and $24,500 per vessel for a complex, sophisticated system with high installation costs. Annual system maintenance costs are difficult to estimate because much of this technology has not been extensively used at-sea in the United States. However, we estimate an annual cost of $680 to $4,100 per year based on a hard disk failure rate of 20 percent per year, and a DVR/computer lifespan of three years. Vessel owners and operators that are eligible to participate in the Central GOA Rockfish Program and this Program may modify their vessels to meet these requirements in the Central GOA Rockfish Program and would not be expected to incur any additional installation costs. Annual system maintenance costs are anticipated to be partially borne by the requirements in the Central GOA Rockfish Program. Federal Rules Which May Duplicate, Overlap or Conflict With the Proposed Rule No federal rules that may duplicate, overlap, or conflict with this proposed action have been identified. Collection-of-Information This proposed rule contains collection-of-information requirements subject to the Paperwork Reduction Act

(PRA)and which have been approved by OMB. Public reporting burden per response for these requirements is listed by OMB control number. OMB Control No. 0648-0213 Total public reporting burden for this collection is 36,705 hours. Recordkeeping and reporting requirements are described in this collection. OMB Control No. 0648-0330 Public reporting burden per response is estimated to average 0.1 hr per at-sea scale inspection request; 0.17 hr for observer sampling station inspection request; 0.17 hr for bin monitoring inspection request; 1 hr for video monitoring system; 2 hr for at-sea scale approval report/sticker; 0.03 hr for observer notification of scale tests; 0.75 hr for records of at-sea scale tests; and 0.02 hr for printed output, at-sea scales. OMB Control No. 0648-0334 Total public reporting burden for this collection is 544 hours. License Limitation Program

(LLP)applications are described in this collection. OMB Control No. 0648-0445 Total public reporting burden for this collection is 13,152 hours. Vessel monitoring system requirements are described in this collection. OMB Control No. 0648-0515 Total public reporting burden for this collection is 3,343 hours. Interagency electronic reporting system requirements are described in this collection. This rule also contains collection-of-information requirements subject to review and approval by OMB under the PRA. These requirements have been submitted to OMB for approval. Public reporting burden per response for these requirements is listed by OMB control number. OMB Control No. 0648—New (Amendment 80 Permits) Public reporting burden per response is estimated to average 2 hr for the Application for Amendment 80 QS; 2 hr for the Application for CQ; 2 hr for the Application for the Amendment 80 limited access fishery; 2 hr for the Application to Transfer Amendment 80 QS; 2 hr for the Application for CQ Transfer; 4 hr for Annual Amendment 80 cooperative report; and 4 hr for a letter of appeal, if denied a permit. OMB Control No. 0648—New (Amendment 80 EDR) Public reporting burden per response is estimated to average 7.5 hr for an Economic Data Report and 3 hr for verification of data. OMB Control No. 0648-0269 Public reporting burden per response is estimated to average 1 hr for a CDQ delivery report and 15 minutes for a CDQ catch report. Response times include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Public comment is sought regarding whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including the use of automated collection techniques or other forms of information technology. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to NMFS (see ADDRESSES ), and by e-mail to *David_Rostker@omb.eop.gov* , or fax to 202-395-7285. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number. Executive Order 12866 This proposed rule has been determined to be not significant for purposes of Executive Order 12866. List of Subjects in 50 CFR Part 679 Alaska, Fisheries, Reporting and recordkeeping requirements. Dated: May 16, 2007. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows: PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA 1. The authority citation for 50 CFR part 679 is revised to read as follows: Authority: 16 U.S.C. 773 *et seq.* , 1801 *et seq.* , 3631 *et seq.* ; Pub. L. 108-447. 2. In § 679.2 add the following definitions in alphabetical order: “Amendment 80 cooperative”, “Amendment 80 fishery”, “Amendment 80 initial QS pool”, “Amendment 80 legal landing”, “Amendment 80 limited access fishery”, “Amendment 80 LLP license”, “Amendment 80 LLP license originally assigned to an Amendment 80 vessel”, “Amendment 80 LLP/QS license ”, “Amendment 80 mackerel QS”, “Amendment 80 mackerel vessel”, “Amendment 80 non-mackerel QS”, “Amendment 80 non-mackerel vessel”, “Amendment 80 official record”, “Amendment 80 Program”, “Amendment 80 PSC”, “Amendment 80 QS holder”, “Amendment 80 QS permit”, “Amendment 80 QS pool”, “Amendment 80 QS unit”, “Amendment 80 sector”, “Amendment 80 species”, “Amendment 80 vessel”, “BSAI trawl limited access sector”, “CQ permit” “Economic data report (EDR)”, “Initial Total Allowable Catch (ITAC)”, and revise the definition of “Cooperative quota (CQ)”, and the heading of the definition of “Ten percent or greater direct or indirect ownership interest” to read as follows: § 679.2 Definitions. *Amendment 80 cooperative* means a group of Amendment 80 QS holders who have chosen to fish cooperatively for Amendment 80 species under the requirements of subpart H to this part and who have applied for and received a CQ permit issued by NMFS to catch a quantity of fish expressed as a portion of the ITAC and crab and halibut PSC limits. *Amendment 80 fishery* means an Amendment 80 cooperative or the Amendment 80 limited access fishery. *Amendment 80 initial QS pool* means the sum of Amendment 80 QS units established for an Amendment 80 species in a management area based on the Amendment 80 official record and used for the initial allocation of Amendment 80 QS units and use cap calculations as described in § 679.92(a). *Amendment 80 legal landing* means the total catch of Amendment 80 species in a management area in the BSAI by an Amendment 80 vessel that:

(1)Was made in compliance with state and Federal regulations in effect at that time; and

(2)Is recorded on a Weekly Production Report from January 20, 1998, through December 31, 2004; and

(3)Amendment 80 species caught while test fishing, fishing under an experimental, exploratory, or scientific activity permit, or fishing under the Western Alaska CDQ Program are not considered Amendment 80 legal landings. *Amendment 80 limited access fishery* means the fishery conducted in the BSAI by persons who have not assigned an Amendment 80 QS permit, Amendment 80 LLP license, or Amendment 80 vessel to an Amendment 80 cooperative, and who have assigned an Amendment 80 QS permit, Amendment 80 LLP license, or Amendment 80 vessel to the Amendment 80 limited access fishery. *Amendment 80 LLP license* means:

(1)The LLP licenses listed in Column C of Table 31 to this part; and

(2)Any LLP license that is endorsed for groundfish in the Bering Sea subarea or Aleutian Islands subarea with a catcher/processor designation that designates an Amendment 80 vessel in an approved application for Amendment 80 QS. *Amendment 80 LLP license originally assigned to an Amendment 80 vessel* means the LLP license listed in Column C of Table 31 to this part that corresponds to the vessel listed in Column A of Table 31 to this part with the USCG Documentation Number listed in Column B of Table 31 to this part. *Amendment 80 LLP/QS license* means an Amendment 80 LLP license issued to an Amendment 80 LLP holder with the Amendment 80 QS permit assigned to that license. *Amendment 80 mackerel QS* means Atka mackerel QS derived from Amendment 80 legal landings assigned to an Amendment 80 mackerel vessel. *Amendment 80 mackerel vessel* means an Amendment 80 vessel that is not an Amendment 80 non-mackerel vessel. *Amendment 80 non-mackerel QS* means Atka mackerel QS derived from Amendment 80 legal landings assigned to an Amendment 80 non-mackerel vessel. *Amendment 80 non-mackerel vessel* means an Amendment 80 vessel that is less than 200 feet in length overall and that has been used to catch less than 2.0 percent of the total Amendment 80 legal landings of BSAI Atka mackerel. *Amendment 80 official record* means information used by NMFS to determine eligibility to participate in the Amendment 80 Program and to assign specific catch privileges to Amendment 80 QS holders. *Amendment 80 Program* means the Program implemented under subpart H of this part to manage Amendment 80 species fisheries by limiting participation in these fisheries to eligible participants. *Amendment 80 PSC* means halibut and crab PSC as described in Table 35 to this part that are allocated to the Amendment 80 sector. *Amendment 80 QS holder* means a person who is issued an Amendment 80 QS permit by NMFS. *Amendment 80 QS permit* means a permit issued by NMFS that designates the amount of Amendment 80 QS units derived from the Amendment 80 legal landings assigned to an Amendment 80 vessel for each Amendment 80 species in a management area. *Amendment 80 QS pool* means the sum of Amendment 80 QS units established for each Amendment 80 species in a management area based on the Amendment 80 official record. *Amendment 80 QS unit* means a measure of the Amendment 80 QS pool based on Amendment 80 legal landings. *Amendment 80 sector means:*

(1)Those Amendment 80 QS holders who own Amendment 80 vessels and hold Amendment 80 permits and Amendment 80 LLP licenses; or

(2)Those Amendment 80 QS holders who hold Amendment 80 LLP/QS licenses. *Amendment 80 species* means the following species in the following regulatory areas:

(1)BSAI Atka mackerel;

(2)Aleutian Islands Pacific ocean perch;

(3)BSAI flathead sole;

(4)BSAI Pacific cod;

(5)BSAI rock sole; and

(6)BSAI yellowfin sole. *Amendment 80 vessel means:*

(1)The vessels listed in Column A of Table 31 to this part with the corresponding USCG Documentation Number listed in Column B of Table 31 to this part; or

(2)Any vessel that:

(i)Is not listed as an AFA trawl catcher/processor under sections 208(e)(1) through

(20)of the American Fisheries Act; and

(ii)Has been used to harvest with trawl gear and process not less than 150 mt of Atka mackerel, flathead sole, Pacific cod, Pacific ocean perch, rock sole, turbot, or yellowfin sole in the aggregate in the BSAI during the period from January 1, 1997, through December 31, 2002. *BSAI trawl limited access sector* means fisheries conducted in the BSAI by persons using trawl gear and who are not:

(1)Using an Amendment 80 vessel or an Amendment 80 LLP license; or

(2)Fishing for CDQ groundfish. *Cooperative quota (CQ):*

(1)*For purposes of the Amendment 80 Program* means:

(i)The annual catch limit of an Amendment 80 species that may be caught by an Amendment 80 cooperative while fishing under a CQ permit;

(ii)The amount of annual halibut and crab PSC that may be used by an Amendment 80 cooperative while fishing under a CQ permit.

(2)*For purposes of the Rockfish Program* means:

(i)The annual catch limit of a primary rockfish species or secondary species that may be harvested by a rockfish cooperative while fishing under a CQ permit;

(ii)The amount of annual halibut PSC that may be used by a rockfish cooperative in the Central GOA while fishing under a CQ permit (see rockfish halibut PSC in this section). *CQ permit* means a permit issued to an Amendment 80 cooperative under § 679.4(o)(2) or to a rockfish cooperative under § 679.4(n)(1). *Economic data report (EDR)* means the report of cost, labor, earnings, and revenue data required under § 679.94. *Initial Total Allowable Catch (ITAC)* means the tonnage of a TAC for an Amendment 80 species in a management area that is available for apportionment to the BSAI trawl limited access sector and the Amendment 80 sector in a calendar year after deducting from the TAC the CDQ reserve, the incidental catch allowance the Regional Administrator determines is required on an annual basis, as applicable, to account for projected incidental catch of an Amendment 80 species by non-Amendment 80 vessels engaged in directed fishing for groundfish and, for Atka mackerel, the Atka mackerel jig allocation. *Ten percent or greater direct or indirect ownership interest for purposes of the Amendment 80 Program and Rockfish Program* * * * 3. In § 679.4, paragraphs (a)(1)(xiii), (b)(6)(iv), (k)(12), and

(o)are added to read as follows: § 679.4 Permits.

(a)* * *

(1)* * * If program permit or card type is: Permit is in effect from issue date through end of: For more information, see . . . * * * * * * *

(xiii)Amendment 80 Program:

(A)Amendment 80 QS permit Indefinite § 679.90(b).

(B)CQ permit Specified fishing year § 679.91(b).

(C)Amendment 80 limited access fishery Specified fishing year § 679.91(b).

(b)* * *

(6)* * *

(iv)NMFS will reissue a Federal fisheries permit to any person who holds a Federal fisheries permit issued to an Amendment 80 vessel.

(k)* * *

(12)*Amendment 80 Program.* In addition to other requirements of this part, a license holder must have an Amendment 80 LLP license to conduct fishing for an Amendment 80 species assigned to the Amendment 80 sector.

(o)*Amendment 80 Program* —(1) *Amendment 80 QS permit.*

(i)An Amendment 80 QS permit is issued to a person who submits a timely and complete application for Amendment 80 QS that is approved by NMFS under § 679.90(b).

(ii)An Amendment 80 QS permit is assigned to the owner of an Amendment 80 vessel that gave rise to that permit under the provisions of § 679.90(b), unless the Amendment 80 QS permit is assigned to the holder of an Amendment 80 LLP license originally assigned to an Amendment 80 vessel under the provisions of § 679.90(d).

(iii)If an Amendment 80 QS permit is assigned to the owner of an Amendment 80 vessel the Amendment 80 QS permit will designate the Amendment 80 vessel to which that permit is assigned.

(iv)If an Amendment 80 QS permit is assigned to the holder of an Amendment 80 LLP license originally assigned to an Amendment 80 vessel under the provisions of § 679.90(d)(2)(ii) or § 679.90(e)(4), the Amendment 80 QS permit will be permanently affixed to the Amendment 80 LLP license originally assigned to an Amendment 80 vessel and will be designated as an Amendment 80 LLP/QS license.

(v)Amendment 80 QS units assigned to an Amendment 80 QS permit are non-severable from that Amendment 80 QS permit and if transferred, the Amendment 80 QS permit must be transferred in its entirety to another person under the provisions of § 679.90(e).

(vi)A person must hold an Amendment 80 LLP license to hold an Amendment 80 QS permit.

(2)*Amendment 80 Cooperative quota

(CQ)permit.*

(i)A CQ permit is issued annually to an Amendment 80 cooperative that submits a timely and complete application for CQ that is approved by NMFS as described at § 679.91(b)(4).

(ii)A CQ permit authorizes an Amendment 80 cooperative to catch a quantity of fish expressed as a portion of the ITAC and halibut and crab PSC that may be held for exclusive use by that Amendment 80 cooperative.

(iii)A CQ permit will indicate the amount of Amendment 80 species that may be caught by the Amendment 80 cooperative, and the amount of Amendment 80 crab and halibut PSC that may be used by the Amendment 80 cooperative. The CQ permit will list the members of the Amendment 80 cooperative, Amendment 80 LLP licenses, Amendment 80 QS permits, and Amendment 80 vessels that are assigned to that Amendment 80 cooperative.

(iv)The amount of CQ listed on the CQ permit will be based on:

(A)The amount of Amendment 80 QS units held by all members of the Amendment 80 cooperative designated on a timely and complete application for CQ as described under § 679.91(b) that is approved by NMFS;

(B)The Amendment 80 QS units derived from Amendment 80 QS permits held by members of the Amendment 80 cooperative who have submitted a timely and complete EDR for all Amendment 80 QS permits held by that member as described under § 679.94; and

(C)The amount of CQ as modified by an application for CQ transfer as described under § 679.91(g) that is approved by NMFS.

(v)A CQ permit is valid until whichever of the following occurs first:

(A)Until the end of the year for which the CQ permit is issued; or

(B)Until the permit is revoked, suspended, or modified pursuant to § 679.43 or under 15 CFR part 904.

(vi)A legible copy of the CQ permit must be carried onboard an Amendment 80 vessel assigned to an Amendment 80 cooperative when fishing in the BSAI or adjacent waters open by the State of Alaska for which it adopts a Federal fishing season.

(3)*Amendment 80 Limited Access Fishery permit.*

(i)An Amendment 80 limited access fishery permit is required for an Amendment 80 QS holder to catch, process, and receive Amendment 80 species assigned to the Amendment 80 limited access fishery, or use halibut and crab PSC assigned to the Amendment 80 limited access fishery. An Amendment 80 limited access fishery permit is issued annually to an Amendment 80 QS holder who has submitted:

(A)A timely and complete application for the Amendment 80 limited access fishery as described at § 679.91(b)(4) that is approved by NMFS; and

(B)A timely and complete EDR for all Amendment 80 QS permits held by that person as described under § 679.94.

(ii)An Amendment 80 limited access fishery permit is valid until whichever of the following occurs first:

(A)Until the end of the year for which the Amendment 80 limited access fishery permit is issued; or

(B)Until the permit is revoked, suspended, or modified pursuant to § 679.43 or under 15 CFR part 904.

(iii)A legible copy of the Amendment 80 limited access fishery permit must be carried onboard an Amendment 80 vessel assigned to the Amendment 80 limited access fishery when fishing in the BSAI or adjacent waters open by the State of Alaska for which it adopts a Federal fishing season. 4. In § 679.5, paragraphs (n)(1) and (n)(2) are removed; paragraphs (n)(3) and (n)(4) are redesignated as paragraphs (n)(1) and (n)(2), respectively; and paragraph

(s)is added to read as follows: § 679.5 Recordkeeping and Reporting (R&R).

(s)*Amendment 80 Program* —(1) *General.* The owners and operators of Amendment 80 vessels must comply with the applicable recordkeeping and reporting requirements of this section. All owners of Amendment 80 vessels must ensure that their designated representatives or employees comply with all applicable recordkeeping and reporting requirements.

(2)*Logbook-DCPL.* Operators of Amendment 80 vessels must use a daily cumulative production logbook for trawl gear as described in paragraph

(a)of this section to record Amendment 80 Program landings and production.

(3)*Check-in/check-out report, processors.* Operators or managers of an Amendment 80 vessel must submit check-in/check-out reports as described in paragraph

(h)of this section.

(4)*Weekly production report (WPR).* Operators of Amendment 80 vessels that use a DCPL must submit a WPR as described in paragraph

(i)of this section.

(5)*Product transfer report (PTR), processors.* Operators of Amendment 80 vessels must submit a PTR as described in paragraph

(g)of this section.

(6)*Annual Amendment 80 cooperative report* —(i) *Applicability.* An Amendment 80 cooperative issued a CQ permit must submit annually to the Regional Administrator an Amendment 80 cooperative report detailing the use of the cooperative's CQ.

(ii)*Time limits and submittal.*

(A)The annual Amendment 80 cooperative report must be submitted to the Regional Administrator by an electronic data file in a NMFS-approved format; by fax: 907-586-7557; or by mail sent to the Regional Administrator, NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668; and

(B)The annual Amendment 80 cooperative report for fishing activities under a CQ permit issued for the prior calendar year must be received by the Regional Administrator not later than 1700 hours A.l.t. on March 1 of each year.

(iii)*Information required.* The annual Amendment 80 cooperative report must include at a minimum:

(A)The cooperative's actual retained and discarded catch of CQ and GOA sideboard limited fisheries (if applicable) by statistical area and on a vessel-by-vessel basis;

(B)A description of the method used by the cooperative to monitor fisheries in which cooperative vessels participated; and

(C)A description of any actions taken by the cooperative against specific members in response to a member that exceeded the amount of CQ that the member was assigned to catch for the Amendment 80 cooperative.

(7)*Vessel monitoring system

(VMS)requirements* (see § 679.28(f)). 5. In § 679.7, remove and reserve paragraphs (d)(13), (d)(14), and (d)(16); revise paragraph

(m)published at 71 FR 17381 on April 6, 2006; and add paragraph

(o)to read as follows: § 679.7 Prohibitions.

(m)*Prohibitions specific to GRS.* (Effective January 20, 2008). It is unlawful for either the owner or operator of a catcher/processor not listed in § 679.4(l)(2)(i), not assigned to an Amendment 80 cooperative, and using trawl gear in the BSAI or an Amendment 80 cooperative to:

(1)Retain an amount of groundfish during a fishing year that is less than the amount of groundfish required to be retained under the GRS described at § 679.27(j).

(2)Fail to submit, submit inaccurate information, or intentionally submit false information, on any report, application or statement required under this part.

(3)Process or discard any catch not weighed on a NMFS-approved scale that complies with the requirements of § 679.28(b). Catch must not be sorted before it is weighed and each haul must be available to be sampled by an observer for species composition.

(4)Process any groundfish without an observer sampling station that complies with § 679.28(d).

(5)Combine catch from two or more hauls.

(6)Receive deliveries of unsorted catch at any time during a fishing year without complying with § 679.27(j)(5), if the vessel is required to comply with § 679.27(j)(1) at any time during the same fishing year.

(o)*Amendment 80 Program* —(1) *Amendment 80 vessels.*

(i)Use any vessel other than an Amendment 80 vessel to catch, process, or receive any amount of Amendment 80 species, crab PSC, or halibut PSC assigned to the Amendment 80 sector.

(ii)Use an Amendment 80 vessel to catch, process, or receive any amount of Amendment 80 species, crab PSC, or halibut PSC assigned to the BSAI trawl limited access sector.

(iii)Use an Amendment 80 vessel to catch, process, or receive any amount of Amendment 80 species, crab PSC, or halibut PSC in the BSAI for a calendar year if that Amendment 80 vessel is not assigned to an Amendment 80 cooperative or the Amendment 80 limited access fishery.

(2)*Amendment 80 LLP license.* Designate an Amendment 80 vessel on any groundfish LLP license other than an Amendment 80 LLP license.

(3)*Amendment 80 QS permit.*

(i)Hold an Amendment 80 QS permit if that person does not hold an Amendment 80 LLP license.

(ii)Hold an Amendment 80 QS permit that is assigned to an Amendment 80 vessel under § 679.4(o)(1) if that person is not designated as the owner of that Amendment 80 vessel by an abstract of title or USCG documentation.

(4)*Amendment 80 cooperatives.*

(i)Use an Amendment 80 vessel, Amendment 80 LLP license, or Amendment 80 QS permit assigned to an Amendment 80 cooperative for a calendar year to catch, process, or receive any Amendment 80 species, crab PSC, or halibut PSC not assigned to that Amendment 80 cooperative during that calendar year.

(ii)Catch, process, or receive Amendment 80 species assigned to an Amendment 80 cooperative in the BSAI or adjacent waters open by the State of Alaska for which it adopts a Federal fishing season without a copy of a valid Amendment 80 CQ permit onboard.

(iii)Retain an amount of groundfish during a fishing year that is less than the amount of groundfish required to be retained by an Amendment 80 cooperative under the GRS described at § 679.27(j).

(iv)For an Amendment 80 cooperative to catch any Amendment 80 species, crab PSC, or halibut PSC in excess of the CQ permit amounts assigned to that Amendment 80 cooperative.

(5)*Amendment 80 limited access fishery.*

(i)Use an Amendment 80 vessel, Amendment 80 LLP license, or Amendment 80 QS permit assigned to the Amendment 80 limited access fishery for a calendar year to catch, process, or receive any Amendment 80 species, crab PSC, or halibut PSC not assigned to the Amendment 80 limited access sector during that calendar year.

(ii)Catch, process, or receive Amendment 80 species assigned to the Amendment 80 limited access fishery in the BSAI or adjacent waters open by the State of Alaska for which it adopts a Federal fishing season without a copy of a valid Amendment 80 limited access fishery permit onboard.

(6)*Catch monitoring.*

(i)Operate an Amendment 80 vessel or a catcher/processor not listed in § 679.4(l)(2)(i) and using trawl gear, to catch, process, or receive fish in the BSAI or adjacent waters opened by the State of Alaska for which it adopts a Federal fishing season and fail to follow the catch monitoring requirements detailed at § 679.93(a), (b), and (c).

(ii)Operate an Amendment 80 vessel that is subject to a sideboard limit detailed at § 679.92(b) and (c), as applicable, in the GOA or adjacent waters open by the State of Alaska for which it adopts a Federal fishing season, and fail to follow the catch monitoring requirements detailed at § 679.93(a), (b), and (d).

(7)*Use caps.* Exceed the use caps that apply under § 679.92(a).

(8)*Economic data report (EDR):* Fail to submit a timely and complete EDR as described under § 679.94. 6. In § 679.20: a. Paragraphs (a)(7)(i), (a)(7)(ii), (a)(7)(iii)(B), are removed and reserved; b. Paragraph (a)(7)(iv) is added and reserved; c. Paragraphs (a)(7)(v), (a)(7)(vi), (a)(8)(iv), and (a)(8)(v) are added; d. Paragraph (a)(8)(ii) is revised; e. Paragraphs (a)(10) and (a)(11) are redesignated as paragraphs (a)(11) and (a)(12), respectively; f. New paragraph (a)(10) is added; g. Paragraphs (b)(1)(i) and

(ii)are revised and paragraphs (b)(1)(iii) and

(iv)are removed; and h. Paragraphs (d)(1)(v) and (d)(1)(vi) are added. The additions and revisions read as follows: § 679.20 General limitations.

(a)* * *

(7)* * *

(v)*ITAC allocation to the Amendment 80 sector.* A percentage of the Pacific cod TAC, after subtraction of the CDQ reserve, will be allocated as ITAC to the Amendment 80 sector as described in Table 33 to this part. Separate allocations for each Amendment 80 cooperative and the Amendment 80 limited access fishery are described under § 679.91. The allocation of Pacific cod to the Amendment 80 sector will be further divided into seasonal apportionments as described under paragraph (a)(7)(iii)(A)( *1* )( *ii* ) of this section.

(A)*Use of seasonal apportionments by Amendment 80 cooperatives.*

(1)The amount of Pacific cod listed on a CQ permit that is assigned for use in the A season may be used in the B or C season. ( *2* ) The amount of Pacific cod that is listed on a CQ permit that is assigned for use in the B season may not be used in the A season. ( *3* ) The amount of Pacific cod listed on a CQ permit that is assigned for use in the C season may not be used in the A or B season.

(B)*Harvest of seasonal apportionments in the Amendment 80 limited access fishery.* ( *1* ) Pacific cod ITAC assigned for harvest by the Amendment 80 limited access fishery in the A season may be harvested in the B season. ( *2* ) Pacific cod ITAC assigned for harvest by the Amendment 80 limited access fishery in the B season may not be harvested in the A season. ( *3* ) Pacific cod ITAC assigned for harvest by the Amendment 80 limited access fishery in the C season may not be harvested in the A or B season.

(vi)*ITAC rollover to Amendment 80 cooperatives.* If during a fishing year, the Regional Administrator determines that a portion of the Pacific cod TAC is unlikely to be harvested, the Regional Administrator may issue inseason notification in the **Federal Register** that reallocates that remaining amount of Pacific cod to Amendment 80 cooperatives, according to the procedures established under § 679.91(f).

(8)* * *

(ii)*ITAC allocation to Amendment 80 and BSAI trawl limited access sectors.* The remainder of the Atka mackerel TAC, after subtraction of the jig gear allocation, CDQ reserve, and incidental catch allowance for the BSAI trawl limited access sector and vessels using non-trawl gear, will be allocated as ITAC to the Amendment 80 and BSAI trawl limited access sectors.

(iv)*Amendment 80 sector allocation.* The allocation of Atka mackerel ITAC to the Amendment 80 sector is established in Table 32 to this part. The allocation of Atka mackerel ITAC to the Amendment 80 sector will be further divided into seasonal apportionments under § 679.23(e)(3), and separate allocations for each Amendment 80 cooperative and the Amendment 80 limited access fishery as described under § 679.91.

(A)*Use of seasonal apportionments by Amendment 80 cooperatives.* ( *1* ) The amount of Atka mackerel listed on a CQ permit that is assigned for use in the A season may be used in the B season. ( *2* ) The amount of Atka mackerel listed on a CQ permit that is assigned for use in the B season may not be used in the A season.

(B)*Harvest of seasonal apportionments in the Amendment 80 limited access fishery.* ( *1* ) Atka mackerel ITAC assigned for harvest by the Amendment 80 limited access fishery in the A season may be harvested in the B season. ( *2* ) Atka mackerel ITAC assigned for harvest by the Amendment 80 limited access fishery in the B season may not be harvested in the A season.

(v)*BSAI trawl limited access sector allocation* —(A) *BSAI trawl limited access sector directed fishing allowance.* The amount of Atka mackerel ITAC assigned as a directed fishing allowance to the BSAI trawl limited access sector is established in Table 32 to this part.

(B)*BSAI trawl limited access sector incidental catch allowance and ITAC rollover.* If, during a fishing year, the Regional Administrator determines that a portion of the Atka mackerel incidental catch allowance or ITAC assigned to the BSAI trawl limited access sector is unlikely to be harvested, the Regional Administrator may issue inseason notification in the **Federal Register** that reallocates that remaining amount of Atka mackerel directed fishing allowance to Amendment 80 cooperatives, according to the procedures established under § 679.91(f).

(10)*Amendment 80 species except Pacific cod and Atka mackerel* —(i) *ITAC allocation to the Amendment 80 and BSAI trawl limited access sectors.* The remainder of the TACs for each Amendment 80 species other than Atka mackerel and Pacific cod, after subtraction of the CDQ reserve and incidental catch allowance for the BSAI trawl limited access sector and vessels using non-trawl gear, will be allocated as ITAC to the Amendment 80 and BSAI trawl limited access sectors.

(ii)*Amendment 80 sector ITAC.* The allocation of ITAC for each Amendment 80 species other than Atka mackerel and Pacific cod to the Amendment 80 sector is established in Tables 33 and 34 to this part. The allocation of these species to the Amendment 80 sector will be further divided into separate allocations for each Amendment 80 cooperative and the Amendment 80 limited access fishery as described under § 679.91.

(iii)*BSAI trawl limited access sector allocation* —(A) *BSAI trawl limited access sector directed fishing allowance.* The amount of ITAC for each Amendment 80 species other than Atka mackerel and Pacific cod assigned as a directed fishing allowance to the BSAI trawl limited access sector is established in Tables 33 and 34 to this part.

(B)*BSAI trawl limited access sector ITAC rollover.* If, during a fishing year, the Regional Administrator determines that a portion of the incidental catch allowance or ITAC assigned to the BSAI trawl limited access sector for each Amendment 80 species other than Atka mackerel and Pacific cod is unlikely to be harvested, the Regional Administrator may issue inseason notification in the **Federal Register** that reallocates that remaining amount to Amendment 80 cooperatives, according to the procedures established under § 679.91(f).

(b)* * *

(1)* * *

(i)*Nonspecified reserve.* Fifteen percent of the BSAI TAC for each target species and the “other species” category, except pollock, the hook-and-line and pot gear allocation for sablefish, and the Amendment 80 species, is automatically placed in the nonspecified reserve before allocation to any sector. The remaining 85 percent of each TAC is apportioned to the initial TAC for each target species that contributed to the nonspecified reserve and the “other species” category. The nonspecified reserve is not designated by species or species group. Any amount of the nonspecified reserve may be apportioned to target species that contributed to the nonspecified reserve or the “other species” category, provided that such apportionments are consistent with paragraph (a)(3) of this section and do not result in overfishing of a target species or the “other species” category.

(ii)*CDQ reserves* —(A) *Pollock CDQ reserves* —( *1* ) *Bering Sea.* In the annual harvest specifications required by paragraph

(c)of this section, 10 percent of the Bering Sea subarea pollock TAC will be allocated to a CDQ reserve as a directed fishing allowance. ( *2* ) *Aleutian Islands subarea and Bogoslof District.* In the annual harvest specifications required by paragraph

(c)of this section, 10 percent of the Aleutian Islands subarea and Bogoslof District pollock TACs will be allocated to a CDQ reserve as a directed fishing allowance unless the Aleutian Islands subarea or Bogoslof District is closed to directed fishing for pollock by regulation. If the Aleutian Islands subarea and/or Bogoslof District is closed to directed fishing for pollock by regulation, then no pollock CDQ reserve will be established for those areas and incidental harvest of pollock by CDQ groups will accrue against the incidental catch allowance for pollock established under paragraph (a)(5)(i)(A)( *1* ) of this section.

(B)*Fixed gear sablefish CDQ reserves.* Twenty percent of the hook-and-line or pot gear allocation of sablefish established under paragraphs (a)(4)(iii)(A) and (a)(4)(iv)(A) of this section will be allocated to a CDQ reserve for each subarea.

(C)C *DQ reserves for Amendment 80 species.* An amount equal to 10.7 percent of the BSAI TACs for Atka mackerel, Aleutian Islands Pacific ocean perch, yellowfin sole, rock sole, flathead sole, and Pacific cod will be allocated to a CDQ reserve for each of these species by management area, subarea, or district.

(D)*CDQ reserves for other groundfish species.* An amount equal to 10.7 percent of the BSAI TACs for Bering Sea Greenland turbot and arrowtooth flounder, and 7.5 percent of the trawl gear allocation of sablefish in the BS and AI is apportioned from the nonspecific reserve established under paragraph (b)(1)(i) of this section to a CDQ reserve for each of these species by management area, subarea, or district.

(E)If the groundfish harvest specifications required by paragraph

(c)of this section change a TAC category allocated to a CDQ reserve under paragraphs (b)(ii)(A) through

(D)of this section by combining or splitting a species, species group, or management area, then the same percentage of the TAC apportioned to a CDQ reserve in paragraphs (b)(ii)

(A)through

(D)of this section will apply to the new TAC categories.

(d)* * *

(1)* * *

(v)*Amendment 80 GOA sideboard limits—GOA groundfish.*

(A)If the Regional Administrator determines that a GOA sideboard limit for a GOA groundfish species as described under Table 37 to this part is sufficient to support a directed fishing allowance for that species, the Regional Administrator may establish a directed fishing allowance for the species applicable only to Amendment 80 vessels subject to the GOA groundfish sideboard limit.

(B)If the Regional Administrator determines that a GOA groundfish sideboard limit as described under Table 37 to this part is insufficient to support a directed fishing allowance by Amendment 80 vessels for that species, then the Regional Administrator may set the directed fishing allowance to zero for that species for Amendment 80 vessels.

(C)Upon determining that a GOA sideboard limit as described under Table 37 to this part for a species is or will be reached, the Regional Administrator will publish notification in the **Federal Register** prohibiting directed fishing for that species by the Amendment 80 vessels to which the GOA sideboard limit applies.

(vi)*Amendment 80 GOA sideboard limits—halibut PSC.*

(A)If the Regional Administrator determines that an GOA sideboard limit for halibut PSC is sufficient to support a directed fishery for a species or species group, management area, and season specified in Table 38 to this part, then the Regional Administrator may establish a halibut PSC sideboard limit for that species or species group, management area, and season applicable to the Amendment 80 vessels to which the halibut PSC limit applies.

(B)If the Regional Administrator determines that a halibut PSC sideboard limit is insufficient to support a directed fishery for a species or species group, management area, and season as specified in Table 38 to this part then the Regional Administrator may set the halibut PSC sideboard limit for that species or species group to zero for the Amendment 80 vessels to which the halibut PSC limit applies.

(C)Upon determining that a halibut PSC sideboard limit for a species or species group, management area, and season as specified in Table 38 to this part is or will be reached, the Regional Administrator will publish notification in the **Federal Register** prohibiting directed fishing for specific species or species group by the Amendment 80 vessels to which the halibut PSC limit applies as follows: ( *1* ) If the halibut PSC sideboard limit is reached for the deep-water species fishery as defined in § 679.21(d)(3)(iii)(B) for a season, then NMFS will close directed fishing in the GOA for all species in the deep-water species fishery except northern rockfish, Pacific ocean perch, and pelagic shelf rockfish in the Central GOA for that season. ( *2* ) If the halibut PSC sideboard limit is reached for the shallow-water species fishery as defined in § 679.21(d)(3)(iii)(A) for a season, then NMFS will close directed fishing in the GOA for all species in the shallow-water species fishery for that season. 7. In § 679.21, paragraphs (e)(1)(i), (e)(3)(i), (e)(3)(ii) heading, (e)(3)(ii)(A), (e)(3)(ii)(B)( *2* ), and (e)(3)(iv) introductory text are revised, and paragraph (e)(3)(vi) is added to read as follows: § 679.21 Prohibited species bycatch management.

(e)* * *

(1)* * *

(i)*PSQ reserve.* The following allocations of the trawl gear PSC limits are made to the CDQ Program as PSQ reserves. The PSQ reserves are not apportioned by gear or fishery.

(A)*Crab PSQ.* 10.7 percent of each PSC limit set forth in paragraphs (e)(1)(ii) through

(iv)of this section.

(B)*Halibut PSQ.* ( *1* ) 276 mt of the total PSC limit set forth in paragraph (e)(1)(v) of this section in each year for 2008 and 2009. ( *2* ) 326 mt of the total PSC limit set forth in paragraph (e)(1)(v) of this section effective in 2010 and each year thereafter.

(C)*Salmon PSQ* —( *1* ) *Chinook salmon.* 7.5 percent of the PSC limit set forth in paragraph (e)(1)(vii) of this section. ( *2* ) *Non-Chinook salmon.* 10.7 percent of the PSC limit set forth in paragraph (e)(1)(viii) of this section.

(3)* * *

(i)*General.* NMFS, after consultation with the Council and after subtraction of PSQ reserves and PSC CQ assigned to Amendment 80 cooperatives, will apportion each PSC limit set forth in paragraphs (e)(1)(ii) through

(viii)of this section into bycatch allowances for fishery categories defined in paragraph (e)(3)(iv) of this section, based on each category's proportional share of the anticipated incidental catch during a fishing year of prohibited species for which a PSC limit is specified and the need to optimize the amount of total groundfish harvested under established PSC limits.

(ii)*Red king crab, C. bairdi, C. opilio, and halibut* —(A) *General.* For vessels engaged in directed fishing for groundfish in the BSAI, other than vessels fishing under a CQ permit assigned to an Amendment 80 cooperative, the PSC limits for red king crab, *C. bairdi, C. opilio,* and halibut will be apportioned to the trawl fishery categories defined in paragraphs (e)(3)(iv)(B) through

(F)of this section.

(B)* * * ( *2* ) When the RKCSS is open to vessels fishing for groundfish with nonpelagic trawl gear under paragraph (e)(3)(ii)(B)( *1* ) of this section, NMFS, after consultation with the Council, will specify an amount of the red king crab bycatch limit annually established under paragraph (e)(1)(ii) of this section for the RKCSS. The amount of the red king crab bycatch limit specified for the RKCSS will not exceed an amount equivalent to 25 percent of the red king crab PSC allowance and will be based on the need to optimize the groundfish harvest relative to red king crab bycatch.

(iv)*Trawl fishery categories.* For purposes of apportioning trawl PSC limits among fisheries, other than PSC CQ assigned to an Amendment 80 cooperative, the following fishery categories are specified and defined in terms of round-weight equivalents of those groundfish species or species groups for which a TAC has been specified under § 679.20.

(vi)*Amendment 80 sector bycatch limitations.*

(A)Halibut and crab bycatch limits for the Amendment 80 sector in the BSAI will be established according to the procedure and formulae set out in § 679.91(d) through (f); and

(B)Halibut and crab PSC assigned to the Amendment 80 limited access fishery will be managed through directed fishing closures for Amendment 80 vessels to which the halibut and crab bycatch limits apply. 8. In § 679.27, paragraph

(j)published at 71 FR 17381 on April 6, 2006, is revised to read as follows: § 679.27 Improved Retention/Improved Utilization Program.

(j)*Groundfish retention standard.* (Effective January 20, 2008)—(1) *Applicability.*

(i)The operator of a catcher/processor not listed in § 679.4(l)(2)(i), not assigned to an Amendment 80 cooperative, and using trawl gear in the BSAI must comply with the GRS set forth under paragraph (j)(4) of this section while fishing for or processing groundfish caught from the BSAI from January 1 through December 31 of each year.

(ii)An Amendment 80 cooperative and the members of an Amendment 80 cooperative must comply with the GRS set forth under paragraph (j)(4) of this section while fishing for or processing groundfish caught from the BSAI from January 1 through December 31 of each year.

(iii)No part of the GRS supersedes minimum retention or utilization requirements for IR/IU species found in this section.

(2)*Percent of groundfish retained calculation for a catcher/processor not in an Amendment 80 cooperative.* For any fishing year, the percent of groundfish retained by each catcher/processor not listed in § 679.4(l)(2)(i), not assigned to an Amendment 80 cooperative, and using trawl gear in the BSAI will be calculated using the following equations: EP30MY07.002 Substituting the value for GFroundweight into the following equation: GFR% = (GFroundweight / TotalGF) * 100 Where: GFroundweight is the total annual round weight equivalent of all retained product weights for each IR/IU groundfish species. PWspecies n is the total annual product weight for each groundfish species listed in Table 2a to this part by product type as reported in the vessel's weekly production report required at § 679.5(i). PRRspecies n is the standard product recovery rate for each groundfish species and product combination listed in Table 3 to this part. GFR% is the groundfish retention percentage for a vessel calculated as GFroundweight divided by the total weight of groundfish catch. TotalGF is the total groundfish round catch weight as measured by the flow scale measurement, less any non-groundfish, PSC species or groundfish species on prohibited species status under § 679.20.

(3)*Percent of groundfish retained calculation for an Amendment 80 cooperative.* For each Amendment 80 cooperative, for any fishing year, the percent of groundfish retained by that Amendment 80 cooperative is based on the aggregate groundfish retained by all Amendment 80 vessels assigned to that Amendment 80 cooperative and will be calculated using the following equations: EP30MY07.003 Substituting the value for GFroundweight into the following equation: GFR% = (GFroundweight / TotalGF) * 100 Where: GFroundweight is the total annual round weight equivalent of all retained product weights retained by all Amendment 80 vessels assigned to that Amendment 80 cooperative for each IR/IU groundfish species. PWspecies n is the total annual product weight for each groundfish species listed in Table 2a to this part by product type as reported in the vessel's weekly production report for all Amendment 80 vessels assigned to that Amendment 80 cooperative required at § 679.5(i). PRRspecies n is the standard product recovery rate for each groundfish species and product combination listed in Table 3 to this part. GFR% is the groundfish retention percentage for an Amendment 80 cooperative calculated as GFroundweight divided by the total weight of groundfish catch. TotalGF is the total groundfish round catch weight for all Amendment 80 vessels assigned to that Amendment 80 cooperative as measured by the flow scale measurement, less any non-groundfish, PSC species or groundfish species on prohibited species status under § 679.20.

(4)*Minimum groundfish retention standard.* An Amendment 80 cooperative or a catcher/processor not listed in § 679.4(l)(2)(i), not assigned to an Amendment 80 cooperative, and using trawl gear in the BSAI must comply with the annual minimum groundfish retention standard requirements displayed in the following table: Groundfish Retention Standard Year Annual GRS (percent) 2008 65 2009 75 2010 80 2011 and each year after 85

(5)*Monitoring requirements* —(i) *Observer coverage requirements.* In addition to complying with minimum observer coverage requirements at § 679.50(c), the owner of an Amendment 80 vessel or any other catcher/processor not listed in § 679.4(l)(2)(i) and using trawl gear in the BSAI, must comply with observer coverage requirements as described at §§ 679.50(c)(6), and 679.7(m)(3) at all times the vessel is used to harvest groundfish in the BSAI with trawl gear.

(ii)*Catch weighing.* For each haul, all catch by an Amendment 80 vessel or any other catcher/processor not listed in § 679.4(l)(2)(i) and using trawl gear in the BSAI must be weighed on a NMFS-approved scale and made available for sampling by a NMFS certified observer at a single location. The owner or operator of an Amendment 80 vessel or a catcher/processor not listed in § 679.4(l)(2)(i) and using trawl gear in the BSAI must ensure that the vessel is in compliance with the scale requirements described at § 679.28(b), that each haul is weighed separately, and that no sorting of catch takes place prior to weighing. All weighed catch must be recorded as required at § 679.5(a)(7)(iv)(C).

(iii)*Observer sampling station.* The owner or operator of an Amendment 80 vessel or any other catcher/processor not listed in § 679.4(l)(2)(i) and using trawl gear in the BSAI must provide an observer sampling station as described at § 679.28(d) and the owner of the vessel must ensure that the vessel operator complies with the observer sampling station requirements described at § 679.28(d) at all times the vessel is used to harvest groundfish in the BSAI. In addition to the requirements at § 679.28(d)(7)(ii), observers must be able to sample all catch from a single point along the conveyer belt conveying unsorted catch, and when standing where unsorted catch is collected, the observer must be able to see that no catch has been removed between the bin and the location along the conveyer belt at which the observers collect their samples.

(6)*Requirements for vessels that also harvest groundfish outside of the BSAI.* The operator of an Amendment 80 vessel, or any other vessel required to comply with paragraph

(j)of this section, must offload or transfer all fish or fish product prior to harvesting fish outside the BSAI, unless the operator of the vessel is in compliance with the recordkeeping and reporting and monitoring requirements described at § 679.5(a)(7)(iv)(C) and paragraph (j)(5) of this section at all times the vessel harvests or processes groundfish outside the BSAI.

(7)*Requirements for vessels receiving deliveries of unsorted catch.* The owner or operator of an Amendment 80 vessel, or any other vessel required to comply with this paragraph

(j)at any time during a fishing year and who also receives deliveries of unsorted catch at any time during a fishing year must comply with this paragraph (j)(5) while processing deliveries of unsorted catch. 9. In § 679.28, paragraph (d)(8)(i) is revised; paragraph

(h)is added and reserved; and paragraph

(i)is added to read as follows: § 679.28 Equipment and operational requirements.

(d)* * *

(8)* * *

(i)*How does a vessel owner arrange for an observer sampling station inspection?* The owner may arrange the inspection time and place by submitting to NMFS by fax (206-526-4066) or e-mail ( *station.inspections@noaa.gov* ) an Inspection Request for Observer Sampling Station available on the NMFS Alaska Region Web site at *http://www.fakr.noaa.gov.* Inspections will be scheduled no later than 10 working days after NMFS receives a complete application for an inspection. The owner must provide the following information:

(A)Name and signature of the person submitting the application, and the date of the application.

(B)Business mailing address, telephone number, and fax number of the person submitting the application.

(C)Whether the vessel or processor has received an observer sampling scale inspection before and, if so, the date of the most recent inspection report.

(D)Vessel name and name of contact person on vessel.

(E)Federal fishery permit number.

(F)Location of vessel where sampling station inspection is requested to occur, including street address and city.

(G)Requested inspection date.

(H)For catcher/processors using trawl gear and motherships, a diagram drawn to scale showing the location(s) where all catch will be weighed, the location where observers will sample unsorted catch, and the location of the observer sampling station including the observer sampling scale, and the name of the manufacturer and model of the observer sampling scale.

(I)For all other vessels, a diagram drawn to scale showing the location(s) where catch comes on board the vessel, the location where observers will sample unsorted catch, the location of the observer sampling station, including the observer sampling scale, and the name of the manufacturer and model of the observer sampling scale.

(J)For all vessels, a copy of the most recent scale inspection report issued under paragraph (b)(2) of this section.

(i)*Bin monitoring* —(1) *Bin monitoring standards.* The vessel owner or operator must comply with the requirements specified in paragraph (i)(1)(i) of this section unless the vessel owner or operator has requested, and NMFS has approved, one of the monitoring options described at paragraph (i)(1)(ii) or (i)(1)(iii) of this section.

(i)*Option 1—No crew in bin or tank.* No crew may enter any bin or tank preceding the point where the observer samples unsorted catch, unless:

(A)The flow of fish has been stopped between the tank and the location where the observer samples unsorted catch;

(B)All catch has been cleared from all locations between the tank and the location where the observer samples unsorted catch;

(C)The observer has been given notice that the vessel crew must enter the tank; and either

(D)The observer is given the opportunity to observe the activities of the person(s) in the tank; or

(E)The observer informs the vessel operator, or his designee, that all sampling has been completed for a given haul, in which case crew may enter a tank containing fish from that haul without stopping the flow of fish or clearing catch between the tank and the observer sampling station.

(ii)*Option 2—Line of sight option.* From the observer sampling station, the location where the observer sorts and weighs samples, and the location from which the observer collects unsorted catch, an observer of average height (between 64 and 74 inches (140 and 160 cm)) must be able to see all areas of the bin or tank where crew could be located preceding the point where the observer samples catch. If clear panels are used to comply with this requirement, those panels must be maintained sufficiently clear to allow an individual with normal vision to read text located two feet inside of the bin or tank. The text must be written in 87 point type (corresponding to line four on a standard Snellen eye chart) and the text must be readable from the observer sampling station, the location where the observer sorts and weighs samples, and the location from which the observer collects unsorted catch. The observer must be able to view the activities of crew in the bin from these locations.

(iii)*Option 3—Video option.* A vessel must provide and maintain cameras, a monitor, and a digital video recording system for all areas of the bin or tank where crew could be located preceding the point where the observer collects catch. The vessel owner or operator must ensure that:

(A)The system has sufficient data storage capacity to store all video data from an entire trip. Each frame of stored video data must record a time/date stamp in Alaska local time (A.l.t.). At a minimum, all periods of time when fish are inside the bin must be recorded and stored;

(B)The system must include at least one external USB (1.1 or 2.0) hard drive or other removable storage device approved by NMFS;

(C)The system uses commercially available software;

(D)Color cameras must have at a minimum 420 TV lines of resolution, a lux rating of 0.1, and auto-iris capabilities;

(E)The video data must be maintained and made available to NMFS staff, or any individual authorized by NMFS, upon request. These data must be retained onboard the vessel for no less than 120 days after the beginning of a trip, unless NMFS has notified the vessel operator that the video data may be retained for less than this 120-day period;

(F)The system provides sufficient resolution and field of view to see and read a text sample written in 130 point type (corresponding to line two of a standard Snellen eye chart) from any location within the tank where crew could be located;

(G)The system is recording at a speed of no less than 5 frames per second at all times when fish are inside the tank;

(H)A 16-bit or better color monitor, for viewing activities within the tank in real time, is provided within the observer sampling station (or location where the observer sorts and weighs samples, if applicable). The monitor must: ( *1* ) Have the capacity to display all cameras simultaneously; ( *2* ) Be operating at all times when fish are in the tank; ( *3* ) Be securely mounted at or near eye level; ( *4* ) Provide the same resolution as specified in paragraph (i)(1)(iii)(F) of this section.

(I)The observer is able to view any earlier footage from any point in the trip and is assisted by crew knowledgeable in the operation of the system in doing so;

(J)The vessel owner has, in writing, provided the Regional Administrator with the specifications of the system. At a minimum, this must include: ( *1* ) The length and width (in pixels) of each image; ( *2* ) The file type in which the data are recorded; ( *3* ) The type and extent of compression; ( *4* ) The frame rate at which the data will be recorded; ( *5* ) The brand and model number of the cameras used; ( *6* ) The brand, model, and specifications of the lenses used; ( *7* ) A scale drawing of the location of each camera and its coverage area; ( *8* ) The size and type of storage device; ( *9* ) The type, speed, and operating system of any computer that is part of the system; ( *10* ) The individual or company responsible for installing and maintaining the system; ( *11* ) The individual onboard the vessel responsible for maintaining the system and working with the observer on its use; and ( *12* ) Any additional information requested by the Regional Administrator.

(K)Any change to the video system that would affect the system's functionality must be submitted to, and approved by, the Regional Administrator in writing before that change is made.

(iv)*Failure of line of sight or video option.* If the observer determines that a monitoring option selected by a vessel owner or operator specified in paragraph (i)(1)(ii) or (i)(1)(iii) of this section fails to provide adequate monitoring of all areas of the bin where crew could be located, then the vessel must use the monitoring option specified in paragraph (i)(1)(i) of this section until the observer determines that adequate monitoring of all areas of the bin where crew could be located is provided by the monitoring option selected by the vessel owner or operator.

(2)*Who must have a bin monitoring option inspection?* A vessel owner or operator choosing to operate under the line of sight option (option 2) in paragraph (i)(1)(ii) of this section or the video option (option 3) in paragraph (i)(1)(iii) of this section must receive an annual bin monitoring option inspection.

(3)*How does a vessel owner arrange for a bin monitoring option inspection?* The owner may arrange the inspection time and place by submitting to NMFS by fax (206-526-4066) or e-mail ( *station.inspections@noaa.gov* ) an Inspection Request for Bin Monitoring available on the NMFS Alaska Region Web site at ( *http://www.fakr.noaa.gov* ). Inspections will be scheduled no later than 10 working days after NMFS receives a complete application for an inspection. The owner must provide the following information:

(i)Name and signature of the person submitting the application, and the date of the application;

(ii)Business mailing address, telephone number, and fax number of the person submitting the application;

(iii)Whether the vessel has received a bin monitoring option inspection before, and if so, the date of the most recent inspection report;

(iv)Vessel name;

(v)Federal fishery permit number;

(vi)Location where the inspection is requested to occur, including street address and city; and

(vii)A diagram drawn to scale showing the locations where all catch will be weighed and sorted by the observer, the location where unsorted catch will be collected, and the location of any video equipment or viewing panels or ports.

(4)*Where will bin monitoring option inspections be conducted?* Inspections will be conducted on vessels tied to docks at Dutch Harbor, Alaska, Kodiak, Alaska, and in the Puget Sound area of Washington State.

(5)*Bin monitoring option inspection report.* A bin monitoring option inspection report, valid for 12 months from the date it is signed by NMFS, will be issued to the vessel owner if the bin monitoring option meets the requirements of paragraph (i)(1)(ii) or (i)(1)(iii) of this section. The vessel owner must maintain a current bin option inspection report onboard the vessel at all times the vessel is required to provide an approved bin monitoring option under this paragraph (i)(5). The bin monitoring option inspection report must be made available to the observer, NMFS personnel or to an authorized officer upon request. 10. In § 679.31: a. Remove paragraphs (a)(2), (c), (f), and (g); b. Redesignate paragraphs (b), (d), and

(e)as paragraphs (a)(2), (3), and (4), respectively; c. In redesignated paragraph (a)(2), further redesignate paragraphs (1), (2), and

(3)introductory text, and

(4)as paragraphs (a)(1)(i), (ii), (iii), and (iv), respectively; d. In redesignated paragraph (a)(2)(iii), further redesignate paragraphs (i), (ii),

(iii)and

(iv)as paragraphs (a)(2)(iii)(A), (B), (C), and (D), respectively; e. Add and reserve paragraph (b); and f. Revise the section heading, the heading for paragraph

(a)and paragraph (a)(1). The additions and revisions read as follows: § 679.31 CDQ and PSQ reserves.

(a)*CDQ and PSQ reserves* —(1) *Groundfish CDQ reserves.* See § 679.20(b)(1)(ii). 11. In § 679.50, paragraphs (a), (c)(4)(i)(A), and paragraph (c)(6) published at 71 FR 17381 on April 6, 2006, are revised to read as follows: § 679.50 Groundfish Observer Program applicable through December 31, 2007.

(a)*General.* Operators of vessels possessing a Federal fisheries permit under § 679.4(b)(1) and processors that possess a Federal processor permit under § 679.4(f)(1), must comply with this section. The owner of a fishing vessel or a processor subject to this part must ensure that the operator or manager complies with this section and is jointly and severally liable for such compliance. The following table provides a reference to the paragraphs in this section that contain observer coverage requirements for vessels, shoreside processors, and stationary floating processors participating in certain fishery programs or fishing in certain areas. Observer coverage for the CDQ fisheries obtained in compliance with paragraphs (c)(4) and (d)(5) of this section may not be used to comply with observer coverage requirements for non-CDQ groundfish fisheries specified in this section. Program Catcher/ processors Catcher vessels Motherships Shoreside and stationary floating processors

(1)CDQ Program (c)(4) (c)(4) (c)(4) (d)(5).

(2)AFA pollock (c)(5)(i)(A) and

(B)(c)(1) through

(3)(c)(5)(i)(A) (d)(6).

(3)Aleutian Islands pollock (c)(5)(i)(C) (c)(1) through

(3)(c)(5)(i)(C) (d)(1) through (4).

(4)Rockfish Program (c)(7)(i) (c)(7)(ii) N/A (d)(7).

(5)Vessels fishing in the Red King Crab Savings Area (c)(1)(vii) (c)(1)(viii) N/A N/A.

(6)Vessels fishing in the Nearshore Bristol Bay Trawl Closure Area (c)(1)(ix) (c)(1)(ix) N/A N/A.

(7)Vessels fishing in the HLA for Atka mackerel (c)(1)(x) (c)(1)(x) N/A N/A.

(8)Non-AFA trawl C/Ps fishing in the BSAI (c)(6) N/A N/A N/A.

(9)Vessels and processors participating in all other BSAI and GOA groundfish fisheries (c)(1) through (3), in GOA only (c)(1) through

(3)(c)(1) through

(3)(d)(1) through (4).

(c)* * *

(4)* * *

(i)* * *

(A)*CDQ groundfish fisheries (effective January 20, 2008)* —( *1* ) *Catcher/processors using trawl gear* . A catcher/processor not listed in § 679.4(l)(2)(i) using trawl gear and groundfish CDQ fishing, except catcher/processors directed fishing for pollock CDQ, must comply with the observer coverage requirements at paragraph (c)(6)(i) of this section and the catch monitoring requirements in § 679.93(c). ( *2* ) *Motherships* . A mothership that receives groundfish from catcher vessels using trawl gear and groundfish CDQ fishing, except catcher vessels directed fishing for pollock CDQ, must have at least two level 2 observers as described at paragraphs (j)(1)(v)(D) and

(E)of this section onboard the vessel, at least one of whom must be endorsed as a lead level 2 observer.

(6)*Non-AFA trawl catcher/processors (effective January 20, 2008)* —(i) *Catcher/processors not listed in § 679.4(l)(2)(i) and using trawl gear in the BSAI* . Catcher/processors not listed in § 679.4(l)(2)(i) and using trawl gear in the BSAI must have onboard at least two NMFS-certified observers for each day that the vessel is used to harvest, receive, or process groundfish in the BSAI or adjacent waters open by the State of Alaska for which it adopts a Federal fishing season.

(A)*Observer lead level 2 requirements* . At least one of the observers required under this paragraph (c)(6)(i) must be endorsed as a lead level 2 observer. More than two observers are required if the observer workload restriction at paragraph (c)(6)(i)(B) of this section would otherwise preclude sampling as required.

(B)*Observer workload* . The time required for the observer to complete sampling, data recording, and data communication duties must not exceed 12 consecutive hours in each 24-hour period.

(ii)*Amendment 80 vessels in the GOA* . All Amendment 80 vessels fishing in the GOA, except the F/V GOLDEN FLEECE (USCG Documentation Number 609951) provided the F/V GOLDEN FLEECE is named on LLP license number LLG2524, must have onboard at least one NMFS-certified observer for each day that the vessel is used to harvest, receive, or process groundfish in the GOA management areas or adjacent waters open by the State of Alaska for which it adopts a Federal fishing season. 12. In § 679.64: a. Revise section heading; b. Revise paragraph (a)(2)(i); c. Redesignate paragraphs (a)(4) through (a)(6) as paragraphs (a)(5) through (a)(7), respectively; d. Add new paragraph (a)(4); e. Revise paragraphs (a)(5) and (a)(6); f. Add paragraph (a)(8); g. Revise paragraph (b)(3)(i) heading; h. Redesignate paragraph (b)(3)(iii) as paragraph (b)(3)(iv); i. Add new paragraph (b)(3)(iii); j. Revise paragraph (b)(4); and k. Add new paragraph (b)(6). The revisions and additions read as follows: § 679.64 Harvesting sideboard limits in other fisheries.

(a)* * *

(2)* * *

(i)The Aleutian Islands Pacific ocean perch harvest limit will be equal to the 1996 through 1997 aggregate retained catch of Aleutian Islands Pacific ocean perch by catcher/processors listed in Sections 208(e)(1) through

(20)and 209 of the AFA in non-pollock target fisheries divided by the sum of the Aleutian Islands Pacific ocean perch catch in 1996 and 1997 multiplied by the remainder of the Aleutian Islands Pacific ocean perch TAC after the subtraction of the CDQ reserve under § 679.20(b)(1)(ii)(C) in the year in which the harvest limit will be in effect.

(4)*Flathead sole, rock sole, and yellowfin sole* . The harvest limit for flathead sole, rock sole, and yellowfin sole will be equal to the 1995 through 1997 aggregate retained catch of that species by catcher/processors listed in Sections 208(e)(1) through (e)(20) and 209 of the AFA in non-pollock target fisheries divided by the sum of the catch of that species in 1995 through 1997 multiplied by the remainder of the TAC of that species after the subtraction of the CDQ reserve under § 679.20(b)(1)(ii)(C) in the year in which the harvest limit will be in effect.

(5)*Remaining groundfish species* .

(i)Except as provided for in paragraphs (a)(1)(ii) through (a)(4) of this section, the harvest limit for each BSAI groundfish species or species group will be equal to the 1995 through 1997 aggregate retained catch of that species by catcher/processors listed in Sections 208(e)(1) through (e)(20) and 209 of the AFA in non-pollock target fisheries divided by the sum of the catch of that species in 1995 through 1997 multiplied by the TAC of that species available for harvest by catcher/processors in the year in which the harvest limit will be in effect.

(ii)If the amount of a species calculated under paragraph (a)(5)(i) of this section is determined by the Regional Administrator to be insufficient to meet bycatch needs for AFA catcher/processors in other directed fisheries for groundfish, the Regional Administrator will prohibit directed fishing for that species by AFA catcher/processors and establish the sideboard amount equal to the amount of that species caught by AFA catcher/processors incidental to directed fishing for other groundfish species.

(6)*What are the halibut and crab PSC sideboard limits* ? The halibut and crab PSC bycatch limits specified for catcher/processors in the BSAI are listed in Tables 40 and 41 to this part.

(8)*Yellowfin sole sideboard limit exemption* . AFA catcher/processors will not be subject to a harvest limit for yellowfin sole in the BSAI during a calendar year if the aggregate ITAC of yellowfin sole assigned to the Amendment 80 sector and BSAI trawl limited access sector is greater than or equal to 125,000 metric tons.

(b)* * *

(3)* * *

(i)*BSAI groundfish other than Amendment 80 species* .

(iii)*Amendment 80 species other than Pacific cod* . The AFA catcher vessel groundfish harvest limit for each Amendment 80 species other than BSAI Pacific cod will be equal to the aggregate retained catch of that Amendment 80 species from 1995 through 1997 by all AFA catcher vessels, divided by the sum of the TAC available to catcher vessels for that species or species group from 1995 through 1997, and multiplied by the remainder of the TAC after the subtraction of the CDQ reserve under § 679.20(b)(1)(ii)(C) in the year or season in which the harvest limit will be in effect.

(4)*How will halibut and crab PSC limits be calculated* ?—(i) *BSAI* . The halibut and crab PSC bycatch limits specified for catcher vessels in the BSAI are listed in Tables 40 and 41 to this part.

(ii)*GOA* . The AFA catcher vessel PSC bycatch limit for halibut in the GOA will be a portion of the PSC limit equal to the ratio of aggregate retained groundfish catch by AFA catcher vessels in each PSC target category from 1995 through 1997 relative to the retained catch of all vessels in that fishery from 1995 through 1997.

(6)*Yellowfin sole sideboard limit exemption* . AFA catcher vessels will not be subject to a harvest limit for yellowfin sole in the BSAI during a calendar year if the aggregate ITAC of yellowfin sole assigned to the Amendment 80 sector and BSAI trawl limited access sector is greater than or equal to 125,000 metric tons. 13. In § 679.84, paragraphs (c)(7) and (c)(9) are revised to read as follows: § 679.84 Rockfish Program recordkeeping, permits, monitoring, and catch accounting.

(c)* * *

(7)*Pre-cruise meeting* . The Observer Program Office is notified by phone at 1-907-271-1702 at least 24 hours prior to departure when the vessel will be carrying an observer who had not previously been deployed on that vessel within the last 12 months. Subsequent to the vessel's departure notification, but prior to departure, NMFS may contact the vessel to arrange for a pre-cruise meeting. The pre-cruise meeting must minimally include the vessel operator or manager, and any observers assigned to the vessel.

(9)*Vessel crew in tanks or bins* . The vessel owner or operator must comply with the bin monitoring standards specified in § 679.28(i). 14. Subpart H, consisting of §§ 679.90 through 679.94, is added to read as follows: Subpart H—Amendment 80 Program Sec. 679.90 Allocation, use, and transfer of Amendment 80 QS permits. 679.91 Amendment 80 Program annual harvester privileges. 679.92 Amendment 80 Program use caps and sideboard limits. 679.93 Amendment 80 Program recordkeeping, permits, monitoring, and catch accounting. 679.94 Economic data report

(EDR)for the Amendment 80 sector. Subpart H—Amendment 80 Program § 679.90 Allocation, use, and transfer of Amendment 80 QS permits. Regulations under this subpart were developed by NMFS to implement the Amendment 80 Program. Additional regulations that implement specific portions of the Amendment 80 Program are set out at § 679.2 Definitions, § 679.4 Permits, § 679.5 Recordkeeping and reporting (R&R), § 679.7 Prohibitions, § 679.20 General limitations, § 679.21 Prohibited species bycatch management, § 679.27 Improved Retention/Improved Utilization Program, § 679.28 Equipment and operational requirements, § 679.31 CDQ and PSQ reserves, § 679.50 Groundfish Observer Program applicable through December 31, 2007, and § 679.64 Harvesting sideboard limits in other fisheries.

(a)*Issuance of Amendment 80 QS permits* —(1) *General* . NMFS will issue an Amendment 80 QS permit to a person who is eligible to receive Amendment 80 QS units as described in paragraph (a)(2) of this section and based on:

(i)The information contained in an approved application for Amendment 80 QS as described in paragraph

(b)of this section;

(ii)The information contained in the Amendment 80 official record as described in paragraph

(c)of this section;

(iii)The Amendment 80 QS permit allocation procedures as described in paragraph

(d)of this section; and

(iv)In consideration of any use caps as described in § 679.92(a).

(2)*Eligibility to receive an Amendment 80 QS permit* —(i) *Owner of an Amendment 80 vessel* . A person may receive an Amendment 80 QS permit if:

(A)That person owns an Amendment 80 vessel at the time of application for Amendment 80 QS as demonstrated on a title of abstract or USCG documentation;

(B)That person holds an Amendment 80 LLP license at the time of application for Amendment 80 QS;

(C)That person is a U.S. citizen;

(D)That person submits a timely application for Amendment 80 QS that is approved by NMFS as described in paragraph

(b)of this section; and

(E)That person is not eligible to receive an Amendment 80 QS permit under the provisions of paragraph (a)(2)(ii) of this section.

(ii)*Holder of an Amendment 80 LLP license* . A person may receive an Amendment 80 QS permit if:

(A)At the time of application for Amendment 80 QS that person holds the Amendment 80 LLP license originally assigned to an Amendment 80 vessel and that Amendment 80 vessel has suffered an actual total loss, constructive total loss, or is permanently ineligible to receive a fishery endorsement under 46 U.S.C. 12108;

(B)The actual total loss, constructive total loss, or permanent ineligibility of that Amendment 80 vessel to receive a fishery endorsement under 46 U.S.C. 12108 has been clearly and unambiguously established and documented in written form in the application for Amendment 80 QS and that documentation is accepted by NMFS;

(C)The express terms of a written contract clearly and unambiguously provide that the owner(s) of that Amendment 80 vessel transferred all rights and privileges to use the Amendment 80 legal landings from that Amendment 80 vessel to the person holding the Amendment 80 LLP license originally assigned to that Amendment 80 vessel;

(D)That person is a U.S. citizen; and

(E)That person has submitted a timely application for Amendment 80 QS that is approved by NMFS as described in paragraph

(b)of this section.

(b)*Application for Amendment 80 QS* —(1) *Submission* . A person who wishes to receive an Amendment 80 QS permit must submit a timely and complete application for Amendment 80 QS. Once a person submits a timely and complete application for Amendment 80 QS that is approved by NMFS, an application for Amendment 80 QS is not required to be resubmitted. An application for Amendment 80 QS may only be submitted to NMFS using any one of the following methods:

(i)*Mail* : Regional Administrator, c/o Restricted Access Management Program, NMFS, P.O. Box 21668, Juneau, AK 99802-1668;

(ii)*Fax:* 907-586-7354; or

(iii)*Hand delivery or carrier:* NMFS, Room 713, 709 West 9th Street, Juneau, AK 99801.

(2)*Application forms* . Application forms are available through the internet on the NMFS Alaska Region Web site at *http://www.fakr.noaa.gov* , or by contacting NMFS at 800-304-4846, Option 2.

(3)*Deadline* . A completed application for Amendment 80 QS must be received by NMFS no later than 1700 hours A.l.t. on October 15 of the year prior to the fishing year for which the applicant is applying, or if sent by U.S. mail, postmarked by that time. Applications received or postmarked after the deadline will not be eligible to receive an Amendment 80 QS permit for the upcoming fishing year.

(4)*Contents of application* . A completed application must contain the following information:

(i)*Applicant identification* .

(A)The applicant's name, NMFS person ID (if applicable), tax ID number, permanent business mailing address, business telephone number, business fax number, and e-mail (if available);

(B)Indicate (YES or NO) if the applicant is a U.S. citizen; if YES, enter his or her date of birth;

(C)Indicate (YES or NO) if the applicant is a U.S. corporation, partnership, association, or other business entity; if YES, enter the date of incorporation;

(D)Indicate (YES or NO) if the applicant is a successor-in-interest to a deceased individual or to a non-individual no longer in existence, if YES attach evidence of death or dissolution;

(E)Indicate whether the applicant is applying as the owner of an Amendment 80 vessel or the holder of an Amendment 80 LLP license originally assigned to an Amendment 80 vessel;

(F)For an applicant claiming Amendment 80 legal landings associated with an Amendment 80 vessel, enter the following information for each Amendment 80 vessel: USCG documentation number of vessel on which Amendment 80 legal landings were caught and processed, vessel name, ADF&G vessel registration number, and LLP license held by that person at the time of application;

(G)If an Amendment 80 vessel has suffered an actual total loss, constructive total loss, or is permanently ineligible to receive a fishery endorsement under 46 U.S.C. 12108, provide clear and unambiguous documentation in written form that the Amendment 80 vessel has suffered an actual total loss, constructive total loss, or is permanently ineligible to receive a fishery endorsement under 46 U.S.C. 12108; and

(H)If applicable, a copy of the express terms of a written contract held by the applicant that clearly and unambiguously indicates that the owner of the Amendment 80 vessel that has suffered has an actual total loss, constructive total loss, or is permanently ineligible to receive a fishery endorsement under 46 U.S.C. 12108 has transferred all rights and privileges to use Amendment 80 legal landings and any resulting Amendment 80 QS or exclusive harvest privilege from that Amendment 80 vessel to the person holding the Amendment 80 LLP license originally assigned to that Amendment 80 vessel.

(ii)*Applicant signature and certification* . The applicant must sign and date the application certifying that all information is true, correct, and complete to the best of his or her knowledge and belief. If the application is completed by a designated representative, then explicit authorization for the designated representative signed by the applicant must accompany the application.

(5)*Application evaluation* . The Regional Administrator will evaluate applications received as specified in this paragraph (b)(5) of this section and compare all claims in an application with the information in the Amendment 80 official record. Application claims that are consistent with information in the Amendment 80 official record will be approved by the Regional Administrator. Application claims that are inconsistent with the Amendment 80 official record, unless verified by documentation, will not be approved. An applicant who submits inconsistent claims, or an applicant who fails to submit the information specified in paragraph (b)(4) of this section, will be provided a single 30-day evidentiary period in which to submit the specified information, submit evidence to verify his or her inconsistent claims, or submit a revised application with claims consistent with information in the Amendment 80 official record. An applicant who submits claims that are inconsistent with information in the Amendment 80 official record has the burden of proving that the submitted claims are correct. Any claims that remain inconsistent or that are not accepted after the 30-day evidentiary period will be denied, and the applicant will be notified by an IAD of his or her appeal rights under § 679.43.

(6)*Appeals* . If an applicant is notified by an IAD that inconsistent claims made by the applicant have been denied, that applicant may appeal that IAD under the provisions described at § 679.43.

(c)*Amendment 80 official record* —(1) *Use of the Amendment 80 official record* . The Amendment 80 official record will contain all information used by the Regional Administrator to determine eligibility to participate in the Amendment 80 Program, assign QS, and any other privileges or limits for the Amendment 80 Program.

(2)*Amendment 80 official record presumed to be correct* . The Amendment 80 official record is presumed to be correct. An applicant to participate in the Amendment 80 Program has the burden to prove otherwise.

(3)*Documentation is used to establish the amount of Amendment 80 legal landings* . Only Amendment 80 legal landings as defined in § 679.2 will be used to assign Amendment 80 QS units to an Amendment 80 QS permit unless an Amendment 80 vessel has no Amendment 80 legal landings in which case Amendment 80 QS units will be allocated to the Amendment 80 QS permit derived from that Amendment 80 vessel according to the procedures established under paragraphs (d)(1)(iii) and

(iv)of this section.

(4)*Assignment of Amendment 80 legal landings* . An Amendment 80 legal landing is assigned only to the Amendment 80 vessel that was used to make that Amendment 80 legal landing.

(d)*Assigning an Amendment 80 QS permit to an Amendment 80 QS holder* —(1) *Amendment 80 QS units derived from an Amendment 80 vessel and issued to an Amendment 80 QS holder.* NMFS will assign a specific amount of Amendment 80 QS units to each Amendment 80 QS permit based on the Amendment 80 legal landings of each Amendment 80 vessel for each Amendment 80 species in each management area for that Amendment 80 species as listed in Table 32 to this part, using information from the Amendment 80 official record according to the following procedures:

(i)*All Amendment 80 species.*

(A)For each Amendment 80 species, sum the Amendment 80 legal landings for each Amendment 80 vessel in all management areas for that Amendment 80 species listed in Table 32 to this part for each calendar year from 1998 through 2004.

(B)Select the five calendar years that yield the highest amount of Amendment 80 legal landings of that Amendment 80 species in all management areas for that Amendment 80 species listed in Table 32 to this part, including zero metric tons if necessary.

(C)Sum the Amendment 80 legal landings of the highest five years for an Amendment 80 species. This yields the Highest Five Years for that Amendment 80 species.

(D)Divide the Highest Five Years for an Amendment 80 species in paragraph (d)(1)(i)(C) of this section for an Amendment 80 vessel by the sum of all Highest Five Years for all Amendment 80 vessels for that Amendment 80 species based on the Amendment 80 official record for that Amendment 80 species as presented in the following equation: Highest Five Years / ∑ All Highest Five Years = Percentage of the Total. The result (quotient) of this equation is the Percentage of the Total for that Amendment 80 vessel for that Amendment 80 species.

(ii)*Aleutian Islands Pacific ocean perch and BSAI Pacific cod.* Multiply the Percentage of the Total for that Amendment 80 vessel for Aleutian Islands Pacific ocean perch and BSAI Pacific cod as calculated in paragraph (d)(1)(i)(D) of this section by the Amendment 80 initial QS pool for Aleutian Islands Pacific ocean perch and BSAI Pacific cod as set forth in Table 32 to this part. This yields the number of Amendment 80 QS units for that Amendment 80 vessel for Aleutian Islands Pacific ocean perch and BSAI Pacific cod Pacific cod.

(iii)*BSAI rock sole and BSAI yellowfin sole.*

(A)If an Amendment 80 vessel did not have any Amendment 80 legal landings during 1998 through 2004, that Amendment 80 vessel will receive 0.5 percent of the Percentage of the Total for BSAI rock sole and BSAI yellowfin sole as calculated in paragraph (d)(1)(i)(D) of this section.

(B)All Amendment 80 vessels that did have Amendment 80 legal landings will have the Percentage of the Total assigned to that Amendment 80 vessel as calculated in paragraph (d)(1)(i)(D) of this section adjusted to account for the assignment of the Percentage of the Total to Amendment 80 vessels under paragraph (d)(1)(iii)(A) of this section for BSAI rock sole and BSAI yellowfin sole as presented in the following equation: Percentage of the Total for that Amendment 80 vessel x (1 − ∑ Percentage of the Total assigned to all Amendment 80 vessels under paragraph (d)(1)(iii)(A) of this section) = Adjusted Percentage of the Total for that Amendment 80 vessel.

(C)Multiply the Adjusted Percentage of the Total for that Amendment 80 vessel by the Amendment 80 initial QS pool for BSAI rock sole and BSAI yellowfin sole as set forth in Table 32 to this part. This yields the number of Amendment 80 QS units for that Amendment 80 vessel for BSAI rock sole or BSAI yellowfin sole.

(iv)*BSAI flathead sole.*

(A)If an Amendment 80 vessel did not have any Amendment 80 legal landings during 1998 through 2004, that Amendment 80 vessel will receive 0.1 percent of the Percentage of the Total for BSAI flathead sole as calculated in paragraph (d)(1)(i)(D) of this section.

(B)All Amendment 80 vessels that did have Amendment 80 legal landings during 1998 through 2004 will have the Percentage of the Total assigned to that Amendment 80 vessel as calculated in paragraph (d)(1)(i)(D) of this section adjusted to account for the assignment of the Percentage of the Total to Amendment 80 vessels under paragraph (d)(1)(iv)(A) of this section for BSAI flathead sole as presented in the following equation: Percentage of the Total for that Amendment 80 vessel x (1 − ∑ Percentage of the Total assigned to all Amendment 80 vessels under paragraph (d)(1)(iv)(A) of this section) = Adjusted Percentage of the Total for that Amendment 80 vessel.

(C)Multiply the Adjusted Percentage of the Total for that Amendment 80 vessel by the Amendment 80 initial QS pool for BSAI flathead sole as set forth in Table 32 to this part. This yields the number of Amendment 80 QS units for that Amendment 80 vessel for BSAI flathead sole.

(v)*BSAI Atka mackerel.*

(A)Multiply the Percentage of the Total for that Amendment 80 vessel as calculated in paragraph (d)(1)(i)(D) of this section by the Amendment 80 initial QS pool for BSAI Atka mackerel as set forth in Table 32 to this part. This yields the number of Amendment 80 QS units for that Amendment 80 vessel for BSAI Atka mackerel.

(B)If an Amendment 80 vessel is an Amendment 80 non-mackerel vessel, determine the percentage of the Amendment 80 QS pool that is assigned to each Atka mackerel management area listed in Table 32 to this part in each year from 1998 through 2004 for that Amendment 80 non-mackerel vessel based on the percentage of Amendment 80 legal landings in that Atka mackerel management area from 1998 through 2004 for that Amendment 80 non-mackerel vessel.

(C)The sum of the Amendment 80 QS units allocated to all Amendment 80 non-mackerel vessels is the Total Amendment 80 non-mackerel QS pool.

(D)The sum of the Amendment 80 QS units allocated to all Amendment 80 mackerel vessels is the Total Amendment 80 mackerel QS pool.

(2)*Assigning Amendment 80 QS units to an Amendment 80 permit.* Once the Regional Administrator determines the amount of Amendment 80 QS units to be issued for an Amendment 80 species derived from an Amendment 80 vessel based on the criteria described in paragraphs

(b)through

(d)of this section, NMFS will assign that amount of Amendment 80 QS units for each Amendment 80 species as an Amendment 80 QS permit to the Amendment 80 QS holder as follows:

(i)*Amendment 80 vessel owner.* NMFS will issue an Amendment 80 QS permit for each Amendment 80 vessel to the owner of that Amendment 80 vessel if that person submitted a timely and complete Application for Amendment 80 QS that was approved by NMFS under paragraph (a)(2)(i) of this section; or

(ii)*Amendment 80 LLP/QS license.* NMFS will issue an Amendment 80 QS permit as an endorsement on an Amendment 80 LLP license to the holder of an Amendment 80 LLP license originally assigned to an Amendment 80 vessel if that person submitted a timely and complete Application for Amendment 80 QS that was approved by NMFS under paragraph (a)(2)(ii) of this section.

(e)*Transfers of Amendment 80 QS permits* —(1) *Non-severability of Amendment 80 QS permits.*

(i)An Amendment 80 QS holder may not transfer an Amendment 80 QS permit to another person unless all Amendment 80 QS units for all Amendment 80 species on that Amendment 80 QS permit are transferred in their entirety to the same person at the same time; and

(ii)Once an Amendment 80 QS permit is assigned to an Amendment 80 LLP license, that Amendment 80 LLP license is designated as an Amendment 80 LLP/QS license and a person may not separate the Amendment 80 QS permit from that Amendment 80 LLP/QS license.

(2)*Transfer of an Amendment 80 LLP/QS license.* A person holding an Amendment 80 LLP/QS license may transfer that Amendment 80 LLP/QS license to another person only under the provisions of § 679.4(k)(7).

(3)*Transfers of Amendment 80 QS permits.* A person holding an Amendment 80 QS permit assigned to an Amendment 80 vessel may transfer that Amendment 80 QS permit to another person only by submitting an application to transfer Amendment 80 QS permit that is approved by NMFS under the provisions of paragraph

(f)of this section.

(4)*Assigning an Amendment 80 QS permit to an Amendment 80 LLP license.* An Amendment 80 vessel owner holding an Amendment 80 QS permit assigned to an Amendment 80 vessel may transfer that Amendment 80 QS permit to the Amendment 80 LLP license originally assigned to that Amendment 80 vessel only by submitting an application to transfer an Amendment 80 QS permit that is approved by NMFS under the provisions of paragraph

(f)of this section.

(f)*Application to transfer an Amendment 80 QS permit* —(1) *General.* An Amendment 80 QS holder who wishes to transfer an Amendment 80 QS permit must submit a complete application that is approved by NMFS. This application may only be submitted to NMFS using the any one of the following methods:

(i)*Mail:* Regional Administrator, c/o Restricted Access Management Program, NMFS, P.O. Box 21668, Juneau, AK 99802-1668;

(ii)*Fax:* 907-586-7354; or

(iii)*Hand delivery or carrier:* NMFS, Room 713, 709 West 9th Street, Juneau, AK 99801.

(2)* Application forms.* Application forms are available through the internet on the NMFS Alaska Region Web site at *http://www.fakr.noaa.gov* , or by contacting NMFS at 800-304-4846, Option 2.

(3)*Application* —(i) *Transferor information* —(A) Transferor identification. The transferor's name, NMFS person ID (if applicable), tax ID number, date of incorporation or date of birth, permanent business mailing address, business telephone number, fax number, and e-mail (if available).

(B)*Type of transfer.* ( *1* ) Indicate whether the transferor is applying to transfer an Amendment 80 QS permit to another person; or ( *2* ) Indicate whether the transferor is applying to transfer an Amendment 80 QS permit to the Amendment 80 LLP license originally assigned to that Amendment 80 vessel as listed in Table 31 to this part.

(C)*Amendment 80 QS permit.* Indicate the Amendment 80 QS permit to be transferred.

(D)*Information for transfers of Amendment 80 QS permit to another person.* If transferring an Amendment 80 QS permit assigned to an Amendment 80 vessel owner to another person, attach abstract of title or USCG documentation that clearly and unambiguously indicates that the Amendment 80 QS permit transferee is named on the abstract of title or USCG documentation as the owner of the Amendment 80 vessel to which that Amendment 80 QS permit would be assigned.

(E)*Information for transfers of Amendment 80 QS permits to an Amendment 80 LLP license.* If transferring Amendment 80 QS assigned to an Amendment 80 vessel owner to the Amendment 80 LLP license originally assigned to that Amendment 80 vessel, provide clear and unambiguous written documentation that can be verified by NMFS that the Amendment 80 vessel for which that Amendment 80 LLP license was originally assigned is no longer able to be used in the Amendment 80 Program due to the actual total loss, constructive total loss, or permanent ineligibility of that vessel to receive a fishery endorsement under 46 U.S.C. 12108.

(F)*Certification of transferor.* The transferor must sign and date the application certifying that all information is true, correct, and complete to the best of his or her knowledge and belief. If the application is completed by a designated representative, then explicit authorization signed by the applicant must accompany the application.

(ii)*Transferee information* —(A) *Transferee identification.* The transferee's name, NMFS person ID (if applicable), tax ID number, date of incorporation or date of birth, permanent business mailing address, business telephone number, fax number, and e-mail (if available).

(B)*Certification of transferee.* The transferee must sign and date the application certifying that all information is true, correct, and complete to the best of his or her knowledge and belief. If the application is completed by an designated representative, then explicit authorization signed by the applicant must accompany the application. § 679.91 Amendment 80 Program annual harvester privileges.

(a)*Assigning an Amendment 80 QS permit to an Amendment 80 cooperative or Amendment 80 limited access fishery* —(1) *General.*

(i)Each calendar year, an Amendment 80 QS holder must either be designated on a timely and complete application for CQ, or file an application for the Amendment 80 limited access fishery that is approved by the Regional Administrator as described under paragraph

(b)of this section in order to catch, process, or receive Amendment 80 species, crab PSC, or halibut PSC assigned to the Amendment 80 sector.

(ii)NMFS will assign all Amendment 80 QS permit(s), Amendment 80 vessel(s), and Amendment 80 LLP license(s) held by an Amendment 80 QS holder to an Amendment 80 cooperative if that Amendment 80 QS holder is designated as a member of an Amendment 80 cooperative on an application for CQ that is approved by the Regional Administrator as described under paragraph

(b)of this section.

(iii)NMFS will assign all Amendment 80 QS permit(s), Amendment 80 vessel(s), and Amendment 80 LLP license(s) held by an Amendment 80 QS holder to the Amendment 80 limited access fishery if that Amendment 80 QS holder is designated on an application for the Amendment 80 limited access fishery that is approved by the Regional Administrator as described under paragraph

(b)of this section.

(2)*Amendment 80 QS permits issued after issuance of CQ or ITAC.* Any Amendment 80 QS permits, or Amendment 80 QS units on an Amendment 80 QS permit, assigned to an Amendment 80 QS holder after NMFS has issued CQ or ITAC to the Amendment 80 sector for a calendar year will not result in any additional:

(i)CQ being issued to an Amendment 80 cooperative if that Amendment 80 QS holder has assigned his Amendment 80 QS permit(s) to an Amendment 80 cooperative for that calendar year; or

(ii)ITAC being issued to the Amendment 80 limited access fishery if that Amendment 80 QS holder has assigned his Amendment 80 QS permit(s) to the Amendment 80 limited access fishery for that calendar year.

(3)*Failure to submit an application for an Amendment 80 fishery.* If an Amendment 80 QS holder is not designated on a timely and complete application for CQ or application for an Amendment 80 limited access fishery that is approved by the Regional Administrator as described under paragraph

(b)of this section, the Regional Administrator will not assign that Amendment 80 QS holder's Amendment 80 QS permit(s), Amendment 80 vessel(s), or Amendment 80 LLP license(s) to an Amendment 80 cooperative or the Amendment 80 limited access fishery for the applicable calendar year.

(b)Application for CQ and Application for the Amendment 80 limited access fishery—(1) *General.* An application for CQ or an application for the Amendm ** ent 80 limited access fishery may only be submitted to NMFS using any one of the following methods:

(i)*Mail:* Regional Administrator, c/o Restricted Access Management Program, NMFS, P.O. Box 21668, Juneau, AK 99802-1668;

(ii)*Fax:* 907-586-7354; or

(iii)*Hand delivery or carrier:* NMFS, Room 713, 709 West 9th Street, Juneau, AK 99801.

(2)Application forms. Application forms are available through the internet on the NMFS Alaska Region Web site at *http://www.fakr.noaa.gov* , or by contacting NMFS at 800-304-4846, Option 2.

(3)*Deadline.* A completed application must be received by NMFS no later than 1700 hours A.l.t. on November 1 of the year prior to the calendar year for which the applicant is applying, or if sent by U.S. mail, the application must be postmarked by that time.

(4)*Application for CQ* —(i) *Amendment 80 cooperative identification.* The Amendment 80 cooperative's legal name; tax ID number, the type of business entity under which the Amendment 80 cooperative is organized; the state in which the Amendment 80 cooperative is legally registered as a business entity; permanent business address; business telephone number; business fax number; e-mail address (if available); and printed name of the Amendment 80 cooperative's designated representative.

(ii)*Identification of Amendment 80 QS permit holders and ownership documentation.* Full name of each Amendment 80 cooperative member; NMFS person ID of each member; Amendment 80 QS permit number(s); the names of all persons, to the individual level, holding an ownership interest in the Amendment 80 QS permit(s) assigned to the Amendment 80 cooperative and the percentage ownership each person and individual holds in the Amendment 80 QS permit(s).

(iii)*Identification of Amendment 80 cooperative member vessels and Amendment 80 LLP licenses.* Vessel name; ADF&G vessel registration number; USCG documentation number; and Amendment 80 LLP license number.

(iv)*Identification of vessels on which the CQ issued to the Amendment 80 cooperative will be used.* Vessel name, ADF&G vessel registration number, and USCG documentation number.

(v)*EDR submission.* For 2009 and thereafter, indicate (YES or NO) whether each member of the Amendment 80 cooperative has submitted a timely and complete EDR for each Amendment 80 QS permit held by that person as required under § 679.94.

(vi)*Certification of cooperative authorized representative.* The cooperative's authorized representative must sign and date the application certifying that all information is true, correct, and complete to the best of his or her knowledge and belief. Explicit authorization to complete the application on behalf of the members of the cooperative must accompany the application.

(vii)*Copy of membership agreement or contract.* Attach a copy of the membership agreement or contract that specifies how the Amendment 80 cooperative intends to catch its CQ.

(5)*Application for the Amendment 80 limited access fishery* —(i) *Applicant identification.* The applicant's name, NMFS Person ID (if applicable), tax ID number (required), permanent business mailing address, business telephone number, fax number, and e-mail (if available).

(ii)*Amendment 80 vessel identification.* The name, ADF&G vessel registration number(s), and USCG documentation number(s) of the Amendment 80 vessel(s) owned by the applicant.

(iii)*Amendment 80 LLP identification.* The Amendment 80 LLP license number(s) held by the applicant.

(iv)*Amendment 80 QS permit information.* The Amendment 80 QS permit number(s) held by the applicant.

(v)*Amendment 80 QS ownership documentation.* The names of all persons, to the individual person level, holding an ownership interest in the Amendment 80 QS permit(s) held by the applicant and the percentage ownership each person and individual holds in the Amendment 80 QS permit(s).

(vi)*EDR submission.* For 2009 and thereafter, indicate (YES or NO) whether the applicant has submitted a timely and complete EDR for each Amendment 80 QS permit held by that person as required under § 679.94.

(vii)*Applicant signature and certification.* The applicant must sign and date the application certifying that all information is true, correct, and complete to the best of his or her knowledge and belief. If the application is completed by a designated representative, then explicit authorization signed by the applicant must accompany the application.

(c)*Allocations of Amendment 80 species* —(1) *General.* Each calendar year, the Regional Administrator will determine the tonnage of Amendment 80 species that will be assigned to the BSAI trawl limited access sector and the Amendment 80 sector. For participants in the Amendment 80 sector, the tonnage of fish will be further assigned between Amendment 80 cooperatives and the Amendment 80 limited access fishery.

(2)*Calculation* —(i) *Determination of TAC and ITAC.* NMFS will determine the TAC and ITAC for each Amendment 80 species in a calendar year in the annual harvest specification process in § 679.20.

(ii)*Annual apportionment of ITAC.* The annual apportionment of ITAC for each Amendment 80 species between the Amendment 80 sector and the BSAI trawl limited access sector in a given calendar year is established in Tables 33 and 34 to this part.

(3)*Allocation of CQ to Amendment 80 cooperatives* —(i) *General.* The amount of ITAC for each Amendment 80 species assigned to an Amendment 80 cooperative is equal to the amount of Amendment 80 QS units assigned to that Amendment 80 cooperative by Amendment 80 QS holders divided by the total Amendment 80 QS pool multiplied by the ITAC for that Amendment 80 species in that management area. Once ITAC for an Amendment 80 species in a management area is assigned to an Amendment 80 cooperative, it is issued as CQ specific to that Amendment 80 cooperative.

(ii)*CQ allocation for Amendment 80 species except BSAI Atka mackerel.* The amount of CQ for each Amendment 80 species except BSAI Atka mackerel that is assigned to a Amendment 80 cooperative is expressed algebraically as follows: CQ in a management area = [(Amendment 80 sector ITAC in a management area) x (Amendment 80 QS units assigned to that Amendment 80 cooperative / Amendment 80 QS pool)].

(iii)*CQ allocation for BSAI Atka mackerel.* The amount of CQ for BSAI Atka mackerel that is assigned to each Amendment 80 cooperative in each management area is determined by the following procedure:

(A)Determine the amount of non-mackerel ITAC in each management area using the following equation: Non-mackerel ITAC in a management area = (Amendment 80 non-mackerel QS units designated for that management area / Total Atka mackerel QS pool) x Amendment 80 sector ITAC in all management areas.

(B)Determine the amount of mackerel ITAC in each management area using the following equation: Mackerel ITAC in a management area = Amendment 80 sector ITAC in that management area—Non-mackerel ITAC in that management area.

(C)Determine the amount of non-mackerel CQ assigned to the Amendment 80 cooperative using the following equation: Non-mackerel CQ assigned to that Amendment 80 cooperative = (Amendment 80 non-mackerel QS units designated for that management area assigned to that Amendment 80 cooperative / Amendment 80 non-mackerel QS pool in that management area) x Non-mackerel ITAC for that management area.

(D)Determine the amount of mackerel CQ assigned to the Amendment 80 cooperative using the following equation: Mackerel CQ in a management area = (Mackerel QS units assigned to that Amendment 80 cooperative / Mackerel QS pool) x Mackerel ITAC in that management area.

(E)The total amount of Atka mackerel CQ assigned to an Amendment 80 cooperative for a management area is equal to the sum of paragraphs (c)(3)(iii)(C) and

(D)of this section.

(4)*Amendment 80 limited access fishery.* The amount of ITAC in a management area for each Amendment 80 species assigned to the Amendment 80 limited access fishery is equal to the ITAC remaining after subtracting all CQ issued to all Amendment 80 cooperatives for that Amendment 80 species in that management area.

(d)*Allocations of halibut PSC* —(1) *Amount of Amendment 80 halibut PSC assigned to the Amendment 80 sector.* The amount of halibut PSC assigned to the Amendment 80 sector for each calendar year is specified in Table 35 to this part. That amount of halibut PSC is then assigned to Amendment 80 cooperatives and the Amendment 80 limited access fishery.

(2)*Amount of Amendment 80 halibut PSC assigned to an Amendment 80 cooperative.* For each calendar year, the amount of Amendment 80 halibut PSC assigned as CQ to an Amendment 80 cooperative is determined by the following procedure:

(i)Multiply the amount of halibut PSC established in Table 35 to this part by the percentage of the Amendment 80 halibut PSC apportioned to each Amendment 80 species as established in Table 36 to this part. This yields the halibut PSC apportionment for that Amendment 80 species.

(ii)For each Amendment 80 species, divide the amount of Amendment 80 QS units assigned to an Amendment 80 cooperative by the Amendment 80 QS pool. This yields the percentage of Amendment 80 QS units held by that Amendment 80 cooperative.

(iii)For each Amendment 80 species, multiply the halibut PSC apportionment for that Amendment 80 species established in paragraph (d)(2)(i) of this section by the percentage of the Amendment 80 QS pool assigned to an Amendment 80 cooperative for that Amendment 80 species established in paragraph (d)(2)(ii) of this section. This yields the amount of halibut PSC apportioned to that cooperative for that Amendment 80 species.

(iv)For each Amendment 80 cooperative, sum the results of paragraph (d)(2)(iii) of this section for all Amendment 80 species. This yields the amount of Amendment 80 halibut PSC assigned to that Amendment 80 cooperative as CQ.

(3)*Amount of Amendment 80 halibut PSC assigned to the Amendment 80 limited access fishery.* The amount of Amendment 80 halibut PSC assigned to the Amendment 80 limited access fishery is equal to the amount of halibut PSC assigned to the Amendment 80 sector specified in Table 35 to this part subtracting the amount of Amendment 80 halibut PSC assigned as CQ to all Amendment 80 cooperatives as determined in paragraph (d)(2)(iv) of this section.

(4)*Use of Amendment 80 halibut PSC in the Amendment 80 sector* —(i) *Amendment 80 halibut PSC assigned to a Amendment 80 cooperative.* An amount of Amendment 80 halibut PSC is assigned to the CQ permit issued to an Amendment 80 cooperative for use while fishing for all groundfish species in the BSAI or adjacent waters open by the State of Alaska for which it adopts a Federal fishing season. Any halibut PSC used by an Amendment 80 cooperative must be deducted from the amount of halibut PSC CQ on its CQ permit. Amendment 80 halibut PSC on a CQ permit may only be used by the members of the Amendment 80 cooperative to which it is assigned. Halibut PSC assigned as CQ is not subject to seasonal apportionment under § 679.21.

(ii)*Amendment 80 halibut PSC assigned to the Amendment 80 limited access fishery.* An amount of Amendment 80 halibut PSC is assigned to the Amendment 80 limited access fishery for use by all Amendment 80 vessels in the Amendment 80 limited access fishery while fishing for all groundfish species in the BSAI or adjacent waters open by the State of Alaska for which it adopts a Federal fishing season. Any halibut PSC used by Amendment 80 vessels assigned to the Amendment 80 limited access fishery must be deducted from the amount of halibut PSC assigned to the Amendment 80 limited access fishery. Amendment 80 halibut PSC assigned to the Amendment 80 limited access fishery is subject to seasonal apportionment under § 679.21.

(5)*Halibut PSC assigned to the BSAI trawl limited access sector.* Halibut PSC assigned to the BSAI trawl limited access sector for groundfish fishing in the BSAI may only be used by the members of the BSAI trawl limited access sector unless modified by reallocation to Amendment 80 cooperatives according to the procedures in paragraph

(f)of this section. Halibut PSC assigned to the BSAI trawl limited access sector is subject to seasonal apportionment under § 679.21.

(e)*Allocations of crab PSC* —(1) *Amount of Amendment 80 crab PSC assigned to the Amendment 80 sector.* The amount of Amendment 80 crab PSC assigned to the Amendment 80 sector for each Amendment 80 crab PSC in a calendar year is specified in Table 35 to this part. That amount of Amendment 80 crab PSC is then assigned to Amendment 80 cooperatives and the Amendment 80 limited access fishery.

(2)*Amount of Amendment 80 crab PSC assigned to an Amendment 80 cooperative.* For each calendar year, for each Amendment 80 crab PSC, the amount assigned as CQ to an Amendment 80 cooperative is determined by the following procedure:

(i)Multiply the amount of an Amendment 80 crab PSC established in Table 35 to this part by the percentage of the Amendment 80 crab PSC apportioned to each Amendment 80 species as established in Table 36 to this part. This yields the Amendment 80 crab PSC apportionment for that Amendment 80 species.

(iii)For each Amendment 80 species, multiply the Amendment 80 crab PSC apportionment to that Amendment 80 species established in paragraph (e)(2)(i) of this section by the percentage of the Amendment 80 QS pool held by an Amendment 80 cooperative as established in paragraph (e)(2)(ii) of this section. This yields the amount of Amendment 80 crab PSC apportioned to that Amendment 80 cooperative for that Amendment 80 species.

(iv)For each Amendment 80 crab PSC, sum the results of paragraph (e)(2)(iii) for all Amendment 80 species. This yields the amount of that Amendment 80 crab PSC assigned to that Amendment 80 cooperative.

(3)*Amount of Amendment 80 crab PSC assigned to the Amendment 80 limited access fishery.* The amount of each Amendment 80 crab PSC assigned to the Amendment 80 limited access fishery is equal to the amount of that Amendment 80 crab PSC assigned to the Amendment 80 sector specified in Table 35 to this part subtracting the amount of that crab PSC that has been assigned as CQ to all Amendment 80 cooperatives as determined in paragraph (e)(2)(iv) of this section.

(4)U *se of Amendment 80 crab PSC in the Amendment 80 sector* —(i) *Amendment 80 crab PSC assigned to an Amendment 80 cooperative.* An amount of Amendment 80 crab PSC is assigned to the CQ permit issued to an Amendment 80 cooperative for use while fishing for all groundfish species in the BSAI or adjacent waters open by the State of Alaska for which it adopts a Federal fishing season. Any Amendment 80 crab PSC used by an Amendment 80 cooperative must be deducted from the amount of Amendment 80 crab PSC CQ on its CQ permit. Amendment 80 crab PSC on a CQ permit may only be used by the members of the Amendment 80 cooperative to which it is assigned. Amendment 80 crab PSC assigned as CQ is not subject to seasonal apportionment under § 679.21.

(ii)*Amendment 80 halibut PSC assigned to the Amendment 80 limited access fishery.* An amount of Amendment 80 crab PSC is assigned to the Amendment 80 limited access fishery for use by all Amendment 80 vessels in the Amendment 80 limited access fishery while fishing for all groundfish species in the BSAI or adjacent waters open by the State of Alaska for which it adopts a Federal fishing season. Any Amendment 80 crab PSC used by Amendment 80 vessels assigned to the Amendment 80 limited access fishery must be deducted from the amount of Amendment 80 crab PSC assigned to the Amendment 80 limited access fishery. Amendment 80 crab PSC assigned to the Amendment 80 limited access fishery is subject to seasonal apportionment under § 679.21.

(5)*Amendment 80 crab PSC assigned to the BSAI trawl limited access sector.* Amendment 80 crab PSC assigned to the BSAI trawl limited access sector for groundfish fishing in the BSAI may only be used by the members of the BSAI trawl limited access sector unless modified by reallocation to Amendment 80 cooperatives according to the procedures in paragraph

(f)of this section. Amendment 80 crab PSC assigned to the BSAI trawl limited access sector is subject to seasonal apportionment under § 679.21.

(f)*Rollover* — *Annual reallocation of an Amendment 80 species ICA or ITAC, crab PSC, and halibut PSC from the BSAI trawl limited access sector to Amendment 80 cooperatives* —(1) *General.* The Regional Administrator may reallocate a portion of an ICA or ITAC of an Amendment 80 species, crab PSC, or halibut PSC amount assigned to the BSAI trawl limited access sector to Amendment 80 cooperatives if the amount assigned to the BSAI trawl limited access sector is projected not to be harvested or used. Any reallocation will result in an amended CQ permit for each Amendment 80 cooperative. The timing of a reallocation will be at the discretion of the Regional Administrator.

(2)*Factors considered.* The Regional Administrator will consider the following factors when reallocating an ICA, a directed fishing allowance of an Amendment 80 species, or crab PSC, or halibut PSC amounts from the BSAI trawl limited access sector to Amendment 80 cooperatives:

(i)The risk of biological harm to a groundfish species or species group;

(ii)The risk of socioeconomic harm to other domestic fishery participants;

(iii)The impact that the allocation might have on the socioeconomic well-being of Amendment 80 cooperatives;

(iv)Current catch and PSC use in the BSAI trawl limited access sector;

(v)Historic catch and PSC use in the BSAI trawl limited access sector;

(vi)Harvest capacity and any stated intent on the future harvesting patterns of vessels in the BSAI trawl limited access sector;

(vii)Administrative requirements to reissue CQ permits; and

(viii)Any other relevant biological, socioeconomic, or administrative factors.

(3)*Rollover of Amendment 80 species.* If, during a fishing year, the Regional Administrator determines that a reallocation of a portion of the ITAC or ICA of an Amendment 80 species assigned to the BSAI trawl limited access sector to Amendment 80 cooperatives is appropriate, the Regional Administrator will issue a revised CQ permit to reallocate that amount of Amendment 80 species to each Amendment 80 cooperative according to the following formula: Amount of additional CQ issued to an Amendment 80 cooperative = Amount of Amendment 80 species available for reallocation to Amendment 80 cooperatives x (Amount of CQ for that Amendment 80 species initially assigned to that Amendment 80 cooperative / ∑ CQ for that Amendment 80 species initially assigned to all Amendment 80 cooperatives).

(4)Rollover of halibut PSC. If, during a fishing year, the Regional Administrator determines that a reallocation of a portion of the halibut PSC assigned to the BSAI trawl limited access sector to Amendment 80 cooperatives is appropriate, the Regional Administrator will issue a revised CQ permit to reallocate that amount of halibut PSC to each Amendment 80 cooperative according to the following procedure:

(i)Multiply the amount of the halibut PSC limit to be reallocated by 95 percent (0.95). This yields the maximum amount of halibut PSC available for allocation to Amendment 80 cooperatives; and

(ii)Determine the halibut PSC CQ issued to each Amendment 80 cooperative according to the following formula: Amount of additional CQ issued to an Amendment 80 cooperative = Maximum amount of halibut PSC available for reallocation to Amendment 80 cooperatives × (Amount of halibut PSC CQ initially assigned to that Amendment 80 cooperative / ∑ halibut PSC CQ initially assigned to all Amendment 80 cooperatives).

(5)*Rollover of crab PSC.* If, during a fishing year, the Regional Administrator determines that a reallocation of a portion of a crab PSC assigned to the BSAI trawl limited access sector to Amendment 80 cooperatives is appropriate, the Regional Administrator will issue a revised CQ permit to reallocate that amount of crab PSC to each Amendment 80 cooperative according to the following formula: Amount of CQ issued to an Amendment 80 cooperative = Amount of that crab PSC available for allocation to Amendment 80 cooperatives × (Amount of that crab PSC CQ initially assigned to that Amendment 80 cooperative / ∑ that crab PSC CQ initially assigned to all Amendment 80 cooperatives).

(g)*CQ transfer applications* —(1) *General.* An Amendment 80 cooperative may transfer all or part of its CQ to another Amendment 80 cooperative. Amendment 80 cooperatives may transfer CQ during a calendar year with the following restrictions:

(i)An Amendment 80 cooperative may only transfer CQ to another Amendment 80 cooperative;

(ii)An Amendment 80 cooperative may only receive CQ from another Amendment 80 cooperative; and

(iii)An Amendment 80 cooperative receiving Amendment 80 species CQ by transfer must assign that Amendment 80 species CQ to a member(s) of the Amendment 80 cooperative for the purposes of use cap calculation as established under § 679.92(a).

(2)*Application for CQ transfer.* NMFS will notify the transferor and transferee once the application for CQ transfer has been received and approved. A transfer of CQ is not effective until approved by NMFS. An application for CQ transfer may only be submitted to NMFS using any one of the following methods:

(i)*Mail:* Regional Administrator, c/o Restricted Access Management Program, NMFS, P.O. Box 21668, Juneau, AK 99802-1668;

(ii)*Fax:* 907-586-7354; or

(iii)*Hand delivery or carrier:* NMFS, Room 713, 709 West 9th Street, Juneau, AK 99801.

(3)*Application forms.* Application forms are available through the internet on the NMFS Alaska Region Web site at *http://www.fakr.noaa.gov,* or by contacting NMFS at 800-304-4846, Option 2.

(4)*Contents of application.* A completed application for CQ transfer requires that the following information be provided:

(i)*Identification of transferor.* Enter the name, NMFS Person ID, name of Amendment 80 cooperative's designated representative; permanent business mailing address, business telephone number, business fax number, and e-mail address (if available) of the Amendment 80 cooperative transferor. A temporary mailing address for each transaction may also be provided.

(ii)*Identification of transferee.* Enter the name, NMFS Person ID, name of Amendment 80 cooperative's designated representative, permanent business mailing address, business telephone number, business fax number, and e-mail address (if available) of the Amendment 80 cooperative transferee. A temporary mailing address for each transaction may also be provided.

(iii)*CQ to be transferred.* Identify the type and amount of Amendment 80 species, or Amendment 80 PSC CQ to be transferred, and the number of QS units from which this CQ is derived.

(iv)*Identification of Amendment 80 cooperative member.* Enter the name and NMFS Person ID of the member(s) of the receiving Amendment 80 cooperative to whose use cap Amendment 80 species CQ will be assigned, and the amount of Amendment 80 species CQ applied to each member, for purposes of applying Amendment 80 species use caps established under the Amendment 80 Program under § 679.92(a).

(v)*Certification of transferor.* The Amendment 80 cooperative transferor's designated representative must sign and date the application certifying that all information is true, correct, and complete to the best of his or her knowledge and belief. The printed name of the Amendment 80 cooperative transferor's designated representative must be entered.

(vi)*Certification of transferee.* The Amendment 80 cooperative transferee's designated representative must sign and date the application certifying that all information is true, correct, and complete to the best of his or her knowledge and belief. The printed name of the Amendment 80 cooperative transferee's designated representative must be entered.

(5)*CQ amounts applied to a member of an Amendment 80 cooperative.*

(i)Amendment 80 species CQ must be assigned to a member of the Amendment 80 cooperative receiving the CQ for purposes of use cap calculations. No member of an Amendment 80 cooperative may exceed the CQ use cap applicable to that member.

(ii)For purposes of Amendment 80 species CQ use cap calculations, the total amount of Amendment 80 species CQ held or used by a person is equal to all metric tons of Amendment 80 species CQ derived from all Amendment 80 QS units on all Amendment 80 QS permits held by that person and assigned to the Amendment 80 cooperative and all metric tons of Amendment 80 species CQ assigned to that person by the Amendment 80 cooperative from approved transfers.

(iii)The amount of Amendment 80 QS units held by a person, and CQ derived from those Amendment 80 QS units, is calculated using the individual and collective use cap rule established in § 679.92(a).

(h)*Amendment 80 cooperative* —(1) *General.* This section governs the formation and operation of Amendment 80 cooperatives. The regulations in this section apply only to Amendment 80 cooperatives that have formed for the purpose of applying for and fishing with CQ issued annually by NMFS. Members of Amendment 80 cooperatives should consult legal counsel before commencing any activity if the members are uncertain about the legality under the antitrust laws of the Amendment 80 cooperative's proposed conduct. Membership in an Amendment 80 cooperative is voluntary. No person may be required to join an Amendment 80 cooperative. Upon receipt of written notification that a person is eligible and wants to join an Amendment 80 cooperative, that Amendment 80 cooperative must allow that person to join subject to the terms and agreements that apply to the members of the cooperative as established in the agreement or contract governing the conduct of the Amendment 80 cooperative. If a person becomes the owner of an Amendment 80 vessel or a holder of an Amendment 80 LLP/QS license that has been assigned to an Amendment 80 cooperative, then that person may join that Amendment 80 cooperative as a member upon receipt of that Amendment 80 vessel or Amendment 80 LLP/QS license. Members may leave an Amendment 80 cooperative, but any CQ contributed by the Amendment 80 QS permit(s) held by that member will remain with that Amendment 80 cooperative for the duration of the calendar year.

(2)*Legal and organizational requirements.* An Amendment 80 cooperative must meet the following legal and organizational requirements before it is eligible to receive CQ:

(i)Each Amendment 80 cooperative must be formed as a partnership, corporation, or other legal business entity that is registered under the laws of one of the 50 states or the District of Columbia;

(ii)Each Amendment 80 cooperative must appoint an individual as the designated representative to act on the Amendment 80 cooperative's behalf and to serve as a contact point for NMFS for questions regarding the operation of the Amendment 80 cooperative. The designated representative may be a member of the Amendment 80 cooperative, or some other individual designated by the Amendment 80 cooperative to act on its behalf;

(iii)Each Amendment 80 cooperative must submit a timely and complete application for CQ; and

(iv)Each Amendment 80 cooperative must meet the mandatory requirements established in paragraphs (h)(3) and

(4)of this section applicable to that Amendment 80 cooperative.

(3)*Mandatory requirements* . The following table describes the requirements to form a Amendment 80 cooperative:

(i)Who may join an Amendment 80 cooperative? Any Amendment 80 QS holder named on a timely and complete application for CQ for that calendar year that is approved by NMFS. Individuals who are not Amendment 80 QS holders may be employed by, or serve as the designated representative of a Amendment 80 cooperative, but are not members of the Amendment 80 cooperative.

(ii)What is the minimum number of Amendment 80 QS permits that must be assigned to an Amendment 80 cooperative to allow it to form? Any combination of at least nine Amendment 80 QS permits which would include Amendment 80 LLP/QS licenses.

(iii)How many Amendment 80 QS holders are required to form an Amendment 80 cooperative? At least three Amendment 80 QS holders each of whom may not have a ten percent or greater direct or indirect ownership interest in any of the other Amendment 80 QS holders.

(iv)Is there a minimum amount of Amendment 80 QS units that must be assigned to an Amendment 80 cooperative for it to be allowed to form? No.

(v)What is allocated to the Amendment 80 cooperative? CQ for each Amendment 80 species, crab PSC, and halibut PSC, based on the amount of Amendment 80 QS units assigned to the cooperative.

(vi)Is this CQ an exclusive catch and use privilege? Yes, the members of the Amendment 80 cooperative have an exclusive privilege to collectively catch and use this CQ, or an Amendment 80 cooperative can transfer all or a portion of this CQ to another Amendment 80 cooperative.

(vii)Is there a period in a calendar year during which designated vessels must catch CQ? Yes, any Amendment 80 vessel designated to catch CQ for an Amendment 80 cooperative is limited to catching CQ during the period beginning on 1200 hours A.l.t. on January 20 through 2400 hours A.l.t. on December 31.

(viii)Can any vessel catch an Amendment 80 cooperative's CQ? No, only Amendment 80 vessels that are assigned to that Amendment 80 cooperative for that calendar year in the application for CQ may catch and process the CQ assigned to that Amendment 80 cooperative.

(ix)Can a member of an Amendment 80 cooperative transfer CQ individually without the approval of the other members of the Amendment 80 cooperative? No, only the designated representative of the Amendment 80 cooperative, and not individual members, may transfer its CQ to another Amendment 80 cooperative; and only if that transfer is approved by NMFS as established under paragraph

(g)of this section.

(x)Are GOA sideboard limits assigned to specific persons or Amendment 80 cooperatives? No, GOA sideboard limits are not assigned to specific persons or Amendment 80 cooperatives. GOA sideboard limits are assigned to the Amendment 80 sector.

(xi)Can an Amendment 80 QS permit, Amendment 80 LLP license, or Amendment 80 vessel be assigned to more than one Amendment 80 cooperative in a calendar year? No, an Amendment 80 QS holder holding multiple Amendment 80 QS permits, Amendment 80 LLP licenses, or Amendment 80 vessels may assign those permits, licenses, or vessels to only one Amendment 80 cooperative in a calendar year.

(xii)Can an Amendment 80 QS permit, Amendment 80 LLP license, or Amendment 80 vessel be assigned to an Amendment 80 cooperative and the Amendment 80 limited access fishery? No, an Amendment 80 QS permit, Amendment 80 LLP license, or Amendment 80 vessel assigned to an Amendment 80 cooperative may not be assigned to the Amendment 80 limited access fishery for that calendar year.

(xiii)Which members may catch the Amendment 80 cooperative's CQ? Use of a cooperative's CQ permit is determined by the Amendment 80 cooperative contract signed by its members. Any violations of this contract by a cooperative member may be subject to civil claims by other members of the Amendment 80 cooperative.

(xiv)Does an Amendment 80 cooperative need a membership agreement or contract? Yes, an Amendment 80 cooperative must have a membership agreement or contract that specifies how the Amendment 80 cooperative intends to catch its CQ. A copy of this agreement or contract must be submitted to NMFS with the application for CQ.

(xv)What happens of the Amendment 80 cooperative membership agreement or contract is modified during the fishing year? A copy of the amended Amendment 80 membership agreement or contract must be sent to NMFS in accordance with § 679.4(a)(4).

(xvi)What happens if the Amendment 80 cooperative exceeds its CQ amount? An Amendment 80 cooperative is not authorized to catch Amendment 80 species or use crab PSC or halibut PSC in excess of the amount on its CQ permit. Exceeding a CQ permit is a violation of the regulations. Each member of the Amendment 80 cooperative is jointly and severally liable for any violations of the Amendment 80 Program regulations while fishing under the authority of a CQ permit. This liability extends to any persons who are hired to catch or receive CQ assigned to a Amendment 80 cooperative. Each member of an Amendment 80 cooperative is responsible for ensuring that all members of the cooperative comply with all regulations applicable to fishing under the Amendment 80 Program.

(xvii)Is there a limit on how much CQ a Amendment 80 cooperative may hold or use? No, but each Amendment 80 QS holder is subject to use caps, and an Amendment 80 vessel may be subject to vessel use caps. See § 679.92(a). (xviii) Is there a limit on how much CQ a vessel may catch? Yes, an Amendment 80 vessel may not catch more than 20 percent of the aggregate Amendment 80 species ITAC assigned to the Amendment 80 sector for that calendar year. See § 679.92(a) for use cap provisions.

(xix)Are there any special reporting requirements? Yes, the designated representative of the Amendment 80 cooperative must submit an annual Amendment 80 cooperative report as described under § 679.5(s). In addition, each member of an Amendment 80 cooperative must submit a timely and complete EDR as described under § 679.94.

(4)*Successors-in-interest.* If a member of an Amendment 80 cooperative dies (in the case of an individual) or dissolves (in the case of a business entity), the CQ derived from the Amendment 80 QS permits assigned to the Amendment 80 cooperative for that year from that person remains under the control of the Amendment 80 cooperative for the duration of that calendar year as specified in the Amendment 80 cooperative contract. Each Amendment 80 cooperative is free to establish its own internal procedures for admitting a successor-in-interest during the fishing season due to the death or dissolution of an Amendment 80 cooperative member. § 679.92 Amendment 80 Program use caps and sideboard limits.

(a)*Use caps* —(1) *General.* Use caps limit the amount of Amendment 80 QS units and Amendment 80 species CQ that may be held or used by an Amendment 80 QS holder or Amendment 80 vessel. Use caps may not be exceeded unless the Amendment 80 QS holder or Amendment 80 vessel subject to the use cap is specifically allowed to exceed a cap according to the criteria established under this paragraph

(a)or by an operation of law. There are two types of use caps: Person use caps and vessel use caps. All Amendment 80 QS unit use caps are based on the aggregate Amendment 80 species Amendment 80 initial QS pool set forth in Table 32 to this part. The use caps apply as follows:

(2)*Amendment 80 QS holder use cap* —(i) *QS and CQ use cap.* A person may not individually or collectively hold or use more than thirty (30.0) percent of the aggregate Amendment 80 QS units initially assigned to the Amendment 80 sector and resulting CQ unless that person receives those Amendment 80 QS units on an Amendment 80 permit(s) based on Amendment 80 legal landings assigned to Amendment 80 vessel(s) or Amendment 80 LLP license(s) held by that Amendment 80 QS holder:

(A)Prior to June 9, 2006; and

(B)At the time of application for Amendment 80 QS.

(ii)*CQ use cap calculation.* For purposes of calculating and applying the CQ use cap, a person is assigned CQ based on:

(A)The amount of CQ derived from the Amendment 80 QS units held by that person; and

(B)Any CQ assigned to that person in an Application for CQ transfer.

(iii)*Transfer limitations.*

(A)An Amendment 80 QS holder that receives an initial allocation of aggregate Amendment 80 QS units that exceeds the use cap listed in paragraph (a)(2)(i) of this section cannot receive any Amendment 80 QS permit by transfer unless and until that person's holdings of aggregate Amendment 80 QS units are reduced to an amount below the use cap specified in paragraph (a)(2)(i) of this section.

(B)If an Amendment 80 QS holder that received an initial allocation of aggregate Amendment 80 QS units on his or her Amendment 80 QS permits that exceeds the use cap listed in paragraph (a)(2)(i) of this section transfers an Amendment 80 QS permit to another person, the transferor may not hold more than the greater of either the amount of Amendment 80 QS units held by the transferor after the transfer if the amount of aggregate Amendment 80 QS units continues to exceed the use cap, or the amount equal to the Amendment 80 QS unit use cap established in paragraph (a)(2)(i) of this section.

(C)An Amendment 80 QS holder that receives an initial allocation of aggregate Amendment 80 QS units on his or her Amendment 80 QS permits that exceeds the use cap listed in paragraph (a)(2)(i) of this section is prohibited from having any CQ assigned to that Amendment 80 QS holder in an application for CQ transfer unless and until that Amendment 80 QS holder's holdings of aggregate Amendment 80 QS units are reduced to an amount below the use cap specified in paragraph (a)(2)(i) of this section.

(3)*ITAC use cap for an Amendment 80 vessel.* An Amendment 80 vessel may not be used to catch an amount of Amendment 80 species greater than twenty (20.0) percent of the aggregate Amendment 80 species ITACs assigned to the Amendment 80 sector. This amount includes ITAC that is assigned as CQ or to the Amendment 80 limited access fishery.

(b)*GOA sideboard limits* —(1) *GOA groundfish sideboard limits.* Amendment 80 vessels may not be used to catch more than the amounts of groundfish in the management areas specified in Table 37 to this part from January 1 through December 31 of each year.

(2)*GOA halibut PSC sideboard limits.* All Amendment 80 vessels, other than the F/V GOLDEN FLEECE using LLG 2524 as specified in paragraph

(d)of this section, may not use halibut PSC in the fishery complexes, management areas, and seasons greater than the amounts specified in Table 38 to this part during January 1 through December 31 of each year; except that an Amendment 80 vessel that uses halibut PSC CQ in the Central GOA subject to the regulations established in the Rockfish Program under subpart G to this part is not subject to the halibut PSC sideboard limits in Table 38 to this part.

(c)*Sideboard restrictions applicable to Amendment 80 vessels directed fishing for flatfish in the GOA.* Only an Amendment 80 vessel listed in column A of Table 39 to this part and named on an Amendment 80 LLP license listed in column C of Table 39 to this part may be used to fish in the directed arrowtooth flounder, deep-water flatfish, flathead sole, rex sole, and shallow-water flatfish fisheries in the GOA and in adjacent waters open by the State of Alaska for which it adopts a Federal fishing season.

(d)*Sideboard restrictions applicable to the fishing vessel GOLDEN FLEECE.*

(1)The fishing vessel GOLDEN FLEECE (USCG documentation number 609951):

(i)May not be used for directed groundfish fishing for northern rockfish, pelagic shelf rockfish, pollock, Pacific cod, or Pacific ocean perch in the GOA and in adjacent waters open by the State of Alaska for which it adopts a Federal fishing season; and

(ii)Is not subject to halibut PSC sideboard limits as described in paragraph (b)(2) of this section in the GOA or adjacent waters open by the State of Alaska for which it adopts a Federal fishing season except as provided in paragraphs (d)(2) and

(3)of this section.

(2)If any Amendment 80 vessel other than the GOLDEN FLEECE is named on the LLP license number LLG 2524, that vessel is subject to all sideboard restrictions in paragraphs

(b)and

(c)of this section.

(3)If the GOLDEN FLEECE is named on any LLP license other than LLP license number LLG 2524, the GOLDEN FLEECE is subject to all sideboard restrictions in paragraphs

(b)and

(c)of this section. § 679.93 Amendment 80 Program recordkeeping, permits, monitoring, and catch accounting.

(a)*Recordkeeping and reporting.* See § 679.5(s).

(b)*Permits.* See § 679.4(o).

(c)*Catch monitoring requirements for Amendment 80 vessels and catcher/processors not listed in § 679.4(l)(2)(i) using trawl gear and fishing in the BSAI.* The requirements under paragraphs (c)(1) through

(9)of this section apply to Amendment 80 vessels and any other catcher/processor not listed in § 679.4(l)(2)(i) using trawl gear and fishing or receiving fish in the BSAI and in adjacent waters open by the State of Alaska for which it adopts a Federal fishing season. At all times when a catcher/processor not listed in § 679.4(l)(2)(i) using trawl gear has BSAI groundfish onboard the vessel, the vessel owner or operator must ensure that:

(1)*Catch weighing.* All groundfish are weighed on a NMFS-approved scale in compliance with the scale requirements at § 679.28(b). Each haul must be weighed separately and all catch must be made available for sampling by a NMFS-certified observer.

(2)*Observer sampling station.* An observer sampling station meeting the requirements at § 679.28(d) is available at all times.

(3)*Observer coverage requirements.* The vessel is in compliance with the observer coverage requirements described at § 679.50(c)(6).

(4)*Operational line.* The vessel has no more than one operational line or other conveyance for the mechanized movement of catch between the scale used to weigh total catch and the location where the observer collects species composition samples.

(5)*Fish on deck.* No fish are allowed to remain on deck unless an observer is present, except for fish inside the codend and fish accidentally spilled from the codend during hauling and dumping. Fish accidentally spilled from the codend must be moved to the fish bin.

(6)*Sample storage.* There is sufficient space to accommodate a minimum of 10 observer sampling baskets. This space must be within or adjacent to the observer sample station.

(7)*Pre-cruise meeting.* The Observer Program Office is notified by phone at 1-907-271-1702 at least 24 hours prior to departure when the vessel will be carrying an observer who has not previously been deployed on that vessel within the last 12 months. Subsequent to the vessel's departure notification, but prior to departure, NMFS may contact the vessel to arrange for a pre-cruise meeting. The pre-cruise meeting must minimally include the vessel operator or manager, and any observers assigned to the vessel.

(8)*Belt and flow operations.* The vessel operator stops the flow of fish and clears all belts between the bin doors and the area where the observer collects samples of unsorted catch when requested to do so by the observer.

(9)*Vessel crew in tanks or bins.* The vessel owner or operator must comply with the bin monitoring standards specified in § 679.28(i).

(d)*Catch monitoring requirements for Amendment 80 vessels fishing in the GOA.* The requirements under this section apply to any Amendment 80 vessel fishing in the GOA and in adjacent waters open by the State of Alaska for which it adopts a Federal fishing season. At all times when an Amendment 80 vessel has GOA groundfish onboard the vessel owner or operator must ensure that:

(1)Catch from an individual haul is not mixed with catch from another haul prior to sampling by a NMFS-certified observer, and all catch is made available for sampling by a NMFS-certified observer;

(2)The vessel is in compliance with the observer coverage requirements described at § 679.50(c)(6)(ii); and

(3)The requirements in paragraphs (c)(4), (5), (8), and

(9)of this section are met.

(e)*Catch accounting* —(1) *Amendment 80 species* —(i) *Amendment 80 cooperative.* All Amendment 80 species caught in the BSAI, including catch in adjacent waters open by the State of Alaska for which it adopts a Federal fishing season, by a vessel that is assigned to an Amendment 80 cooperative will be debited from the CQ permit for that Amendment 80 cooperative for that calendar year.

(ii)*Amendment 80 limited access fishery.* All Amendment 80 species caught in the BSAI, including catch in adjacent waters open by the State of Alaska for which it adopts a Federal fishing season, by a vessel that is assigned to the Amendment 80 limited access fishery will be debited against the ITAC for that Amendment 80 species in the Amendment 80 limited access fishery for that calendar year.

(2)*Crab PSC and halibut PSC* —(i) *Amendment 80 cooperative.* All crab PSC or halibut PSC used by an Amendment 80 vessel, including crab PSC or halibut PSC used in the adjacent waters open by the State of Alaska for which it adopts a Federal fishing season, that is assigned to an Amendment 80 cooperative will be debited against the CQ permit for that Amendment 80 cooperative for that calendar year.

(ii)*Amendment 80 limited access fishery.* All crab PSC or halibut PSC used by an Amendment 80 vessel, including crab PSC or halibut PSC used in the adjacent waters open by the State of Alaska for which it adopts a Federal fishing season, that is assigned to an Amendment 80 limited access fishery will be debited against the crab PSC or halibut PSC limit assigned to the Amendment 80 limited access fishery for that calendar year.

(3)*GOA groundfish sideboard limits.* All Amendment 80 sideboard species caught in the GOA, including catch in adjacent waters open by the State of Alaska for which it adopts a Federal fishing season, by an Amendment 80 vessel will be debited against the Amendment 80 sideboard limit for that Amendment 80 sideboard species for that calendar year.

(4)*GOA halibut sideboard limits.* All halibut PSC used by all Amendment 80 vessels in the GOA, including halibut PSC used in the adjacent waters open by the State of Alaska for which it adopts a Federal fishing season, will be debited against the sideboard limit established for the Amendment 80 sector, except:

(i)Halibut PSC CQ used by the catcher/processor sector in the Rockfish Program in the Central GOA; and

(ii)Halibut PSC used by the GOLDEN FLEECE (USCG Documentation number 609951) if the GOLDEN FLEECE is named on LLP licence number LLG 2524. § 679.94 Economic data report

(EDR)for the Amendment 80 sector.

(a)*Amendment 80 EDR* —(1) *Requirement to submit an EDR.* Each year except 2008, a person who held an Amendment 80 QS permit during a calendar year must submit to NMFS an EDR for that calendar year for each Amendment 80 QS permit held by that person. An EDR must be timely and complete.

(2)*Submission of EDR.* An EDR may only be submitted to NMFS using any one of the following methods:

(i)*Mail:* NMFS, Alaska Fisheries Science Center, Economic Data Reports, 7600 Sand Point Way NE, F/AKC2, Seattle, WA 98115; or

(ii)*Fax:* 206-526-6723.

(3)*EDR forms.* EDR forms are available through the Internet on the NMFS Alaska Region Web site at *http://www.fakr.noaa.gov,* or by contacting NMFS at 206-526-6414.

(4)*Deadline.* For each calendar year except 2008, a completed EDR must be received by NMFS no later than 1700 hours A.l.t. on June 1 of the year following the calendar year during which the Amendment 80 QS permit was held, or if sent by U.S. mail, postmarked by that date.

(5)*Contents of EDR.* An EDR must contain completed submissions for each data field required under paragraphs

(b)and

(c)of this section, as applicable, and the following information:

(i)*Calendar year of EDR.* Calendar year for which the EDR is being submitted;

(ii)*Amendment 80 QS holder information.* Name of company, partnership, other business entity, business telephone number, business fax number, e-mail address (if available) and Amendment 80 QS permits held;

(iii)*Designated representative.* An Amendment 80 QS holder must appoint an individual to be his designated representative and must ensure that the designated representative complies with the regulations in this section. The designated representative is the primary contact person for NMFS on issues relating to data required in the EDR. If an individual Amendment 80 QS holder chooses to complete the EDR, then they are the designated representative;

(iv)*Person completing this report.*

(A)Indicate whether the person completing this report is the Amendment 80 QS holder, or the designated representative for the Amendment 80 QS holder;

(B)Record the name of the person completing the report, title, business telephone number, fax number, signature of the person submitting the EDR, and e-mail address (if available). If a designated representative is not the Amendment 80 QS holder, written authorization to act on behalf of the Amendment 80 QS holder must accompany the EDR;

(v)*Amendment 80 QS holders who own Amendment 80 vessels.* An Amendment 80 QS holder who is an Amendment 80 vessel owner must submit, or have his designated representative submit, revenue and cost information for each Amendment 80 QS permit held and each Amendment 80 vessel owned by that Amendment 80 QS holder as described under paragraphs

(b)and

(c)of this section;

(vi)*Amendment 80 QS holders who do not own Amendment 80 vessels.* An Amendment 80 QS holder who is not an Amendment 80 vessel owner must submit, or have his designated representative submit, revenue and cost information for each Amendment 80 QS permit held by that Amendment 80 QS holder as described under paragraph

(c)of this section; and

(vii)*Certification.* The Amendment 80 QS holder and his designated representative, if applicable, must certify that all information provided under paragraphs

(b)and

(c)of this section is accurate and complete.

(b)*Amendment 80 vessel information* —(1) *Ownership of an Amendment 80 vessel.* If a person owned any part of an Amendment 80 vessel during a calendar year, that person must provide the following information for each Amendment 80 vessel owned:

(i)*Amendment 80 vessel owner information.* Vessel name, USCG Documentation number, ADF&G vessel registration number, ADF&G processor code, Amendment 80 LLP license number(s) which designated that vessel during that calendar year, Amendment 80 QS permit assigned to that vessel during that calendar year, Amendment 80 limited access fishery permit number assigned to that vessel during that calendar year, or name of Amendment 80 cooperative to which that Amendment 80 vessel was assigned during that calendar year (if applicable);

(ii)*Amendment 80 vessel operator information.* If a person other than the Amendment 80 QS holder operated an Amendment 80 vessel owned by that Amendment 80 QS holder during a calendar year, provide the following: Name of company, partnership, other business entity, and business telephone number, business fax number, and e-mail address (if available);

(2)*Vessel characteristics.*

(i)Home port, U.S. gross registered tonnage, net tonnage, length overall, beam, shaft horsepower, fuel capacity, year built;

(ii)Vessel survey value: Most recent survey value, date of last survey value, did survey reflect value of permits and processing equipment;

(iii)Freezing capacity: Maximum freezing capacity of this vessel in pounds per hour and freezer space (measured in pounds of product);

(iv)Fuel consumption: Total consumption for the calendar year and average fuel consumed per hour from fishing and processing, transiting, and in shipyard.

(v)Vessel activity during calendar year: Number of days the vessel was engaged in fishing, processing, steaming empty, offloading, and inactive or in shipyard. Report separately for Amendment 80 fisheries and all other fisheries; and

(vi)Processing capacity: Record each type of product processed on the line in the Amendment 80 fishery, the number of processing lines of similar type (equipment and/or product mix), and the vessel's maximum average throughput in pounds (round weight) per hour under normal operating conditions (assuming quantity of raw fish and other inputs is not limiting), totaled over all processing lines of this type.

(3)*Calendar year revenues.*

(i)Total fishery product sales volume and FOB Alaska revenue; and

(ii)All other income derived from vessel operations: tendering, charters, cargo transport, etc.

(4)*Calendar year costs.*

(i)Fishing labor expenses (including bonuses and payroll taxes, but excluding benefits and insurance);

(ii)Processing labor expenses (including bonuses and payroll taxes, but excluding benefits and insurance);

(iii)Labor expenses for all other employees aboard the vessel;

(iv)Food and provisions not paid by crew;

(v)Recruitment, travel, benefits, and other employee related costs;

(vi)Lease expense for this vessel and onboard equipment;

(vii)Purchases of fishing gear (nets, net electronics, doors, cables, etc.);

(viii)Expenditures on processing equipment;

(ix)Product storage equipment;

(x)Expenditures on vessel and onboard equipment (other than fishing, processing, or storage equipment);

(xi)Fishing gear leases;

(xii)Repair and maintenance expenses for vessel and processing equipment;

(xiii)Freight storage and other sales costs;

(xiv)Product packaging materials;

(xv)Fuel and lubrication;

(xvi)Observer fees and monitoring costs;

(xvii)General administrative costs; (xviii) Insurance;

(xix)Fisheries landing taxes;

(xx)Total raw fish purchases; and

(xxi)All other costs related to vessel operations not included in the preceding list.

(5)*Calendar year labor.* Average number and total number of employees for fishing, processing, and other activities on this vessel.

(i)Average number of hours worked per day by processing line employee; and

(ii)Crew revenue share system used for some processing, all processing, some non-processing, and all non-processing crew.

(c)*Permit revenues or expenditures.* An Amendment 80 QS holder or his designated representative will record revenues and expenditures for any tradable fishing or processing privilege. Attribute those revenues or costs to a specific Amendment 80 vessel or Amendment 80 LLP as applicable.

(1)*Permit revenues.*

(i)Income from sale or lease of fishery licenses, permits, harvesting or processing rights: Record license or permit number and revenue for each asset sold; and

(ii)Royalties received from leasing allocations including metric tons and dollars for Amendment 80 yellowfin sole, rock sole, flathead sole, Atka mackerel, Pacific ocean perch, Pacific cod, Amendment 80 leased halibut PSC, leased crab PSC, and any other species leased.

(2)*Permit expenditures.*

(i)Fishery licenses, permits, harvesting or processing rights: record license or permit number and cost for each asset purchased;

(ii)Royalties paid for leases of catcher/processing quota, including metric tons, and dollars for Amendment 80 yellowfin sole, rock sole, flathead sole, Atka mackerel, Pacific ocean perch, Pacific cod, Amendment 80 leased halibut PSC, leased king crab PSC, and any other species leased;

(iii)Cooperative costs including lawyer and accountant costs, association fees, and other fees charged by harvest cooperative; and

(iv)Any other costs incurred from the use of fishery licenses, permits, harvesting or processing rights not included in the preceding list.

(d)*EDR audit procedures.*

(1)NMFS will conduct verification of information with the Amendment 80 QS holder or designated representative, if applicable.

(2)The Amendment 80 QS holder or designated representative, if applicable, must respond to inquiries by NMFS within 20 days of the date of issuance of the inquiry.

(3)The Amendment 80 QS holder or designated representative, if applicable, must provide copies of additional data to facilitate verification by NMFS. The NMFS auditor may review and request copies of additional data provided by the Amendment 80 QS holder or designated representative, including but not limited to, previously audited or reviewed financial statements, worksheets, tax returns, invoices, receipts, and other original documents substantiating the data submitted. 15. Tables 31 through 41 are added to part 679 to read as follows: Table 31 to Part 679.—List of Amendment 80 Vessels and Amendment 80 LLP Licenses Column A: Name of Amendment 80 vessel Column B: USCG Documentation No. Column C: Amendment 80 LLP license No. originally assigned to the Amendment 80 vessel ALASKA JURIS 569276 LLG 2082 ALASKA RANGER 550138 LLG 2118 ALASKA SPIRIT 554913 LLG 3043 ALASKA VOYAGER 536484 LLG 2084 ALASKA VICTORY 569752 LLG 2080 ALASKA WARRIOR 590350 LLG 2083 ALLIANCE 622750 LLG 2905 AMERICAN NO I 610654 LLG 2028 ARCTIC ROSE 931446 LLG 3895 ARICA 550139 LLG 2429 BERING ENTERPRISE 610869 LLG 3744 CAPE HORN 653806 LLG 2432 CONSTELLATION 640364 LLG 1147 DEFENDER 665983 LLG 3217 ENTERPRISE 657383 LLG 4831 GOLDEN FLEECE 609951 LLG 2524 HARVESTER ENTERPRISE 584902 LLG 3741 LEGACY 664882 LLG 3714 OCEAN ALASKA 623210 LLG 4360 OCEAN PEACE 677399 LLG 2138 PROSPERITY 615485 LLG 1802 REBECCA IRENE 697637 LLG 3958 SEAFISHER 575587 LLG 2014 SEAFREEZE ALASKA 517242 LLG 4692 TREMONT 529154 LLG 2785 U.S. INTREPID 604439 LLG 3662 UNIMAK 637693 LLG 3957 VAERDAL 611225 LLG 1402 Table 32 to Part 679.—Amendment 80 Initial QS Pool Amendment 80 species Management area Amendment 80 Initial QS pool in units Atka mackerel BS/541 542 543 Σ Highest Five Years in metric tons in the Amendment 80 official record as of December 31, 2007, for that Amendment 80 species in that management area. AI Pacific ocean perch 541 542 543 Flathead sole BSAI Pacific cod BSAI Rock sole BSAI Yellowfin sole BSAI Table 33 to Part 679.—Annual Apportionment of Amendment 80 Species ITAC Between the Amendment 80 and BSAI Trawl Limited Access Sectors [Except yellowfin sole] Fishery Management area Year Percentage of ITAC allocated to the Amendment 80 sector Percentage of ITAC allocated to the BSAI trawl limited access sector Atka mackerel 543 All years 100 0 542 2008 98 2 2009 96 4 2010 94 6 2011 92 8 2012 and all future years 90 10 541/EBS 2008 98 2 2009 96 4 2010 94 6 2011 92 8 2012 and all future years 90 10 Aleutian Islands Pacific ocean perch 543 All years 98 2 542 2008 95 5 2009 and all future years 90 10 541 2008 95 5 2009 and all future years 90 10 Pacific cod BSAI All years 13.4 N/A Rock sole BSAI All years 100 0 Flathead sole BSAI All years 100 0 Table 34 to Part 679.—Annual Apportionment of BSAI Yellowfin Sole Between the Amendment 80 and BSAI Trawl Limited Access Sectors Row No. If the yellowfin sole ITAC is between . . . Column A and . . . Column B then the yellowfin sole ITAC rate for the Amendment 80 sector is . . . Column C and the amount of yellowfin sole ITAC allocated to Amendment 80 Sector is . . . Column D and the amount of yellowfin sole ITAC allocated to the BSAI trawl limited access sector is . . . Column E Row 1 0 mt 87,499 mt 0.930 ITAC × Row 1, Column C ITAC−Row 1, Column E. Row 2 87,500 mt 94,999 mt 0.875 (Amount of ITAC greater than 87,499 mt and less than 95,000 mt × Row 2, Column c) + (Row 1, Column D) ITAC−Row 2, Column D. Row 3 95,000 mt 102,499 mt 0.820 (Amount of ITAC greater than 94,999 mt and less than 102,500 mt × Row 3, Column C) + ( ∑ Column D, Rows 1 and 2) ITAC−Row 3, Column D. Row 4 102,500 mt 109,999 mt 0.765 (Amount of ITAC greater than 102,499 mt and less than 110,000 mt × Row 4, Column C) + ( ∑ Column D, Rows 2 through 3) ITAC−Row 4, Column D. Row 5 110,000 mt 117,499 mt 0.710 (Amount of ITAC greater than 109,999 mt and less than 117,500 mt × Row 5, Column C) + ( ∑ Column D, Rows 2 through 4) ITAC−Row 5, Column D. Row 6 117,500 mt 124,999 mt 0.655 (Amount of ITAC greater than 117,499 mt and less than 125,000 mt × Row 6, Column C) + ( ∑ Column D, Rows 2 through 5) ITAC−Row 6, Column D. Row 7 125,000 mt and greater 0.600 (Amount of ITAC greater than 124,999 mt × Row 7, Column C) + ( ∑ Column D, Rows 2 through 6) ITAC−Row 7, Column D. Table 35 to Part 679.—Apportionment of Crab PSC and Halibut PSC Between the Amendment 80 and BSAI Trawl Limited Access Sectors Fishery Year Halibut PSC limit in the BSAI Zone 1 Red king crab PSC limit . . . *C. opilio* crab PSC limit (COBLZ) . . . Zone 1 * C. bairdi* crab PSC limit . . . Zone 2 * C. bairdi* crab PSC limit . . . as a percentage of the total BSAI trawl PSC limit after allocation as PSQ Amendment 80 sector 2008 2,525 mt 62.48 61.44 52.64 29.59 2009 2,475 mt 59.36 58.37 50.01 28.11 2010 2,425 mt 56.23 55.30 47.38 26.63 2011 2,375 mt 53.11 52.22 44.74 25.15 2012 and all future years 2,325 mt 49.98 49.15 42.11 23.67 BSAI trawl limited access All years 875 mt 30.58 32.14 46.99 46.81 Table 36 to Part 679.—Percentage of Crab and Halibut PSC Limit Assigned to Each Amendment 80 Species For the following PSC species . . . The percentage of the Amendment 80 sector PSC limit assigned to each Amendment 80 species is . . . Atka mackerel AI Pacific ocean perch Pacific cod Flathead sole Rock sole Yellowfin sole Halibut 3.96 1.87 24.79 13.47 24.19 31.72 Zone 1 Red king crab 0.14 0.56 6.88 0.48 61.79 30.16 *C. opilio* crab (COBLZ) 0 0.06 6.28 17.91 9.84 65.91 Zone 1 *C. bairdi* crab 0 0 17.01 3.13 56.15 23.71 Zone 2 *C. bairdi* crab 0.01 0.03 7.92 37.31 7.03 47.70 Table 37 to Part 679.—GOA Amendment 80 Sideboard Limit for Groundfish for the Amendment 80 Sector In the following management areas in the GOA and in adjacent waters open by the State of Alaska for which it adopts a Federal fishing season . . . The sideboard limit for . . . Is . . . Area 610 Pollock 0.3 % of the TAC. Area 620 Pollock 0.2 % of the TAC. Area 630 Pollock 0.2 % of the TAC. Area 640 Pollock 0.2 % of the TAC. West Yakutat District Pacific cod 3.4 % of the TAC. Pacific ocean perch 96.1 % of the TAC. Pelagic shelf rockfish 89.6 % of the TAC. Central GOA Pacific cod 4.4 % of the TAC. Pacific ocean perch Subject to regulations in subpart G to this part. Pelagic shelf rockfish Subject to regulations in subpart G to this part. Northern rockfish Subject to regulations in subpart G to this part. Western GOA Pacific cod 2.0 % of the TAC. Pacific ocean perch 99.4 % of the TAC. Pelagic shelf rockfish 76.4 % of the TAC. Northern rockfish 100 % of the TAC. Table 38 to Part 679.—GOA Amendment 80 Sideboard Limit for Halibut PSC for the Amendment 80 Sector In the . . . The maximum percentage of the total GOA halibut PSC limit that may be used by all Amendment 80 qualified vessels subject to the halibut PSC sideboard limit in each season as those seasons are established in the annual harvest specifications is . . . Season 1 Season 2 Season 3 Season 4 Season 5 Shallow-water species fishery as defined in § 679.21(d)(3)(iii)(A) in the GOA or adjacent waters open by the state of Alaska for which it adopts a Federal fishing season 0.48 1.89 1.46 0.74 2.27 Deep-water species fishery as defined in § 679.21(d)(3)(iii)(B) in the GOA or adjacent waters open by the state of Alaska for which it adopts a Federal fishing season 1.15 10.72 5.21 0.14 3.71 Table 39 to Part 679.—Amendment 80 Vessels and Amendment 80 LLP Licenses That May Be Used to Directed Fish for Flatfish in the GOA *Column A:* Name of Amendment 80 vessel *Column B:* USCG documentation No. *Column C:* Amendment 80 LLP license No. ALLIANCE 622750 LLG 2905 AMERICAN NO I 610654 LLG 2028 DEFENDER 665983 LLG 3217 GOLDEN FLEECE 609951 LLG 2524 LEGACY 664882 LLG 3714 OCEAN ALASKA 623210 LLG 4360 OCEAN PEACE 677399 LLG 2138 SEAFREEZE ALASKA 517242 LLG 4692 U.S. INTREPID 604439 LLG 3662 UNIMAK 637693 LLG 3957 VAERDAL 611225 LLG 1402 Table 40 to Part 679.—BSAI Halibut PSC Sideboard Limits for AFA Catcher/Processors and AFA Catcher Vessels In the following target species categories as defined in § 679.21(e)(3)(iv) . . . The AFA catcher/processor halibut PSC sideboard limit in metric tons is . . . The AFA catcher vessel halibut PSC sideboard limit in metric tons is . . . All target species categories 286 N/A Pacific cod trawl N/A 887 Pacific cod hook-and-line or pot N/A 2 Yellowfin sole N/A 101 Rock sole/flathead sole/other flatfish 1 N/A 228 Turbot/Arrowtooth/Sablefish N/A 0 Rockfish 2 N/A 2 Pollock/Atka mackerel/other species N/A 5 1 “Other flatfish” for PSC monitoring includes all flatfish species, except for halibut (a prohibited species), Greenland turbot, rock sole, flathead sole, yellowfin sole, and arrowtooth flounder. 2 Applicable from July 1 through December 31. Table 41 to Part 679.—BSAI Crab PSC Sideboard Limits for AFA Catcher/Processors and AFA Catcher Vessels For the following crab species in the following areas . . . The AFA catcher/processor crab PSC sideboard limit is equal to the following ratio . . . The AFA catcher vessel crab PSC sideboard limit is equal to the following ratio . . . Multiplied by . . . Red king crab Zone 1 0.007 0.299 The PSC amount in number of animals available to trawl vessels in the BSAI after allocation of PSQ established in the annual harvest specifications for that calendar year. *C. opilio* crab (COBLZ) 0.153 0.168 Zone 1 * C. bairdi* crab 0.140 0.330 Zone 2 * C. bairdi* crab 0.050 0.186 [FR Doc. E7-9828 Filed 5-29-07; 8:45 am] BILLING CODE 3510-22-P 72 103 Wednesday, May 30, 2007 Rules and Regulations Part III Environmental Protection Agency 40 CFR Part 82 Protection of Stratospheric Ozone: Listing of Substitutes for Ozone-Depleting Substances-n-Propyl Bromide in Solvent Cleaning; Protection of Stratospheric Ozone: Listing of Substitutes for Ozone-Depleting Substances-n-Propyl Bromide in Adhesives, Coatings, and Aerosols; Final Rule and Proposed Rule ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 82 [EPA-HQ-OAR-2002-0064; FRL-8316-8] RIN 2060-AO10 Protection of Stratospheric Ozone: Listing of Substitutes for Ozone-Depleting Substances-n-Propyl Bromide in Solvent Cleaning AGENCY: Environmental Protection Agency. ACTION: Final Rule. SUMMARY: The Environmental Protection Agency

(EPA)determines that n-propyl bromide

(nPB)is an acceptable substitute for methyl chloroform and chlorofluorocarbon (CFC)-113 in the solvent cleaning sector under the Significant New Alternatives Policy

(SNAP)program under section 612 of the Clean Air Act. The SNAP program reviews alternatives to Class I and Class II ozone depleting substances and approves use of alternatives which do not present a substantially greater risk to public health and the environment than the substance they replace or than other available substitutes. DATES: This final rule is effective on July 30, 2007. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2002-0064. All documents in the docket are listed on the *http://www.regulations.gov* Web site. Although listed in the index, some information is not publicly available, *i.e.* , Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Air and Radiation Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. This docket facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202)566-1744, and the telephone number for the Air and Radiation Docket is

(202)566-1742. FOR FURTHER INFORMATION CONTACT: Margaret Sheppard, Stratospheric Protection Division, Office of Atmospheric Programs, Mail Code 6205J, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number

(202)343-9163; fax number

(202)343-2362, *e-mail address: sheppard.margaret@epa.gov.* Notices and rulemakings under the SNAP program are available on EPA's Stratospheric Ozone World Wide Web site at *http://www.epa.gov/ozone/snap/regs.* SUPPLEMENTARY INFORMATION: Table of Contents: This action is divided into eight sections: I. General Information A. Does this action apply to me? B. What is n-propyl bromide? C. What acronyms and abbreviations are used in the preamble? II. How does the Significant New Alternatives Policy

(SNAP)Program work? A. What are the statutory requirements and authority for the SNAP Program? B. How do the regulations for the SNAP Program work? C. How does the SNAP Program list our decisions? D. Where can I get additional information about the SNAP Program? III. What is EPA's final listing decision on nPB in solvent cleaning? IV. What criteria did EPA use in making this Final Decision? A. Availability of alternatives to ozone-depleting substances B. Impacts on the Atmosphere and Local Air Quality C. Ecosystem and Other Environmental Impacts D. Flammability and Fire Safety E. Impact on Human Health V. How is EPA responding to comments on the June 2003 Notice of Proposed Rulemaking? A. EPA's Acceptability Decision B. Toxicity C. Ozone Depletion Potential D. Other Environmental Impacts E. Flammability F. Legal Authority to Set Exposure Limits VI. How can I use nPB as safely as possible? VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Congressional Review Act VIII. References I. General Information A. Does this action apply to me? This final rule lists n-propyl bromide

(nPB)as an acceptable substitute when used as a solvent in industrial equipment for metals cleaning, electronics cleaning, or precision cleaning. General metals, precision, and electronics cleaning includes cleaning with industrial cleaning equipment such as vapor degreasers, in-line cleaning systems, or automated equipment used for cleaning below the boiling point. We understand that nPB is used primarily for cleaning in vapor degreasers. Manual cleaning, such as pail-and-brush, hand wipe, recirculating over-spray (“sink-on-a-drum”) parts washers, immersion cleaning into dip tanks with manual parts handling, and use of squirt bottles, is not currently regulated under the SNAP program. EPA also does not regulate the use of solvents as carriers for flame retardants, dry cleaning, or paint stripping under the SNAP program. This final action does not address the use of n-propyl bromide as an aerosol solvent or as a carrier solvent in adhesives or coatings. We are issuing a proposed rule addressing these end uses in a separate **Federal Register** action. Neither this final nor the proposed rule issue a decision on other end uses in which nPB was submitted as an ozone-depleting substance

(ODS)substitute, such as fire suppression or foam blowing, because of insufficient information. Affected users under this final rule could include: • Businesses that clean metal parts, such as automotive manufacturers, machine shops, machinery manufacturers, and electroplaters. • Businesses that manufacture electronics or computer equipment. • Businesses that require a high level of cleanliness in removing oil, grease, or wax, such as for aerospace applications or for manufacture of optical equipment. Table 1.—Potentially Regulated Entities, by North American Industrial Classification System (NAICS) Code or Subsector Category NAICS code or subsector Description of regulated entities Industry 331 Primary Metal Manufacturing. Industry 332 Fabricated Metal Product Manufacturing. Industry 333 Machinery Manufacturing. Industry 334 Computer and Electronic Product Manufacturing. Industry 335 Equipment Appliance, and Component Manufacturing. Industry 336 Transportation Equipment Manufacturing. Industry 337 Furniture and Related Product Manufacturing. Industry 339 Miscellaneous Manufacturing. This table is not intended to be exhaustive, but rather a guide regarding entities likely to be regulated by this action. If you have any questions about whether this action applies to a particular entity, consult the person listed in the preceding section, FOR FURTHER INFORMATION CONTACT. B. What is n-propyl bromide? n-propyl bromide (nPB), also called 1-bromopropane, is a non-flammable organic solvent with a strong odor. Its chemical formula is C 3 H 7 Br. Its identification number in Chemical Abstracts Service's registry (CAS Reg. No.) is 106-94-5. nPB is used to remove wax, oil, and grease from electronics, metal, and other materials. It also is used as a carrier solvent in adhesives. Some brand names of products using nPB are: Abzol®, EnSolv®, and Solvon® cleaners; Pow-R-Wash® NR Contact Cleaner, Superkleen Flux Remover 2311 and LPS NoFlash NU Electro Contact Cleaner aerosols; and Whisper Spray and Fire Retardant Soft Seam 6460 adhesives. C. What acronyms and abbreviations are used in the preamble? Below is a list of acronyms and abbreviations used in this document. 8-hr—eight hour ACGIH—American Conference of Governmental Industrial Hygienists AEL—acceptable exposure limit ASTM—American Society for Testing and Materials BMD—benchmark dose BMDL—benchmark dose lowerbound, the lower 95%-confidence level bound on the dose/exposure associated with the benchmark response BSOC—Brominated Solvents Consortium CAA—Clean Air Act CAS Reg. No.—Chemical Abstracts Service Registry Identification Number CBI—Confidential Business Information CEG—community exposure guideline CERHR—Center for the Evaluation of Risks to Human Reproduction CFC-113—the ozone-depleting chemical 1,1,2-trifluoro-1,2,2-trichloroethane, C 2 Cl 3 F 3 , CAS Reg. No. 76-13-1 CFC—chlorofluorocarbon cfm—cubic feet per minute CFR—Code of Federal Regulations CNS—central nervous system DNA—deoxyribonucleic acid EDSTAC—The Endocrine Disruptor Screening and Testing Advisory Committee EPA—the United States Environmental Protection Agency FR— **Federal Register** GWP—global warming potential HCFC-123—the ozone-depleting chemical 1,2-dichloro-1,1,2-trifluoroethane, CAS Reg. No. 306-83-2 HCFC-141b—the ozone-depleting chemical 1,1-dichloro-1-fluoroethane, CAS Reg. No. 1717-00-6 HCFC-225ca/cb—the commercial mixture of the two ozone-depleting chemicals 3,3-dichloro-1,1,1,2,2-pentafluoropropane, CAS Reg. No. 422-56-0 and 1,3-dichloro-1,1,2,2,3-pentafluoropropane, CAS Reg. No. 507-55-1 HCFC—hydrochlorofluorocarbon HEC—human equivalent concentration HFC-245fa—the chemical 1,1,3,3,3-pentafluoropropane, CAS Reg. No. 460-73-1 HFC-365mfc—the chemical 1,1,1,3,3-pentafluorobutane, CAS Reg. No. 405-58-6 HFC-4310mee—the chemical 1,1,1,2,3,4,4,5,5,5-decafluoropentane, CAS Reg. No. 138495-42-8 HFC—hydrofluorocarbon HFE—hydrofluoroether HHE—health hazard evaluation ICF—ICF Consulting ICR—Information Collection Request iPB—isopropyl bromide, C 3 H 7 Br, CAS Reg. No. 75-26-3, an isomer of n-propyl bromide; also called 2-bromopropane or 2-BP K oc —organic carbon partition coefficient, for determining the tendency of a chemical to bind to organic carbon in soil LC 50 —the concentration at which 50% of test animals die LOAEL—Lowest Observed Adverse Effect Level Log K ow —logarithm of the octanol-water partition coefficient, for determining the tendency of a chemical to accumulate in lipids or fats instead of remaining dissolved in water mg/l—milligrams per liter MSDS—Material Safety Data Sheet NAICS—North American Industrial Classification System NESHAP—National Emission Standard for Hazardous Air Pollutants NIOSH—National Institute for Occupational Safety and Health NOAEL—No Observed Adverse Effect Level NOEL—No Observed Effect Level nPB-n-propyl bromide, C 3 H 7 Br, CAS Reg. No. 106-94-5; also called 1-bromopropane or 1-BP NPRM—Notice of Proposed Rulemaking NTP—National Toxicology Program NTTAA—National Technology Transfer and Advancement Act ODP—ozone depletion potential ODS—ozone-depleting substance OEHHA—Office of Environmental Health Hazard Assessment of the California Environmental Protection Agency OMB—U.S. Office of Management and Budget OSHA—the United States Occupational Safety and Health Administration PCBTF—parachlorobenzotrifluoride, CAS Reg. No. 98-56-6 PEL—Permissible Exposure Limit ppm—parts per million RCRA—Resource Conservation and Recovery Act RFA—Regulatory Flexibility Act RfC—reference concentration SIP—state implementation plan SNAP—Significant New Alternatives Policy STEL—Short term exposure limit TCA—the ozone-depleting chemical 1,1,1-trichloroethane, CAS Reg. No. 71-55-6; also called methyl chloroform, MCF, or 1,1,1 TCE—the chemical 1,1,2-trichloroethene, CAS Reg. No. 79-01-6, C 2 Cl 3 H; also call trichloroethylene TERA—Toxicological Excellence for Risk Assessment TLV—Threshold Limit Value TM TSCA—Toxic Substances Control Act TWA—time-weighted average UMRA—Unfunded Mandates Reform Act U.S.C.—United States Code VMSs—volatile methyl siloxanes VOC—volatile organic compound WEL—workplace exposure limit II. How does the Significant New Alternatives Policy

(SNAP)program work? A. What are the statutory requirements and authority for the SNAP program? Section 612 of the Clean Air Act

(CAA)authorizes EPA to develop a program for evaluating alternatives to ozone-depleting substances, referred to as the Significant New Alternatives Policy

(SNAP)program. The major provisions of section 612 are: • *Rulemaking* —Section 612(c) requires EPA to promulgate rules making it unlawful to replace any class I (chlorofluorocarbon, halon, carbon tetrachloride, methyl chloroform, and hydrobromofluorocarbon) or class II (hydrochlorofluorocarbon) substance with any substitute that the Administrator determines may present adverse effects to human health or the environment where the Administrator has identified an alternative that

(1)reduces the overall risk to human health and the environment, and

(2)is currently or potentially available. • *Listing of Unacceptable/Acceptable Substitutes* —Section 612(c) also requires EPA to publish a list of the substitutes unacceptable for specific uses. We must publish a corresponding list of acceptable alternatives for specific uses. • *Petition Process* —Section 612(d) grants the right to any person to petition EPA to add a substitute to or delete a substitute from the lists published in accordance with section 612(c). EPA has 90 days to grant or deny a petition. Where the Agency grants the petition, we must publish the revised lists within an additional six months. • *90-day Notification* —Section 612(e) requires EPA to require any person who produces a chemical substitute for a class I substance to notify the Agency not less than 90 days before new or existing chemicals are introduced into interstate commerce for significant new uses as substitutes for a class I substance. The producer must also provide the Agency with the producer's health and safety studies on such substitutes. • *Outreach* —Section 612(b)(1) states that the Administrator shall seek to maximize the use of federal research facilities and resources to assist users of class I and II substances in identifying and developing alternatives to the use of such substances in key commercial applications. • *Clearinghouse* —Section 612(b)(4) requires the Agency to set up a public clearinghouse of alternative chemicals, product substitutes, and alternative manufacturing processes that are available for products and manufacturing processes which use class I and II substances. B. How do the regulations for the SNAP program work? On March 18, 1994, EPA published the original rulemaking (59 FR 13044) that described the process for administering the SNAP program and issued the first acceptability lists for substitutes in the major industrial use sectors. These sectors include: Refrigeration and air conditioning; foam blowing; solvents cleaning; fire suppression and explosion protection; sterilants; aerosols; adhesives, coatings and inks; and tobacco expansion. These sectors comprise the principal industrial sectors that historically consumed large volumes of ozone-depleting substances. Anyone who plans to market or produce a substitute for an ODS in one of the eight major industrial use sectors must provide the Agency with health and safety studies on the substitute at least 90 days before introducing it into interstate commerce for significant new use as an alternative. This requirement applies to the person planning to introduce the substitute into interstate commerce, typically chemical manufacturers, but may also include importers, formulators or end-users when they are responsible for introducing a substitute into commerce. C. How does the SNAP program list our decisions? The Agency has identified four possible decision categories for substitutes: Acceptable; acceptable subject to use conditions; acceptable subject to narrowed use limits; and unacceptable. Use conditions and narrowed use limits are both considered “use restrictions” and are explained below. Substitutes that are deemed acceptable with no use restrictions (no use conditions or narrowed use limits) can be used for all applications within the relevant sector end-use. Substitutes that are acceptable subject to use restrictions may be used only in accordance with those restrictions. It is illegal to replace an ODS with a substitute listed as unacceptable. After reviewing a substitute, the Agency may make a determination that a substitute is acceptable only if certain conditions of use are met to minimize risks to human health and the environment. We describe such substitutes as “acceptable subject to use conditions.” If you use these substitutes without meeting the associated use conditions, you use these substitutes in an unacceptable manner and you could be subject to enforcement for violation of section 612 of the Clean Air Act. For some substitutes, the Agency may permit a narrowed range of use within a sector. For example, we may limit the use of a substitute to certain end-uses or specific applications within an industry sector or may require a user to demonstrate that no other acceptable end uses are available for their specific application. We describe these substitutes as “acceptable subject to narrowed use limits.” If you use a substitute that is acceptable subject to narrowed use limits, but use it in applications and end-uses which are not consistent with the narrowed use limit, you are using these substitutes in an unacceptable manner and you could be subject to enforcement for violation of section 612 of the Clean Air Act. The Agency publishes its SNAP program decisions in the **Federal Register** . For those substitutes that are deemed acceptable subject to use restrictions (use conditions and/or narrowed use limits), or for substitutes deemed unacceptable, we first publish these decisions as proposals to allow the public opportunity to comment, and we publish final decisions as final rulemakings. In contrast, we publish substitutes that are deemed acceptable with no restrictions in “notices of acceptability,” rather than as proposed and final rules. As described in the rule implementing the SNAP program (59 FR 13044), we do not believe that rulemaking procedures are necessary to list alternatives that are acceptable without restrictions because such listings neither impose any sanction nor prevent anyone from using a substitute. Many SNAP listings include “comments” or “further information.” These statements provide additional information on substitutes that we determine are either unacceptable, acceptable subject to narrowed use limits, or acceptable subject to use conditions. Since this additional information is not part of the regulatory decision, these statements are not binding for use of the substitute under the SNAP program. However, regulatory requirements listed in this column are binding under other programs. The further information does not necessarily include all other legal obligations pertaining to the use of the substitute. However, we encourage users of substitutes to apply all statements in the FURTHER INFORMATION column in their use of these substitutes. In many instances, the information simply refers to sound operating practices that have already been identified in existing industry and/or building-code standards. Thus, many of the comments, if adopted, would not require the affected industry to make significant changes in existing operating practices. D. Where can I get additional information about the SNAP program? For copies of the comprehensive SNAP lists of substitutes or additional information on SNAP, look at EPA's Ozone Depletion World Wide Web site at *http://www.epa.gov/ozone/snap/lists/index.html* . For more information on the Agency's process for administering the SNAP program or criteria for evaluation of substitutes, refer to the SNAP final rulemaking published in the **Federal Register** on March 18, 1994 (59 FR 13044), codified at Code of Federal Regulations at 40 CFR part 82, subpart G. You can find a complete chronology of SNAP decisions and the appropriate **Federal Register** citations at *http://www.epa.gov/ozone/snap/chron.html* . III. What is EPA's final listing decision on nPB in solvent cleaning? The Agency is listing nPB as an acceptable substitute in metals, precision and electronics cleaning end uses. Based on the available information, we find that nPB can be used with no substantial increase in overall risks to human health and the environment, compared to other available or potentially available substitutes for ozone-depleting substances in these end uses. EPA is issuing today's listing in the form of a final rule, rather than in a notice of acceptability, in order to respond to the public comments received on a Notice of Proposed Rulemaking

(NPRM)that we issued on June 3, 2003 (68 FR 33284). In that rule, we proposed listing n-propyl bromide

(nPB)as an acceptable substitute for use in metals, precision, and electronics cleaning, and in aerosols and adhesives end-uses, subject to the use condition that nPB used in these applications contains no more than 0.05% by weight of isopropyl bromide. In addition, in that proposed rule, EPA indicated that we also would recommend that users adhere to a voluntary acceptable exposure limit

(AEL)of 25 parts per million averaged over an eight-hour time-weighted average (TWA). Based on new information received after the close of the comment period on the June 2003 NPRM relevant to our proposed determinations for adhesive and aerosol solvent end uses in that same proposal, the Agency is issuing a new proposal for those end uses in a separate **Federal Register** action. The Agency is not including a recommended AEL in this final rule. Table 2 contains the text pertaining to nPB use in solvent cleaning end-uses that will be added to EPA's list of acceptable substitutes located on the SNAP Web site at *http://www.epa.gov/ozone/snap/lists/index.html* . This and other listings for substitutes that are acceptable without restriction are not included in the Code of Federal Regulations because they are not regulatory requirements. The information contained in the “Further Information” column of those tables are non-binding recommendations on the safe use of substitutes. Table 2.—Solvent Cleaning Acceptable Substitute End use Substitute Decision Further information Metals cleaning, electronics cleaning, and precision cleaning n-propyl bromide

(nPB)as a substitute for CFC-113 and methyl chloroform Acceptable EPA recommends the use of personal protective equipment, including chemical goggles, flexible laminate protective gloves and chemical-resistant clothing. EPA expects that all users of nPB would comply with any final Permissible Exposure Limit that the Occupational Safety and Health Administration issues in the future under 42 U.S.C. 7610(a). nPB, also known as 1-bromopropane, is Number 106-94-5 in the Chemical Abstracts Service

(CAS)Registry. IV. What criteria did EPA consider in making this final determination? In the original rule implementing the SNAP program (March 18, 1994; 59 FR 13044, at 40 CFR 82.180(a)(7)), the Agency identified the criteria we use in determining whether a substitute is acceptable or unacceptable as a replacement for class I or II compounds:

(i)Atmospheric effects and related health and environmental impacts; [e.g., ozone depletion potential]

(ii)General population risks from ambient exposure to compounds with direct toxicity and to increased ground-level ozone;

(iii)Ecosystem risks [e.g., bioaccumulation, impacts on surface and groundwater];

(iv)Occupational risks;

(v)Consumer risks;

(vi)Flammability; and

(vii)Cost and availability of the substitute. In this review, EPA considered all the criteria above. However, n-propyl bromide is used in industrial applications such as electronics cleaning. In those consumer products made using nPB, such as a computer, the nPB would have evaporated long before a consumer would purchase the item. Therefore, we believe there is no consumer exposure risk in the end uses we evaluated for this rule. Section 612(c) of the Clean Air Act directs EPA to publish a list of replacement substances (“substitutes”) for class I and class II ozone depleting substances based on whether the Administrator determines they are safe (when compared with other currently or potentially available substitutes) for specific uses or are to be prohibited for specific uses. EPA must compare the risks to human health and the environment of a substitute to the risks associated with other substitutes that are currently or potentially available. In addition, EPA also considers whether the substitute for class I and class II ODSs “reduces the overall risk to human health and the environment” compared to the ODSs being replaced. Our evaluation is based on the end use; for example, we compared nPB as a metal cleaning solvent against other available or potentially available metal cleaning alternatives. Although EPA does not judge the effectiveness of an alternative for purposes of determining whether it is acceptable, we consider effectiveness when determining whether alternatives that pose less risk are available in a particular application within an end use. There are a wide variety of acceptable alternatives listed for solvent cleaning, but not all are appropriate for a specific application because of differences in soils, materials compatibility, degree of cleanliness required, local environmental requirements, and other factors. For example, aqueous cleaners are effective cleaners in many situations and are the substitute of choice for many in the metal cleaning end use. However, in some specific precision cleaning applications that require a high degree of cleanliness and that have narrow spaces that may trap water used in rinsing, aqueous cleaners may not be appropriate and thus are not available in those specific applications. EPA evaluated each of the criteria separately and then considered overall risk to human health and the environment in comparison to other available or potentially available alternatives. We concluded that overall, while there are a number of alternatives that reduce the risks from ozone depletion or from smog production 1 slightly more than nPB when used in industrial solvent cleaning equipment, we found no single alternative that could work in all applications that clearly would reduce overall risks to human health and the environment in metals cleaning, electronics cleaning, and precision cleaning. Balancing the different criteria discussed below, nPB used in solvent cleaning end-uses does not pose a significantly greater risk than other substitutes or than the ODS it is replacing in these end uses. Thus, we are listing nPB as acceptable in metals cleaning, electronics cleaning, and precision cleaning. 1 Smog, also known as ground-level ozone, is produced from emissions of volatile organic compounds that react under certain conditions of temperature and light. A. Availability of Alternatives to Ozone-Depleting Substances Other alternatives to methyl chloroform and CFC-113 are available for metals, electronics, and precision cleaning that have already been found acceptable or acceptable subject to use conditions under the SNAP program including: Aqueous cleaners, semi-aqueous cleaners, alcohols, ketones, esters, ethers, terpenes, HCFC-225ca/cb, hydrofluoroethers (HFEs), hydrofluorocarbon (HFC)-4310mee, HFC-365mfc, heptafluorocyclopentane, hydrocarbons, volatile methyl siloxanes (VMSs), trans-1,2-dichloroethylene, methylene chloride, trichloroethylene 2 (TCE), perchloroethylene, 3 parachlorobenzotrifluoride (PCBTF), and alternative technologies like supercritical fluids, plasma cleaning, and ultraviolet/ozone cleaning. Some alternatives are unlikely to be used in particular end uses because of constraints such as cleaning performance, materials compatibility, cost, workplace exposure requirements, or flammability. For example, no-clean technology is used in electronics cleaning and not in precision cleaning because of the need for a high degree of cleanliness in precision cleaning. Of the available substitutes, aqueous cleaners or solvents for vapor degreasing such as TCE, blends of alcohols or trans-1,2-dichloroethylene and HFCs or HFEs, and HCFC-225ca/cb are most likely to be used in the same applications as nPB. nPB is already commercially available in solvent cleaning, and is used mostly for vapor degreasing in the electronics and precision cleaning end uses (IBSA, 2002). 2 Also called trichlorethene or TCE, C 2 Cl 3 H, CAS Reg. No. 79-01-6. 3 Also called PERC, tetrachloroethylene, or tetrachloroethene, C 2 Cl 4 , CAS Reg. No. 172-18-4. B. Impacts on the Atmosphere and Local Air Quality As discussed in the June 2003 proposal, nPB emissions from the continental United States are estimated to have an ozone depletion potential

(ODP)of approximately 0.013-0.018, (Wuebbles, 2002) 4 , lower than that of the ozone depletion potential of the substances that nPB would replace—CFC-113 (ODP=1.0), and methyl chloroform and HCFC-141b (ODPs = 0.12) (WMO, 2002). Some other acceptable alternatives for these ODSs also have low ODPs. For example, HCFC-225ca/cb has an ODP of 0.02-0.03 (WMO, 2002) and is acceptable in metals cleaning and aerosol solvents, and acceptable subject to use conditions in precision cleaning and electronics cleaning. HCFC-123 has an ODP of 0.02 (WMO, 2002), and is an acceptable substitute in precision cleaning. There are other acceptable cleaners that essentially have no ODP—aqueous cleaners, HFEs, HFC-4310mee, HFC-365mfc, HFC-245fa, hydrocarbons, VMSs, methylene chloride, TCE, perchloroethylene, and PCBTF. 4 nPB emissions in the tropics have an ODP of 0.071 to 0.100; the portions of the U.S. outside the continental U.S., such as Alaska, Hawaii, Guam, and the U.S. Virgin Islands, contain less than 1 percent of the U.S.'s businesses in industries that could use nPB. Thus, their potential impact on the ozone layer must be significantly less than that of the already low impact from nPB emissions in the continental U.S. (U.S. Economic Census, 2002a through f). The global warming potential

(GWP)index is a means of quantifying the potential integrated climate forcing of various greenhouse gases relative to carbon dioxide. Earlier data found a direct 100-year integrated GWP (100yr GWP) for nPB of 0.31 (Atmospheric and Environmental Research, Inc., 1995). More recent analysis that considers both the direct and the indirect GWP of nPB found a 100-yr GWP of 1.57 (ICF, 2003a; ICF, 2006a). In either case, the GWP for nPB is comparable to or below that of previously approved substitutes in these end uses. Use of nPB may be controlled as a volatile organic compound

(VOC)under state implementation plans

(SIPs)developed to attain the National Ambient Air Quality Standards for ground-level ozone, which is a respiratory irritant. Users located in ozone non-attainment areas may need to consider using a substitute for cleaning that is not a VOC or if they choose to use a substitute that is a VOC, they may need to control emissions in accordance with the SIP. Companies have petitioned EPA, requesting that we exempt nPB from regulation as a VOC. However, unless and until EPA issues a final rulemaking exempting a compound from the definition of VOC and states change their SIPs to exclude such a compound from regulation, that compound is still regulated as a VOC. Other acceptable ODS-substitute solvents that are VOCs for state air quality planning purposes include most oxygenated solvents such as alcohols, ketones, esters, and ethers; hydrocarbons and terpenes; trichloroethylene; trans-1,2-dichloroethylene; monochlorotoluenes; and benzotrifluoride. Some VOC-exempt solvents that are acceptable ODS substitutes include HFC-245fa for aerosol solvents; HCFC-225ca/cb, HFC-365mfc and HFC-4310mee for metals electronics, and precision cleaning and aerosol solvents; and methylene chloride, perchloroethylene, HFE-7100, HFE-7200, PCBTF, acetone, and methyl acetate for metals, electronics, and precision cleaning, aerosol solvents, adhesives, and coatings. C. Ecosystem and Other Environmental Impacts EPA considered the possible impacts of nPB if it were to pollute soil or water as a waste and compared these impacts to screening criteria developed by the Endocrine Disruptor Screening and Testing Advisory Committee (EDSTAC, 1998) (see Table 3). Available data on the organic carbon partition coefficient (K oc ), the breakdown processes in water and hydrolysis half-life, and the volatilization half-life indicate that nPB is less persistent in the environment than many solvents and would be of low to moderate concern for movement in soil. Based on the LC 50 , the acute concentration at which 50% of tested animals die, nPB's toxicity to aquatic life is moderate, being less than that for some acceptable cleaners (for example, trichloroethylene, hexane, *d* -limonene, and possibly some aqueous cleaners) and greater than that for some others (methylene chloride, acetone, isopropyl alcohol, and some other aqueous cleaners). The LC 50 for nPB is 67 mg/l, which is greater than 10 mg/l. Based on EPA's criteria for listing under the Toxics Release Inventory (U.S. EPA, 1992), we believe that nPB would not be sufficiently toxic to aquatic life to warrant listing under the Toxics Release Inventory. Based on its relatively low bioconcentration factor and log K ow value, nPB is not prone to bioaccumulation. Table 3 summarizes information on environmental impacts of nPB; trans-1,2-dichloroethylene, a commonly-used solvent in blends for aerosol solvents, precision cleaning, and electronics cleaning; trichloroethylene, a solvent used for metals, electronics, and precision cleaning; and methyl chloroform, an ODS that nPB would replace. Table 3.—Ecosystem and Other Environmental Properties of nPB and Other Solvents Property Description of environmental property Value for nPB Value for trans-1,2-dichloro-ethylene Value for trichloroethylene Value for methyl chloroform K oc , organic-carbon partition coefficient Degree to which a substance tends to stick to soil or move in soil. Lower values (< 300)* indicate great soil mobility; values of 300 to 500 indicate moderate mobility in soil 330 (Source: ICF, 2004a) 32 to 49 (Source: ATSDR, 1996) 106 to 460 (Source: ATSDR, 1997) 152 (Source: U.S. EPA, 1994a). Break down in water Mechanism and speed with which a compound breaks down in the environment. (Hydrolysis half-life values > 25 weeks* are of concern.) Hydrolysis is significant. Hydrolysis half-life of 26 days (Source: ICF, 2004a) Photolytic decomposition, dechlorination and biodegradation are significant; hydrolysis not significant (Source: ATSDR, 1996) Volatilization and biodegradation most significant, with hydrolysis relatively insignificant. Hydrolysis half-life of 10.7 to 30 months (Source: ATSDR, 1997) Volatilization most significant; biodegradation and hydrolysis also occur (Source: ATSDR, 2004). Volatilization half-life from surface waters Tendency to volatilize and pass from water into the air 3.4 hours-4.4 days (Source: ICF, 2004a) 3 to 6.2 hours (Source: ATSDR, 1996) 3.4 hours to 18 days (Source: ATSDR, 1997) Hours to weeks (Source: U.S. EPA, 1994a). LC 50 (96 hours) for fathead minnows Concentration at which 50% of animals die from toxicity after exposure for 4 days 67 mg/L (Source: Geiger, 1988) 108 mg/L (Source: U.S. EPA, 1980) 40.7 to 66.8 mg/L (Source: NPS, 1997) 52.8 to 105 mg/L (Source: U.S. EPA, 1994a). log K ow Logarithm of the octanol/water partition coefficient, a measure of tendency to accumulate in fat. Log K ow values >3* indicate high tendency to accumulate 2.10 (Source: ICF, 2004a) −0.48 (Source: LaGrega *et al.* , 2001, p. 1119) 2.38 (Source: LaGrega *et al.* , 2001, p. 1127) 2.50 (Source: LaGrega *et al.* , 2001, p. 1127). Bioconcentration factor High factors (>1000)* indicate strong tendency for fish to absorb the chemical from water into body tissues 23 (Source: HSDB, 2004) 5 to 23 (Source: ATSDR, 1996) 10 to 100 (Source: ATSDR, 1997) <9 (Source: U.S. EPA, 1994a). *Criteria from EDSTAC, 1998. nPB is not currently regulated as a hazardous air pollutant and is not listed as a hazardous waste under the Resource Conservation and Recovery Act (RCRA). nPB is not required to be reported as part of the Toxic Release Inventory under Title III of the Superfund Amendments and Reauthorization Act. Despite this, large amounts of nPB might be harmful if disposed of in water. We recommend that users dispose of nPB as they would dispose of any spent halogenated solvent (F001 waste under RCRA). Users should not dump nPB into water, and should dispose of it by incineration. D. Flammability and Fire Safety A number of commenters on the June 2003 proposal provided additional information on the flammability of nPB using standard test methods for determining flash point, such as the American Society for Testing and Materials

(ASTM)D 92 open cup, ASTM D56 Tag closed cup, and ASTM D93 Pensky-Martens closed cup methods (BSOC, 2000; Miller, 2003; Morford, 2003a, b and c; Shubkin, 2003; Weiss Cohen, 2003). We agree with the commenters that by these standard test methods, nPB displayed no flash point. Thus under standard test conditions, nPB is not flammable, and it should not be flammable under normal use conditions. With its low potential for flammability, nPB is comparable to chlorinated solvents, HCFCs, HFEs, HFC-245fa, HFC-4310mee, and aqueous cleaners, and is less flammable than many acceptable substitutes, such as ketones, alcohols, terpenes, and hydrocarbons. nPB exhibits lower and upper flammability limits of approximately 3% to 8% (BSOC, 2000). A number of other solvents that are typically considered to be non-flammable also have flammability limits (for example, methylene chloride, HCFC-141b, and methyl chloroform). If the concentration of vapor of such a solvent falls between the upper and lower flammability limits, it could catch fire in presence of a flame. Such a situation is unusual, but users should take appropriate precautions in cases where the concentration of vapor could fall between the flammability limits. E. Impact on Human Health In evaluating potential human health impacts of nPB, EPA considered impacts on both exposed workers and on the general population because we identified these groups of people as the ones likely to be exposed to nPB when it is used as a substitute for ozone-depleting substances. EPA evaluated the available toxicity data using EPA guidelines to develop health-based criteria to characterize human health risks (U.S. EPA, 1994b. RfC Guidelines; U.S. EPA, 1991. Guidelines for Developmental Toxicity Risk Assessment; U.S. EPA, 1995b. Benchmark Dose guidelines; U.S. EPA, 1996. Guidelines for Reproductive Toxicity Risk Assessment). In the June 2003 NPRM, EPA proposed that an exposure limit of 25 ppm would be protective of a range of effects observed in animal and human studies, including reproductive and developmental toxicity, neurotoxicity, and hepatotoxicity. Reduction of sperm motility in rats, noted across multiple studies at relatively low exposures, was determined to be the most sensitive effect. The Agency derived an exposure limit of 18 ppm from a dose response relationship in male rat offspring (“F1 generation”) whose parents were exposed to nPB from prior to mating through birth and weaning of the litters (WIL Research Laboratories, 2001). We then proposed to adjust this value upwards to 25 ppm based on principles of risk management consistent with one of the original “Guiding Principles” of the SNAP program (59 FR 13046, March 18, 1994). As we discussed in the June 2003 NPRM, EPA noted that adhesives users should be able to achieve an AEL of 25 ppm and that 25 ppm was between the level based on the most sensitive endpoint (sperm motility in the F1 offspring generation) and the second most sensitive endpoint (sperm motility in the F0 parental generation). Following SNAP program principles, we noted that “a slight adjustment of the AEL may be warranted after applying judgment based on the available data and after considering alternative derivations” (69 FR 33295). We stated further that “18 ppm is a reasonable but possibly conservative starting point, and that exposure to 25 ppm would not pose substantially greater risks, while still falling below an upper bound on the occupation[al] exposure limit.” As part of this final rulemaking, the Agency has reviewed both information available at the time of the 2003 NPRM related to the health risks associated with nPB use, as well as more recent case studies of nPB exposures and effects in the workplace, newly published toxicological studies, comments to the NPRM, new risk assessments on nPB, and a new threshold limit value

(TLV)issued by the American Council of Government and Industrial Hygienists (ACGIH). The new information is reviewed in greater detail in EPA's proposal specific to the use of nPB in aerosol solvents, adhesives, and coatings. Some general conclusions we draw from the new studies include: • New data from toxicological studies on nervous system effects remain inconsistent and equivocal concerning the level at which nervous system effects occur (Fueta *et al.* , 2002; Fueta *et al.* , 2004; Honma *et al.* , 2003; Ishidao *et al.* , 2002, NTP, 2003; Sohn *et al.* 2002, Wang *et al.* , 2003). • Case reports of nPB exposure in the workplace indicate that severe, possibly irreversible, neurological effects may occur at sustained concentrations of approximately 100 ppm or greater (Beck and Caravati, 2003; Majersik *et al.* , 2004; Majersik *et al.* , 2005; Ichihara *et al.* , 2002; Miller, 2005; Raymond and Ford, 2005). In other cases, similar or higher concentrations up to 170 ppm caused less severe nervous system effects (Nemhauser, 2005; NIOSH, 2003a; Ichihara, 2004a). Some neurological effects occurred in workers at levels of less than 50 ppm (Ichihara *et al.* , 2004b). Because of design and methodological limitations, such as small numbers of subjects and limited exposure information, these studies do not provide a sufficient quantitative basis to derive an acceptable exposure limit. • Data on female rats indicate that nPB affects the maturation of ovarian follicles and the ovarian cycle (Yamada *et al.* , 2003), consistent with previously reviewed data (WIL, 2001; Sekiguchi *et al.* , 2002). • Some data on occupation exposure suggest that workers exposed to nPB may have experienced menstrual disorders (Ichihara *et al.* , 2002; Ichihara *et al.* , 2004b). However, the data are not statistically significant and are not sufficient to conclude that nPB exposure caused these female reproductive effects. • Data on DNA damage in workers exposed to nPB was not statistically significant (Toraason *et al.* , 2006). • Metabolic data on mice and rats indicate some species differences. Metabolism of nPB appears to be primarily through cytochrome P450 enzymes, particularly in mice; glutathione conjugation also plays a role, and a bigger role for rats than for mice (RTI, 2005). These more recent studies do not cause us to change our acceptability determination for solvent cleaning. In addition, we considered new evaluations of the toxicity of nPB from Stelljes and Wood (2004), Toxicological Excellence in Risk Assessment (TERA, 2004), ICF (2004a, 2006a), and the TLV documentation from the ACGIH (ACGIH, 2005). • Stelljes and Wood

(2004)is similar in its results to SLR International (2001), a study by the same authors. EPA previously reviewed SLR International, 2001 in developing the June 2003 NPRM. Both these studies concluded with a recommended AEL of 156 ppm, based on male reproductive effects and uncertainty factors of 1 in driving the AEL. These documents assigned uncertainty factors in a manner inconsistent with EPA's guidance. This would result in a higher AEL than we would determine following the approach EPA has used on other chemicals, as well as an AEL that in our view would not sufficiently protect human health from nPB's effects because of multiple sources of uncertainty in available data ( *i.e.* , variability within the working population and differences between animals and humans in how nPB affects the reproductive system). • TERA

(2004)reviews other AEL derivations for nPB, performs a benchmark dose

(BMD)analysis, and recommends an AEL of 20 ppm based on live litter size. This document is consistent with EPA guidance for BMD modeling and for assigning uncertainty factors. A review of this document is available in the public docket (ICF, 2004b). • ICF (2004c, 2006b) derived an AEL for nPB based upon female reproductive effects. ICF (2004c, 2006b) discussed the relevant literature (Ichihara *et al.* , 1999, 2002, 2004a, 2004b; Sekiguchi, 2002; Yamada *et al.* , 2003; WIL, 2001) and calculated mean estrous cycle length and the mean number of estrous cycles occurring during a three-week period at different exposure levels in the WIL, 2001 2-generation study. ICF (2004c, 2006a) found statistically significant reductions in the number of estrous cycles in a three-week period, both including and excluding females that had stopped their estrous cycles, at 250, 500, and 750 ppm in the F0 parental generation and at 500 and 750 ppm in the F1 generation. ICF (2004c, 2006a) conducted BMD modeling and calculated benchmark dose lowerbound

(BMDL)values of the number of estrous cycles in a three-week period that varied from 102 to 208 ppm, depending upon the model used and the benchmark criteria selected. All data were calculated based on the mean reductions in estrous cycle number calculated from the WIL, 2001 study. Values were calculated for the F0 generation; the number of data for the F1 generation was too small for statistical analysis. The BMDLs that ICF calculated for the number of estrous cycles in a three-week period were 162 ppm and 208 ppm, depending on the benchmark response criteria (10% change in response vs. one standard deviation) and using a linear-heterogeneous model. • The ACGIH issued a recommended TLV of 10 ppm (time-weighted average) for nPB (ACGIH, 2005). ACGIH summarized numerous studies showing different effects of nPB and identified no observed effect levels (NOELs) of 200 ppm for hepatotoxicity (ClinTrials, 1997b) and less than 100 ppm for developmental toxicity, as evidenced by decreased fetal weight (Huntingdon Life Sciences, 2001). The Occupational Safety and Health Administration

(OSHA)has not developed a permissible exposure limit

(PEL)for nPB that EPA could use to evaluate toxicity risks 5 from workplace exposure. In prior SNAP reviews, EPA has used ACGIH TLVs where available in assessing a chemical's risks and determining its acceptability if OSHA has not set a PEL. ACGIH is recognized as an independent, scientifically knowledgeable organization with expertise in issues of toxicity and industrial hygiene. However, in this case, EPA believes that ACGIH's TLV for nPB of 10 ppm has significant limitations as a reliable basis for an acceptable exposure limit, especially given the availability of other, more comprehensive analyses described in this preamble. First, according to the authors of the Huntingdon Life Sciences study, the decrease in fetal weight was an artifact of sampling procedure that biased the data (test animals were only sacrificed at the end of the day rather than at random). The Center for the Evaluation of Risks to Human Reproduction (CERHR) expert panel excluded “aberrantly low” fetal weights from one litter in this study and calculated a BMDL greater than 300 ppm for this endpoint after removing those outlier data (CERHR, 2002a, 2003a, and 2004a). TERA calculated a BMDL similar to that of the CERHR expert panel when analyzing the same data set (TERA, 2004). Further, the reference list in the documentation on the TLV indicates that ACGIH did not review and evaluate all the studies available prior to the development of the recommended exposure limit. For example, key supporting articles that reported disruption of estrous cycles (Yamada *et al.,* 2003 and Sekiguchi *et al.* , 2002) were not discussed in the TLV documentation. Further, ACGIH did not provide sufficient reasoning for the selection of the chosen endpoint over others (e.g., reproductive toxicity and/or neurotoxicity). The lack of discussion of applied uncertainty factors also prevents a determination of how ACGIH arrived at a TLV of 10 ppm. In summary, EPA is not basing its proposed acceptability determination for nPB on the ACGIH TLV because:

(1)Other scientists evaluating the database for nPB did not find the reduced pup weight to be the most sensitive endpoint;

(2)BMD analysis of the reduced pup weight data (CERHR, 2002a; TERA, 2004) results in a higher BMDL (roughly 300 ppm) than those for sperm effects and estrous cycle changes; and

(3)ACGIH may not have reviewed the complete body of literature as several studies discussing neurotoxicity and female reproductive effects were omitted from the list of references. A number of reviews of this document are available in the public docket (ICF, 2004d; O'Malley, 2004). Despite some flaws in its derivation, the TLV of 10 ppm is less than two-fold lower than the low end of the range of acceptable exposure levels based on the most sensitive reproductive endpoints (see below). This small difference is well within the uncertainty we see when extrapolating a benchmark dose from an experimental study in rats to an occupational exposure limit in humans. 5 Vendors of nPB-based products have recommended a wide range of exposure limits, from 5 ppm to 100 ppm (Albemarle, 2003; Chemtura, 2006; Docket A-2001-07, item II-D-19; Enviro Tech International, 2006; Farr, 2003; Great Lakes Chemical Company, 2001). We summarize the data for a number of end points found in these analyses in Table 4 below. We examined these data to assess the acceptability of nPB use in the metals, electronics, and precision cleaning end uses reviewed in this final rule. These data indicate that, once uncertainty factors are applied consistent with EPA guidelines, the lowest levels for acceptable exposures would be derived for reproductive effects. 6 The data also indicate that a level sufficient to protect against male reproductive effects (e.g., reduced sperm motility) would be in a range from 18 to 30 ppm, in the range of 17 to 22 ppm to protect against female reproductive effects (e.g., estrous cycle length), and at approximately 20 ppm for effects related to reproductive success (live litter size). 6 By EPA guidelines, we would apply an uncertainty factor of √10, or approximately 3, for differences between species for all health effects. We would also apply an uncertainty factor of √10

(3)for variability within the working population for reproductive and developmental effects, because, among other reasons, these conditions would not necessarily screen out an individual from being able to work, unlike for liver or nervous system effects. Therefore, for reproductive and developmental effects, we use a composite uncertainty factor of 10. See further discussion of uncertainty factors in section V.B.3 below. Table 4.—Summary of Endpoints Using Benchmark Response Modeling Endpoint a Study BMDL b

(ppm)Human equivalent concentration

(HEC)c

(ppm)Liver Effects d Liver vacuolation in males (F 1 offspring generation) WIL, 2001 as analyzed in ICF, 2002 110 116 Liver vacuolation in males (F 0 parent generation) WIL, 2001 as analyzed in ICF, 2002 143 150 Liver vacuolation ClinTrials, 1997b as analyzed in ICF, 2002 and Stelljes & Wood, 2004 226 170 Reproductive Effects—Male Sperm motility (F 1 offspring generation) WIL, 2001 as analyzed in ICF, 2002 169 177 WIL, 2001 as analyzed in Stelljes & Wood, 2004 156 164 Sperm motility (F 0 parent generation) WIL, 2001 as analyzed in ICF, 2002 282 296 WIL, 2001 as analyzed in Stelljes & Wood, 2004 263 276 Prostate weight (F 0 parent generation) WIL, 2001 as analyzed in TERA, 2004 190 200 Sperm count Ichihara *et al.* , 2000b as analyzed in Stelljes & Wood, 2004 232 325 Sperm deformities (F 0 parent generation) WIL, 2001 as analyzed in Stelljes & Wood, 2004 296 311 Reproductive Effects—Female Number of estrus cycles during a 3 week period (F 0 parent generation) WIL, 2001 as analyzed in ICF, 2006a 162 170 WIL, 2001 as analyzed in ICF, 2006a 208 218 Estrous cycle length (F 1 offspring generation) d WIL, 2001 as analyzed in TERA, 2004 400 420 Estrous cycle length (F 0 parent generation) e WIL, 2001 as analyzed in TERA, 2004 210 220 No estrous cycle incidence (F 1 offspring generation) WIL, 2001 as analyzed in TERA, 2004 180 189 No estrous cycle incidence (F 0 parent generation) WIL, 2001 as analyzed in TERA, 2004 480 504 Reproductive Effects—Reproductive Success Decreased live litter size (F 1 offspring generation) WIL, 2001 as analyzed in TERA, 2004 190 200 Decreased live litter size (F 2 offspring generation) WIL, 2001 as analyzed in TERA, 2004 170 179 Pup weight gain, post-natal days 21 to 28 (F 1 offspring generation) WIL, 2001 as analyzed in TERA, 2004 180 189 Developmental Effects Fetal body weight WIL, 2001 as analyzed in TERA, 2004 310 326 Fetal body weight WIL, 2001 as analyzed in CERHR, 2002a 305 320 Nervous System Effects Hindlimb strength Ichihara *et. al.* , 2000a as analyzed in Stelljes and Wood, 2004 214 300 a Unless explicitly stated, data are from a parental generation. Of the studies analyzed, only the WIL, 2001 study has multiple generations to be analyzed. b The benchmark response value represents a specified level of excess risk above a control response. c When considering workplace exposures, the human equivalent concentration is the BMDL, adjusted to apply to a 40-hour work week in which workers are exposed for 8 hours a day for five days per week. Animals in the WIL, 2001 study were exposed for 6 hours a day, 7 days a week. Animals in the Ichihara, 2000a and 2000b studies were exposed for 8 hours a day, 7 days a week. Animals in the ClinTrials, 1997b study were exposed for 6 hours a day, 5 days a week. d After applying an uncertainty factor of 3 for animal to human extrapolation, acceptable levels of exposure to protect against liver effects would be in the range of 39 to 57 ppm. e Omits data from those animals that have stopped estrous cycling altogether (TERA, 2004). These more recent evaluations do not change EPA's acceptability determination for solvent cleaning. As discussed below, users of solvent cleaning equipment are reliably able to achieve exposure levels well below our proposed AEL of 25 ppm in the June 2003 NPRM and therefore we expect nPB users in the metals, electronics, and precision cleaning end uses to be able to achieve acceptable exposure levels. Concentrations of nPB emitted from industrial solvent cleaning equipment were found to be below 25 ppm in roughly 88% of 500 samples on an 8-hr time-weighted average, below 18 ppm in 81% of these samples, and below 10 ppm in roughly 70% of these samples (U.S. EPA, 2003). Based on review of the previously available information and information submitted in comments to the NPRM, the Agency believes that its derivation of 18 ppm as a starting point in the development of a recommended acceptable exposure level is still valid. For purposes of assessing the acceptability of nPB use in solvent cleaning applications, the Agency evaluated whether exposure levels expected to result from solvent cleaning would approach either the 2003 proposed recommended AEL of 25 ppm, or the more conservative starting point of 18 ppm which was derived from the Agency's original risk analysis. We also evaluated any potential risks to the general population associated with nPB use as a solvent. 1. Workplace Risks EPA believes that the great majority of users of nPB in metals cleaning, electronics cleaning, and precision cleaning have been able to attain exposure levels of well below 25 ppm, the proposed AEL in the 2003 NPRM, with their existing equipment. Recently measured exposure levels for nPB are much lower than historic exposure data from the 1970s and 1980s for metals cleaning and electronics cleaning (ICF, 2006a); this reflects both improvements in industrial hygiene practices and improvements in cleaning equipment since 1994 spurred by the National Emission Standard for Hazardous Air Pollutants for Halogenated Solvent Cleaning (59 FR 61801). Concentrations of nPB emitted from industrial solvent cleaning equipment were found to be below 25 ppm in roughly 88% of 500 samples on an 8-hr time-weighted average, below 18 ppm in 81% of these samples, and below 10 ppm in roughly 70% of these samples (U.S. EPA, 2003). One nPB supplier provided evidence that on the few occasions when nPB concentrations from vapor degreasers were higher than the company's recommended AEL of 25 ppm, users were able to reduce exposure easily and inexpensively by changing work practices, such as reducing drafts near the cleaning equipment (Kassem, 2003). The ability to meet the workplace exposure limit depends on:

(1)The features of the cleaning equipment used, such as the presence of secondary cooling coils; and

(2)the work practices, such as avoiding drafts near cleaning equipment and lifting cleaned pieces out slowly from the cleaning equipment. Workplace controls could include, but are not limited to, the use of the following: Covers on cold-cleaning and vapor degreasing equipment when not in use; devices to limit air movement over the degreaser; and/or a lip-vent exhaust system to capture vapors and vent them out of the room. Training workers in industrial hygiene practices and in the proper use of cold cleaning and vapor degreasing equipment, as well as warning workers of the symptoms that may occur from over-exposure to nPB, will also help reduce exposure. Therefore, we expect that users of nPB in the solvent cleaning sector following typical industry practices and using typical equipment for vapor degreasing will continue to meet acceptable exposure levels and to use nPB safely without regulatory requirements. This is the approach the SNAP program has taken with many other solvents where users are readily able to meet workplace exposure limit that will protect human health and there is no enforceable OSHA PEL ( *e.g.* , HFC-365mfc, HFC-245fa, heptafluorocyclopentane, ketones, alcohols, esters, hydrocarbons, etc.). Based on the available exposure data and current industry practices, EPA believes that users of nPB as an industrial solvent for metals cleaning, electronics cleaning, and precision cleaning are likely to be exposed to concentrations of nPB well below the proposed AEL of 25 ppm from the 2003 NPRM. 2. General Population Risks In the 2003 NPRM, the Agency provided analyses demonstrating that people living in the immediate vicinity of a facility using nPB in spray adhesives would have exposures below the community exposure guideline of 1 ppm (68 FR 33300-33301). The community exposure guideline was derived considering both sperm motility and liver effects in the WIL

(2001)2-generation study using EPA's reference concentrations

(RfC)guidelines (U.S. EPA, 1994b). Since the general population would not be exposed in excess of the community exposure guideline from a highly emissive application, the less emissive uses such as metals, electronics, and precision cleaning would create insignificant exposures (well below 1 ppm). Thus, we believe that proper use of nPB in solvent cleaning would not pose measurable risks to the general population. V. How is EPA responding to comments on the June 2003 NPRM? In this section, EPA responds to comments on the major issues in the June 2003 NPRM. A complete response to comments is in docket EPA-HQ-OAR-2002-0064. A. EPA's Acceptability Decision There was no consensus among commenters about whether EPA should find nPB acceptable, acceptable subject to use conditions, or unacceptable in the various end uses listed in the proposal. Some commenters raised concerns about specific end uses, particularly aerosols and adhesives. Others supported finding nPB acceptable in solvents cleaning and in adhesives. We are not taking final action in this rule with respect to nPB as a substitute in aerosols or adhesives. We will respond to any comments regarding those end uses at the time we take final action for aerosols and adhesives. *Comment:* Several commenters supported EPA's proposed approval of nPB under the SNAP program in various end uses. In contrast, two commenters opposed EPA's proposed acceptability determination in all end uses, including solvent cleaning, citing concerns about exposure and the toxicity of nPB. Another commenter stated that applications cited in the proposal (e.g., electronics and metals cleaning, label removal and spray cleaning) are not suitable for use of nPB. This commenter reasoned that if nPB provides unique performance characteristics, its uses should be limited to non-emissive and low-volume applications. A commenter from a company that markets nPB as a chemical intermediate but not as a solvent, noted that his company recognizes the health concerns associated with nPB, and thus his company continues to prohibit the sale of nPB to customers with dispersive uses. Another commenter stated that nPB is dangerous to the ozone layer and workers and urged EPA to find a safe substitute. *Response:* EPA believes nPB may be found acceptable under the SNAP program only in those end uses where it has been shown to be used safely, as compared with other substitutes that are currently or potentially available. We find this to be the case for metals cleaning, electronics cleaning, and precision cleaning. *Comment:* Several commenters agreed with EPA's proposed approval for nPB in metal cleaning, electronics cleaning, and precision cleaning end uses. One specifically reported that his company's industrial hygiene program for nPB-based solvents in metal and electronics cleaning has conducted extensive air sampling, and that the majority of the samples have shown values well below 25 ppm. This commenter also noted that, in those few workplaces where higher levels were found, adoption of recommended workplace ventilation and handling practices produced acceptable subsequent sample values. Thus, this commenter believes that exposures can be controlled to protective levels. One commenter expressed concerns over the approval of nPB as acceptable for use in solvent cleaning, maintaining that toxicity data is insufficient to be convincing that long-term effects will not be a concern. Two other commenters did not support EPA's proposal to find nPB acceptable. One of the commenters concurred with EPA that exposures from manual wipe cleaning will not be acceptable and that nPB should not be used in such operations. Another commenter opposed EPA's proposed acceptability determination for solvent cleaning, stating that use of nPB in applications such as electronics and metals cleaning, label removal, and spray cleaning is not appropriate. *Response:* EPA agrees with those commenters who said nPB should be acceptable for use in metal cleaning, electronics cleaning, and precision cleaning. By our definition of the solvent cleaning sector, such users are cleaning using industrial cleaning equipment. For an organic solvent, this means a vapor degreaser or an automated cold cleaning machine. Emissions from vapor degreasers can be controlled both through improving equipment (increasing the freeboard, adding cooling coils, or adding a lift that raises cleaned pieces slowly) and through improved work practices (leaving the vicinity of the vapor degreaser when done with work, tipping work-pieces so they do not catch solvent, or lifting cleaned pieces out slowly). In solvent cleaning equipment, exposure data show that nPB can meet an exposure level well below 25 ppm, even at levels of 5 ppm or less, the majority of the time (U.S. EPA 2003; ICF, 2006a). Concentrations of nPB emitted from industrial solvent cleaning equipment were measure to be below 25 ppm in roughly 88% of more than 500 samples, below 18 ppm in 81% of these samples, and at or below 5 ppm in 56% of these samples (U.S. EPA, 2003). In cases where exposure levels are higher, there are simple, cost-effective changes that can be made to reduce emissions (Kassem, 2003). We agree that manual cleaning using nPB is inappropriate, because of the difficulty of controlling emissions, but manual cleaning is currently beyond the scope of the SNAP Program. EPA plans to address spray cleaning using aerosols in a new proposal. B. Toxicity 1. Health Endpoints *Comment:* A number of commenters on the June 2003 NPRM suggested that EPA should consider neurotoxicity as the endpoint in deriving the AEL for nPB (Linnell, 2003; Werner, 2003; Rusch and Bernhard, 2003; Rusch, 2003). In particular, they requested that EPA consider the study conducted by Wang

(2003)and epidemiological data on neurotoxic effects of nPB. *Response:* Recent data collected from occupational settings indicate that severe, possibly irreversible, neurological effects may occur at sustained concentrations of approximately 100 ppm or greater (Beck and Caravati, 2003; Majersik, 2004; Majersik, 2005), with variability in effects observed in different studies, although in most cases exposures may have been much higher. Other studies with human data are discussed above in section IV.E. Because of design and methodological limitations, such as small numbers of subjects and limited exposure information, none of the recent studies individually provides a sufficient quantitative basis to derive an AEL. In the study on rats by Wang *et al.* (2003), measurements found a decrease in enzymes in the spinal cord and brain at 200, 400, and 800 ppm, but the animals displayed no physical or behavioral changes. Because of the lack of physical symptoms or behavioral changes, EPA does not believe that the decrease in enzyme levels in the central nervous system are toxicologically relevant. Other studies examining neurological effects of nPB showed those effects to be transient and reversible at and above 200 ppm (Ichihara *et al.* , 2000a). Exposures of 200 ppm and above for three weeks had no effect on memory, learning function, or coordination of limbs (Honma, 2003); the effect of spontaneous locomotor activity seen in this study at 50 ppm and above was not considered adverse by the authors. In other studies, neurological effects were absent after extended periods of exposure—after 28 days of exposure at concentrations > 400 ppm (ClinTrials, 1997a) and after 90 days of exposure at concentrations up to 600 ppm (ClinTrials, 1997b). Thus, although neurological effects have been associated with nPB exposure, the data are currently insufficient to quantify and set an AEL based on this endpoint. More recent data does not change EPA's acceptability determination for solvent cleaning. *Comment:* One commenter on the June 2003 NPRM requested that EPA evaluate a study by Yamada et al (2003), a study published just prior to the June 2003 NPRM. *Response:* EPA reexamined Yamada *et al.* , 2003 and re-evaluated the literature (Ichihara *et al.* , 1999, 2002, 2004a,b; Sekiguchi, 2002, Yamada *et al.* , 2003; WIL, 2001). Multiple benchmark analyses found a statistically significant decrease in the number of estrous cycles and increase in estrous cycle length associated with nPB exposure, consistent with other reproductive endpoints, namely reductions in sperm motility, decreased live litter size, and change in prostate weight (ICF, 2002a; ICF, 2006a; Stelljes and Wood, 2004; TERA, 2004). These more recent evaluations, which could lead to an HEC of 170 ppm and an AEL of 17 ppm, do not change EPA's acceptability determination for solvent cleaning, since the evidence supports the ability of users in this end use to consistently meet such a level. *Comment:* Some commenters stated that data from the F1 generation is inappropriate for calculating occupational exposure, citing statements from some toxicologists that use of effects on adult F1 generation animals is inappropriate. They also stated that EPA has not required this for other chemicals and that the resulting value is more conservative than what is normal and appropriate for industrial toxicology (Morford, 2003d and e; Ruckriegel, 2003). One commenter claims that because EPA's review of nPB differed from EPA's review of other SNAP alternatives, the process violates equal protection (Morford, 2003d and e). Others stated that sperm motility effects on the F1 generation are appropriate to consider (Risotto, 2003; Farr, 2003), particularly because of the potential for *in utero* effects and because of the consistent presence of these reproductive effects in both generations and at multiple levels. *Response:* EPA is not finalizing a specific AEL for the purposes of this final rule. EPA acknowledges that using data from the F1 offspring generation may be conservative because the pups in the F1generation were exposed to nPB between weaning and sexual maturity (WIL, 2001). During occupational exposure, this period of exposure would not occur because children under age 16 are not allowed to work in industrial settings. However, EPA believes that because of the potential for *in utero* effects that would only be seen in the offspring generation, looking only at the F0 parental generation could underestimate the adverse health impacts of a chemical. Therefore, it was appropriate for us to consider effects seen in both the F0 parental generation and the F1 offspring generation. Further, effects on sperm motility in the parental and offspring generations are seen at levels generally consistent with multiple reproductive effects seen in both generations and both sexes exposed to nPB, such as estrous cycle length, lack of estrous cycling, the number of estrous cycles in a given period of time, fertility indices, and the number of live pup births (TERA, 2004; ICF, 2006a; SLR International, 2001). We also note that different substances have different toxicological effects and those effects must be considered based on the best scientific information and methodologies available. It is incorrect to claim that such reviews, which focus on the effects of different substances, resulted in disparate treatment of nPB 7 . 7 We interpret the commenter's use of the term “equal protection” to mean that the commenter beleives that EPA has performend a harsher review of nPB than it has for other substitutes and not a claim that EPA has violated the 14 th Amendment of the Constitution, which applies only to the states and not the Federal Government. 2. Adjustments to Acceptable Exposure Level Based on Risk Management Principles In the 2003 NPRM, EPA derived 18 ppm as the starting point for an acceptable exposure level based on reduced sperm motility in the offspring generation of animals exposed to nPB (WIL, 2001). Following a SNAP program principle that alternatives should be restricted only where it is “clearly more harmful to human health and the environment than other alternatives,” we noted that “a slight adjustment of the AEL may be warranted after applying judgment based on the available data and after considering alternative derivations”(69 FR 33294, 33295). The Agency proposed an upward adjustment of the AEL to 25 ppm based on principles of risk management, and based, among other things, on a determination that 25 ppm was between the level based on the most sensitive endpoint (sperm motility in the F1 offspring generation) and the second most sensitive endpoint (sperm motility in the F0 parental generation). We stated further that “18 ppm is a reasonable but possibly conservative starting point, and that exposure to 25 ppm would not pose substantially greater risks, while still falling below an upper bound on the occupation[al] exposure limit.” *Comment:* Commenters responded that:

(1)The SNAP program does not create a presumption in favor of substances that are already available on the market, especially where other alternatives exist (Linnell, 2003; Werner, 2003);

(2)EPA's AEL derivation of 18 ppm is not conservative enough (Werner, 2003; Risotto, 2003) and further adjustment upward further reduces protection;

(3)the data do not support adjusting the AEL upward (EPA-HQ-OAR-2002-0064-0003);

(4)EPA should first use the same methodology in establishing an AEL as for other chemicals to ensure that the program's guiding principle in comparing risks is not compromised (Werner, 2003); and

(5)EPA should reconsider whether industrial exposures consistently occur or can be controlled at 25 ppm (Werner, 2003). No commenters specifically supported adjusting the AEL upward. *Response:* EPA is not finalizing a specific AEL for the purposes of this final rule. In a separate proposed rulemaking for the aerosol, adhesive and coatings end uses, we will be providing the public an opportunity to comment on a range of exposure level values that are comparable to the levels discussed in the June 2003 proposal (69 FR 33295) that the Agency would consider to be acceptable. Because we have concluded that end users in the solvent sector are routinely able to meet even the lowest exposure level we considered recommending (U.S. EPA, 2003), we do not need to make a final determination as to the appropriate level for purposes of this rulemaking. 3. Uncertainty Factors According to EPA risk assessment guidance for RfC (EPA 1994a), uncertainty factors of up to 10 may be applied to the “human equivalent concentrations (which accounts for worker exposure patterns of 8 hours per day for 5 days a week), for each of the following conditions:

(1)Data from animal studies are used to estimate effects on humans;

(2)Data on healthy people or animals are adjusted to account for variations in sensitivity among members of the human population (inter-individual variability);

(3)Data from subchronic studies are used to provide estimates for chronic exposure;

(4)Studies that only provide a LOAEL rather than a NOAEL or BMD; or

(5)An incomplete database of toxicity information exists for the chemical. *Comment:* Some commenters on the June 2003 NPRM stated that EPA should use an uncertainty factor of 1 or 2 to extrapolate from animals to humans (Weiss Cohen, 2003), while others suggested uncertainty factors of 2 or 3 for pharmacokinetics, or an overall uncertainty factor of 10 for rat to human extrapolation because of a lack of information on the metabolism and mode of action of nPB and because the rat is an insensitive model for effects on male reproduction in humans (Werner, 2003; Rusch and Bernhardt, 2003). *Response:* EPA believes that two uncertainty factors are appropriate for this database to account for

(1)physiological differences between humans and rats; and

(2)variability within the working population. EPA RfC guidelines state that an uncertainty factor of 10 may be used for potential differences between study animals and humans. This factor of 10 consists in turn of two uncertainty factors of 3—the first to account for differences in pharmacodynamics 8 and the second to account for differences in pharmacokinetics 9 between the study animal and humans. (The value of three is the square root of 10 rounded to one digit, with 10 representing an order of magnitude [EPA,1994a, pp. 1-6, 4-73]. In practice, EPA uses the square root of 10 when there are two or four uncertainty factors of 3, yielding a total uncertainty factor of 10 or 100, and we use a value of 3 when multiplying by other uncertainty factors.) In general, EPA's RfC guidelines state that for the uncertainty factor extrapolating from animal to human data, “Use of a 3 is recommended with default dosimetric adjustments.” (U.S. EPA, 1994b, p. 4-73). By EPA RfC guidelines (US EPA, 1994b), no adjustment for differences in pharmacokinetics is necessary in this instance because the blood/air partition coefficient 10 for nPB in the human (7.1) is less than in the rat (11.7), indicating that the delivered dose of nPB into the bloodstream in rats is slightly higher than in humans. EPA has seen no data to indicate that

(1)the toxicity is not directly related to the inhaled parent compound in the arterial blood, or that

(2)the critical metabolic pathways do not scale across species, with respect to body weight, in the same way as the ventilation rate. Consistent with Appendix J of EPA's RfC guidelines for an inhaled compound that exerts its effects through the bloodstream, EPA applies an uncertainty factor of 1 for pharmacokinetics and an uncertainty factor of 3 for differences between animals and humans. 8 Pharmacodynamics refers to the biochemical and physiological effects of chemicals in the body and the mechanism of their actions. 9 Pharmacokinetics refers to the activity or fate of chemicals in the body, including the processes of absorption, distribution, localization in tissues, biotransformation, and excretion. 10 The blood/air partition coefficient is the ratio of a chemical's concentration between blood and air when at equilibrium. Recent studies provide additional data regarding metabolism of nPB in rats and mice (RTI, 2005), but data on human metabolism are still lacking. One analysis of these metabolic data suggested that mice are less sensitive to the effects of nPB than rats and hypothesized that humans would also be less sensitive than rats (Stelljes, 2005). This analysis makes numerous assumptions about toxic nPB metabolites and metabolic activation pathways that have not been confirmed by experimental data. A review of this analysis is available in the public docket (ICF, 2006c). Despite the difference in metabolic pathways for nPB in mice and rats (RTI, 2005), EPA finds no significant species-specific differences in toxicity exist between rats and mice at inhaled concentrations <500 ppm for 13 weeks (NTP, 2003; ICF, 2006c). However, these metabolic and subchronic inhalation studies conducted under the National Toxicology Program did not specifically examine for reproductive toxicity or nPB metabolism in target organs that control reproductive function. In summary, there is little available data about the metabolic activation or reactive metabolites responsible for reproductive toxicity in rodents. Similarly, for nPB, there is little information available about differences and similarities between rodents and humans. Given this circumstance, EPA assumes, in the absence of evidence to the contrary, that nPB toxicity is directly related to the inhaled parent compound in the arterial blood and that the critical metabolic pathways scale across species in a manner similar to the ventilation rate (U.S. EPA, 1994b). Therefore, the Agency applied an uncertainty factor of 1 to account for interspecies differences in pharmacokinetics. Given the available data on the blood/air partition coefficient and EPA RfC guidance in the absence of other information, EPA is applying the same rationale used for other compounds reviewed under EPA's SNAP program with a comparable amount of data where an uncertainty factor of 1 for pharmacokinetics was applied. To account for uncertainty in pharmacodynamics of nPB, EPA is applying the default uncertainty factor of 3. This follows the procedures in EPA's RfC guidelines for situations where there are no data to compare pharmacodynamics in rats versus humans (U.S. EPA, 1994b). Recently published data on humans and rodents do not decrease the uncertainty regarding the pharmacodynamics of nPB; therefore, modification of the uncertainty factor of 3 for differences between species was not justified. *Comment:* One commenter stated that EPA did not cite any data that describes the size, condition, or existence of a subpopulation of men especially sensitive to the effects of nPB. In addition, this commenter asserted that sensitive populations are not traditionally considered when deriving an OEL, and that EPA has never mentioned a concern with sensitive subpopulations in previous SNAP reviews. Another commenter said that there is no evidence to support the assertion that nPB exposure below a 100 ppm average will further reduce sperm count or that the removal of nPB exposure will improve sperm count. *Response:* EPA disagrees with the comments. There are preexisting reproductive conditions as well as significant variability in fertility among otherwise healthy adults in the workplace. Both male and female reproduction have been shown to be adversely affected by aging, with effects on the ovarian cycle and on sperm motility as major factors changing with increasing age for women and men, respectively (Dunson *et al.* , 2002). Adding damage from other factors, such as smoking or occupational exposure to chemicals such as nPB, therefore, can potentially harm an individual's ability to reproduce further (Dunson, *et al.* 2002). EPA did not issue a proposal based on sperm count, so that comment is not relevant to this rule. In addition, we note that EPA has used uncertainty factors in the past to protect sensitive subpopulations on other chemicals reviewed under the SNAP program ( *e.g.* , trifluoroiodomethane at 60 FR 31092, 61 FR 25585 and IoGas TM Sterilant Blends at 69 FR 58903). For deriving AELs from health endpoints such as liver effects and neurotoxicity, the SNAP program typically has assigned an uncertainty factor of 1 for sensitive subpopulations because we assume that individuals who are especially susceptible to these effects will have greater difficulty working than most people. However, there is no connection between the ability to reproduce and the ability to work in the industrial sectors discussed in this rule. Thus, we find it appropriate to require an uncertainty factor greater than 1 for reproductive effects for variability within the working population. *Comment:* Some commenters said that an uncertainty factor of 1 is appropriate for variability within the working population because sensitive subpopulations will not be present in the working population (Stelljes, 2003, Morford, 2003e). Other commenters stated that there will be very little difference in variability between the worker population and the general population and that it is unclear why EPA selected an uncertainty factor of 3 instead of 10 (Werner, 2003). Commenters suggested uncertainty factors for variability in the working population of 1, 2, and 5 (Stelljes, 2003, Weiss Cohen, 2003, Werner, 2003). *Response:* EPA disagrees with the commenters. EPA's RfC guidelines recommend an uncertainty factor of 10 to account for intraspecies variability within the general population. However, in developing an AEL, EPA's focus is on worker exposure, which excludes some particularly vulnerable populations, such as children, most adolescents, and the elderly. Thus, we believe that a full uncertainty factor of 10, as for the general population, may be higher than necessary to protect workers. Certain individuals in the general population but not in the working population that might be particularly vulnerable would include children and adolescents under age 16 and individuals with immune deficiency disorders. However, because of variability in reproductive function due to factors present among workers, such as aging, smoking, and sexually transmitted disease (Dunson *et al.* , 2002), and because there is no screening of workers that would make workers more likely to have healthy reproductive systems than non-workers of the same age, we believe than an uncertainty factor of 1 is not sufficiently protective. Under EPA guidelines, 3 is a default value for an uncertainty factor where there is indication that a value less than an order of magnitude

(10)but greater than one is appropriate, and where the available data are not sufficiently quantified to select a specific value. 4. Other Analyses of nPB's Toxicity *Comment:* One commenter stated that documents by Drs. Doull, Rozman, Stelljes, Murray, Rodricks, and the KS Crump Group were not acknowledged (Morford, 2003d,e, and f). Another commenter requested that EPA take into account the scientific presentations presented by Drs. Doull, Rozman and Stelljes and mentions a review by Dr. Rodricks (Weiss Cohen, 2003). *Response:* EPA specifically mentioned and responded to the occupational exposure limit recommendations from Drs. Rozman, Doull, and Stelljes in the preamble to the June 2003 NPRM at 68 FR 33298-33299. In addition, EPA included more detailed written responses to these derivations and the evaluation by Dr. Rodricks in the online docket prior to proposal (EPA-HQ-OAR-2002-0064-0017, -0018, and -0019). Here are abbreviated responses to the various documents cited by the commenter: • Drs. Doull and Rozman's letter dated August 24, 2001, stating that a two-generational reproductive study is not appropriate (Docket A-2001-07, item II-D-26)—Drs. Doull and Rozman do not provide a rationale for their statement. Their statement is in conflict with their AEL derivation, in which they consider use of the F1 generation of the WIL Laboratories two-generation study. As discussed above in section V.B.1, EPA believes that data from a two-generation reproductive study are appropriate in developing a guideline for the workplace in order to assure that workers and their children are protected from any adverse health effects of workplace exposure, including exposure *in utero.* We acknowledge that this value may be more conservative than considering data only from the parental generation. • Drs. Doull and Rozman's critique of ICF's AEL derivation (II-D-41b)—Drs. Doull and Rozman's primary stated reason for rejecting ICF Consulting's evaluation is that it does not reflect their own AEL derivation. They reiterate that they find neurotoxicity to be the appropriate basis for an AEL without addressing the reasons that ICF's derivation provides for finding reproductive toxicity to be of greater concern than neurotoxicity. We disagree with Doull and Rozman's conclusion that neurotoxicity is the more appropriate endpoint for several reasons:

(1)The human data are insufficient to draw conclusions because of a small number of subjects, limited exposure information, and lack of statistical significance;

(2)the animal data on neurotoxicity are inconsistent and equivocal concerning the level at which nervous system effects occur, and they indicate that neurotoxic effects may be reversible; and

(3)neurotoxicity is a less sensitive endpoint than reproductive effects. However, if we had used neurotoxicity as the endpoint for an AEL, we would have reached the same acceptability determination for solvent cleaning. The basis of EPA's June 2003 NPRM is different from either one of these documents because it uses a different endpoint from Doull and Rozman's derivation

(2001)and an uncertainty factor of 3 instead of 2 to 3 for variability within the working population (Doull and Rozman, 2001; ICF, 2002a). According to EPA guidance on establishing uncertainty factors, if a uncertainty factor is between 1 and 10 and the data are not sufficient to quantify the uncertainty between those values, the default uncertainty factor to be used is 3 (U.S. EPA, 1994b). • Drs. Rozman and Doull's derivation of an AEL (II-D-63)—EPA discussed our evaluation of this document at length in the preamble of the June 2003 NPRM at 68 FR 33298. In particular, we disagree with Rozman and Doull's selection of the most sensitive endpoint. Rozman and Doull concluded that reproductive toxicity should not be considered the most sensitive endpoint, stating that a National Institute for Occupational Safety and Health (NIOSH) evaluation found that no human beings at a facility using nPB-based adhesives experienced reproductive health effects from the nPB. However, the NIOSH study in fact concluded that the survey questions would not be sufficient to determine if there were reproductive health effects, which is significantly different from saying that there was no health effect. The expert panel for the CERHR looked at the NIOSH report and a wide range of human and animal studies on nPB; in contrast to Rozman and Doull, the expert panel concluded that there was insufficient information on reproductive effects of nPB on humans and that the results of tests on animals were considered appropriate for evaluating potential reproductive health effects on humans. Further, EPA disagrees with the specific AEL value of 60 to 90 ppm that Rozman and Doull derived. They used data on headaches from a draft NIOSH survey, selecting an endpoint of 190 ppm. However, the data in the final survey were not sufficient to detect any dose-response with any statistical significance (Custom Products HHE, II-A-49). Further, more recent studies on human exposure to nPB have found neurotoxic effects occurring at levels at least as low as 86 ppm, and possibly lower than 60 ppm (Ichihara 2004a, Beck and Caravati 2003). These data would indicate that an AEL of 60 to 90 ppm is not sufficiently protective against neurotoxic effects. Drs. Rozman and Doull themselves now suggest that an AEL of 25 ppm may be more appropriate for protecting against neurotoxic effects (Rozman and Doull, 2005). • Dr. Rodricks' AEL derivation and comments on ICF's derivation (II-D-65)—EPA reviewed Rodricks

(2002)in developing its June 2003 NPRM, although the study was not explicitly mentioned in that preamble. Rodricks

(2002)suggests an AEL of 60 to 88 ppm for nPB, based on male reproductive effects. Dr. Rodricks says that the most sensitive endpoint that is relevant for occupational exposure is data from the parent generation of the two-generation reproductive study. Dr. Rodricks suggests that an uncertainty factor of only 1 to 2 is necessary for animal to human extrapolation because one should consider animals and workers of average sensitivity; although such an argument presumably could be made for any chemical used in the workplace, EPA has not seen other AEL derivations that use this approach. Dr. Rodricks appears to agree with ICF that an uncertainty factor for variability in reproductive function in the human population is reasonable, although he suggests a factor of 2 instead of the range of 2 to 3 in ICF's derivation. Dr. Rodricks and colleagues previously recommended an AEL for nPB of less than 10 ppm, and at that time suggested an uncertainty factor of 10 for variability in reproductive function in the human population (A-91-42, X-B-53). We discussed above the use of data from both the F0 and F1 generations and the use of an uncertainty factor of 3 for variability within the working population. • Dr. Stelljes's critique of ICF's AEL derivation (II-D-41a)—Dr. Stelljes states that ICF should have used data from the parent generation rather than from the offspring generation because “data from F1 animals is not directly applicable to a workplace exposure setting because both parents would not be exposed to nPB on a daily basis over the reproductive cycle, and also have their offspring exposed daily from weaning.” EPA disagrees in part with Dr. Stelljes's reasoning. Data from F0 animals may not be sufficiently protective because effects on the F0 animals will not reflect effects of *in utero* exposure. However, we agree that exposure during weaning is not reflective of workplace exposure, and thus, data from F1 animals may be conservative. EPA proposed 25 ppm instead of 18 ppm in part to take this conservatism into account. • Dr. Stelljes's (SLR International's) AEL derivation (II-D-13)—EPA discussed this AEL derivation at length in the preamble to the proposed rule at 68 FR 33298. We agreed with Dr. Stelljes's BMD modeling and his selection of reduced sperm motility in the F1 offspring generation of the WIL Laboratories study as the most sensitive endpoint. However, we disagree with Dr. Stelljes's selection of uncertainty factors. There is no information showing that human sex cells are less sensitive to nPB than rat sex cells, and there is considerable evidence that human males have less reproductive capacity than male rats (U.S. EPA, 1996). Therefore, it is appropriate to add an uncertainty factor of at least 3 to account for differences between rats and humans. Further, Stelljes dismisses the use of an uncertainty factor for differences within the human population. Although we agree that children and the elderly would not be present in the workplace as sensitive subpopulations, there certainly is variability in the reproductive abilities of different working-age people that would have no impact on the individual's ability to be hired or to work; therefore, EPA expects there is some variability in the susceptibility of working individuals to the effects of reproductive toxicants. EPA believes that male reproductive capacity is very susceptible to chemical insult (U.S. EPA, 1996). • Dr. Murray's opinion on parent and offspring generations (II-D-58)—Dr. Murray says that because the offspring generation will not yet have developed sperm while *in utero,* it is more appropriate to use data from the parent generation of the two-generation study. However, Dr. Murray does not address the possibility that nPB exposure during pregnancy could influence the production of hormones that eventually would result in sperm production. Further, Dr. Murray's response does not address potential effects on ova, which would be present while a fetus is still in its mother's womb. • Report on uncertainty factors used by ACGIH from K.S. Crump Group (IV-D-26/OAR-2002-0064-0047 and -48)—This report concluded that EPA's approach to selecting uncertainty factors for use in risk assessment was more transparent, with justification for each value selected, and was more consistent than the values apparently used by the ACGIH in deriving TLVs. EPA agrees with these conclusions. *Comment:* A commenter states that “an uncertainty factor of 10 is NOT ‘generally' used to derive occupational exposure limits and that in fact, uncertainty factors of 3 or less or more commonly used,” citing the K. S. Crump Group's report. *Response:* In the case of the TLV that ACGIH established for nPB, ACGIH appears to set an AEL that is a factor of 10 lower than the endpoint cited as lowest (100 ppm for effects on pup weight) (ACGIH, 2005). Thus, ACGIH has used an approach for nPB consistent with the total uncertainty factor of 10 assigned by EPA. 5. Overall Stringency of the Acceptable Exposure Limit *Comment:* Some commenters supported the proposed AEL of 25 ppm, stating that it was derived using appropriate conservative and cautious scientific processes. Other commenters said that the proposed AEL of 25 ppm was too high, citing uncertainties in the data, the inappropriateness of adjusting the AEL upward from 18 ppm, reports of health effects on humans, and a need for higher uncertainty factors. Other commenters said that the proposed AEL of 25 ppm was too low, citing higher AELs derived by Drs. Stelljes, Doull, Rozman, and Rodricks, NIOSH studies, and a need for lower uncertainty factors. Commenters suggested alternate AEL values ranging from 1 ppm to 156 ppm. *Response:* In this final rule, EPA is not recommending an acceptable exposure limit. We have based our determination of acceptability by comparing measured exposure levels from workers using nPB in solvent cleaning to exposure levels discussed by EPA in the proposal (see section IV.E). At the levels discussed in the NRPM or higher, we find nPB acceptable for solvent cleaning. After considering the available scientific studies on toxicity, exposure data, and alternative derivations of the acceptable exposure limit, we find that the exposure levels discussed in 2003 provide sufficient protection for human health and are consistent with EPA's derivations of AELs for other chemicals reviewed under the SNAP program and EPA guidance for risk assessment. 6. Skin Absorption In the June 2003 NPRM, EPA discussed listing nPB with a skin notation, and proposed that this was not necessary (68 FR 33295). *Comment:* Several commenters on the June 2003 proposal stated that a skin notation for nPB is appropriate, while another commenter agreed with EPA's proposal that no skin notation was necessary (Smith, 2003; HESIS, 2003; Werner, 2003, Weiss Cohen, 2003). One commenter said that EPA should require manufacturers, distributors, and marketers of nPB-containing products to communicate such information on the Material Safety Data Sheets

(MSDS)and the product label. *Response:* We agree with the commenter that said a skin notation is not necessary. However, today's decision includes a recommendation for users to wear protective clothing and flexible laminate gloves when using nPB to address the concerns about dermal exposure. Rat studies indicate that dermal exposure to nPB results in neither appreciable absorption through the skin (RTI, 2005) nor systemic toxicity (Elf Atochem, 1995). Unlike methyl chloride and dichlorvos, which are absorbed through the skin and could contribute to systemic toxicity (ACGIH, 1991), EPA is not including a skin notation for nPB in the information provided to users associated with this rulemaking because of the relatively low level of absorption. The ACGIH provides no skin notation in its TLV documentation for several solvents, including nPB (ACGIH, 2005), methylene chloride, and perchloroethylene, and there is no evidence that absorption through the skin is greater for nPB than for the other halogenated compounds. The TLV documentation for nPB states, “There is no basis for a skin notation because the dermal LD50 of 1-BP was >2 g/kg.” Further, including a statement giving advice about how to reduce skin exposure in the “Further Information” column of listings is likely to be more informative to workers than a skin notation. Given the possibility that some nPB can be absorbed through the skin in humans, and that the solvent can irritate the skin, EPA encourages users to wear protective clothing and flexible laminate gloves when using nPB and encourages manufacturers, distributors, and marketers of nPB-containing products to include such precautions in their MSDSs. EPA believes that our regulatory authority for the SNAP program is over the substitution

(use)of ozone-depleting substances, and thus, we do not believe we have sufficient authority to regulate the manufacturers, distributors and marketers of nPB. 7. Iso-Propyl Bromide Limit In the June 2003 proposed rule, we proposed as a use condition that nPB formulations contain no more than 0.05% isopropyl bromide

(iPB)11 by weight because of potential health effects associated with this isomer (68 FR 33301-33302). 11 iPB is also referred to as 2-bromopropane, 2-propyl bromide, or 2-BP. Its CAS registry number is 75-26-3. *Comment:* Two commenters said that 0.05% iPB is an appropriate and achievable limit. (Smith, 2003; Weiss Cohen, 2003). One of these commenters stated that industry test studies showed that lower limits were neither toxicologically justified nor economical. Another commenter opposed the implementation of the proposed use restriction, stating that it places an undue legal burden on end users, rather than the manufacturers of raw materials, and would not benefit worker safety. This commenter also stated that this is the only instance that SNAP has regulated residual contaminants. This commenter also suggested that EPA defer to an AEL of 1 ppm for iPB established by the government of Korea and the Japan Society for Occupational Health. Moreover, this commenter said that the difference between the acceptable iPB exposure determined by EPA and that determined by ASTM-D6368-00 is very small and, thus, EPA's proposed regulation does not add any value to existing standards. Finally, this commenter noted that epidemiological data found no adverse effect on human workers exposed to 110 ppm of iPB (Ichihara, specific study not identified by the commenter). (Morford, 2003g and h). *Response:* We agree that industry has achieved this contamination limit for several years without regulation. We also agree that the concentration of iPB likely to be breathed in by workers would be below 1 ppm even if workers were exposed to concentrations of nPB at 100 ppm or more, provided that the iPB content meets the ASTM-D6368-00 standard for nPB used in vapor degreasing. Further, even if iPB were present in nPB formulations in concentrations as high as 1%, if industry meets the AEL for nPB proposed in 2003 of 25 ppm, or lower, exposures still would be at most 0.25 ppm. This is below the level of 1 ppm established by the Korean government and by the Japan Society for Occupational Health (Morford, 2003h). Therefore, we are not adopting a use condition for iPB for the solvent cleaning end uses. 8. Short-Term Exposure Limit

(STEL)In the June 2003 NPRM, EPA recommended a short-term exposure limit of 75 ppm (three times the AEL). *Comment:* One commenter noted that there was no indication in the various applications as to how the exposures from those operations compared to the EPA recommendation for a STEL at 75 ppm. This commenter asserted that the potential for exceeding the STEL in solvent cleaning applications appears high and should, therefore, be investigated by EPA. This commenter also stated that, depending on the results of this investigation, EPA may choose to find nPB unacceptable in metals cleaning or restrict its use to where ventilation is employed and/or personal protective equipment is worn. *Response:* EPA disagrees that it is necessary to use a short-term exposure limit in determining the acceptability of nPB in solvent cleaning. Acute, short-term exposures of nPB are not of significant health concern, so long as long-term exposures are below the 8-hour TWA limit (ERG, 2004). EPA provided the STEL recommendation in the June 2003 proposal to give guidance to the user community, consistent with the following recommendation of the American Conference of Governmental Industrial Hygienists (ACGIH): “Excursions in worker exposure levels may exceed 3 times the [threshold limit value] TLV-TWA for no more than a total of 30 minutes during a workday” (ACGIH 1999). We note that when the ACGIH developed a TLV for nPB, they said there were no data to support a short-term exposure limit (ACGIH, 2005). C. Ozone Depletion Potential We proposed that, since the ODP of nPB in the continental U.S. is only 0.013 to 0.018 relative to an ODP of 0.8 for CFC-113, 0.1 for methyl chloroform, and 0.1 for HCFC-141b, nPB should not be found unacceptable because of its ODP (68 FR 33303). The Agency recognized that nPB's ODP could be much higher in tropical regions, as high as 0.071 to 0.100, but since EPA is regulating nPB used in the U.S., we made our decision based on the ODP in the continental U.S. *Comment:* One commenter on the June 2003 NPRM provided information (Wuebbles, 2002) and stated that “even if the entire amount of nPB produced in 2002 was emitted across North American, European and Asian latitudes, the resulting effects on ozone depletion would be too small to measure.” The same commenter said that the effects on ozone would only be larger if all emissions were to occur in the equatorial region. (Morford, 2003f). *Response:* EPA agrees that, based on the current usage of nPB and its ODP in the U.S., there is not a significant impact on the ozone layer. *Comment:* Comments on the June 2003 NPRM expressed concern that other countries, particularly those in equatorial regions, might assume that nPB does not pose a danger to the stratospheric ozone layer if the U.S. EPA's SNAP program finds nPB acceptable (Linnell, 2003; Steminiski, 2003). *Response:* Because the ODP for nPB is higher when used in the tropics (see footnote 3 above in section IV.2), we recognize the concerns raised by these commenters. However, EPA is regulating use in the U.S. and cannot dictate actions taken by other countries. For example, other countries could choose to continue to use nPB even if EPA were to find it unacceptable in the U.S. We believe the more appropriate forum to address this concern is through the Parties to the Montreal Protocol. At the most recent Meeting of the Parties to the Montreal Protocol, the Parties made the following decision with regard to n-propyl bromide, in order to “allow Parties to consider further steps regarding n-propyl bromide, in the light of available alternatives” (Decision XVIII/11): 1. To request the Scientific Assessment Panel to update existing information on the ozone depletion potential of n-propyl bromide, including ozone depleting potential depending on the location of the emissions and the season in the hemisphere at that location; 2. To request the Technology and Economic Assessment Panel to continue its assessment of global emissions of n-propyl bromide, * * * paying particular attention to:

(a)Obtaining more complete data on production and uses of n-propyl bromide as well as emissions of n-propyl bromide from those sources;

(b)Providing further information on the technological and economical availability of alternatives for the different use categories of n-propyl bromide and information on the toxicity of and regulations on the substitutes for n-propyl bromide;

(c)Presenting information on the ozone depletion potential of the substances for which n-propyl bromide is used as a replacement; 3. To request that the Technology and Economic Assessment Panel prepare a report on the assessment referred to in paragraph 1 in time for the twenty-seventh meeting of the Open-ended Working Group for the consideration of the Nineteenth Meeting of the Parties. (MOP 18, 2006) D. Other Environmental Impacts With respect to environmental effects other than ozone depletion potential, we stated in the June 2003 NPRM that users should observe existing Federal, state, and local regulations such as those under the Resource Conservation and Recovery Act or those for compliance with the National Ambient Air Quality Standards (68 FR 33304). *Comment:* Commenters stated that, until the safety of nPB has been demonstrated conclusively, more stringent controls are necessary to protect the public and the environment. In particular, these commenters said that the potential for cross-media impacts was not given adequate consideration in the proposed rule. They also stated that EPA did not address the potential for nPB to bioaccumulate in the environment or its impact on sensitive species. One commenter said that he thought it was appropriate to ensure that nPB be kept out of wastewater, and an independent contractor also mentioned concerns about water pollution. Another commenter said that nPB hydrolyzes more quickly than the chlorinated solvents, and so would have less impact on water quality. Currently, the representative's company recommends that spent solvents be incinerated, and offers free pickup and disposal of spent solvent to its customers. *Response:* EPA agrees that it should not be standard practice to dispose of spent nPB in water, and that nPB should be kept out of wastewater to the extent possible. This may be achieved by recycling or through incineration. These also are good practices with other spent halogenated solvents, whether or not they are specifically listed as hazardous wastes. EPA's PBT (persistence/bioaccumulation/toxicity) profiler tool suggested that, based on its structure, nPB would not be considered persistent in water or soil and that nPB would have a low tendency to bioaccumulate (8.3, where 1000 is considered bioaccumulative and greater than 5000 is considered very bioaccumulative). Further, the calculated bioconcentration factor for nPB is only in the range of 18 to 23 (HSDB, 2004; ICF, 2004a). Under EPA's criteria for listing chemicals on the Toxics Release Inventory, this would not be a level of concern (ICF 2004a, EPA 1992). Therefore, we conclude further testing for bioaccumulation of this chemical is not needed before rendering a decision for use of nPB in the solvent cleaning sector. Currently, the estimated amount of nPB used in the U.S. in SNAP sectors is on the order of 10 to 12 million pounds per year, which corresponds to roughly 1% of the organic solvent cleaning market, a relatively small amount. It is unlikely that very large amounts of nPB will enter and remain in the nation's water supply, because: • nPB tends to evaporate quickly, with a calculated half-life of 3.4 hours in a river or 4.4 days in a lake due to volatilization. • nPB hydrolyzes readily, with a measured hydrolysis half-life of 26 days at 25° C and pH 7. • If released to the atmosphere, nPB will exist solely in the vapor phase based on its vapor pressure of 110.8 mm Hg. Thus, it is unlikely to be redeposited in rainwater in significant amounts. (PBT Profiler, 2007; ICF, 2004a) Further, because nPB is short-lived compared to ODS and many ODS substitutes, it is unlikely that nPB will create a substantially greater impact than other acceptable cleaning solvents and than the ODS it replaces. EPA is required by the Clean Air Act to consider whether a replacement for an ODS is more harmful, overall, to human health and the environment than other available or potentially available substitutes. The available information shows that nPB will not be more hazardous than other available, acceptable solvents if it pollutes water or soil. E. Flammability In the June 2003 NPRM, we proposed that nPB should not be restricted or found unacceptable because of flammability (68 FR 33303). EPA specifically requested data concerning the flashpoint of pure nPB, including the test method used to provide the data. *Comment:* Several manufacturers of nPB and nPB-based solvents and an independent contractor stated that nPB has no flash point under a number of accepted consensus standards for flash point. In support of these statements, the manufacturers of nPB and nPB-based solvents provided flash point test data from a number of different test methods (ASTM D 92 open cup, ASTM D56 Tag closed cup, and ASTM D93 Pensky-Martens closed cup). *Response:* EPA agrees. The test results provided by the commenters indicates that nPB has no flash point using a number of standard test methods, including ASTM D 92 open cup, ASTM D56 Tag closed cup, and ASTM D93 Pensky-Martens closed cup. Based on these data, we find that nPB is not flammable under standard test conditions. EPA concludes that nPB should not be considered unacceptable on the basis of flammability risks. F. Legal Authority to Set Exposure Limits *Comment:* Two commenters stated that EPA has no jurisdiction to develop any AEL designed to be applicable to a workplace environment, and that this right belongs to OSHA. *Response:* As an initial matter, EPA notes that it has not established an AEL applicable to the workplace in this rule. Rather, EPA reviewed the available information to determine what a safe workplace exposure might be in order to determine whether use of nPB in the solvent cleaning sector poses substantially more risk than use of other available substitutes. The analysis performed by EPA imposes no binding obligation on anyone, particularly in this case where EPA determined that nPB is acceptable for use in the solvent cleaning sector. Although the Occupational Safety and Health Act (OSH Act) gives the Occupational Safety and Health Administration

(OSHA)authority to issue a rule setting or revising an occupational safety or health standard (29 U.S.C. 655(b)), it does not prohibit other Federal agencies from reviewing the safe level of exposure under other statutes that require consideration of the human health and environmental effects of a substance. Conversely, although section 4(b)(1) of the OSH Act prohibits OSHA from regulating a working condition addressed by another federal agency's regulations affecting occupational safety or health, this provision is overridden with respect to EPA's exercise of authority under the Clean Air Act by 42 U.S.C. 7610. That provision states: “(a) Except as provided in subsection

(b)of this section, this chapter shall not be construed as superseding or limiting the authorities and responsibilities, under any other provision of law, of the Administrator or any other Federal officer, department, or agency.” Section 612 of the Clean Air Act expressly recognizes that some substitutes for ODS may pose more risk to human health and the environment than others and expressly requires EPA to prohibit use of substitutes that pose more risk than other substitutes that are currently or potentially available. Thus, in evaluating whether a substitute should be found acceptable, we must compare the risks to human health and the environment of that substitute to the risks associated with other substitutes that are currently or potentially available. Our long-standing interpretation is that worker safety is a factor we consider in determining whether a substitute poses significantly greater risk than other available substitutes. In the original SNAP rule, we promulgated the criteria we would review for purposes of determining whether a substitute posed more risk than other available substitutes. Specifically, 40 CFR 82.178(a) specifies the information we require as part of a SNAP application and 40 CFR 82.180(a)(7) identifies the criteria for review. Notably, we require submitters to provide information regarding the exposure data (40 CFR 82.178(a)(10)) and we identify “occupational risks” as one of the criteria for review (40 CFR 82.180(a)(7)(iv)). In the preamble of the original SNAP rule, we said that we would use any available OSHA PELs, EPA inhalation reference concentrations, or EPA cancer slope factor data for a substitute together with exposure data to explore possible concerns with toxicity (March 18, 1994; 59 FR 13066). We have reviewed substitutes based on existing OSHA PELs, where available, and, where not available, based on our own assessment of what level is safe for workers. (See e.g., March 18, 1994, 59 FR 13044; Sept. 5, 1996, 61 FR 47012; June 8, 1999, 64 FR 30410; June 19, 2000, 65 FR 37900; December 18, 2000, 65 FR 78977; March 22, 2002, 67 FR 13272; August 21, 2003, 68 FR 50533). In making our own assessment, we review any existing recommended exposure guidelines and available scientific studies and use EPA's risk assessment guidelines (e.g., U.S. EPA, 1994b). In the case of EPA's evaluation of nPB, there is no final OSHA PEL for EPA to use in evaluating workplace exposure risks. There is a wide variability in the workplace exposure guidelines recommended by manufacturers of nPB-based products, ranging from 5 ppm to 100 ppm, thus providing no definitive value for evaluating the human health risks of workplace exposure. The ACGIH has recently established a TLV for nPB of 10 ppm; however, as discussed above in section IV.E, EPA has concerns about the scientific basis for this TLV. As provided in the original SNAP rule, in the absence of a definitive workplace exposure limit set by OSHA, we evaluated the available information to establish our own health-based criteria for evaluating nPB's human health risks to workers. *Comment:* A commenter said that EPA's authority for the SNAP program is under section 615 of the Clean Air Act and that the SNAP program only has authority to take action based on effects on the stratosphere. Specifically, the commenter claims section 615 of the CAA limits EPA's authority under title VI to regulating for purposes of protecting the stratospheric ozone layer. Citing section 618, the commenter also contends that section 618 identified SNAP requirements as “requirements for the control and abatement of air pollution” and cites the CAA and EPA policy documents as identifying ambient air as air external to buildings. The commenter also notes that title VI was intended to implement the Montreal Protocol and that it replaced former Part B. The commenter cites legislative history from the enactment of Part B that indicated EPA's authority under Part B was not intended to pre-empt authority of other agencies to take action with respect to hazards in their areas of jurisdiction and that EPA's authority under Part B was only to fill regulatory gaps and not to supersede existing authority of other agencies. With respect to the legislative history of the 1990 Amendments, the commenter argues that there is no suggestion that “EPA has authority to set workplace worker-exposure standards.” The commenter also cites legislative history from the Toxic Substances Control Act in which Congress indicated EPA's authority under that statute does not extend to setting workplace standards. *Response:* While many provisions in title VI address the regulation of substances that deplete the stratospheric ozone layer, section 612 which governs the SNAP program is broader. The purpose of Section 612 is to review substitutes for ODS and Section 612 of the Clean Air Act clearly requires EPA to consider both the environmental effects as well as *human health,* which includes both the health of the general population and workers. EPA believes there is no doubt that the statutory language requires EPA to consider effects beyond those on the stratospheric ozone layer. In addition, the legislative history makes clear that this language is to be interpreted broadly. Specifically, the report of House Debate on the Clean Air Act Amendments provides “the Administrator shall base risk estimates on the total environmental risk (toxicity, flammability, atmospheric, etc.) that is perceived to exist, not just the risk as it relates to ozone depletion.” House Debate on the Clean Air Act Amendments of 1990 Conference Report, S-Prt 103-38 at 1337. The legislative history cited by the commenter is not pertinent. The legislative history for Part B of Title I of the Act is not relevant because that section was repealed in 1990. Public Law 101-549, section 601. Nor is the legislative history for other statutes, such as TSCA, relevant for determining what authority Congress granted to EPA under the CAA. The commenter incorrectly states that sections 615 and 618 of the CAA place limits on EPA's authority under section 612 of the Act. These provisions expand, rather than restrict, the Administrator's authority. Section 615 is a separate provision of the statute and provides general authority for the Administrator to regulate for purposes of addressing adverse effects to the stratosphere. This provision does not explicitly or implicitly purport to limit the Administrator's authority under other provisions of the Act. Rather, it is a general provision authorizing the Administrator to regulate for protecting against adverse effects to the stratospheric ozone layer. With respect to section 618, we first note that the commenter appears to equate the stratospheric ozone layer with “ambient air.” In fact, they are two different things. Ambient air is defined as “that portion of the atmosphere, external to buildings, to which the general public has access.” 40 CFR 50.1(e). The stratospheric level generally extends from 10 to 50 kilometers above the earth and is not considered air to which the public has access. [See *http://www.epa.gov/ozone/defns.html* ]. The definition of “air pollutant” under the CAA is defined in terms of substances emitted to the “ambient air.” The purpose of section 618 is to make clear that for purposes of sections 116 (retention of state authority) and 118 (control of pollution from federal facilities), the provisions in Title VI governing protection of the stratospheric ozone layer shall be treated the same as if they were for the purpose of controlling and abating “air pollution” (i.e., pollution to the ambient air). Again, this is not for the purpose of restricting the Administrator's authority under any provision of the Act. Rather, it is for the purpose of extending the protections of Title VI to programs that otherwise only address air pollution (i.e., ambient air, which does not include the stratospheric ozone layer). *Comment:* A commenter stated that EPA's claim to authority conflicts with the Department of Labor's administrative “whistleblower” case law. These cases hold that a whistleblower action may proceed under the CAA only when the complaint concerned substances emitted to the ambient air. Claims regarding air quality within the workplace are brought under the whistleblower provisions of the OSH Act. *Response:* The commenter overstates the import of the decisions issued by the Administrative Review Board. In each of the cited decisions, the Board examined the specific circumstances before it to determine which statutory whistleblower provision provided the basis for the claimed action. While making general pronouncements that the CAA regulates ambient air and OSHA regulates air within the workplace, none of these opinions specifically addressed the scope of EPA's authority under section 612, the SNAP provisions of the Act. *Comment:* A commenter stated that even if ventilation or other measures could reduce exposures to below 25 ppm, there is nothing to ensure that companies will take such measures. This commenter also stated that he is aware of nPB formulators that have already announced they will not adhere to this voluntary standard. Three commenters, all representing local environmental regulators, stated that a recommendation that worker exposure be limited to 25 ppm will not carry the enforcement powers of an OSHA standard, and that this lack of control will encourage the use of nPB in applications beyond those envisioned by EPA. Another commenter asserted that the proposed exposure limits (both the AEL and the STEL) should be established as use conditions, citing Section 612 as the basis for EPA's authority to do so. This commenter stated that a precedent has already been set for EPA to accept an alternative chemical subject to use conditions—including that observance of workplace concentration limits—in the adhesives, aerosols, and solvent cleaning sectors (e.g., HCFC-225 ca/cb, HFC-4310mee, monochlorotoluenes, benzotrifluorides; 40 CFR part 82, subpart G, appendices A, B, and D). *Response:* EPA agrees that a recommended AEL from EPA does not provide the same level of protection as an enforceable standard from OSHA. We also agree that EPA has the authority under section 612 to require use conditions in those circumstances where use of a potentially promising substitute would otherwise be unacceptable unless those use conditions are met and there are significant concerns about the ability of industry to meet a safe level for use. In the preamble to the original SNAP rule, we recognized that there may be cases where OSHA has not regulated worker exposure to a substitute. We went on to say that “EPA anticipates applying use conditions only in the rare instances where clear regulatory gaps exist, and where an unreasonable risk would exist in the absence of any conditions.” For the solvent cleaning end use, we do not believe that there is an unreasonable risk in the absence of a use condition. Available exposure data show that roughly 88% of samples from nPB users in solvent cleaning met an exposure level of 25 ppm, 81% met an exposure level of 18 ppm, and 70% met an exposure level of 10 ppm (U.S. EPA, 2003). One nPB supplier provided evidence that on the few occasions when nPB concentrations from vapor degreasers were higher than the company's recommended AEL of 25 ppm, users were able to reduce exposure easily and inexpensively by changing work practices, such as reducing drafts near the cleaning equipment (Kassem, 2003). Therefore, we expect that users of nPB in the solvent cleaning sector following typical industry practices and using typical equipment for vapor degreasing will continue to use nPB at levels considered safe for workers. As noted above, this is the approach we indicated we would follow at the time of the original SNAP rule and we have taken this same approach for many other solvents where users are readily able to meet a workplace exposure limit that will protect human health and there is no enforceable OSHA PEL (e.g., HFC-365mfc and heptafluorocyclopentane at 65 FR 78977, ketones, alcohols, esters, and hydrocarbons at 59 FR 13044). *Comment:* One commenter claims that section 6 of the Occupational Safety and Health Act requires OSHA to make certain legal findings before promulgating a standard and that therefore EPA has no authority to develop any AEL applicable to a workplace environment. Furthermore, since OSHA is the only agency that can make standards applicable in the workplace, any level developed by EPA is misleading. The same commenter said that EPA offers no reasoning as to why a different methodology for setting an AEL (from that of OSHA) is necessary or advisable. Therefore, this commenter believes that the Agency's process violates equal protection unless EPA is publishing a new standard for chemical review under SNAP. *Response:* In this rulemaking, EPA has not developed an AEL that is applicable in any workplace. Rather, EPA looked at a range of possible AELs for purposes of determining whether nPB will pose significantly greater risk than other substitutes that are available in the same end use. The range of levels EPA used for its analysis is not binding. Moreover, as explained above in section V.B.2, EPA has concluded that for purposes of finding nPB acceptable in the solvent cleaning end use, it is not necessary to provide a non-binding recommended workplace exposure limit because these users in the solvent cleaning sector are regularly able to comply with even the lowest level EPA considered in performing its evaluation. For standards covering hazardous chemicals in the workplace, the OSH Act requires OSHA to set standards that, to the extent feasible, ensure that workers do not suffer material impairments of health. Standards established by OSHA under their statute have not typically prohibited the use of the chemical in any particular application, but instead establish performance goals for the use and handling of hazardous chemicals that reduce such risks to the extent feasible. The available information on health effects of nPB on workers is not sufficiently well-characterized to develop a standard based on avoiding material impairments of health in workers. Most manufacturers and organizations that set workplace exposure limits such as ACGIH and the American Industrial Hygiene Association use an approach similar to EPA's and do not base exposure limits on avoiding material impairments of health in workers. Because of the need for large amounts of well-characterized data from the workplace on exposures and associated health effects to prepare an AEL to prevent material impairment, if EPA were to develop AELs for nPB and other chemicals based on the approach required by section 6 of the OSH Act, EPA would effectively be unable to assess the human health effects of ODS alternatives in time to assist industry in transitioning away from ODS. In order to provide for a more timely assessment of human health effects, as well as one that is consistent with federal guidelines of the National Academies of Science (NAS, 1983), we have considered exposure levels following EPA guidance (U.S. EPA, 1994b). Different substances have different toxicological effects and those effects must be considered based on the best scientific information and methodologies available. It is incorrect to claim that such reviews, which focus on the effects of different substances, resulted in disparate treatment of nPB. VI. How can I use nPB as safely as possible? Below are actions that will help nPB users minimize exposure levels: All End Uses • All users of nPB should wear appropriate personal protective equipment, including chemical goggles, flexible laminate protective gloves (e.g., Viton, Silvershield) and chemical-resistant clothing. Special care should be taken to avoid contact with the skin since nPB, like many halogenated solvents, can be absorbed through the skin. Refer to OSHA's standard for the selection and use of Personal Protective Equipment, 29 CFR 1910.132. • Limit worker exposure to solvents to minimize any potential adverse health effects. Workers should avoid staying for long periods of time in areas near where they have been using the solvent. Where possible, shorten the period during each day when a worker is exposed. Where respiratory protection is necessary to limit worker exposures, respirators must be selected and used in accordance with OSHA's Respiratory Protection standard, 29 CFR 1910.134. • Use less solvent, or use a different solvent, either alone or in a mixture with nPB. • Follow all recommended safety precautions specified in the manufacturer's MSDS. • Workers should receive safety training and education that includes potential health effects of exposure to nPB, covering information included on the appropriate MSDSs, as required by OSHA's Hazard Communication Standard (29 CFR 1910.1200). • Request a confidential consultation from your State government on all aspects of occupational safety and health. You can contact the appropriate state agency that participates in OSHA's consultation program. These contacts are on OSHA's Web site at *http://www.osha.gov/oshdir/consult.html.* For further information on OSHA's confidential consultancy program, visit OSHA's web page at *http://www.osha.gov/html/consultation.html.* • Use the employee exposure monitoring programs and product stewardship programs where offered by manufacturers and formulators of nPB-based products. • If the manufacturer or formulator of your nPB-based product does not have an exposure monitoring program, we recommend that you start your own exposure monitoring program, and/or request a confidential consultation from your State government. A medical monitoring program should be established for the early detection and prevention of acute and chronic effects of exposure to nPB. The workers' physician(s) should be given information about the adverse health effects of exposure to nPB and the workers' potential for exposure. • For non-aerosol solvent cleaning, follow guidelines in the National Emissions Standards for Hazardous Air Pollutant (NESHAP) for halogenated solvents cleaning if you are using nPB. The equipment and procedural changes described in the halogenated solvents NESHAP can reduce emissions, reduce solvent losses and lower the cost of cleaning with organic solvents. For more information on the halogenated solvents NESHAP, visit *http://www.epa.gov/ttn/atw/eparules.html* and *http://www.epa.gov/ttn/atw/degrea/halopg.html.* We note that these steps are useful for reducing exposure to any industrial solvent, and not just nPB. VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order

(EO)12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” It raises novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Accordingly, EPA submitted this action to the Office of Management and Budget

(OMB)for review under EO 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. In addition, EPA prepared an analysis of the potential costs and benefits associated with this action. This analysis is contained in the document “Analysis of Economic Impacts of nPB Rulemaking.” A copy of the analysis is available in the docket for this action (Ref. EPA-HQ-OAR-2002-0064) and the analysis is briefly summarized here. In our analysis, we assumed that capital costs are annualized over 15 years or less using a discount rate for determining net present value of 7.0%. The acceptability determination for solvents cleaning imposes no requirements and thus creates no additional cost to users. EPA also considered potential costs end users could incur to meet acceptable exposure levels if they are not already achieving it. EPA found that those users using nPB-based solvents in a vapor degreaser would save money by reducing solvent losses, and that the savings would recover the costs of emissions controls (e.g., secondary cooling coils, automated lifts or hoists) within a year of installation. Based on evidence from solvent suppliers, EPA believes that some of those users would have chosen to use nPB in order to avoid meeting requirements of the national emission standard for halogenated solvents cleaning and that they would only become aware of the potential savings due to reduced solvent usage as a result of this proposal (Ultronix, 2001; Kassem, 2003; Tattersall, 2004). Based on available exposure data for each sector, we assumed that 81% of nPB users in the non-aerosol solvent cleaning sector already achieve exposure levels at the lowest level that we considered, i.e., 18 ppm (U.S. EPA, 2003). Of those nPB solvent users with exposure levels above that, we examined the cost associated with reducing emissions on average by 60%. If all nPB users in solvent cleaning reduced exposures to 18 ppm, EPA estimates that users would save up to $2 million dollars per year, overall (U.S. EPA, 2007). The value will depend on the number of users that attempt to meet an acceptable exposure level which is already being achieved with existing equipment, the initial exposure level of cleaning solvent users, the price of nPB, and the amount of emission control equipment installed. B. Paperwork Reduction Act There are no new requirements for reporting or recordkeeping or information collection associated with this final rule. The final rule merely allows the use of substitutes for ozone-depleting substances, without requiring the collection, keeping, or reporting of information. OMB has previously approved the information collection requirements contained in the existing regulations in subpart G of 40 CFR part 82 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* and has assigned OMB control number 2060-0226 (EPA ICR No. 1596.06). This ICR included five types of respondent reporting and record-keeping activities pursuant to SNAP regulations: submission of a SNAP petition, filing a SNAP//Toxic Substance Control Act

(ICR)may be obtained from Susan Auby, Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by calling

(202)566-1672. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act

(RFA)generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. The RFA provides default definitions for each type of small entity. Small entities are defined as:

(1)A small business as defined by the Small Business Administration's

(SBA)regulations at 13 CFR 121.201;

(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and

(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. However, the RFA also authorizes an agency to use alternate definitions for each category of small entity, “which are appropriate to the activities of the agency” after proposing the alternate definition(s) in the **Federal Register** and taking comment. 5 U.S.C. 601(3)—(5). In addition, to establish an alternate small business definition, agencies must consult with SBA's Office of Advocacy. For purposes of assessing the impacts of EPA's June 2003 proposed rule on small entities, EPA proposed to define “small business” as a small business with less than 500 employees, rather than use the individual SBA size standards for the numerous NAICS subsectors and codes to simplify the economic analysis. We solicited comments on the use of this alternate definition for this analysis in the June 2003 NPRM and received no public comments. EPA also consulted with the SBA's Office of Advocacy on the use of an alternate small business definition of 500 employees. The Office of Advocacy concurred with EPA's use of this alternate definition to analysis the economic impacts on small businesses from the use of n-propyl bromide as an acceptable substitute for use in metals, precision, and electronics cleaning, and in aerosols and adhesives end-uses. Therefore, EPA used this alternate definition for this final rule. We believe that no small governments or small organizations are affected by this rule. This approach slightly reduced the number of small businesses included in our analysis and slightly increased the percentage of small businesses for whom the analysis indicated the use of nPB in metals, precision, and electronics cleaning may have an economically significant impact. The number and types of small businesses that are subject to this rule have not changed significantly since the June 2003 proposal. EPA intends to use this alternate definition of “small business” for regulatory flexibility analyses under the RFA for any other rule related to the use of nPB as a chemical alternative to ozone-depleting substances

(ODS)for the same end uses in the June 2003 NPRM (e.g., adhesives and aerosol solvents). After considering the economic impacts of this rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. EPA estimates that approximately 1470 users of nPB industrial cleaning solvents (e.g., cleaning with vapor degreasers) would be subject to this rule. This rule lists nPB as an acceptable substitute for ODS. This rule itself does not impose any binding requirements on users of nPB, and therefore will not have a significant economic impact on a substantial number of small entities. EPA did however analyze the potential economic impacts on small businesses that use nPB for cleaning solvents for metals cleaning, electronics cleaning, or precision cleaning. The details of EPA's analysis are described in the supporting materials for this rulemaking (U.S. EPA, 2007). Based on its analysis, EPA believes businesses using nPB-based cleaning solvents for metals cleaning, electronics cleaning, or precision cleaning would experience significant cost benefits by reducing spending on solvent. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. This final rule does not affect State, local, or tribal governments. This rule contains no enforceable requirements. The impact of users meeting the AEL range discussed in the preamble is from a savings of $2 million per year to a cost of $0 million per year. Therefore, the impact of this rule on the private sector is less than $100 million per year. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. This regulation applies directly to facilities that use these substances and not to governmental entities. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects 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.” This final rule does not have federalism implications. It will not have substantial direct effects 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, as specified in Executive Order 13132. This regulation applies directly to facilities that use these substances and not to governmental entities. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” This final rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. This final rule would not significantly or uniquely affect the communities of Indian tribal governments, because this regulation applies directly to facilities that use these substances and not to governmental entities. Thus, Executive Order 13175 does not apply to this final rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045: “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:

(1)Is determined to be “economically significant” as defined under Executive Order 12866, and

(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This final rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The exposure limits and acceptability listings in this final rule apply to the workplace. These are areas where we expect adults are more likely to be present than children, and thus, the agents do not put children at risk disproportionately. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This action would impact manufacturing of various metal, electronic, medical, and optical products cleaned with solvents containing nPB and products made with adhesives containing nPB. Further, we have concluded that this rule is not likely to have any adverse energy effects. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. J. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective July 30, 2007. VIII. References The documents below are referenced in the preamble. All documents are located in the Air Docket at the address listed in section I.B.1 at the beginning of this document. Unless specified otherwise, all documents are available electronically through the Federal Docket Management System, Docket # EPA-HQ-OAR-2002-0064. Some specific items are available only in hard copy in dockets A-2001-07 or A-92-42 (legacy docket numbers for SNAP nPB rule and for SNAP program and submissions). Numbers listed after the reference indicate the docket and item numbers. Availability IBSA, 2002. Record of September 5, 2002 Meeting with the International Brominated Solvents Association Inc. (A-2001-07, II-D-60) Ozone-Depletion Potential and Other Environmental Impacts ATSDR, 1994. Toxicological Profile For Acetone. Agency for Toxic Substances and Disease Registry. May, 1994. Available at *http://www.atsdr.cdc.gov/toxprofiles/tp21-c5.pdf* (EPA-HQ-OAR-2002-0064-0118) ATSDR, 1996. Toxicological Profile For 1,2-Dichloroethene. Agency for Toxic Substances and Disease Registry. August, 1996. Available at *http://www.atsdr.cdc.gov/toxprofiles/tp87-c5.pdf* (EPA-HQ-OAR-2002-0064-0113) ATSDR, 1997. Toxicological Profile For Trichloroethylene. Agency for Toxic Substances and Disease Registry. September, 1997. Available at *http://www.atsdr.cdc.gov/toxprofiles/tp19-c5.pdf* (EPA-HQ-OAR-2002-0064-0123) ATSDR, 2004. Draft Toxicological Profile For 1,1,1-Trichloroethane. Agency for Toxic Substances and Disease Registry. September, 2004. Updated draft for comment. Available at *http://www.atsdr.cdc.gov/toxprofiles/tp70-c6.pdf* (EPA-HQ-OAR-2002-0064-0132) EDSTAC, 1998. Final Report of the Endocrine Disruptor Screening and Testing Advisory Committee. August, 1998. (EPA-HQ-OAR-2002-0064-0136) Geiger *et al.* , 1998. Geiger, D.L., Call, D.J., and Brooke, L.T. 1988. Acute Toxicities of Organic Chemicals to Fathead Minnows ( *Pimephales promelas* ), Vol. 4. In: Center for Lake Superior Environmental Stud., Univ. of Wisconsin-Superior, Superior, WI I:355. (Summarized in ICF, 2004a) HSDB, 2004. Hazardous Substances Databank File for 1-Bromopropane. Accessed 1/2004 from the World Wide Web at *http://toxnet.nlm.nih.gov/cgi-bin/sis/search/f?./temp/~dLwM9e:1* (Summarized in ICF, 2004a) ICF, 2004a. ICF Consulting. Memo to E. Birgfeld, EPA, re: nPB Aquatic Toxicity. January 19, 2004. (EPA-HQ-OAR-2002-0064-0193) LaGrega, M., Buckingham, P., Evans, J., and Environmental Resources Management, 2001. *Hazardous Waste Management* . Second Edition. McGraw-Hill, New York, NY. 2001. (EPA-HQ-OAR-2002-0064-0112) Linnell, 2003. Comments from the Electronics Industry Alliance. (EPA-HQ-OAR-2002-0064 items -0043, -0044, and -0045) NPS, 1997. Irwin, R.J., M. VanMouwerik, L. Stevens, M.S. Seese, and W. Basham. 1997. Environmental Contaminants Encyclopedia. National Park Service, Water Resources Division, Fort Collins, Colorado. (EPA-HQ-OAR-2002-0064-0086) Steminiski, 2003. July 27, 2003 Comment from J. Steminiski, PhD. (EPA-HQ-OAR-2002-0064-0035 and -0043) U.S. Economic Census, 2002a. General Summary: 2002. Subject Series. Report No. EC02-31SG-1, October, 2005. U.S. Census Bureau. (EPA-HQ-OAR-2002-0064-0133) U.S. Economic Census, 2002b. U.S. Economic Census for Island Areas, 2002. Report for Northern Marianas Islands, Rpt. No. IA02-00A-NMI, May, 2004. U.S. Census Bureau. (EPA-HQ-OAR-2002-0064-0091) U.S. Economic Census, 2002c. U.S. Economic Census for Island Areas, 2002. Report for Guam, Rpt. No. IA02-00A-GUAM, March, 2005. U.S. Census Bureau. (EPA-HQ-OAR-2002-0064-0102) U.S. Economic Census, 2002d. U.S. Economic Census for Island Areas, 2002. Report for Virgin Islands, Rpt. No. IA02-00A-VI , April, 2005. U.S. Census Bureau. (EPA-HQ-OAR-2002-0064-0131) U.S. Economic Census, 2002e. U.S. Economic Census for Island Areas, 2002. Report for American Samoa, Rpt. No. IA02-00A-AS, April, 2005. U.S. Census Bureau. (EPA-HQ-OAR-2002-0064-0103) U.S. Economic Census, 2002f. U.S. Economic Census for Island Areas, 2002. Report for Puerto Rico: Manufacturing, Rpt. No. IA02-00I-PRM, October, 2005. U.S. Census Bureau. (EPA-HQ-OAR-2002-0064-0107) U.S. EPA, 1980. Ambient Water Quality Criteria for Dichloroethylenes. EPA 440/5-80-041 October, 1980. Available at *http://www.epa.gov/waterscience/pc/ambientwqc/dichloroethylenes80.pdf* U.S. EPA, 1992. Hazard Assessment Guidelines for Listing Chemicals on the Toxic Release Inventory, Revised Draft. Washington, DC: Office of Pollution, Prevention and Toxics. As referenced in ICF, 2004a. U.S. EPA, 1994a. Chemical Summary for Methyl Chloroform, prepared by Office of Pollution Prevention and Toxics, August, 1994. (EPA-HQ-OAR-2002-0064-0121) WMO, 2002: Scientific Assessment of Ozone Depletion: 2002, Global Ozone Research and Monitoring Project—Report No. 47, Geneva, 2003 Full report available online at *http://esrl.noaa.gov/csd/assessments/* (A-2001-07, II-A-20) Wuebbles, Donald J. 2002. “The Effect of Short Atmospheric Lifetimes on Stratospheric Ozone.” Written for Enviro Tech International, Inc. Department of Atmospheric Sciences, University of Illinois-Urbana. (EPA-HQ-OAR-2002-0064-0114) Flammability and Fire Safety BSOC, 2000. February 1, 2000 Tabulation of Flammability Studies on n-Propyl Bromide from the Brominated Solvents Committee, and other information on flammability of n-propyl bromide. (A-2001-07, II-D-45) Miller, 2003. Albemarle Corporation comments-Flash Point Data for n-Propyl Bromide. (EPA-HQ-OAR-2002-0064-0040) Morford, 2003a, b. Enviro Tech International Comment re Section IV D Flammability with Exhibits (7/25/03) (EPA-HQ-OAR-2002-0064-0030 and EPA-HQ-OAR-2002-0064-0031) Morford, 2003c. Enviro Tech Int. Flammability of nPB & Comparison With Methylene Chloride-Additional Comments on Flammability (7/29/03) (EPA-HQ-OAR-2002-0064-0036) Shubkin, 2003. R. Shubkin, Poly Systems, EPA received 7/23/03 Re: Comment on Flammability of n-Propyl Bromide as Discussed in Proposed Rule Published in **Federal Register** (EPA-HQ-OAR-2002-0064-0025) Weiss Cohen, 2003. T. Weiss Cohen, Dead Sea Bromine Group, 7/31/2003 Comment to **Federal Register** Proposed Rules of June 3, 2003, on Protection of Stratospheric Ozone: Listing of Substitutes for Ozone-Depleting Substances—n-Propyl Bromide (EPA-HQ-OAR-2002-0064-0053) Human Health ACGIH, 1991. Skin Notation Documentation for Methyl Chloride. Available online at *http://www.acgih.org* . ACGIH, 2005. Documentation for Threshold Limit Value for 1-Bromopropane. 2005. Available online at *http://www.acgih.org* . Albemarle, 2003. Product Description for Abzol(®) Cleaners. 2003. (EPA-HQ-OAR-2002-0064-0148) Beck and Caravati, 2003. Neurotoxicity associated with 1-bromopropane exposure. Utah Poison Control Center, University of Utah, Salt Lake City, UT. *J Toxicology Clinical Toxicology* 41(5):729. (Abstract from conference). 2003. (EPA-HQ-OAR-2002-0064-0111) CERHR, 2002a. NTP-Center for the Evaluation of Risks to Human Reproduction Expert Panel Report on the Reproductive and Developmental Toxicity of 1-Bromopropane [nPB]. March 2002. (EPA-HQ-OAR-2002-0064-0096) ClinTrials, 1997a. A 28-Day Inhalation Study of a VaporFormulation of ALBTA1 in the Albino Rat. Report No. 91189. Prepared by ClinTrials BioResearch Laboratories, Ltd., Senneville, Quebec, Canada. May 15, 1997. Sponsored by Albemarle Corporation, Baton Rouge, LA. (A-91-42, X-A-4) ClinTrials, 1997b. ALBTA1: A 13-Week Inhalation Study of a Vapor Formulation of ALBTA1 in the Albino Rat. Report No. 91190. Prepared by ClinTrials BioResearch Laboratories, Ltd., Senneville, Quebec, Canada. February 28, 1997. Sponsored by Albemarle Corporation, Baton Rouge, LA. (A-91-42, X-A-5) Dunson *et al* , 2002. Dunson, D., Colombo, and B., Baird, D. Changes with age in the level and duration of fertility in the menstrual cycle. *Human Reproduction* , Vol. 17, No. 5, pp. 1399-1403, 2002. (EPA-HQ-OAR-2002-0064-0120) Fueta *et al.* , 2002. Y. Fueta, K. Fukunaga, T. Ishidao, H. Hori. Hyperexcitability and changes in activities of Ca2+/calmodulin-dependent kinase II and mitogen-activated protein kinase in the hippocampus of rats exposed to 1-bromopropane. 2002. *Life Sciences* 72

(2002)521-529. (EPA-HQ-OAR-2002-0064-0115) Fueta *et al.* , 2004. Y. Fueta, T. Fukuda, T. Ishidao, H. Hori. Electrophysiology and immunohistochemistry in the hippocampal CA1 and the Dentate Gyrus of Rats Chronically exposed to 1-Bromopropane, a Substitute for Specific Chlorofluorocarbons. *Neuroscience* 124

(2004)593-603. (EPA-HQ-OAR-2002-0064-0142) Honma *et al.* , 2003. Honma, T, Suda M, Miyagawa M. “Inhalation of 1-bromopropane causes excitation in the central nervous system of male F344 rats.” *Neurotoxicology* . 2003 Aug; 24 (4-5):563-75. (EPA-HQ-OAR-2002-0064-0138) ICF, 2002. Risk Screen for Use of N-Propyl Bromide. ICF Consulting. Prepared for U.S. EPA, May, 2002. (EPA-HQ-OAR-2002-0064-0006 through -0012) ICF, 2004b. ICF Consulting. ICF Consulting Review of the TERA Report. December 13, 2004 ICF, 2004c. ICF Consulting. External Expert Review Panel on n-Propyl Bromide. December 13, 2004 ICF, 2004d. ICF Consulting. Review of ACGIH's Proposed Threshold Limit Value for 1-Bromopropane. April 26, 2004 ICF, 2006a. ICF Consulting. Risk Screen on Substitutes for Ozone-Depleting Substances for Adhesive, Aerosol Solvent, and Solvent Cleaning Applications. Proposed Substitute: n-Propyl Bromide. April 18, 2006. Attachments: A, Determination of an AEL; B, Derivation of an RfC; C, Evaluation of the Global Warming Potential; D, Occupational Exposure Analysis for Adhesive Applications; E, Occupational Exposure Analysis for Aerosol Solvent Applications; F, General Population Exposure Assessment for n-Propyl Bromide ICF, 2006b. ICF Consulting. Revised Memorandum regarding RTI Metabolism Study on nPB. April, 2006. (EPA-HQ-OAR-2002-0064-0179) Ichihara G., Jong X., Onizuka J., *et al.* , 1999. Histopathological changes of nervous system and reproductive organ and blood biochemical findings in rats exposed to 1-bromopropane. (Abstract only) Abstracts of the 72nd Annual Meeting of Japan Society for Occupational Health. May 1999. Tokyo. (A-2001-07, II-A-15) Ichihara G., Kitoh J., Yu, X., *et al.* , 2000a. 1-Bromopropane, an alternative to ozone layer depleting solvents, is dose-dependently neurotoxic to rats in long-term inhalation exposure. *Toxicol Sciences* 55:116-123. (A-2001-07, II-A-8) Ichihara G., Yu X., Kitoh J., *et al.* 2000b. Reproductive toxicity of 1-bromopropane, a newly introduced alternative to ozone layer depleting solvents, in male rats. *Toxicol Sciences* 54:416-423. (A-2001-07, II-A-7) Ichihara G. *et al.* , 2002. Neurological Disorders in Three Workers Exposed to 1-Bromopropane. *J Occu. Health* 44:1-7. (A-2001-07, II-D-64) Ichihara *et al.* , 2004a. G. Ichihara, W. Li, X. Ding, S. Peng, X. Yu, E. Shibata, T. Yamada, H. Wang, S. Itohara, S. Kanno, K. Sakai, H. Ito, K. Kanefusa, and Y. Takeuchi. A Survey on Exposure Level, Health Status, and Biomarkers in Workers Exposed to 1-Bromopropane. *Am Jrnl of Ind Med* 45:63-75

(2006)1-14 (EPA-HQ-OAR-2002-0064-0130) U.S. EPA, 1991. Guidelines for Developmental Toxicity Risk Assessment. U.S. Environmental Protection Agency. (A-2001-07, II-A-51) U.S. EPA, 1994b. U.S. Environmental Protection Agency (U.S. EPA). 1994. Methods for derivation of inhalation reference concentrations and application of inhalation dosimetry. EPA/600/8-90/066F. Office of Health and Environmental Assessment, Washington, DC. 1994. (A-2001-07, II-A-16) Available online at *http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=71993* U.S. EPA, 1995b. The Use of the Benchmark Dose Approach in Health Risk Assessment. EPA/630-R-94-007. Risk Assessment Forum, Washington, DC. (A-2001-07, II-A-17) U.S. EPA, 1996. Guidelines for Reproductive Toxicity Risk Assessment. U.S. Environmental Protection Agency, Risk Assessment Forum, Washington, DC, 630/R-96/009, 1996. (EPA-HQ-OAR-2002-0064-0109) U.S. EPA, 2003. Summary of Data on Workplace Exposure to n-Propyl Bromide, May 21, 2003. EPA's summary of exposure data from nPB suppliers and NIOSH. (EPA-HQ-OAR-2002-0064-0015 and EPA-HQ-OAR-2002-0064-0016). Wang *et al.* , 2003. H. Wang, G. Ichihara, H. Ito, K. Kato, J. Kitoh, T. Yamada, X. Yu, S. Tsuboi, Y. Moriyama, and Y. Takeuchi. 2003. “Dose-Dependant Biochemical Changes in RateCentral Nervous System after 12-Week Exposure to 1-Bromopropane” *NeuroToxicology 24:* 199-206 (EPA-HQ-OAR-2002-0064-0088) Werner, 2003. Comments from 3M on nPB proposed rule. (EPA-HQ-OAR-2002-0064-0058). WIL, 2001. WIL Research Laboratories. “An inhalation two-generation reproductive toxicity study of 1-bromopropane in rats.” Sponsored by the Brominated Solvent Consortium. May 24, 2001. (A-2001-07, II-D-10) Yamada T. *et al.* , 2003. Exposure to 1-Bromopropane Causes Ovarian Dysfunction in Rats. *Toxicol Sci* 71:96-103 (EPA-HQ-OAR-2002-0064-0097) How Is EPA Responding to Comments? ACGIH, 1991. Full citation above in “Human Health” section. ACGIH, 2004. TLVs and BEIs: Threshold Limit Values for Chemical Substances and Physical Agents, Biological Exposure Indices. American Conference of Governmental Industrial Hygienists. Cincinnati, OH. Available online at *http://www.acgih.org.* ACGIH, 2005. Full citation above in “Human Health” section. Beck and Caravati, 2003. Full citation above in “Human Health” section. Chemtura, 2006. Material Safety Data Sheet for n-propyl bromide. April, 2006. (EPA-HQ-OAR-2002-0064-0151) ClinTrials, 1997a. Full citation above in “Human Health” section. ClinTrials, 1997b. Full citation above in “Human Health” section. Doull and Rozman, 2001. Doull and Rozman, 2001. Derivation of an Occupational Exposure Limit for n-Propyl Bromide, prepared by John Doull, Ph.D., M.D., and Karl K. Rozman, Ph.D., D.A.B.T. submitted by Envirotech International, Inc. (A-2001-07, II-D-14) Dunson *et al.* , 2002. Full citation above in “Human Health” section. Elf Atochem, 1995. Elf Atochem, 1995. Micronucleus Test by Intraperitoneal Route in Mice. n-Propyl Bromide. Study No. 12122 MAS. Study Director, Brigitte Molinier. Study performed by Centre International de Toxoicologie, Misery, France, September 6, 1995. (A-91-42, X-A-9) ERG, 2004. Analysis of Health and Environmental Impacts of ODS Substitutes—Evaluating the need to set a short-term exposure or ceiling limit for n-propyl bromide. ERG. June 8, 2004. Farr, 2003. Comment on proposed rule on n-propyl bromide from Craig Farr, Atofina. July 31, 2003. (EPA-HQ-OAR-2002-0064-0060) HDSB, 2004. Full citation above in “Ozone-Depletion Potential and Other Environmental Impacts” section. HESIS, 2003. California Department of Health Services—HESIS 1-Bromopropane (n-Propyl Bromide) Health Hazard Alert. (EPA-HQ-OAR-2002-0064-0039) Honma, 2003. Full citation above in “Human Health” section. ICF, 2002a. Full citation above in “Human Health” section. ICF, 2004a. Full citation above in “Ozone-Depletion Potential and Other Environmental Impacts” section. ICF, 2006a. Full citation above in “Human Health” section. ICF, 2006b. Full citation above in “Human Health” section. ICF, 2006c. ICF Consulting. Evaluation of Memorandum from Dr. M. Stelljes. May, 2006. Ichihara, 1999. Full citation above in “Human Health” section. Ichihara, 2000a. Full citation above in “Human Health” section. Ichihara, 2002. Full citation above in “Human Health” section. Ichihara, 2004a. Full citation above in “Human Health” section. Ichihara, 2004b. Full citation above in “Human Health” section. Kassem, 2003. January 10, 2003 Letter from O.M. Kassem, Albemarle Corporation to K. Bromberg, Small Business Administration Re: n propyl bromide SNAP. (A-2001-07, II-D-78) Linnell, 2003. Full citation above in “Ozone-Depletion Potential and Other Environmental Impacts” section. Majersik, 2004. Full citation above in “Human Health” section. Majersik, 2005. Full citation above in “Human Health” section. MOP 18, 2006. Report of the Eighteenth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer. November 16, 2006. (EPA-HQ-OAR-2002-0064-0163) Morford, 2003a. Full citation above in “Flammability” section. Morford, 2003b. Full citation above in “Flammability” section. Morford, 2003c. Full citation above in “Flammability” section. Morford, 2003d. Support for EPA Proposal to Approve n propyl bromide and Comments Pursuant to Section D. Flammability of Protection of Stratospheric Ozone: Listing of Substitutes for Ozone Depleting Substances—n-Propyl Bromide: Proposed Rule **Federal Register** Vol. 68 No. 106, June 3, 2003. Enviro Tech International, Inc. Comments Regarding Proposed Rule & Exhibit A Richard Morford, Enviro Tech International. August 3, 2003. (EPA-HQ-OAR-2002-0064-0047) Morford, 2003e. Enviro Tech International, Inc. Combined Exhibits to Comment 0047/Morford, 2003e on Proposed Rule Richard Morford, Enviro Tech International. August 3, 2003. (EPA-HQ-OAR-2002-0064-0048) Morford, 2003f. Initial Comments to Protection of Stratospheric Ozone: Listing of Substitutes for Ozone Depleting Substances—n-Propyl bromide: Proposed Rule **Federal Register** Vol. 68 No. 106, June 3, 2003. Richard Morford, Enviro Tech International. June 26, 2003. (EPA-HQ-OAR-2002-0064-0002) Morford, 2003g. Comment regarding proposed restriction on isopropyl bromide Richard Morford, Enviro Tech International. August 3, 2003. (EPA-HQ-OAR-2002-0064-0042) Morford, 2003h. Enviro Tech International Inc Comment Regarding iPB Content Restriction Exhibit A 04-Aug-2003 (EPA-HQ-OAR-2002-0064-0046) Morford, 2003i. *White Paper:* “EPA Is Unlawfully Regulating Occupational Exposures” Attachment to public comments. (EPA-HQ-OAR-2003-0064-0049) NTP, 2003. Full citation above in “Human Health” section. PBT Profiler, 2007. Results from the PBT Profiler Tool for 1-bromopropane, CAS No. 106-94-5. Downloaded on February 9, 2007 from *http://www.pbtprofiler.net/default.asp.* (EPA-HQ-OAR-2002-0064-0168) Risotto, 2003. Full citation above in “Human Health” section. Rodricks, 2002. Full citation above in “Human Health” section. Rozman and Doull, 2005. Rozman and Doull, 2005. Presentation by Drs. Rozman and Doull at the North American Congress of Clinical Toxicologists. September 14, 2005. (EPA-HQ-OAR-2002-0064-0126) RTI, 2005. Full citation above in “Human Health” section. Ruckriegel, 2003. Comment on n-Propyl Bromide Recommended Workplace Exposure Level in Proposed Rule Published in **Federal Register** Vol. 68, No. 106, June 3, 2003. August 2, 2003 (EPA-HQ-OAR-2002-0064-0055) Rusch and Bernhard, 2003. Comments on proposed regulation of n-propyl bromide from Steven Bernhardt and George Rusch, Honeywell. August 1, 2003. (EPA-HQ-OAR-2002-0064-0059) Rusch, 2003. Late comments on proposed regulation of n-propyl bromide from George Rusch, Honeywell. (EPA-HQ-OAR-2002-0064-0068) Sekiguchi, 2002. Full citation above in “Human Health” section. SLR International, 2001. Full citation above in “Human Health” section. Smith, 2003. Comments on Protection of Stratospheric Ozone: Listing of Substitutes for Ozone-Depleting Substances—n-Propyl Bromide, FR Vol. 68, No. 106, June 3, 2003. R.L. Smith, Albemarle Corporation. July 23, 2003. (EPA-HQ-OAR-2002-0064-0067) Stelljes, 2003. Comments from Dr. Marc Stelljes, SLR International, on proposed rule on n-propyl bromide. (HQ-EPA-OAR-2002-0064-0022) Stelljes and Wood, 2004. Full citation above in “Human Health” section. Stelljes, 2005. Full citation above in “Human Health” section. TERA, 2004. Full citation above in “Human Health” section. U.S. EPA, 1994b. Full citation above in “Human Health” section. U.S. EPA, 1996. Full citation above in “Human Health” section. U.S. EPA, 2003. Summary of Data on Workplace Exposure to n-Propyl Bromide, May 21, 2003. EPA's summary of exposure data from nPB suppliers and NIOSH. (EPA-HQ-OAR-2002-0064-0015 and -0016) Weiss Cohen, 2003. Comments from Tammi Weiss Cohen, Dead Sea Bromine Group. Comments To **Federal Register** Proposed Rules Of June 3, 2003, On Protection Of Stratospheric Ozone: Listing Of Substitutes For Ozone-Depleting Substances—N Propyl Bromide. (EPA-HQ-OAR-2002-0064-0038) Werner, 2003. Full citation above in “Human Health” section. WIL, 2001. Full citation above in “Human Health” section. Yamada *et al.* , 2003. Full citation above in “Human Health” section. Executive Orders and Statutes Kassem, 2003. Full citation above for “Decisions for Each Sector and End Use” section. Ultronix, 2001. Response to questionnaire from EPA by C. Wolf, Ultronix, 2001. (A-2001-07, II-D-76) Tattersall, 2004. Conversation between M. Sheppard, EPA, and Tom Tattersall, MicroCare Corporation. (EPA-HQ-OAR-2002-0064-0171) U.S. EPA, 2003. Full citation above for “Human Health” section. U.S. EPA, 2007. Analysis of Economic Impacts of Final nPB Rulemaking for Cleaning Solvent Sector. 2007. List of Subjects in 40 CFR Part 82 Environmental protection, Administrative practice and procedure, Air pollution control, Reporting and recordkeeping requirements. Dated: May 15, 2007. Stephen L. Johnson, Administrator. Appendix A: Summary of Decision Solvent Cleaning Acceptable Substitute End uses Substitute Decision Further information Metals cleaning, electronics cleaning, and precision cleaning n-propyl bromide

(CAS)Registry. [FR Doc. E7-9707 Filed 5-29-07; 8:45 am] BILLING CODE 6560-50-P 72 103 Wednesday, May 30, 2007 Proposed Rules ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 82 [EPA-HQ-OAR-2002-0064; FRL-8316-7] RIN 2060-AK26 Protection of Stratospheric Ozone: Listing of Substitutes for Ozone-Depleting Substances—n-Propyl Bromide in Adhesives, Coatings, and Aerosols AGENCY: Environmental Protection Agency. ACTION: Notice of Proposed Rulemaking. SUMMARY: Pursuant to the U.S. Environmental Protection Agency's (EPA or “we”) Significant New Alternatives Policy

(SNAP)program, this action proposes to list n-propyl bromide

(nPB)as an unacceptable substitute for methyl chloroform, chlorofluorocarbon (CFC)-113, and hydrochlorofluorocarbon (HCFC)-141b when used in adhesives or in aerosol solvents because nPB in these end uses poses unacceptable risks to human health when compared with other substitutes that are available. In addition, EPA takes comment on alternate options that would find nPB acceptable subject to use conditions in adhesives or in aerosol solvents. This action also proposes to list nPB as acceptable, subject to use conditions, as a substitute for methyl chloroform, CFC-113, and hydrochlorofluorocarbon (HCFC)-141b in the coatings end use. This proposal supersedes EPA's proposal of June 3, 2003 on the acceptability of nPB as a substitute for ozone-depleting substances for aerosols and adhesives. DATES: Comments must be received in writing by July 30, 2007. Under the Paperwork Reduction Act, comments on the information collection provisions must be received by the Office of Management and Budget

(OMB)on or before June 29, 2007. Any person interested in requesting a public hearing, must submit such request on or before June 29, 2007. If a public hearing is requested, a separate notice will be published announcing the date and time of the public hearing and the comment period will be extended until 30 days after the public hearing to allow rebuttal and supplementary information regarding any material presented at the public hearing. Inquiries regarding a public hearing should be directed to the contact person listed below. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2002-0064, by one of the following methods: • *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. • *E-mail: A-And-R-Docket@epa.gov.* • *Mail:* Air and Radiation Docket, Environmental Protection Agency, Mailcode 6102T, 1200 Pennsylvania Ave., NW., Washington DC 20460, Attention Docket ID No. EPA-HQ-OAR-2002-0064. In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *Attn:* Desk Officer for EPA, 725 17th St., NW., Washington, DC 20503. • *Hand Delivery:* EPA Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC, Attention Docket ID No. EPA-HQ-OAR-2002-0064. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2002-0064. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *http://www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional instructions on submitting comments, go to Section I.B. of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* All documents in the docket are listed in the *http://www.regulations.gov index.* Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Air and Radiation Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is

(202)566-1744, and the telephone number for the Air and Radiation Docket is

(202)343-9163; fax number

(202)343-2362 e-mail address: *sheppard.margaret@epa.gov.* Notices and rulemakings under the SNAP program are available on EPA's Stratospheric Ozone World Wide Web site at *http://www.epa.gov/ozone/snap/regs.* SUPPLEMENTARY INFORMATION: Table of Contents I. General Information A. Does this action apply to me? B. What should I consider as I prepare my comments for EPA? C. What acronyms and abbreviations are used in the preamble? II. How does the Significant New Alternatives Policy

(SNAP)program work? A. What are the statutory requirements and authority for the SNAP program? B. How do the regulations for the SNAP program work? C. Where can I get additional information about the SNAP program? III. What is EPA proposing today? A. What is n-propyl bromide? B. What industrial end uses are included in our proposed decision? C. What is the proposed text for EPA's listing decisions? D. What does an unacceptability determination on adhesives and aerosols mean? E. What is the scope of the proposed determination for coatings? IV. What criteria did EPA consider in preparing this proposal? A. Availability of Alternatives to Ozone-Depleting Substances B. Impacts on the Atmosphere and Local Air Quality C. Ecosystem and Other Environmental Impacts D. Flammability and Fire Safety E. Health impacts and exposure V. How did EPA assess impacts on human health? A. Newly Available Exposure Data B. Newly Available Data on Health Effects C. Evaluation of Acceptable Exposure Levels for the Workplace D. Other Analyses of nPB Toxicity E. Community Exposure Guideline VI. What listing is EPA proposing for each end use, and why? A. Aerosol Solvents B. Adhesives C. Coatings VII. What other regulatory options did EPA consider? A. Alternative Option for Comment: Acceptable With Use Conditions Requiring Exposure Limit and Monitoring B. Regulatory Options Where nPB Would Be Acceptable With Use Conditions Requiring Specific Equipment VIII. What are the anticipated costs of this regulation to the regulated community? IX. How do the decisions for EPA's June 2003 proposal compare to those for this proposal? X. How can I use nPB as safely as possible? XI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act XII. References I. General Information A. Does this action apply to me? This proposed rule would regulate the use of n-propyl bromide as an aerosol solvent and as a carrier solvent in adhesives and coatings. Businesses in these end uses that currently might be using nPB, or might want to use it in the future, include: • Businesses that manufacture electronics or computer equipment. • Businesses that require a high level of cleanliness in removing oil, grease, or wax, such as for aerospace applications or for manufacture of optical equipment. • Foam fabricators that glue pieces of polyurethane foam together or foam cushion manufacturers that glue fabric around a cushion. • Furniture manufacturers that use adhesive to attach wood parts to floors, tables and counter tops. • A company that manufactures ammunition for the U.S. Department of Defense. Regulated entities may include: Table 1.—Potentially Regulated Entities, by North American Industrial Classification System (NAICS) Code or Subsector Category NAICS code or subsector Description of regulated entities Industry 331 Primary Metal Manufacturing. Industry 332 Fabricated Metal Product Manufacturing. Industry/Military 332992 Small Arms Ammunition Manufacturing. Industry 333 Machinery Manufacturing. Industry 334 Computer and Electronic Product Manufacturing. Industry 335 Equipment Appliance, and Component Manufacturing. Industry 336 Transportation Equipment Manufacturing. Industry 337 Furniture and Related Product Manufacturing. Industry 339 Miscellaneous Manufacturing. Industry 326150 Urethane and Other Foam Product (except Polystyrene) Manufacturing. This table is not intended to be exhaustive, but rather a guide regarding entities likely to be regulated by this action. If you have any questions about whether this action applies to a particular entity, consult the person listed in the preceding section, FOR FURTHER INFORMATION CONTACT . B. What should I consider as I prepare my comments for EPA? 1. Submitting Confidential Business Information (CBI). Do not submit this information to EPA through *www.regulations.gov* or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. Tips for Preparing Your Comments. When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register**

(FR)date and page number). • Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations

(CFR)part or section number. • Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible, avoiding the use of profanity or personal threats. • Make sure to submit your comments by the comment period deadline identified. C. What acronyms and abbreviations are used in the preamble? Below is a list of acronyms and abbreviations used in this document. 8-hr—eight hour ACGIH—American Conference of Governmental Industrial Hygienists AEL—acceptable exposure limit ASTM—American Society for Testing and Materials BMD—benchmark dose BMDL—benchmark dose lowerbound, the lower 95%-confidence level bound on the dose/exposure associated with the benchmark response BSOC—Brominated Solvents Consortium CAA—Clean Air Act CAS Reg. No—Chemical Abstracts Service Registry Identification Number CBI—Confidential Business Information CEG—community exposure guideline CERHR—Center for the Evaluation of Risks to Human Reproduction CFC-113—the ozone-depleting chemical 1,1,2-trifluoro-1,2,2-trichloroethane, C 2 Cl 3 F 3 , CAS Reg. No. 76-13-1 CFC—chlorofluorocarbon cfm—cubic feet per minute CFR—Code of Federal Regulations CNS—central nervous system DNA—deoxyribonucleic acid EDSTAC—The Endocrine Disruptor Screening and Testing Advisory Committee EPA—the United States Environmental Protection Agency FR—Federal Register GWP—global warming potential HCFC-141b—the ozone-depleting chemical 1,1-dichloro-1-fluoroethane, CAS Reg. No. 1717-00-6 HCFC-225ca/cb—the commercial mixture of the two ozone-depleting chemicals 3,3-dichloro-1,1,1,2,2-pentafluoropropane, CAS Reg. No. 422-56-0 and 1,3-dichloro-1,1,2,2,3-pentafluoropropane, CAS Reg. No. 507-55-1 HCFC—hydrochlorofluorocarbon HEC—human equivalent concentration HFC-245fa—the chemical 1,1,3,3,3-pentafluoropropane, CAS Reg. No. 460-73-1 HFC-365mfc—the chemical 1,1,1,3,3-pentafluorobutane, CAS Reg. No. 405-58-6 HFC-4310mee—the chemical 1,1,1,2,3,4,4,5,5,5-decafluoropentane, CAS Reg. No. 138495-42-8 HFC—hydrofluorocarbon HFE—hydrofluoroether HHE—health hazard evaluation ICF—ICF Consulting ICR—Information Collection Request iPB—isopropyl bromide, C 3 H 7 Br, CAS Reg. No. 75-26-3, an isomer of n-propyl bromide; also called 2-bromopropane or 2-BP K oc —organic carbon partition coefficient, for determining the tendency of a chemical to bind to organic carbon in soil LC 50 —the concentration at which 50% of test animals die LOAEL—Lowest Observed Adverse Effect Level Log K ow —logarithm of the octanol-water partition coefficient, for determining the tendency of a chemical to accumulate in lipids or fats instead of remaining dissolved in water mg/l—milligrams per liter MSDS—Material Safety Data Sheet NAICS—North American Industrial Classification System NIOSH—National Institute for Occupational Safety and Health NOAEL—No Observed Adverse Effect Level NOEL—No Observed Effect Level nPB—ln-propyl bromide, C 3 H 7 Br, CAS Reg. No. 106-94-5; also called 1-bromopropane or 1-BP NPRM—Notice of Proposed Rulemaking NTP—National Toxicology Program NTTAA—National Technology Transfer and Advancement Act ODP—ozone depletion potential ODS—ozone-depleting substance OEHHA—Office of Environmental Health Hazard Assessment of the California Environmental Protection Agency OMB—U.S. Office of Management and Budget OSHA—the United States Occupational Safety and Health Administration PCBTF—parachlorobenzotrifluoride, CAS Reg. No. 98-56-6 PEL—Permissible Exposure Limit ppm-parts per million RCRA—Resource Conservation and Recovery Act RFA—Regulatory Flexibility Act RfC—reference concentration SIP—state implementation plan SNAP—Significant New Alternatives Policy TCA—the ozone-depleting chemical 1,1,1-trichloroethane, CAS Reg. No. 71-55-6; also called methyl chloroform, MCF, or 1,1,1 TCE—the chemical 1,1,2-trichloroethene, CAS Reg. No. 79-01-6, C2Cl3H; also call trichloroethylene TERA—Toxicological Excellence for Risk Assessment TLV—Threshold Limit Value(tm) TSCA—Toxic Substances Control Act TWA—time-weighted average UMRA—Unfunded Mandates Reform Act U.S.C.—United States Code VMSs—volatile methyl siloxanes VOC—volatile organic compound II. How does the Significant New Alternatives Policy

(SNAP)program work? A. What are the statutory requirements and authority for the SNAP program? Section 612 of the Clean Air Act

(CAA)authorizes EPA to develop a program for evaluating alternatives to ozone-depleting substances, referred to as the Significant New Alternatives Policy

(1)reduces the overall risk to human health and the environment, and

(ODS)in one of the eight major industrial use sectors must provide the Agency with health and safety studies on the substitute at least 90 days before introducing it into interstate commerce for significant new use as an alternative. This requirement applies to the person planning to introduce the substitute into interstate commerce, typically chemical manufacturers, but may also include importers, formulators or end-users when they are responsible for introducing a substitute into commerce. The Agency has identified four possible decision categories for substitutes: Acceptable; acceptable subject to use conditions; acceptable subject to narrowed use limits; and unacceptable. Use conditions and narrowed use limits are both considered “use restrictions” and are explained below. Substitutes that are deemed acceptable with no use restrictions (no use conditions or narrowed use limits) can be used for all applications within the relevant sector end-use. Substitutes that are acceptable subject to use restrictions may be used only in accordance with those restrictions. It is illegal to replace an ODS with a substitute listed as unacceptable. After reviewing a substitute, the Agency may make a determination that a substitute is acceptable only if certain conditions of use are met to minimize risks to human health and the environment. We describe such substitutes as “acceptable subject to use conditions.” If you use these substitutes without meeting the associated use conditions, you use these substitutes in an unacceptable manner and you could be subject to enforcement for violation of section 612 of the Clean Air Act. For some substitutes, the Agency may permit a narrowed range of use within a sector. For example, we may limit the use of a substitute to certain end-uses or specific applications within an industry sector or may require a user to demonstrate that no other acceptable end uses are available for their specific application. We describe these substitutes as “acceptable subject to narrowed use limits.” If you use a substitute that is acceptable subject to narrowed use limits, but use it in applications and end-uses which are not consistent with the narrowed use limit, you are using these substitutes in an unacceptable manner and you could be subject to enforcement for violation of section 612 of the Clean Air Act. The Agency publishes its SNAP program decisions in the **Federal Register** . For those substitutes that are deemed acceptable subject to use restrictions (use conditions and/or narrowed use limits), or for substitutes deemed unacceptable, we first publish these decisions as proposals to allow the public opportunity to comment, and we publish final decisions as final rulemakings. In contrast, we publish substitutes that are deemed acceptable with no restrictions in “notices of acceptability,” rather than as proposed and final rules. As described in the rule implementing the SNAP program (59 FR 13044), we do not believe that rulemaking procedures are necessary to list alternatives that are acceptable without restrictions because such listings neither impose any sanction nor prevent anyone from using a substitute. Many SNAP listings include “comments” or “further information.” These statements provide additional information on substitutes that we determine are unacceptable, acceptable subject to narrowed use limits, or acceptable subject to use conditions. Since this additional information is not part of the regulatory decision, these statements are not binding for use of the substitute under the SNAP program. However, regulatory requirements listed in this column are binding under other programs. The further information does not necessarily include all other legal obligations pertaining to the use of the substitute. However, we encourage users of substitutes to apply all statements in the “Further Information” column in their use of these substitutes. In many instances, the information simply refers to sound operating practices that have already been identified in existing industry and/or building-code standards. Thus, many of the comments, if adopted, would not require the affected industry to make significant changes in existing operating practices. C. Where can I get additional information about the SNAP program? For copies of the comprehensive SNAP lists of substitutes or additional information on SNAP, look at EPA's Ozone Depletion World Wide Web site at *http://www.epa.gov/ozone/snap/lists/index.html.* For more information on the Agency's process for administering the SNAP program or criteria for evaluation of substitutes, refer to the SNAP final rulemaking published in the **Federal Register** on March 18, 1994 (59 FR 13044), codified at Code of Federal Regulations at 40 CFR part 82, subpart G. You can find a complete chronology of SNAP decisions and the appropriate **Federal Register** citations at *http://www.epa.gov/ozone/snap/chron.html.* III. What is EPA proposing today? In this action, EPA proposes to list n-propyl bromide

(nPB)as

(1)unacceptable for use as a substitute for CFC-113, 1 methyl chloroform 2 and HCFC-141b 3 in the adhesive and aerosol solvent end uses; and

(2)acceptable subject to use conditions (limited to coatings at facilities that, as of May 30, 2007, have provided EPA with information demonstrating their ability to maintain acceptable workplace exposures) as a substitute for methyl chloroform, CFC-113, and HCFC-141b in the coatings end use. This Notice of Proposed Rulemaking

(NPRM)supersedes the NPRM published on June 3, 2003 (68 FR 33284) for aerosol solvents and adhesives. 1 CFC-113 is also referred to as Freon-113, or 1,1,2-trifluoro-1,2,2-trichloroethane. Its CAS Reg. No. is 76-13-1. 2 Methyl chloroform is also referred to as 1,1,1-trichloroethane, TCA, MCF, or 1,1,1. Its CAS Reg. No. is 71-55-6. 3 HCFC-141b is also referred to as 1,1-dichloro-1-fluoroethane. Its CAS Reg. No. is 1717-00-6. A. What is n-propyl bromide? n-propyl bromide (nPB), also called 1-bromopropane, is a non-flammable organic solvent with a strong odor. Its chemical formula is C 3 H 7 Br. Its identification number in Chemical Abstracts Service's registry (CAS Reg. No.) is 106-94-5. nPB is used to remove wax, oil, and grease from electronics, metal, and other materials. It also is used as a carrier solvent in adhesives. Some brand names of products using nPB are: Abzol®, EnSolv®, and Solvon® cleaners; Pow-R-Wash® NR Contact Cleaner, Superkleen Flux Remover 2311 and LPS NoFlash NU Electro Contact Cleaner aerosols; and Whisper Spray and Fire Retardant Soft Seam 6460 adhesives. B. What industrial end uses are included in our proposed decision? This proposal addresses the use of n-propyl bromide in the aerosol solvent end use of the aerosol sector and the adhesives and coatings end uses in the adhesives, coatings, and inks sector as discussed below. EPA is issuing a decision on the use of nPB in metals, electronics, and precision cleaning in a separate final rule. EPA has insufficient information for ruling on other end uses or sectors where nPB might be used (e.g., inks, foam blowing, fire suppression). 1. Aerosol Solvents We understand that nPB is being used as an aerosol solvent in: • Lubricants, coatings, or cleaning fluids for electrical or electronic equipment; Lubricants, coatings, or cleaning fluids for aircraft maintenance; or • Spinnerrette lubricants and cleaning sprays used in the production of synthetic fibers. 2. Adhesives Types of adhesives covered under the SNAP program are those that formerly used methyl chloroform, specifically, adhesives for laminates, flexible foam, hardwood floors, tire patches, and metal to rubber adhesives. Of these applications, nPB-based adhesives have been used most widely in spray adhesives used in manufacture of foam cushions, and to a lesser degree in laminate adhesives. 3. Coatings The SNAP program regulates the use of carrier solvents in durable coatings, including paints, varnishes, and aerospace coatings (59 FR 13118). The SNAP program currently does not regulate carrier solvents in lubricant coatings, such as silicone coatings used on medical equipment (59 FR 13119). Methyl chloroform has been used as a carrier solvent in coatings, and to a much lesser degree, HCFC-141b also has been a carrier solvent. This rule responds to a submission from a facility that is substituting methyl chloroform with nPB as an ammunition coating (sealant). C. What is the proposed text for EPA's listing decisions? In the proposed regulatory text at the end of this document, you will find our proposed decisions for those end uses for which we have proposed nPB as unacceptable or acceptable subject to use conditions. The proposed conditions listed in the “Use Conditions” column would be enforceable while information contained in the “Further Information” column of those tables provides additional recommendations on the safe use of nPB. Our proposed decisions for each end use are summarized below in tables 2 through 4. Proposed Listings Table 2.—Aerosols Proposed Unacceptable Substitutes End Use Substitute Decision Further information Aerosol solvents n-propyl bromide

(nPB)as a substitute for CFC-113, HCFC-141b, and methyl chloroform Unacceptable EPA finds unacceptable risks to human health in this end use compared to other available alternatives. nPB, also known as 1-bromopropane, is Number 106-94-5 in the CAS Registry. Table 3.—Adhesives, Coatings, and Inks Proposed Unacceptable Substitutes Enduse Substitute Decision Further information Adhesives n-propyl bromide

(nPB)as a substitute for methyl chloroform, CFC-113, and HCFC-141b Acceptable subject to use conditions Use is limited to coatings facilities that, as of May 30, 2007, have provided EPA information demonstrating their ability to maintain acceptable workplace exposures EPA recommends the use of personal protective equipment, including chemical goggles, flexible laminate protective gloves and chemical-resistant clothing. EPA expects that all users of nPB would comply with any final Permissible Exposure Limit that the Occupational Safety and Health Administration issues in the future under 42 U.S.C. 7610(a). nPB, also known as 1-bromopropane, is Number 106-94-5 in the CAS Registry. Note: As of May 30, 2007, the Lake City Army Ammunition Plant is the only facility using nPB in coatings that has provided information to EPA that meets this condition. D. What does an unacceptability determination on adhesives and aerosols mean? In this action, EPA is proposing to find nPB unacceptable as a substitute for methyl chloroform, CFC-113, and HCFC-141b for use as a carrier solvent in adhesives and as an aerosol solvent. If this proposal were to become final, it would be illegal to use nPB or blends of nPB and other solvents in adhesives or in aerosol solvent formulations as a substitute for ozone-depleting substances. E. What is the scope of the proposed determination for coatings? We propose to list nPB as an acceptable substitute, subject to use conditions, for methyl chloroform, CFC-113, and HCFC-141b in coatings for facilities that, as of May 30, 2007, have provided EPA information demonstrating their ability to maintain acceptable workplace exposures. EPA has received a petition to allow use of nPB for the ammunition coating application at Lake City Army Ammunition Plant. This is the only coatings application or facility for which EPA has exposure and usage data demonstrating an ability to maintain workplace exposure levels below even the minimum level of the range of exposures that EPA is considering to be potentially acceptable (i.e., 17 to 30 ppm) (see section IV.E for an evaluation of the health risks associated with nPB). If other facilities are interested in using nPB as a substitute for methyl chloroform, CFC-113, or HCFC-141b in their coatings application, or if a person wishes to market nPB for such use, then the interested party would need to make a submission under the SNAP program. IV. What criteria did EPA consider in preparing this proposal? In the original rule implementing the SNAP program (March 18, 1994; 59 FR 13044, at 40 CFR 82.180(a)(7)), the Agency identified the criteria we use in determining whether a substitute is acceptable or unacceptable as a replacement for class I or II compounds:

(i)Atmospheric effects and related health and environmental impacts; [e.g., ozone depletion potential]

(ii)General population risks from ambient exposure to compounds with direct toxicity and to increased ground-level ozone;

(iii)Ecosystem risks [e.g., bioaccumulation, impacts on surface and groundwater];

(iv)Occupational risks;

(v)Consumer risks;

(vi)Flammability; and

(vii)Cost and availability of the substitute. In this review, EPA considered all the criteria above. However, n-propyl bromide is used in industrial applications such as electronics cleaning or spray adhesives used in foam fabrication. In those consumer products made using nPB, such as a piece of furniture or a computer, the nPB would have evaporated long before a consumer would purchase the item. Therefore, we believe there is no consumer exposure risk to evaluate in the end uses we evaluated for this rule. Section 612(c) of the Clean Air Act directs EPA to publish a list of replacement substances (“substitutes”) for class I and class II ozone depleting substances based on whether the Administrator determines they are safe (when compared with other currently or potentially available substitutes) for specific uses or are to be prohibited for specific uses. EPA must compare the risks to human health and the environment of a substitute to the risks associated with other substitutes that are currently or potentially available. In addition, EPA also considers whether the substitute for class I and class II ODSs “reduces the overall risk to human health and the environment” compared to the ODSs being replaced. Our evaluation is based on the end use; for example, we compared nPB as a carrier solvent in adhesives to other available or potentially available adhesive alternatives. Although EPA does not judge the effectiveness of an alternative for purposes of determining whether it is acceptable, we consider effectiveness when determining whether alternatives that pose less risk are available in a particular application within an end use. There are a wide variety of acceptable alternatives listed for aerosol solvents, but not all may be appropriate for a specific application because of differences in materials compatibility, flammability, degree of cleanliness required, local environmental requirements, and other factors. EPA evaluated each of the criteria separately and then considered overall risk to human health and the environment in comparison to other available or potentially available alternatives. We concluded that overall, environmental risks were not sufficient to find nPB unacceptable in any of the evaluated end uses. However, the overall risks to human health, and particularly the risks to worker health, are sufficiently high in the adhesive and aerosol solvent end uses to warrant our proposal to find nPB unacceptable. A. Availability of Alternatives to Ozone-Depleting Substances Other alternatives are available in each end use considered in this proposal. Examples of other available alternatives for aerosol solvents that have already been found acceptable or acceptable subject to use conditions under the SNAP program include water-based formulations, alcohols, ketones, esters, ethers, terpenes, HCFC-141b, HCFC-225ca/cb, hydrofluoroethers (HFEs), hydrofluorocarbon (HFC)-4310mee, HFC-365mfc, HFC-245fa, hydrocarbons, trans-1,2-dichloroethylene, methylene chloride, trichloroethylene 4 (TCE), perchloroethylene 5 , and parachlorobenzotrifluoride (PCBTF). Of these, hydrocarbons, alcohols, blends of trans-1,2-dichloroethylene and HFEs or HFCs, and HCFC-225ca/cb are most likely to be used in the same applications as nPB. nPB is already commercially available in aerosols. Its use is primarily for electrical contact cleaning, with some use for benchtop cleaning applications (Williams, 2005). 4 Also called trichlorethene or TCE, C 2 Cl 3 H, CAS Reg. No. 79-01-6. 5 Also called PERC, tetrachloroethylene, or tetrachloroethene, C 2 Cl 4 , CAS Reg. No. 127-18-4. Many alternatives are also available for use in adhesives, coatings, and inks: Water-based formulations, high solid formulations, alcohols, ketones, esters, ethers, terpenes, HFEs, hydrocarbons, trans-1,2-dichloroethylene, chlorinated solvents, PCBTF, and a number of alternative technologies (e.g., powder, hot melt, thermoplastic plasma spray, radiation-cured, moisture-cured, chemical-cured, and reactive liquid). Of these, the alternative adhesives most likely to be used in the same applications as nPB are water-based formulations, adhesives with methylene chloride, and flammable adhesives with acetone (IRTA, 2000). nPB is already used in adhesives, and particularly in foam fabrication and in constructing seating for aircraft (IRTA, 2000; Seilheimer, 2001). To our knowledge, nPB is potentially available as a carrier solvent in coatings, but has not yet been commercialized, except for use by one facility, the Lake City Army Ammunition Plant. The Lake City Army Ammunition Plant evaluated twenty-nine carrier solvent alternatives to methyl chloroform and determined that nPB is the only satisfactory alternative for their application given the current process at that facility (Harper, 2005). B. Impacts on the Atmosphere and Local Air Quality As discussed in the June, 2003 proposal, nPB emissions from the continental United States are estimated to have an ozone depletion potential

(ODP)of approximately 0.013-0.018, (Wuebbles, 2002), lower than that of the ozone depletion potential of the substances that nPB would replace—CFC-113 (ODP = 1.0), and methyl chloroform and HCFC-141b (ODPs = 0.12) (WMO, 2002). Some other acceptable alternatives for these ODSs also have low ODPs. For example, HCFC-225ca/cb has an ODP of 0.02-0.03 (WMO, 2002) and is acceptable as an aerosol solvent. There are other acceptable solvents for aerosols, adhesives, and coatings that essentially have no ODP—aqueous cleaners, HFEs, HFC-4310mee, HFC-365mfc, HFC-245fa, hydrocarbons, volatile methyl siloxanes (VMSs), methylene chloride, TCE, perchloroethylene, and PCBTF. Based on this information, we do not believe the use of nPB within the U.S., and within the end-uses reviewed in this rulemaking, poses a significantly greater risk to the ozone layer than other available substitutes. Comments on the June 2003 NPRM expressed concern that other countries, particularly those in equatorial regions, might assume that nPB does not pose a danger to the stratospheric ozone layer if the U.S. EPA's SNAP program finds nPB acceptable (Linnell, 2003; Steminiski, 2003). Because the ODP for nPB is higher when used in the tropics, 6 we recognize the concerns raised by these commenters. However, EPA is regulating use in the U.S. and cannot dictate actions taken by other countries. We believe the more appropriate forum to address this concern is through the Parties to the Montreal Protocol. At the most recent Meeting of the Parties, the Parties made the following decision with regard to n-propyl bromide, in order to “allow Parties to consider further steps regarding n-propyl bromide, in the light of available alternatives” (Decision XVIII/11): 6 nPB emissions in the tropics have an ODP of 0.071 to 0.100; the portions of the U.S. outside the continental U.S., such as Alaska, Hawaii, Guam, and the U.S. Virgin Islands, contain less than 1 percent of the U.S.'s businesses in industries that could use nPB. Thus, their potential impact on the ozone layer must be significantly less than that of the already low impact from nPB emissions in the continental U.S. (U.S. Economic Census, 2002a through f). 1. To request the Scientific Assessment Panel to update existing information on the ozone depletion potential of n-propyl bromide, including ozone depleting potential depending on the location of the emissions and the season in the hemisphere at that location; 2. To request the Technology and Economic Assessment Panel to continue its assessment of global emissions of n-propyl bromide, * * * paying particular attention to:

(a)Obtaining more complete data on production and uses of n-propyl bromide as well as emissions of n-propyl bromide from those sources;

(VOC)under state implementation plans

(SIPs)developed to attain the National Ambient Air Quality Standards for ground-level ozone, which is a respiratory irritant. Users located in ozone nonattainment areas may need to consider using a substitute for cleaning that is not a VOC or if they choose to use a substitute that is a VOC, they may need to control emissions in accordance with the SIP. Companies have petitioned EPA, requesting that we exempt nPB from regulation as a VOC. However, unless and until EPA issues a final rulemaking exempting a compound from the definition of VOC and states change their SIPs to exclude such a compound from regulation, that compound is still regulated as a VOC. Other acceptable ODS-substitute solvents that are VOCs for state air quality planning purposes include most oxygenated solvents such as alcohols, ketones, esters, and ethers; hydrocarbons and terpenes; trichloroethylene; trans-1,2-dichloroethylene; monochlorotoluenes; and benzotrifluoride. Some VOC-exempt solvents that are acceptable ODS substitutes include HFC-245fa, HCFC-225ca/cb, HFC-365mfc and HFC-4310mee for aerosol solvents, and methylene chloride, perchloroethylene, HFE-7100, HFE-7200, PCBTF, acetone, and methyl acetate for aerosol solvents, adhesives, and coatings. C. Ecosystem and Other Environmental Impacts EPA considered the possible impacts of nPB if it were to pollute soil or water as a waste and compared these impacts to screening criteria developed by the Endocrine Disruptor Screening and Testing Advisory Committee (EDSTAC, 1998) (see Table 5). Available data on the organic carbon partition coefficient (K oc ), the breakdown processes in water and hydrolysis half-life, and the volatilization half-life indicate that nPB is less persistent in the environment than many solvents and would be of low to moderate concern for movement in soil. Based on the LC 50 , the acute concentration at which 50% of tested animals die, nPB's toxicity to aquatic life is moderate, being less than that for some acceptable cleaners (for example, trichloroethylene, hexane, d-limonene, and possibly some aqueous cleaners) and greater than that for some others (methylene chloride, acetone, isopropyl alcohol, and some other aqueous cleaners). The LC 50 for nPB is 67 milligrams per liter (mg/l), which is greater and thus less toxic than an LC 50 of 10 mg/l, one of EPA's criteria for listing under the Toxics Release Inventory (US EPA, 1992; ICF, 2004a). Based on its relatively low bioconcentration factor and log K ow value (logarithm of the octanol-water partition coefficient), nPB is not prone to bioaccumulation. Table 5 summarizes information on environmental impacts of nPB; trans-1,2-dichloroethylene, a commonly-used solvent in blends for aerosol solvents, precision cleaning, and electronics cleaning; acetone, a commonly-used carrier solvent in adhesives; trichloroethylene, a solvent used for metals, electronics, and precision cleaning that could potentially be used in aerosol or adhesive end-uses; and methyl chloroform, an ODS that nPB would replace. Table 5.—Ecosystem and Other Environmental Properties of n **PB and Other Solvents** Property Description of environmental property Value for nPB Value for trans-1,2-dichloro-ethylene Value for acetone Value for trichloroethylene Value for methyl chloroform K oc , organic-carbon partition coefficient Degree to which a substance tends to stick to soil or move in soil. Lower values (< 300) * indicate great soil mobility; values of 300 to 500 indicate moderate mobility in soil 330 (Source: ICF, 2004a) 32 to 49 (Source: ATSDR, 1996) 5.4 (Source: ATSDR, 1994) 106 to 460 (Source: ATSDR, 1997) 152 (Source: U.S. EPA, 1994a). Break down in water Mechanism and speed with which a compound breaks down in the environment. (Hydrolysis half-life values > 25 weeks * are of concern.) Hydrolysis is significant. Hydrolysis half-life of 26 days (Source: ICF, 2004a) Photolytic decomposition, dechlorination and biodegradation are significant; hydrolysis not significant (Source: ATSDR, 1996) Biodegradation is most significant form of breakdown (Source: ATSDR, 1994) Volatilization and biodegradation most significant, with hydrolysis relatively insignificant. Hydrolysis half-life of 10.7 to 30 months (Source: ATSDR, 1997) Volatilization most significant; biodegradation and hydrolysis also occur (Source: ATSDR, 2004). Volatilization half-life from surface waters Tendency to volatilize and pass from water into the air 3.4 hours-4.4 days (Source: ICF, 2004a) 3 to 6.2 hours (Source: ATSDR, 1996) 7.8 to 18 hours (Source: ATSDR, 1994) 3.4 hours to 18 days (Source: ATSDR, 1997) Hours to weeks (Source: U.S. EPA, 1994a). LC 50 (96 hours) for fathead minnows Concentration at which 50% of animals die from toxicity after exposure for 4 days 67 mg/L (Source: Geiger, 1988) 108 mg/L (Source: U.S. EPA, 1980) 7280 to 8120 mg/L (Source: Fisher Scientific, 2001) 40.7 to 66.8 mg/L (Source: NPS, 1997) 52.8 to 105 mg/L (Source: U.S. EPA, 1994a). log K ow Logarithm of the octanol/water partition coefficient, a measure of tendency to accumulate in fat. Log K ow values >3 ;* indicate high tendency to accumulate 2.10 (Source: ICF, 2004a) −0.48 (Source: LaGrega *et al.* , 2001, p. 1119) −0.24 (Source: LaGrega *et al.* , 2001, p. 1117) 2.38 (Source: LaGrega *et al.* , 2001, p. 1127) 2.50 (Source: LaGrega *et al.* , 2001, p. 1127). Bioconcentration factor High factors (>1000) * indicate strong tendency for fish to absorb the chemical from water into body tissues 23 (Source: HSDB, 2004) 5 to 23 (Source: ATSDR, 1996) <1 (Source: ATSDR, 1994) 10 to 100 (Source: ATSDR, 1997) <9 (Source: U.S. EPA, 1994a). * Criteria from EDSTAC, 1998. nPB is not currently regulated as a hazardous air pollutant and is not listed as a hazardous waste under the Resource Conservation and Recovery Act (RCRA). nPB is not required to be reported as part of the Toxic Release Inventory under Title III of the Superfund Amendments and Reauthorization Act. Despite this, large amounts of nPB might be harmful if disposed of in water. We recommend that users dispose of nPB as they would dispose of any spent halogenated solvent (F001 waste under RCRA). Users should not dump nPB into water, and should dispose of it by incineration. We conclude that nPB does not pose a significantly greater risk to the environment than other available alternatives, and that the use of nPB within the U.S. should not be prohibited under the SNAP program on the basis of its environmental impacts. D. Flammability and Fire Safety A number of commenters on the June 2003 proposal provided additional information on the flammability of nPB using standard test methods for determining flash point, such as the American Society for Testing and Materials

(ASTM)D 92 open cup, ASTM D56 Tag closed cup, and ASTM D93 Pensky-Martens closed cup methods (BSOC, 2000; Miller, 2003; Morford, 2003a, 2003b, and 2003c; Shubkin, 2003; Weiss Cohen, 2003). We agree with the commenters that by these standard test methods, nPB displayed no flash point. Thus under standard test conditions, nPB is not flammable, and it should not be flammable under normal use conditions. With its low potential for flammability, nPB is comparable to chlorinated solvents, HCFCs, HFEs, HFC-245fa, HFC-4310mee, and aqueous cleaners, and is less flammable than many acceptable substitutes, such as ketones, alcohols, terpenes, and hydrocarbons. nPB exhibits lower and upper flammability limits of approximately 3% to 8% (BSOC, 2000). A number of other solvents that are typically considered to be non-flammable also have flammability limits (for example, methylene chloride, HCFC-141b, and methyl chloroform). If the concentration of vapor of such a solvent falls between the upper and lower flammability limits, it could catch fire in presence of a flame. Such a situation is unusual, but users should take appropriate precautions in cases where the concentration of vapor could fall between the flammability limits. E. Health Impacts and Exposure In evaluating potential human health impacts of nPB used as a substitute for ozone-depleting substances, EPA considered impacts on both exposed workers and on the general population. Using the same approach finalized in the original SNAP rulemaking, EPA evaluated the available toxicity data using EPA guidelines to develop health-based criteria to characterize human health risks (US EPA, 1994b. Inhalation Reference Concentration Guidelines; U.S. EPA, 1991. Guidelines for Developmental Toxicity Risk Assessment; U.S. EPA, 1995a. Benchmark Dose guidelines; U.S. EPA, 1996. Guidelines for Reproductive Toxicity Risk Assessment). To assess human health risks, EPA followed the four basic steps of risk assessment outlined by the National Academy of Sciences: hazard identification, dose-response relationship, exposure assessment, and risk characterization (NAS, 1983). First, EPA examined available studies on nPB's effects. Second, EPA considered the acceptable exposure levels for evaluating worker exposure and a community exposure guideline

(CEG)for evaluating exposure to the general population based upon inhalation exposure. Third, EPA compared the acceptable exposure levels and CEG to available exposure data and projections of exposure levels to assess exposure, including new exposure data available since publication of the June 2003 NPRM. Finally, EPA decided whether there was sufficient evidence indicating that nPB could be used as safely as other alternatives available in a particular end use. Authority To Set an Acceptable Exposure Limit Two commenters on the June 2003 NPRM said that EPA has no jurisdiction to develop any acceptable exposure limit

(AEL)designed to be applicable to a workplace environment and that only the Occupational Safety and Health Administration

(OSHA)has that authority (Stelljes, 2003; Morford, 2003d). In contrast, another commenter said that EPA has the authority to set an AEL for nPB under section 612 of the Clean Air Act, has done so in the past for other chemicals (e.g., HFC-4310mee, HCFC-225ca/cb), and should require the AEL as a use condition (Risotto, 2003). EPA believes it has the authority to calculate exposure limits for the workplace under section 612. Section 612(c) specifically states that The Administrator shall issue regulations: providing that it shall be unlawful to replace any class I or class II substance with any substitute substance which the Administrator determines may present adverse effects to human health or the environment, where the Administrator has identified an alternative to such replacement that—

(1)reduces the overall risk to human health and the environment; and

(2)is currently or potentially available. Thus, we must compare the risks to human health and the environment of a substitute to the risks associated with other substitutes that are currently or potentially available, as required by the Clean Air Act. In order to compare risks to human health, EPA performs quantitative risk assessments on different chemicals comparing exposure data and exposure limits, following the process described above by the National Academies of Science (NAS, 1983) and as described in the preamble to the original final SNAP rule (March 18, 1994; 59 FR 13066). Because most humans who are exposed to nPB are exposed in the workplace, the appropriate exposure data and exposure limits to protect human health must include workplace exposure data and acceptable exposure limits for the workplace. Because there is wide disparity in acceptable exposure limits for nPB developed by industry, ranging from 5 ppm to 100 ppm (Albemarle, 2003; Chemtura, 2006; Docket A-2001-07, item II-D-19; Enviro Tech International, 2006; Farr, 2003; Great Lakes Chemical Company, 2001), and because there is not a Permissible Exposure Limit for nPB set by the Occupational Safety and Health Administration, EPA believes it is appropriate to independently evaluate the human health risks associated with use of nPB in the workplace. Similarly, EPA has developed a community exposure guideline to assess the human health effects of nPB exposure to the general public. Skin Notation Several commenters on the June 2003 proposal stated that a skin notation for nPB is appropriate, while another commenter agreed with EPA's proposal that no skin notation was necessary (Smith, 2003; HESIS, 2003; Werner, 2003, Weiss Cohen, 2003). Rat studies indicate that dermal exposure to nPB results in neither appreciable absorption through the skin (RTI, 2005) nor systemic toxicity (Elf Atochem, 1995). Unlike methyl chloride and dichlorvos, which are absorbed through the skin and could contribute to systemic toxicity (ACGIH, 1991), EPA is not proposing to include a skin notation for nPB in the information provided to users associated with this rulemaking because of the relatively low level of absorption. The American Conference of Governmental Industrial Hygienists (ACGIH) provides no skin notation in its documentation for threshold limit values

(TLVs)for several solvents, including nPB (ACGIH, 2005), methylene chloride, and perchloroethylene, and there is no evidence that absorption through the skin is greater for nPB than for the other halogenated compounds. Further, including a statement giving advice about how to reduce skin exposure in the “Further Information” column of listings is likely to be more informative to workers than a skin notation. Given the possibility that some nPB can be absorbed through the skin in humans, and that the solvent can irritate the skin, EPA encourages users to wear protective clothing and flexible laminate gloves when using nPB and encourages vendors to include such precautions in their Material Safety Data Sheets (MSDSs). EPA requests comment on whether it would be useful, in lieu of a skin notation to add the following statement in the “further information” column of each end use where we find nPB acceptable with restrictions: “EPA recommends the use of personal protective equipment, including chemical goggles, flexible laminate protective gloves and chemical-resistant clothing, when using nPB.” EPA also considered the potential health effects of contamination of nPB formulations with isopropyl bromide (iPB). 7 In the June 2003 proposed rule, we proposed as a use condition that nPB formulations contain no more than 0.05% iPB by weight. One commenter opposed the proposed use condition, stating that it places an undue legal burden on end users, rather than the manufacturers of raw materials, that it would not benefit worker safety, and that the nPB industry has worked to reduce iPB content below 0.05% (Morford, 2003e). We agree that industry has met this contamination limit for several years without regulation. Furthermore, EPA agrees that if users are exposed to nPB concentrations no higher than the highest potentially acceptable concentration (30 ppm), a worker's exposure to iPB will be sufficiently low to avoid adverse effects. Therefore, this proposed rule does not include a use condition limiting iPB content in nPB formulations. 7 iPB is also referred to as 2-bromopropane, 2-propyl bromide, or 2-BP. Its CAS registry number is 75-26-3. 1. Workplace Risks In the June 2003 NPRM, EPA proposed that an exposure limit of 25 ppm would be protective of a range of effects observed in animal and human studies, including reproductive and developmental toxicity, neurotoxicity, and hepatotoxicity. Reduction of sperm motility in rats, noted across multiple studies at relatively low exposures, was determined to be the most sensitive effect. The Agency derived an exposure limit of 18 ppm from a dose response relationship in male rat offspring (“F1 generation”) whose parents were exposed to nPB from prior to mating through birth and weaning of the litters (WIL, 2001). We then proposed to adjust this value upwards to 25 ppm based on principles of risk management, consistent with one of the original “Guiding Principles” of the SNAP program (59 FR 13046, March 18, 1994). As we discussed in the June 2003 NPRM, EPA noted that adhesives users should be able to achieve an AEL of 25 ppm and that 25 ppm was between the level based on the most sensitive endpoint (sperm motility in the F1 offspring generation at 18 ppm) and the second most sensitive endpoint (sperm motility in the F0 parental generation at 30 ppm). Following SNAP program principles, we noted that “a slight adjustment of the AEL may be warranted after applying judgment based on the available data and after considering alternative derivations” (69 FR 33295). Because the animals were exposed to nPB for some time periods that would not occur during actual occupational exposure, we stated further that “18 ppm is a reasonable but possibly conservative starting point, and that exposure to 25 ppm would not pose substantially greater risks, while still falling below an upper bound on the occupation[al] exposure limit.” Since the 2003 proposal, the Agency has reviewed both information available at the time of the 2003 NPRM related to the health risks associated with nPB use, as well as more recent case studies of nPB exposures and effects in the workplace, newly published toxicological studies, comments to the June 2003 NPRM, including new risk assessments on nPB, and a new threshold limit value

(TLV)issued by ACGIH. OSHA has not developed a permissible exposure limit

(PEL)for nPB that EPA could use to evaluate toxicity risks from workplace exposure. The ACGIH, an independent organization with expertise in industrial hygiene and toxicology, has developed a final workplace exposure limit of 10 ppm (ACGIH, 2005); however, as discussed below, EPA has concerns about the documentation and basis of ACGIH's derivation. The Agency reconsidered which exposure levels are likely to protect against various health effects, based on review of all available information. We summarize benchmark dose data for a number of endpoints found in these analyses in Table 6 below. We examined these data to assess the acceptability of nPB use in the aerosol solvent, adhesive and coatings end uses reviewed in this proposed rule. These data indicate that, once uncertainty factors are applied consistent with EPA guidelines, the lowest levels for acceptable exposures would be derived for reproductive effects. 8 The data indicate that levels sufficient to protect against male reproductive effects (e.g., reduced sperm motility) would be in a range from 18 to 30 ppm, 9 in the range of 17 to 22 ppm to protect against female reproductive effects (e.g., number and length of estrous cycles), and at approximately 20 ppm for effects related to reproductive success (live litter size). 8 By EPA guidelines, we would apply an uncertainty factor of −10, or approximately 3, for differences between species for all health effects. We would also apply an uncertainty factor of √10

(3)for variability within the working population for reproductive and developmental effects, because, among other reasons, these conditions would not necessarily screen out an individual from being able to work, unlike for liver or nervous system effects. Therefore, for reproductive and developmental effects, we use a composite uncertainty factor of 10. See further discussion of uncertainty factors in section V.C. below. 9 Based on WIL, 2001, as analyzed in ICF, 2002. The equivalent values based upon Stelljes and Wood's

(2004)analysis of WIL, 2001 would be slightly lower, from 16 to 28 ppm. Table 6.—Summary of Endpoints Using Benchmark Response Modeling Endpoint a Study Benchmark dose lowerbound

(BMDL)b

(ppm)Human equivalent concentration

(HEC)c

(ppm)Liver Effects d Liver vacuolation in males (F 1 offspring generation) WIL, 2001 as analyzed in ICF, 2002 110 116 Liver vacuolation in males (F 0 parent generation) WIL, 2001 as analyzed in ICF, 2002 143 150 Liver vacuolation ClinTrials, 1997b as analyzed in ICF, 2002 and Stelljes & Wood, 2004 226 170 Reproductive Effects—Male Sperm motility (F 1 offspring generation) WIL, 2001 as analyzed in ICF, 2002 WIL, 2001 as analyzed in Stelljes & Wood, 2004 169 156 177 164 Sperm motility (F 0 parent generation) WIL, 2001 as analyzed in ICF, 2002 WIL, 2001 as analyzed in Stelljes & Wood, 2004 282 263 296 276 Prostate weight (F 0 parent generation) WIL, 2001 as analyzed in TERA, 2004 190 200 Sperm count Ichihara *et al.* , 2000b as analyzed in Stelljes & Wood, 2004 232 325 Sperm deformities (F 0 parent generation) WIL, 2001 as analyzed in Stelljes & Wood, 2004 296 311 Reproductive Effects—Female Number of estrus cycles during a 3 week period (F 0 parent generation) WIL, 2001 as analyzed in ICF, 2006 WIL, 2001 as analyzed in ICF, 2006 162 208 170 218 Estrous cycle length (F 1 offspring generation) d WIL, 2001 as analyzed in TERA, 2004 400 420 Estrous cycle length (F 0 parent generation) e WIL, 2001 as analyzed in TERA, 2004 210 220 No estrous cycle incidence (F 1 offspring generation) WIL, 2001 as analyzed in TERA, 2004 180 189 No estrous cycle incidence (F 0 parent generation) WIL, 2001 as analyzed in TERA, 2004 480 504 Reproductive Effects—Reproductive Success Decreased live litter size (F 1 offspring generation) WIL, 2001 as analyzed in TERA, 2004 190 200 Decreased live litter size (F 2 offspring generation) WIL, 2001 as analyzed in TERA, 2004 170 179 Pup weight gain, post-natal days 21 to 28 (F 1 offspring generation) WIL, 2001 as analyzed in TERA, 2004 180 189 Developmental Effects Fetal body weight WIL, 2001 as analyzed in TERA, 2004 310 326 Fetal body weight WIL, 2001 as analyzed in CERHR, 2002a 305 320 Nervous System Effects Hindlimb strength Ichihara *et al* , 2000a as analyzed in Stelljes and Wood, 2004 214 300 a Unless explicitly stated, data are from a parental generation. Of the studies analyzed, only the WIL, 2001 study has multiple generations to be analyzed. b The benchmark response value represents a specified level of excess risk above a control response. c When considering workplace exposures, the human equivalent concentration is the BMDL, adjusted to apply to a 40-hour work week in which workers are exposed for 8 hours a day for five days per week. Animals in the WIL, 2001 study were exposed for 6 hours a day, 7 days a week. Animals in the Ichihara, 2000a and 2000b studies were exposed for 8 hours a day, 7 days a week. Animals in the ClinTrials, 1997b study were exposed for 6 hours a day, 5 days a week. d After applying an uncertainty factor of 3 for animal to human extrapolation, acceptable levels of exposure to protect against liver effects would be in the range of 39 to 57 ppm. e Omits data from those animals that have stopped estrous cycling altogether (TERA, 2004). 2. General Population Risks EPA used a community exposure guideline of 1 ppm to assess potential risks to the general population living near a facility using nPB (see section V.E below). Of the end uses covered in this rule, use of nPB-based adhesives would result in the highest exposure levels, and so, we first examined general population exposure from adhesives. ICF Consulting modeled inhalation exposure to nPB to people living near a plant using nPB-based adhesives in several scenarios using the Agency's SCREEN3 model (US EPA, 1995b). Based on this modeling, EPA found that the exposure to individuals in the general population was below the community exposure guideline. The analysis indicates that nPB is no greater a hazard to the general population than other acceptable solvents under the SNAP program. For further discussion, see the risk screen for nPB (ICF, 2006a). Representatives from a state environmental agency and from a potential user of nPB have asked EPA whether we had developed a reference concentration (RfC). We clarify that the community exposure guideline is a value developed by the SNAP program for our risk assessment of nPB following EPA's RfC Guidelines. However, it is not a formal RfC developed by EPA's National Center for Environmental Assessment and is not in IRIS. At this time, EPA does not have plans to issue an official RfC for nPB. V. How did EPA assess impacts on human health? A. Newly Available Exposure Data Since publication of the June 2003 NPRM, EPA has received additional information on exposure levels in each end use discussed in this proposal. In the adhesives end use, we considered new exposure modeling based on information from site visits to facilities using spray adhesives (ICF, 2006a). These data predicted that: • At average rates of ventilation and adhesive application, average workplace exposures would be approximately 60 ppm. • Average adhesive application rates and poor ventilation rates resulted in average exposures of approximately 250 ppm. • High (90th percentile) adhesive application rates and average ventilation rates resulted in average exposures of approximately 600 ppm. • In the worst case scenario with high adhesive application rates and poor ventilation, average workplace exposures would be as high as 2530 ppm. We compared the modeled data in the four exposure scenarios to measured exposure data in three health hazard evaluations by the National Institute for Occupational Safety and Health (NIOSH) (NIOSH 2002a, 2002b, 2003a). Our understanding is that North Carolina OSHA received complaints from workers and requested that NIOSH evaluate health hazards at these three facilities. NIOSH found average exposure levels of 68 ppm, 116 ppm, 127 ppm, and 195 ppm for sprayers actively using the adhesive prior to installation of state-of-the-art ventilation systems (NIOSH 2002a, 2002b, 2003a). The plant with an average exposure level of 68 ppm for sprayers (9 samples) had an average exposure level comparable to the average concentration of 60 ppm in the modeling scenario with average adhesive rates and average ventilation levels. The other plants with average exposure levels of 116 to 127 ppm (20 samples), and of 195 ppm (36 samples) for sprayers had exposure levels between the average modeled exposure for a facility with average adhesive application rates and average ventilation (60 ppm) and the average modeled exposure for a facility with average adhesive application rates and poor ventilation (250 ppm). Based on this comparison, EPA believes the modeled exposure levels are a reasonable predictor of actual exposure based on current industry practice in the adhesive end use. In the aerosol solvent end use, we received a study on workplace exposure levels of nPB-based aerosols from a commenter (Linnell, 2003). This study was performed to simulate typical exposure levels in a number of situations where nPB might be used in the workplace while using different types of ventilation equipment, rather than using data from current industry users of nPB-based aerosols in their actual manufacturing or maintenance processes. As discussed below in section VI.A., we are concerned that the exposure data and ventilation levels in this study may not be representative of use of nPB-based aerosols in industry. Personal breathing zone samples taken from the collars of workers showed 8-hour time-weighted average

(TWA)exposures of 5.5, 13, and 32 ppm for workers using 310 g of nPB from a spray can 10 (Linnell, 2003). The two higher exposure levels occurred in the absence of any local or regional ventilation; the use of both local and regional ventilation equipment with ventilation levels around 1900 ft 3 /min was associated with the lowest exposure level. Short-term exposures of 370, 1,100 and 2,100 ppm taken from a room with regional ventilation at 640 cubic feet per minute (cfm), when averaged over an 8-hour period, resulted in exposures of 12, 34, and 66 ppm (Linnell, 2003). EPA considers the highest of these 8-hour values, 66 ppm, not to be representative of worker exposure from inhalation because the measurement was taken from the worker's wrist, rather than from his breathing zone. Another short-term exposure value of 190 ppm, taken from a vented booth with local ventilation at 472 cfm, in addition to the regional ventilation of 640 cfm, resulted in an 8-hour exposure of 6 ppm. Similar measurements were made in another study we considered in developing the June 2003 NPRM: Eight hour (8-hr) TWA exposures of 11.3, 15.1, 17.0, and 30.2 ppm with regional ventilation of 300 cubic feet per minute from a fan for the entire room (Confidential submission, 1998). 10 Unlike samples measured directly in the breathing zone, area samples measured in the study are not considered representative of actual exposure and are not discussed here. Short-term measurements taken over 15 minutes from personal samplers, although in some cases extremely high, are not discussed in detail here because available toxicity information does not indicate need for a short-term exposure limit for nPB in addition to the 8-hr TWA limit (ACGIH, 2005; ERG, 2004). Additional information on these other samples is in the occupational exposure assessment for aerosols in the risk screen for nPB (ICF, 2006a). Another commenter submitted information on aerosol exposures for a number of other available alternative aerosols (Werner, 2003). While these data do not include nPB, based on the properties of aerosol solvents, we believe it is reasonable to compare concentrations of these different chemicals to potential nPB exposures. The study compared concentrations of eight different chemicals that are acceptable under the SNAP program in aerosol formulations: HFE-7100, HFE-7200, trans-1,2-dichloroethylene, HCFC-225ca and -225cb, acetone, pentane, and HFC-134a. In this study, with ventilation of only 48 cfm, 8-hr TWA exposure from the different chemicals varied from 35.5 ppm to 194.0 ppm, 11 below the recommended exposure levels for these particular chemicals (ICF, 2006a) but above the range of exposure levels that EPA would consider acceptable for nPB. 11 These measurements can be converted to estimates of nPB exposure by multiplying the measured concentration of the alternate chemical by the molecular weight of the same alternate chemical and dividing this by the molecular weight of nPB, 123. After performing this calculation, the equivalent exposure levels for nPB vary from 29.5 ppm to 394.4 ppm. In addition, we considered new information from modeling of nPB exposures (ICF, 2006a). The modeling examined exposure levels that would be expected at ventilation levels of 450 cfm, 625 cfm, and 1350 ppm, considering the molecular weight of the compound and the composition of different aerosol blends. EPA's SNAP program has previously used these same levels to calculate potential aerosol exposures, based upon exposure levels expected during benchtop cleaning. In a space with an air exchange rate of 450 ft 3 /minute or less, 12 EPA's modeling predicts 8-hour average exposure of approximately 16 to 17 ppm if a user sprays 450 g of nPB (approximately 1 lb), 13 and corresponding higher exposure values at higher spray rates (e.g., 33 ppm if the amount of nPB sprayed is 900 g) (ICF, 2006a). Exposure values were predicted to be lower at higher ventilation rates. 12 This corresponds roughly to a regional or room fan at low levels or natural air currents in an open area. Confined areas would have even lower air exchange rates with higher exposure levels. 13 We consider use of 1000 g/day to be the high end of typical use, based on the setup of one of the exposure studies (Confidential Submission, 1998). The typical aerosol solvent user in the electronics industry uses a can per day (Williams, 2005). This is comparable to or slightly less than the spray rate assumed in the modeling. Since the June 2003 NPRM, EPA received a new submission for nPB in coatings (Lake City Army Ammunition Plant, 2003). The Lake City Army Ammunition Plant provided data on workplace exposure to nPB (Lake City Army Ammunition Plant, 2004). The mean exposure at this facility was 3.7 ppm. Out of 31 samples taken, 25 (approximately 80%) were below 5 ppm. Only one of 31 samples had an exposure level above 10 ppm, and that exposure value was approximately 21 ppm. B. Newly Available Data on Health Effects Since publication of the June 2003 NPRM, EPA has examined additional occupational (Table 7) and animal (Table 8) studies that have become available: Table 7.—Recent Studies on n **PB Occupational Exposure** Case Study Sample size/population Exposure data Observations Remarks Beck and Caravati, 2003 6 foam cushion factory workers (gluers) Exposure during 30-40 hr/wk for a 3-month period. Exposure measured in one day was a mean of 130 ppm (range, 91-176 ppm) Lower leg weakness accompanied by pain and difficulty with standing and walking, numbness of legs and feet, hyperreflexia and hypertonicity of lower extremities, dizziness and shortness of breath, and peripheral neurotoxicity. Measured serum bromide levels were elevated, range 44-170 mg/dL Small sample size studied. Possible interference or synergistic effects from other adhesive ingredients (1,2-epoxybutane and styrene-butadiene). Majersik *et al.* , 2004; Majersik *et al.* , 2005 * 6 foam cushion factory workers (gluers) 5-8 hr/day for at least 2 years with mean air concentration of 130 ppm on last day of study. Measurements taken over 9 hours (equivalent to 92-127 ppm with mean of 108 ppm for an 8-hour TWA) Subacute onset of lower extremity pain, difficulty walking, and high serum bromide levels in blood. Neurotoxic symptoms persisted for at least 2 years after exposure ended Follow-up to Beck and Caravati (2003). Chronic nPB exposure associated with incapacitating neurotoxic syndrome. Initial report from Utah OSHA indicated erroneously that workers were not spraying while measurements were taken. In fact, adhesives were being sprayed and fans were being used only for portions of the day that measurements were taken, making measurements likely to be representative of conditions during the past several months at the plant. Ichihara *et al.* , 2004a 37 chemical plant workers (24 males and 13 females) 12 hour shifts over 2-day period, mean concentration of 82 ppm (range, 0-170 ppm) Mucosal irritation (nose, throat), headache, dizziness, constipation, intoxication, and feeling light-headed or heavy-headed. Four female workers complained of disruption or cessation of menstruation. No severe chronic symptoms of neurological damage at less than 170 ppm. Several workers had hemoglobin and hematocrit values outside of the normal range and were diagnosed with mild anemia; most of these cases also showed signs of iron deficiency Inadequate exposure characterization and exposure to other potential toxicants, small sample size, and no appropriate control group. Healthy worker effect possible, where more sensitive workers left the factory between 1996 and 1999. Ichihara *et al.* , 2004b 27 female chemical plant workers (23 age matched with 23 females from a beer factory control group) 1-day exposure period, range of exposure, 0.34-49 ppm Responses indicated anxiety, fatigue, confusion, tension, and depression. Changes in menstrual status but not statistically significant. Effects on peripheral and central nervous system—diminished vibration sensation of the foot; significantly longer distal latency in the tibial nerve; decreased values in sensory nerve conduction velocity in the sural nerve; and lower scores on memory and perceptual tests. No comparable effects seen in control group No long-term exposure measurements, small sample size; lack of controls for age, height, and body-weight. Low B vitamin levels in normal range in some workers but researchers concluded this did not cause observed neurological effects. Additionally, the study did not indicate any significant differences in the prevalence of menstrual cycle abnormalities. Nemhauser, 2005 * Foam cushion factory workers (gluers) in North Carolina In 1999 study, 16 workers exposed to mean air concentration of 116 ppm, and 12 sprayers exposed to mean concentration of 108 ppm with range of 58 to 254 ppm. In 2001 study, 13 workers exposed to nPB mean air concentration of 46 ppm and 12 sprayers were exposed to mean concentration of 101 ppm, with range of 38 to 281 ppm Higher exposure to nPB and dose-dependent relationship among those who reported anxiety, headache, and ataxia. No reproductive abnormalities reported in medical survey for men or women. Semen analysis found no differences between exposed and unexposed workers Small sample sizes studied with moderate worker participation. Healthy worker effect likely occurred: Those that had most significant health effects had already removed themselves from workplace by the time of the study. No arsenic found at the plant. Neurotoxic effects caused by nPB. See related Health Hazard Evaluation (HHE): NIOSH, 2003a. NIOSH, 2003a 16 workers in 1999 evaluation; 13 workers in 2001 follow-up evaluation 1999 Initial Site Visit: Geometric mean nPB concentration (from personal samples), 81.2 (range, 18-254 ppm); 2001 follow-up: Geometric mean, 81.2 ppm (range, 7-281 ppm) Most workers exposed to nPB levels > 25 ppm. Exposure concentrations lower in 2001 than 1999, but difference not statistically significant. Headache, anxiety, feeling drunk associated with nPB exposure. Hematological endpoints unaffected in exposed group. No correlation of nPB exposure with sperm or semen indices or with neurological abnormalities Arsenic was not attributed to occupational exposure. The National Institute for Occupational Safety and Health (NIOSH) stated that neurological symptoms may have been related to excess exposure to nPB, but that no other effects could conclusively be related to nPB exposure. Raymond and Ford, 2005 * 4 foam cushion factory workers (gluers) in North Carolina Exposure study conducted 9 months after index patient became ill indicated workers exposed to mean nPB air concentration of 116 ppm. 4 workers exposed for 2-3 weeks before initial symptoms detected Dizziness, numbness, ocular symptoms, lower extremity weakness and unsteady gait, weakness, hypesthesia, and ataxic gait in all four workers. Symptoms decreased over time but after six years, at least one worker re-exposed twice at other furniture plants; one or more still suffer from ataxia Small sample size, possible confounding effect from arsenic. Toraason *et al.* , 2006 41 and 22 foam cushion factory workers (gluers) at 2 facilities 1-3 days up to 8 hrs per day, with concentrations of 0.2-271 ppm at facility A, 4-27 ppm at facility B No statistically significant differences in DNA damage with worker's nPB exposure. In vitro results showed nPB increased DNA damage Authors find limited evidence that nPB poses a “small risk” for DNA damage. * Presentation at North American Congress of Clinical Toxicology on September 14, 2005. Table 8.—Recent Animal Studies of n **PB Effects** Citation Population/sample size Exposure Observations Comments Fueta *et al.* , 2002 24 male Wistar rats (12 control, 12 exposed) 6 hr/day, 5 day/wk for 8 weeks at 700 ppm No apparent morphological defects in the brain Only one exposure concentration was used (which is higher than the level already associated with other toxic effects in rodents [400 ppm]) and a shorter exposure duration (8 weeks) was used than the other subchronic studies that have shown effects (13 weeks). Fueta *et al.* , 2004 58 male Wistar rats (29 experimental and 29 in control group) 6 hr/day, 5 day/wk for 4 to 8 weeks, 700 ppm No apparent morphological defects in the brain. Chronic inhalation changes brain enzyme levels and electrical activity that is reversible after exposure Unclear how nPB and/or its metabolites directly act on receptors or channels in the brain. Furuhashi *et al.* , 2006 80 Wistar rats (pups and their dams)

(1)8 hr/day (4 hr, followed by 2.5-hr rest period, followed by 4 hr exposure), 7 day/wk during gestation and nursing at 0, 100, 400, 800 ppm in first experiment

(2)Dams exposed (800 ppm) during gestation (Group A), offspring not exposed during nursing. Offspring of Group

(B)of unexposed dams were nursed by exposed dams. Offspring in control groups C and D not exposed

(1)At 800 ppm: most rat offspring died within 2 days of birth or in utero;. body weights of dams significantly lower, organ weights of offspring significantly lower after weaning at 800 ppm in males, and 800 and 400 ppm in females. Most sperm and estrous indicators did not differ among the groups, although the rate of sperm arrival to the cauda epididymis was significantly lower in the 400 ppm group. Inconsistent or no changes in biochemical indicators

(2)Second experiment No difference in body weights and pregnancy endpoints between exposed (800 ppm) and unexposed dams. Live offspring at birth, survival rates, body weights, significantly decreased, number of dead offspring, significantly increased in 800-ppm groups Authors concluded that exposure to nPB during pregnancy and lactation adversely affects growth and survival of offspring. Low numbers of offspring in 400- and 800-ppm exposure groups prevent statistical testing EPA comments: Study design inconsistent with guidelines for developmental studies, so comparisons to previous studies are difficult. The mechanism for the adverse effects observed is not known (e.g., indirect exposure through milk, changes in nursing behavior, changes in milk production, exposure in utero, changes in the intrauterine environment) Honma *et al.* , 2003 Fisher 344 male rats 8 hr/day, 7day/wk for three weeks exposed to 0, 10, 50, 200 or 1000 ppm (5 rats/dosage and 5 different tests) 3 week exposure to greater than 50 ppm temporarily increased locomotor activity and ambulatory and rearing behaviors in male rats Neurological effects shown to be transient and reversible at ≥ 200 ppm (Ichihara *et al.* , 2000) or absent after 28 days of exposure at concentrations ≥ 400 ppm (ClinTrials, 1997a) or after 90 days of exposure at concentrations up to 600 ppm (ClinTrials, 1997b) in other studies. Human studies are limited by co-exposures and poor estimates of exposure concentrations. Thus, EPA is not using this endpoint as the basis of an AEL. Ishidao *et al.* , 2002 30 male Wistar rats 6 hr/day, 5 day/wk with test groups (10/dose) exposed to 700 ppm for 4 and 12 weeks and 1500 ppm for 3 and 4 weeks nPB is metabolized rapidly in the rat following exposures to nPB at concentrations ≥ 700 ppm for at least 3 weeks Exposure levels are higher than in some other studies and are much higher than concentrations seen in the workplace. nPB metabolism appears to be different following multiple exposures as compared to acute exposures (see RTI, 2005; ICF, 2006b). NTP, 2003 Female and male B6C3F1 mice and Fischer 344 rats 0, 62.5, 125, 250, 500 (rats and mice), 1000

(rats)ppm for 90 days Early mortality in mice at 500 ppm accompanied by liver and lung cell degeneration and cytoplasmic vacuolization. Cytoplasmic vacuolization also in rat liver cells ≥ 250 ppm (males) and ≥ 500 ppm (females), with increased severity at higher doses. No adverse central nervous system

(CNS)effects or histopathology reported Unpublished study. Conclusions drawn from a review of raw data from the National Toxicology Program

(NTP)Web site. In general, the severity of effects (in non-reproductive organs) is slightly higher at lower concentrations in male rats than in females. RTI, 2005/Garner *et al.* , 2006 Female and male B6C3F1mice and Fisher 344N rats, four to six animals in each test trial Exposure via several injection routes (intraperitoneal, intravenous, cannuliz-ation), inhalation, and dermal. Injection conducted via bolus dosing at 5, 20, or 100 mg/kg body weight. Inhalation concentrations of 70, 240, 800, and 2700 ppm administered in a single acute exposure. A dose of 96 mg/kg was applied to a shaved area on the backs of six male rats with a non-occlusive charcoal filter covering (that is, one that does not prevent evaporation) nPB cleared by mice after 48 hours as follows: 45% as volatiles in the breath, 28% as CO 2 in the breath, 26% in urine, <3% in feces, and 2% retained in the body. Distribution was similar in male rats, although amounts in urine and volatiles in breath were higher in mice. At higher doses, the amount of nPB excreted in urine and as CO 2 decreased, with a much greater change in rats compared to mice • After pretreatment with a cytochrome P450 inhibitor, a decrease in nPB cleared as CO 2 (80%) and urine (40%); pretreatment with a glutathione inhibitor reduced nPB cleared as CO 2 by 10% and urine by 4% • The Vmax, a measure of the maximum initial rate of an enzyme-catalysed reaction, is 0.227 for male rats, 0.143 for female rats, 0.329 for male mice and 0.234 for female mice. Half-lives were comparable between males and females at ≤ 800 ppm • For rats exposed to nPB through skin, 37% of the dose was excreted in volatiles, 1.2 % in urine, 1.7% as CO 2 , and 35.7% was on the applicators or in the skin washes. Only 0.32% remained in tissues. Airborne concentrations of nPB in the chamber were 4 to 10 ppm after dosing The study authors concluded that: • nPB administered via intraperitoneal injection or inhalation is eliminated mostly through the breath, with urine as a secondary path. • Metabolism of nPB appears to be primarily through cytochrome P450 enzymes (CYP2E1), particularly in mice; glutathione conjugation still plays an important role in rats. • At high concentrations, female rats may have a decreased capacity to metabolize nPB compared to male rats. • nPB decreases glutathione levels in the liver after a one-time exposure to nPB at concentrations as low as 70 ppm. • nPB is not appreciably absorbed (~3-27%) in rats following dermal application. EPA agrees with these points, except we found that gender differences were only apparent in rats at very high concentrations (2700 ppm and greater). We also note that: • Inhalation tests were only one-time exposures at very high concentrations (240 to 2700 ppm), and thus, are not comparable to long-term dosing at the lower levels expected in the workplace. • Results of dermal testing are not conclusive because of potential for inhalation exposure. Sohn *et al.* , 2002 40 male and 40 female Sprague-Dawley rats 6 hr/day, 5 day/wk for 13 weeks, test groups (10/sex/dose) were exposed to 0, 200, 500 or 1250 ppm No effects on mortality, activity, weight gain, food consumption, urinalysis, or histological effects in the brains and spinal cords The differences between the various studies may be due to variability in exposure methodology and achieved concentrations of nPB. Stump, 2005* 125 female/125 male rats in first generation and 100 female/100 male rats in offspring generation Both test groups of 25 male rats/ 25 female rats exposed to 0, 100, 200, 250, 500 and 750 ppm nPB for 10 weeks Decreased litter size at 250 and 500 ppm in both generations. Decreased fertility at 100 and 250 ppm in offspring generation Complete infertility at 750 ppm. Reproductive effects seen in both rat sexes which is a strong signal of reproductive toxicity potential in humans. The author considers 100 ppm to be a lowest observed adverse effect level (LOAEL). This is a presentation of data from WIL, 2001. Wang *et al.* , 2003 36 male Wistar rats 8 hr/day, 5 day/wk for 12 weeks, test groups ( 9 rats) were exposed to 0, 200, 400 or 800 ppm Decrease in creatine kinase in the spinal cord (17% at ≥ 200 ppm) and brain (15-28% at ≥ 400 ppm) at 200, 400, and 800 ppm. No physical or behavioral changes observed Small study size. No behavioral changes or physical symptoms were observed in the animals, so the toxicological relevance of the decrease in creatine kinase is questionable. Yamada *et al.* , 2003 40 female Wistar rats 8 hr/day, 7 day/wk with test groups (9/dose) exposed to 0, 200, 400, or 800 ppm for 12 weeks All rats at 800 ppm became seriously ill after 7 weeks of exposure. Significant decrease in antral follicles at ≥ 200 ppm, and a decrease in the number of female rats exhibiting regular estrous cycles in 400-ppm females during 7-9 weeks of exposure and at 2-3 weeks at the 800-ppm dose Data suggest that nPB is affecting the maturation of ovarian follicles. A no observed adverse effect level (NOAEL) of 200 ppm is identified with a LOAEL of 400 ppm for the changes in estrus cycles. * Presentation at North American Congress of Clinical Toxicology on September 14, 2005 • In general, the recent animal studies collectively show a range of effects associated with nPB exposure that are qualitatively consistent with previously published findings. (Exceptions to this are the negative results regarding central nervous system toxicity in the NTP

(2003)study and the Sohn

(2002)study on rats.) Some general conclusions we draw from the new studies include: • Case reports of nPB exposure in the workplace indicate that severe, possibly irreversible, neurological effects may occur at sustained concentrations of approximately 100 ppm or greater (Beck and Caravati, 2003; Majersik *et al* , 2004; Majersik *et al.* , 2005; Ichihara *et al.* , 2002a; Miller, 2005; Raymond and Ford, 2005). In other cases, similar or higher concentrations up to 170 ppm caused less severe nervous system effects (Nemhauser, 2005; NIOSH, 2003a; Ichihara, 2004a). Some neurological effects occurred in workers at levels of less than 50 ppm (Ichihara *et al.* , 2004b). Because of design and methodological limitations, such as small numbers of subjects and limited exposure information, these studies do not provide a sufficient quantitative basis to derive an acceptable exposure limit. • Data on female rats indicate that nPB affects the maturation of ovarian follicles and the ovarian cycle (Yamada *et al.* , 2003), consistent with previously reviewed data (WIL , 2001; Sekiguchi *et al.* , 2002). • Some data on occupation exposure suggest that workers exposed to nPB may have experienced menstrual disorders (Ichihara *et al.* , 2002; Ichihara *et al.* , 2004b). However, the data are not statistically significant and are not sufficient to conclude that nPB exposure caused these female reproductive effects. • Data on DNA damage in workers exposed to nPB was not statistically significant (Toraason *et al.* , 2006). • Metabolic data on mice and rats indicate some species differences. Metabolism of nPB appears to be primarily through cytochrome P450 enzymes, particularly in mice; glutathione conjugation also plays a role, and a bigger role for rats than for mice (RTI, 2005). • New data from toxicological studies on nervous system effects remain inconsistent and equivocal concerning the level at which nervous system effects occur (Fueta *et al.* , 2002; Fueta *et al.* , 2004; Honma *et al.* , 2003; Ishidao *et al.* , 2002, NTP, 2003; Sohn *et al.* 2002, Wang *et al.* , 2003). A number of commenters on the June 2003 NPRM suggested that EPA should consider neurotoxicity as the endpoint in deriving an AEL for nPB (Linnell, 2003; Werner, 2003; Rusch and Bernhardt, 2003, Rusch, 2003). In particular, they requested that EPA consider the study conducted by Wang

(2003)and epidemiological data on neurotoxic effects of nPB. As discussed above, the data on neurotoxic effects of nPB on workers are limited and are not sufficient to determine acceptable levels of exposure. In the study on rats by Wang *et. al.* (2003), measurements found a decrease in enzymes in the spinal cord and brain at 200, 400, and 800 ppm, but the animals displayed no physical or behavioral changes. Because of the lack of physical symptoms or behavioral changes, EPA does not believe that the decrease in enzyme levels in the central nervous system are toxicologically relevant. Other studies examining neurological effects of nPB showed those effects to be transient and reversible at and above 200 ppm (Ichihara *et al.* , 2000a). Exposures of 200 ppm and above for three weeks had no effect on memory, learning function, or coordination of limbs (Honma, 2003); the effect of spontaneous locomotor activity seen in this study at 50 ppm and above was not considered adverse by the authors. In other studies, neurological effects were absent after extended periods of exposure-after 28 days of exposure at concentrations> 400 ppm (ClinTrials, 1997a) and after 90 days of exposure at concentrations up to 600 ppm (ClinTrials, 1997b). Thus, although neurological effects have been associated with nPB exposure, the data are currently insufficient to quantify and determine acceptable exposure levels based on this endpoint. One commenter on the June 2003 NPRM requested that EPA evaluate a study by Yamada *et al.* (2003), a study published just prior to the June 2003 NPRM. In response to the comment, EPA reexamined Yamada *et al.* , 2003 and re-evaluated the literature (Ichihara *et al.* , 1999, 2002, 2004a,b; Sekiguchi, 2002, Yamada *et al.* , 2003; WIL, 2001) to assess potential reproductive toxicity in females (ICF, 2006a, Att. A). A peer review of these effects is in the public docket (ICF, 2004b). Multiple benchmark analyses found a statistically significant decrease in the number of estrous cycles and increase in estrous cycle length associated with nPB exposure, consistent with other reproductive endpoints, namely reductions in sperm motility, decreased live litter size, and change in prostate weight (ICF, 2002a; ICF, 2006a; Stelljes and Wood, 2004; TERA, 2004). Reproductive effects are seen in males, females, and offspring, and in different generations of the two-generation study (WIL, 2000). They also are consistent with results seen in one-generation reproductive studies, such as Ichihara *et al.* (2000b) and Yamada (2003). See Table 6 above in section IV.E.1. for a more complete list of the different health effects. EPA believes that the preponderance of the data indicate that exposure levels sufficient to protect against male reproductive effects ( *e.g.* , reduced sperm motility) would be in a range from 18 to 30 ppm, in the range of 17 to 22 ppm to protect against female reproductive effects ( *e.g.* , number and length of estrous cycles), and at approximately 20 ppm for effects related to reproductive success (live litter size). We have not determined what specific level within those ranges (an overall range of 17 to 30 ppm) is most appropriate for evaluating whether a substitute may be used safely and consider these exposure levels to be potentially acceptable. Therefore, we assessed the acceptability of nPB by considering whether it could be used safely in the three end-uses. For end-uses with likelihood of exposures above the range we are considering, while following typical industry practices, we are proposing an unacceptability determination. For end-uses that as their normal practice meet exposure levels below the range we are considering, we are proposing an acceptability determination. It is not necessary for 100% of exposure data for an end use to be above or below the range of 17 to 30 ppm in order to make a determination on the acceptability of an end use because there may be occasional cases that are not following common industry practices. Unusual events would not indicate the industry's likelihood of keeping exposures at safe levels, and thus, should not be the determining factor in our decision. Rather, we consider the overall likelihood that typical industry use would consistently result in acceptably low or unacceptably high exposures. In the June 2003 NPRM, EPA used a BMDL of 169 ppm as a point of departure for developing an AEL. Some commenters stated that data from the F1 generation is inappropriate for calculating occupational exposure, citing statements from toxicologists, such as, “occupational exposure involves adults only.” They also stated that EPA has not required this for other chemicals and that the resulting value is more conservative than what is normal and appropriate for industrial toxicology (Morford, 2003f, Ruckriegel, 2003). Others stated that sperm motility effects on the F1 generation are appropriate to consider (Risotto, 2003; Farr, 2003), particularly because of the potential for *in utero* effects and because of the consistent presence of these reproductive effects in both generations and at multiple levels. EPA acknowledges that using data from the F1 offspring generation may be conservative because the pups in the F1 generation were exposed to nPB between weaning and sexual maturity (WIL, 2001). During occupational exposure, this period of exposure would not occur because children under age 16 are not allowed to work in industrial settings. However, EPA believes that because of the potential for *in utero* effects that would only be seen in the offspring generation, looking only at the F0 parental generation could underestimate the adverse health impacts of a chemical. Therefore, we believe it is appropriate to consider effects seen in both the F0 parental generation and the F1 offspring generation. Further, effects on sperm motility in the parental and offspring generations are seen at levels generally consistent with multiple reproductive effects seen in both generations and both sexes exposed to nPB, such as estrous cycle length, lack of estrous cycling, the number of estrous cycles in a given period of time, fertility indices, and the number of live pup births (TERA, 2004; ICF, 2006a; SLR International, 2001). Therefore, we believe that the available data indicate that in order to protect against adverse reproductive effects, an exposure level within the range of 17 to 30 ppm, would potentially be acceptable. We would reach the same proposed decisions of unacceptability based upon data from the F0 generation. C. Evaluation of Acceptable Exposure Levels for the Workplace To calculate acceptable exposure levels for nPB, EPA uses standard risk assessment methods delineated in Agency guidance (U.S. EPA, 1994b) in evaluating data, choosing a benchmark dose level or a NOAEL, and making the adjustments and uncertainty factors prescribed to account for differences in the duration of exposure and in sensitivity between and within species. Adjustment for Occupational Exposure Pattern To account for differences between the exposure pattern used in the WIL study (6 hours per day for 7 days per week) when compared to a typical workweek of 8 hours per day and 5 days a week, a “human equivalent concentration”

(HEC)is first calculated by adjusting the benchmark dose level: *(BMDL in ppm × 6 hours/8 hours) × 7 days/5 days = HEC (ppm)* HECs for the major health endpoints are shown in Table 6 above in section IV.E.1. Uncertainty Factors According to EPA risk assessment guidance for reference concentrations

(RfC)(EPA 1994a), uncertainty factors of up to 10 may be applied to the HEC for each of the following conditions:

(1)Data from animal studies are used to estimate effects on humans;

(2)Data on healthy people or animals are adjusted to account for variations in sensitivity among members of the human population (inter-individual variability);

(3)Data from subchronic studies are used to provide estimates for chronic exposure;

(4)Studies that only provide a LOAEL rather than a NOAEL or benchmark dose; or

(5)An incomplete database of toxicity information exists for the chemical. EPA believes that two uncertainty factors are appropriate for this database to account for that:

(1)Physiological differences between humans and rats; and

(2)variability within the working population. The rationale for the use of these two uncertainty factors is described below. EPA RfC guidelines state that an uncertainty factor of 10 may be used for potential differences between study animals and humans. This factor of 10 consists in turn of two uncertainty factors of 3—the first to account for differences in pharmacodynamics 14 and the second to account for differences in pharmacokinetics 15 between the study of animal and humans. (The value of three is the square root of 10 rounded to one digit, with 10 representing an order of magnitude (EPA,1994a). In practice, EPA uses the square root of 10 when there are two or four uncertainty factors of 3, yielding a total uncertainty factor of 10 or 100, and we use a value of 3 when multiplying by an uncertainty factor of 10). By EPA RfC guidelines (U.S. EPA, 1994b), no adjustment for differences in pharmacokinetics is necessary in this instance because the blood/air partition coefficient 16 for nPB in the human (7.1) is less than in the rat (11.7), indicating that the delivered dose of nPB into the bloodstream in rats is slightly higher than in humans. Consistent with Appendix J of EPA's RfC guidelines for an inhaled compound that exerts its effects through the bloodstream, EPA applies an uncertainty factor of 1 for pharmacokinetics. 14 Pharmacodynamics refers to the biochemical and physiological effects of chemicals in the body and the mechanism of their actions. 15 Pharmacokinetics refers to the activity or fate of chemicals in the body, including the processes of absorption, distribution, localization in tissues, biotransformation, and excretion. 16 The blood/air partition coefficient is the ratio of a chemical's concentration between blood and air when at equilibrium. However, EPA recognizes that the lack of an uncertainty adjustment for pharmacokinetic differences between animals and humans rests on a default approach applied to category 3 gases described in Appendix J of its guidelines for deriving an inhalation RfC. This default approach assumes that nPB's toxicokinetics follow a model in which:

(1)The toxicity is directly related to the inhaled parent compound in the arterial blood, and

(2)the critical metabolic pathways scale across species, with respect to body weight, in the same way as the ventilation rate. Given the hypothesized metabolic pathways for nPB (ICF, 2002a; CERHR, 2002a), it is plausible that toxicity in rats may be related to a reactive metabolite in the target tissue rather than the blood level of the parent compound. EPA is not aware of any quantitative data on nPB metabolism in humans, or evidence implicating the biologically active agent or mode of action. Some commenters on the June 2003 NPRM stated that EPA should use an uncertainty factor of 1 or 2 to extrapolate from animals to humans (Weiss Cohen, 2003), while others suggested uncertainty factors of 2 or 3 for pharmacokinetics, or an overall uncertainty factor of 10 for rat to human extrapolation because of a lack of information on the metabolism and mode of action of nPB and because the rat is an insensitive model for effects on male reproduction in humans (Werner, 2003; Rusch and Bernhardt, 2003). Commenters provided no data to indicate that

(1)the toxicity is not directly related to the inhaled parent compound in the arterial blood, or

(2)the critical metabolic pathways do not scale across species, with respect to body weight, in the same way as the ventilation rate. Recent studies provide additional data regarding metabolism of nPB in rats and mice (RTI, 2005), but data on human metabolism are still lacking. One analysis of these metabolic data suggested that mice are less sensitive to the effects of nPB than rats and hypothesized that humans would also be less sensitive than rats (Stelljes, 2005). However, this analysis makes numerous assumptions about toxic nPB metabolites and metabolic activation pathways that have not been confirmed by experimental data. A review of this analysis is available in the public docket (ICF, 2006c). Despite the difference in metabolic pathways for nPB in mice and rats (RTI, 2005), EPA finds no significant species-specific differences in toxicity exist between rats and mice at inhaled concentrations <500 ppm for 13 weeks (NTP, 2003; ICF, 2006b). These metabolic and subchronic inhalation studies conducted under the National Toxicology Program did not specifically examine for reproductive toxicity or nPB metabolism in target organs that control reproductive function. In summary, there are little available data about the metabolic activation or reactive metabolites responsible for reproductive toxicity in rodents. Similarly, for nPB, there is little information available about differences and similarities between rodents and humans. Given this circumstance, EPA assumes, in the absence of evidence to the contrary, that nPB toxicity is directly related to the inhaled parent compound in the arterial blood and that the critical metabolic pathways scale across species in a manner similar to the ventilation rate. Therefore, the Agency is proposing to apply an uncertainty factor of 1 to account for interspecies differences in pharmacokinetics. EPA requests additional data and comment from the public on the pharmacokinetics, metabolism, and mode of action of nPB that will help determine whether an interspecies uncertainty factor greater than the default value of 1 is warranted to account for pharmacokinetics. If data become available indicating that nPB does not conform to the constraints assumed by the default pharmacokinetic model in the RfC guidelines, we would revise our risk assessment for nPB as necessary, and apply an uncertainty factor for pharmacokinetics consistent with the RfC guidelines in extrapolating from animal to humans. Depending on the resulting difference in the acceptable exposure levels, we would also revise our acceptability determinations accordingly. Given the available data on the blood/air partition coefficient and EPA RfC guidance in the absence of other information, EPA is applying the same rationale used for other compounds reviewed under EPA's SNAP program with a comparable amount of data where an uncertainty factor of 1 for pharmacokinetics was applied. To account for uncertainty in pharmacodynamics of nPB, EPA is applying the default uncertainty factor of 3. This follows the procedures in EPA's RfC guidelines for situations where there are no data to compare pharmacodynamics in rats versus humans (U.S. EPA, 1994b). Recently published data on humans and rodents do not decrease the uncertainty regarding the pharmacodynamics of nPB; therefore, modification of the uncertainty factor of 3 for differences between species is not justified. One commenter stated that EPA did not cite any data that describes the size, condition, or very existence of a subpopulation of men especially sensitive to the effects of nPB. In addition, this commenter asserted that sensitive populations are not traditionally considered when deriving an occupational exposure limit, and that EPA has never mentioned a concern with sensitive subpopulations in previous SNAP reviews. EPA disagrees with the comments. There are preexisting reproductive conditions as well as significant variability in fertility among otherwise healthy adults in the workplace. Women over age 35 and men over age 40 have fertility rates up to three times lower than those of people in their twenties, with effects on the ovarian cycle and on sperm motility as major factors changing with increasing age for women and men, respectively (Dunson *et al.* , 2002). Adding damage from other factors, such as smoking or occupation exposure to chemicals such as nPB, therefore, can potentially harm an individual's ability to reproduce further (Dunson, *et al.* 2002). In addition, we note that EPA has used uncertainty factors in the past to protect sensitive subpopulations on other chemicals reviewed under the SNAP program (e.g., trifluoroiodomethane at 69 FR 58907, October 1, 2004). For deriving AELs from health endpoints such as liver effects and neurotoxicity, the SNAP program typically has assigned an uncertainty factor of 1 for sensitive subpopulations because we assume that individuals who are especially susceptible to these effects will have greater difficulty working than most people. However, there is no connection between the ability to reproduce and the ability to work in the industrial sectors discussed in this rule. Thus, we find it appropriate to apply an uncertainty factor greater than 1 for reproductive effects. Some commenters on the June 2003 NPRM said that an uncertainty factor of 1 is appropriate for variability within the working population because sensitive subpopulations will not be present in the working population (Stelljes, 2003, Morford, 2003f). Other commenters stated that there will be very little difference in variability between the worker population and the general population and that it is unclear why EPA selected an uncertainty factor of 3 instead of 10 (Werner, 2003). Commenters suggested uncertainty factors for variability in the working population of 1, 2, and 5 (Stelljes, 2003; Weiss Cohen, 2003; Werner, 2003). EPA's RfC guidelines recommend an uncertainty factor of 10 to account for intraspecies variability within the general population. However, in deriving an acceptable exposure limit, EPA's focus is on worker exposure, which excludes some particularly vulnerable populations, such as children, most adolescents, and the elderly. Thus, we believe that a full uncertainty factor of 10, as for the general population, may be higher than necessary to protect workers. However, because of variability in reproductive function due to factors present among workers, such as aging, smoking, and sexually transmitted disease, and because there is no screening of workers that would make workers more likely to have healthy reproductive systems than non-workers of the same age, we believe than an uncertainty factor of 1 is not sufficiently protective. Under EPA guidelines, 3 is a default value for an uncertainty factor where there is indication that a value less than an order of magnitude

(10)but greater than one is appropriate, and where the available data are not sufficiently quantified to select a specific value. Therefore, EPA is again proposing to assign an uncertainty factor of 3 to account for difference between individuals in the working population. The uncertainty factors of 3 for animal-human extrapolation and 3 for variability within the human working population (each representing the square root of ten, half an order of magnitude) yield a composite uncertainty factor of 10. This factor was applied to all HECs derived from reproductive studies summarized in Table 6 in section IV.E.1 above. The resultant values are higher than the value that would have been obtained had EPA used the TLV of 10 ppm developed by the ACGIH. EPA believes that the benchmark dose approach more accurately characterizes the observed effects and provides a more robust utilization of the data. D. Other Analyses of nPB Toxicity Analyses Reviewed During Preparation of June 2003 NPRM One commenter on the June 2003 NPRM stated that documents by Drs. Doull, Rozman, Stelljes, Murray, Rodricks, and the KS Crump Group were not acknowledged (Morford, 2003f, g, and h). EPA specifically mentioned and responded to the occupational exposure limit recommendations from Drs. Rozman, Doull, and Stelljes in the preamble to the June 2003 NPRM at 68 FR 33298-33299. In addition, EPA included more detailed written responses to these derivations and the evaluation by Dr. Rodricks in the online docket prior to proposal (EPA-HQ-OAR-2002-0064-0017, -0018, and -0019). We considered these documents in preparation of the June 2003 proposal as well as this proposal. In general, we disagree that the neurotoxicity endpoint selected by Drs. Rozman and Doull is the most appropriate endpoint for setting an AEL and we agree with Dr. Stelljes that sperm motility in the F1 offspring generation of the WIL, 2001 2-generation study is an appropriate endpoint. We agree with a number of these documents that data from the F1 generation may be conservative because workplace exposure would not include exposure to the F1 animals during the four-week period from weaning to sexual maturity. However, EPA believes that because of the potential for *in utero* effects that would only be seen in the offspring generation, looking only at the F0 parental generation could underestimate the adverse health impacts of a chemical. Therefore, it was appropriate for us to consider effects seen in both the F0 parental generation and the F1 offspring generation. Further, effects on sperm motility in the parental and offspring generations are seen at levels generally consistent with multiple reproductive effects seen in both generations and both sexes exposed to nPB, such as estrous cycle length, lack of estrous cycling, the number of estrous cycles in a 3-week period, and the number of live pup births (TERA, 2004; ICF, 2006a; SLR International, 2001; Stelljes and Wood, 2004). We believe that the document from the K. S. Crump group, a survey of the ratio of points of departure to TLVs set by the ACGIH, is not relevant now that the ACGIH has issued a TLV specifically for nPB. ACGIH appears to set an AEL for nPB that is a factor of 10 lower than the endpoint cited as lowest (100 ppm for effects on pup weight) (ACGIH, 2005). Thus, ACGIH has used an approach for nPB consistent with the total uncertainty factor of 10 assigned by EPA. In general, we find that these documents submitted by the commenter assigned uncertainty factors in a manner inconsistent with EPA guidance. This would result in a higher AEL than we would determine following the approach EPA has used on other chemicals, as well as an AEL that in our view would not sufficiently protect human health from nPB's effects because of multiple sources of uncertainty in available data ( *e.g.* , variability within the working population, differences between animals and humans in how nPB affects the reproductive system). Since the 2003 NPRM, a number of reviews of nPB toxicity have been issued, several of which include recommendations for occupational exposure limits. CERHR, 2003a and 2004a are similar to CERHR, 2002a, the expert panel report for nPB for the Center for the Evaluation of Risks to Human Reproduction (CERHR). CERHR, 2003b and 2004b are similar to CERHR, 2002b, the CERHR expert panel's report for iPB. These documents discuss the usefulness of data in available studies for assessing nPB's health impacts and establish No Observed Adverse Concentration levels of 100 ppm for both male and female reproductive effects in animals, but do not derive an AEL. Rozman and Doull, 2005 derived an AEL of 25 ppm for nPB based on neurotoxicity, using more recent information than Rozman and Doull, 2002. The Stelljes and Wood

(2004)analysis is similar in its results to SLR International (2001), a study by the same authors. EPA previously reviewed SLR International, 2001 in developing the June 2003 NPRM. Both studies by Stelljes and Wood concluded with a recommended AEL of 156 ppm, based on male reproductive effects and uncertainty factors of 1 in driving the AEL. Stelljes

(2005)reviews RTI's 2005 study on metabolism of nPB in mice and rats and other literature and speculates that humans should be less sensitive to nPB than either mice or rats based on differences in metabolite production. Stelljes

(2005)recommends that no uncertainty factor is required to extrapolate from animals to humans and that an uncertainty factor of no more than 2 is appropriate to account for differences within the working population. All of these documents assigned uncertainty factors in a manner that is not sufficiently supported by the available data and that is inconsistent with EPA's guidance. For example, Stelljes

(2005)discusses metabolic data in rats and mice from RTI, 2005 and concludes that on this basis, the uncertainty factor for extrapolation from animals to humans should be 1. However, the metabolic data relate to pharmacokinetics—the activity of chemicals in the body—and do not address EPA's proposed uncertainty factor of 3 related to pharmacodynamics (the biochemical and physiological effects of chemicals in the body and the mechanism of their actions). Using the AEL from one of these documents would result in a higher, less protective AEL than we would determine following the approach EPA has used for other chemicals under the SNAP program and would not consider multiple sources of uncertainty in health effects (i.e., variability within the working population and differences between animals and humans in how nPB affects the reproductive system). Thus, we are concerned that the AELs based on these documents would not be sufficiently protective and would result in an inappropriate acceptability decision. Detailed reviews of these documents are available in the public docket. Toxicological Excellence in Risk Assessment (TERA), 2004 reviews other AEL derivations for nPB, performs a benchmark dose

(BMD)analysis, and recommends an AEL of 20 ppm based on live litter size. This analysis is consistent with EPA guidance for BMD modeling and for assigning uncertainty factors. A review of this document is available in the public docket (ICF, 2004c). ICF (2004b, 2006a) derived an AEL for nPB based upon female reproductive effects. ICF (2004b, 2006a) discussed the relevant literature (Ichihara *et al.,* 1999, 2002, 2004a, 2004b; Sekiguchi, 2002; Yamada *et al.* , 2003; WIL, 2001) and calculated mean estrous cycle length and the mean number of estrous cycles occurring during a three-week period at different exposure levels in the WIL, 2001 2-generation study. ICF (2004b, 2006a) found statistically significant reductions in the number of estrous cycles in a three-week period, both including and excluding females that had stopped their estrous cycles, at 250, 500, and 750 ppm in the F0 parental generation and at 500 and 750 ppm in the F1 generation. ICF (2004b, 2006a) conducted BMD modeling and calculated BMDL values of the number of estrous cycles in a three-week period that varied from 102 to 208 ppm, depending upon the model used and the benchmark criteria selected. All data were calculated based on the mean reductions in estrous cycle number calculated from the WIL, 2001 study. Values were calculated for the F0 generation; the number of data for the F1 generation was too small for statistical analysis. The BMDLs that ICF calculated for the number of estrous cycles in a three-week period were 162 ppm and 208 ppm, depending on the benchmark response criteria (10% change in response vs. one standard deviation) and using a linear-heterogeneous model. The California Environmental Protection Agency's Office of Environmental Health Hazard Assessment (OEHHA) listed both nPB and iPB as reproductive toxins on the basis of developmental, male reproductive, and female reproductive toxicity under the State's Safe Drinking Water and Toxic Enforcement Act of 1986, also known as Proposition 65 (OEHHA, 2006). Under this law, California is required to list chemicals known to be carcinogenic or to be reproductive toxins and to update that list at least annually. The American Conference of Government Industrial Hygienists (ACGIH) issued a recommended Threshold Limit Value TM

(TLV)of 10 ppm (time-weighted average) for nPB (ACGIH, 2005). ACGIH summarized numerous studies showing different effects of nPB and identified no observed effect levels (NOELs) of 200 ppm for hepatotoxicity (ClinTrials, 1997b) and less than 100 ppm for developmental toxicity, as evidenced by decreased fetal weight (Huntingdon Life Sciences, 2001). OSHA has not developed a permissible exposure limit

(PEL)for nPB that EPA could use to evaluate toxicity risks 17 from workplace exposure. In prior SNAP reviews, EPA has used ACGIH TLVs where available in assessing a chemical's risks and determining its acceptability if OSHA has not set a PEL. ACGIH is recognized as an independent, scientifically knowledgeable organization with expertise in issues of toxicity and industrial hygiene. However, in this case, EPA believes that ACGIH's TLV for nPB of 10 ppm has significant limitations as a reliable basis for an acceptable exposure limit, especially given the availability of other, more comprehensive analyses described in this proposal. First, according to the authors of the Huntingdon Life Sciences study, the decrease in fetal weight was an artifact of sampling procedure that biased the data (test animals were only sacrificed at the end of the day rather than at random). The CERHR expert panel excluded “aberrantly low” fetal weights from one litter in this study and calculated a BMDL greater than 300 ppm for this endpoint after removing those outlier data (CERHR, 2002a, 2003a, and 2004a). TERA calculated a similar BMDL when analyzing the same data set (TERA, 2004). Further, the reference list in the documentation on the TLV indicates that ACGIH did not review and evaluate all the studies available prior to the development of the recommended exposure limit. For example, key supporting articles that reported disruption of estrous cycles (Yamada *et al.* , 2003 and Sekiguchi *et al.* , 2002) were not discussed in the TLV documentation. Further, ACGIH did not provide sufficient reasoning for the selection of the chosen endpoint over others (e.g., reproductive toxicity and/or neurotoxicity). The lack of discussion of applied uncertainty factors also prevents a determination of how ACGIH arrived at a TLV of 10 ppm. In summary, EPA is not basing its proposed acceptability determination for nPB on the ACGIH TLV because:

(1)Other scientists evaluating the database for nPB did not find the reduced pup weight to be the most sensitive endpoint;

(2)benchmark dose

(BMD)analysis of the reduced pup weight data (CERHR, 2002a; TERA, 2004) results in a higher BMDL (roughly 300 ppm) than those for reproductive effects; and

(3)ACGIH may not have reviewed the complete body of literature as several studies discussing neurotoxicity and female reproductive effects were omitted from the list of references. A number of reviews of this document are available in the public docket (ICF, 2004d; O'Malley, 2004). 17 Vendors of nPB-based products have recommended a wide range of exposure limits, from 5 ppm to 100 ppm (Albemarle, 2003; Chemtura, 2006; Docket A-2001-07, item II-D-19; Enviro Tech International, 2006; Farr, 2003; Great Lakes Chemical Company, 2001). We note that, even if EPA had selected the ACGIH TLV as our basis for assessing the risks of nPB, we would have proposed the same determinations. In the specific coatings application that we propose to find acceptable subject to use conditions at the Lake City Army Ammunition Plant, exposure data showed an ability to meet an exposure level of 10 ppm, with the vast majority of measurements below that value. Thirty-four of 35 samples had concentrations below 10 ppm, and the mean concentration for the plant was less than 4 ppm (Lake City Army Ammunition Plant, 2004). For the aerosol and adhesive end uses, it would be even more difficult to achieve an exposure level of 10 ppm than to achieve a level in the range that EPA is considering (17 to 30 ppm). Thus, we would have proposed the same decisions for nPB of acceptable, subject to use conditions for coatings and unacceptable for aerosols and adhesives using the ACGIH's TLV of 10 ppm to assess health risks. Despite some flaws in its derivation, the TLV of 10 ppm is less than two-fold lower than the low end of the range of acceptable exposure levels based on the most sensitive reproductive endpoints. This small difference is well within the uncertainty required to extrapolate a benchmark dose from an experimental study in rats to an occupational exposure limit in humans. E. Community Exposure Guideline In this proposal, EPA is using a community exposure guideline

(CEG)of 1 ppm to evaluate potential health risks among populations living near facilities using nPB. This community exposure guideline is an estimate of a continuous inhalation exposure (averaged over 24 hours per day, 7 days per week) to the general public (including sensitive subgroups) that is likely to be without an appreciable risk of adverse health effects during a lifetime. Based on EPA risk assessment guidelines (US EPA, 1994b), the CEG was derived using the lowest BMDL from effects listed in Table 6 as the point of departure (110 ppm for vacuolation in the liver of animals in the F1 generation of WIL, 2001). The HEC was calculated as follows: *110 ppm x (6 hours exposure in study/24 hours avg time) x (7 days/7 days) = 28 ppm* EPA used an uncertainty factor of 3 for extrapolation from animals to humans, as discussed above in section VI.A, and an uncertainty factor of 10 for variability within the general population, consistent with EPA's RfC guidelines. Dividing the HEC of 28 ppm by 30 yields a community exposure guideline of approximately 1 ppm. If we had used sperm motility (HEC of 42 ppm based on a BMDL of 169 ppm) or number of estrous cycles (HEC of 40 ppm based on a BMDL of 162 ppm) as starting points, we would calculate the same approximate CEG value. We note that, following RfC guidelines, EPA's community exposure guideline includes a number of conservative assumptions, including exposure adjustments to protect an individual exposed for up to 24 hours a day for 70 years (U.S. EPA, 1994b, p. 1-5). EPA evaluated general population exposure using EPA's SCREEN3 (U.S. EPA, 1995b) air dispersion model to assess the likely maximum concentration of nPB from single sources. 18 EPA used data collected from actual facilities (Swanson, 2002) to characterize two scenarios:

(1)A typical large, high-use adhesive application facility where the closest resident is 100 meters away; and

(2)a smaller facility with average-use adhesive application in an urban area, where the nearest resident is only 3 meters away. The results indicated that modeled exposures in either scenario did not exceed the CEG of 1 ppm. The highest exposure modeled was 0.24 ppm at a distance of 3 meters away from the source in the urban scenario, while most other exposures were at least an order of magnitude lower (ICF, 2003; ICF, 2006a). Because the community exposure guideline was not exceeded for any of the exposure scenarios in this conservative screening approach, EPA has concluded that nPB exposure to populations living close to facilities using nPB is not a concern for purposes of determining the acceptability of nPB under the SNAP program. 18 We performed the modeling for a facility using nPB-based adhesives because the nPB emissions from this type of facility were expected to be higher than those from facilities using nPB for other end uses. Thus, if a facility using adhesives would not result in emissions exceeding the CEG, facilities using nPB in aerosols or in metals, electronics, or precision cleaning also would not result in emissions exceeding the CEG. VI. What listing is EPA proposing for each end use, and why? In this rule, EPA is proposing to find nPB unacceptable in adhesive and aerosol solvent end uses, and acceptable subject to use conditions in the coatings end use. The proposed listings, summarized in Table 9, are intended to allow the use of nPB where it does not pose a human health risk significantly greater than other substitutes and prohibit nPB's use where nPB exposure cannot be maintained, or is unlikely to be maintained, at even the highest level considered in this proposal (i.e., 30 ppm). We also are taking comment on an alternate approach of finding nPB acceptable subject to use conditions in the above end uses (see Section VII.A). Table 9.—Proposed Decisions by End Use and Sector For nPB in this sector and end use: Our proposal is to list nPB as: And our proposed alternate approach is: Aerosols: Aerosol solvents Unacceptable Acceptable, subject to use conditions. 2 Adhesives, Coatings, and Inks: Coatings Acceptable, subject to use conditions 1 Acceptable, subject to use conditions. 2 Adhesives Unacceptable Acceptable, subject to use conditions. 2 1 Use of nPB in this end use is limited to coatings at facilities that, as of May 30, 2007, have provided EPA information demonstrating their ability to maintain acceptable workplace exposures (i.e., the Lake City Army Ammunition Plant). 2 Use conditions would include proposed requirements that users must

(1)meet an exposure limit of 20 ppm on an eight-hour time-weighted average,

(2)monitor workers' exposure to nPB using a personal breathing zone sampler on an eight-hour time-weighted average initially and periodically (every 6 months or longer, depending on the concentration during initial monitoring), and

(3)keep records of the worker exposure data on site at the facility for at least three years from the date of the measurement. A. Aerosol Solvents In this rule, EPA proposes to find nPB unacceptable in the aerosol solvent end use. There are a number of aerosol solvent alternatives that do not pose any risk for ozone depletion or for ground level smog formation. 19 EPA's greatest concern with nPB-based aerosols is that users of nPB as an aerosol solvent cannot reliably maintain exposures at sufficiently low levels to ensure that workers are protected. This finding is based on measured exposure data and model estimations indicating the likelihood of elevated concentrations associated with nPB-based aerosols given typical ventilation conditions. A number of other acceptable solvent alternatives are available that can be used at exposure levels below their respective acceptable exposure limits. 19 Smog, also known as ground-level ozone, is produced from emissions of volatile organic compounds that react under certain conditions of temperature and light. Ventilation conditions are an important consideration in evaluating potential risks within this end-use category. “Benchtop cleaning” of individual parts, which is feasible under exhaust hoods or in spray booths with adequate ventilation, comprises 25% or less of the market involving ODS substitutes for aerosols (U.S. EPA, 2004). According to industry information and several commenters, the majority of the market for nPB-based aerosols involves in-place applications requiring a portable aerosol, such as cleaning energized electrical contacts and switches, maintenance in underground mines, or cleaning active elevator motors (CSMA, 1998; U.S. EPA, 2004; Williams, 2005). These applications often occur in tightly confined spaces where it is not feasible to install ventilation equipment or remove parts to ventilated areas (CSMA, 1998; Linnell, 2003; Werner, 2003). Other acceptable substitutes, such as blends of HFEs or HFCs and trans-dichloroethylene, are available in these end uses. One commenter also suggested that a user of an nPB-based aerosol will assume that they are being provided with a product that offers similar margins of safety as the product being replaced (i.e., HCFC-141b) and therefore can be used under the same conditions (Werner, 2003). The likelihood that nPB aerosol solvents would be used in poorly ventilated spaces is of particular concern given the likelihood of elevated exposure levels. The exposure data from aerosol solvent use are extremely limited. These data are from simulations of a number of situations where nPB might be used, such as benchtop cleaning of electronics and cleaning automotive brakes, rather than data from facilities currently using nPB in manufacturing or maintenance processes. Thus, the available exposure data may not be representative of ventilation levels normally used with nPB-based aerosols and may not adequately represent exposure levels during in-place cleaning, industry's most common application for nPB-based aerosols. The distribution of exposure levels in the seven samples ranging from 5.5 to 32 ppm corresponded to the range of ventilation rates reported—0, 300, 640, and 1900 cfm—with the highest ventilation rate resulting in the lowest exposure levels and the lower ventilation levels resulting in the values above 30 ppm. The ventilation rate most consistent with use in a confined space for in-place cleaning, 0 cfm, resulted in half the exposures (one of two) exceeding 30 ppm. The highest ventilation rate, 1900 cfm, occurred at a vented booth, which would not be feasible to install for in-place cleaning applications—the majority of applications for nPB-based aerosols. The middle ventilation rates of 300 and 640 cfm occurred during use of a fan for an entire room (regional ventilation), as might be expected for benchtop cleaning (Confidential submission, 1998), but not for in-place cleaning in confined spaces. In modeling nPB exposure from aerosol solvent use at a low ventilation rate of 450 cfm, a level that might be expected during benchtop cleaning, 8-hour average concentrations of 16.5 to 33 ppm are predicted, depending on the amount of nPB used (ICF, 2006a). Exposure levels for confined spaces with even lower ventilation rates, as we would expect for in-place cleaning, would be even higher, likely exceeding the high end of the range that EPA is considering. Short-term exposures of 370 and 1,100 ppm taken from workers' collars in a room with regional ventilation at 640 cfm, when averaged over an 8-hour period, resulted in exposure levels of 12 and 34 ppm. These exposures occurred as a result of using nPB over a period up to 15 minutes, so it is likely that users would have greater exposure than 30 ppm if they used nPB for longer than 15 minutes per day, as with multiple uses. The available data sets have a small sample size, may not be representative of in-place cleaning in confined spaces, and do not provide EPA with convincing data that nPB is likely be used safely, at exposure levels at or below the highest level in the range we are considering for evaluation of acceptability. EPA is concerned that many, and perhaps most, uses of nPB aerosol solvents result in a high probability of exposures at or above even the upper end of the range of exposures that the Agency is considering to be potentially acceptable. EPA is aware of no data on ventilation levels demonstrating that most users of aerosol solvents, or of nPB in particular, would use aerosols in locations with sufficiently high ventilation levels to protect human health (e.g., 1900 cfm or greater). We request data on worker exposure levels, typical ventilation rates, and patterns for usage of nPB-based aerosols, considering both benchtop and in-place use. EPA has found numerous other aerosol solvents acceptable. These aerosol solvents can be used safely in a manner consistent with their respective acceptable exposure limits. This is highlighted in a study comparing concentrations of eight different chemicals that are acceptable under the SNAP program in aerosol formulations: HFE-7100, HFE-7200, trans-1,2-dichloroethylene, HCFC-225ca and -225cb, acetone, pentane, and HFC-134a. In this study, with ventilation of only 48 cfm, 8-hr TWA exposure from the different chemicals varied from 35.5 ppm to 194.0 ppm, and all chemicals met their respective recommended exposure levels (ICF, 2006a). As discussed above in section V.A, when these concentrations are adjusted for the chemicals' respective molecular weights, they would correspond to nPB concentrations of 29.5 to 394.4 ppm, which is at or above even the highest level the Agency would consider acceptable. The ventilation level in this study is closer to what we would expect in a confined space where fans or vents cannot be installed, as for in-place cleaning. Based on these considerations, the Agency believes that nPB used as an aerosol solvent would impose significantly more risk to human health than other alternatives available for this end use. B. Adhesives EPA proposes to find nPB unacceptable in the adhesive end use. As for aerosol solvents, we found that some alternative adhesive formulations could reduce particular environmental risks more than nPB, such as generation of ground level “smog” or ozone depletion potential. However, we find the greatest concern in this end use is with nPB's human health effects. We propose to find nPB unacceptable in adhesives because it poses significantly greater risk to human health as compared to other available alternatives in this end use. In the June 2003 NPRM, we initially proposed to find nPB acceptable in adhesives based on the SNAP program principle that “EPA does not intend to restrict a substitute if it poses only marginally greater risk than another substitute * * *. The Agency also does not want to intercede in the market's choice of available substitutes, unless a substitute has been proposed or is being used that is clearly more harmful to human health and the environment than other alternatives.” (68 FR 33294, citing the original March 18, 1994 SNAP rule at 59 FR 13046). At the time of the proposal, we considered data from NIOSH monitoring and health hazard evaluations for three facilities using nPB-based adhesives. At two of the three facilities, NIOSH worked together with the companies to install state-of-the-art ventilation equipment. Looking at exposure data from all workers after ventilation improvements, we believed it would be possible for facilities to meet the proposed AEL of 25 ppm (68 FR 33294). • One public commenter suggested that EPA should reconsider whether industrial exposures consistently occur and/or can be controlled to a level at or below 25 ppm (Werner, 2003). We reevaluated the exposure data for the two plants that had improved their ventilation, focusing on exposure to the workers that receive the highest exposures because they directly spray the nPB-based adhesive. We found that, even in the best case, a substantial number of workers spraying nPB-based adhesives would be exposed above the highest level in the range we are considering. • NIOSH investigators initially reported that mean exposures to nPB ranged from 60 to 381 ppm (8-hour time weighted averages) at three different foam-fabrication facilities using nPB-based adhesives (NIOSH, 2000a, 2000b, 2001, 2002a, 2002b, 2003a). In one facility, average

(mean)nPB exposures were reduced from 169 ppm to 19 ppm, following installation of ventilation equipment (NIOSH, 2000b). Although use of spray booths at this facility reduced the average exposure level to 19.4 ppm for all workers, the majority of the sprayers directly using nPB-based adhesives still would be exposed at unacceptably high levels. Out of fourteen sprayers at the Custom Products facility: • Six, or 43% of sprayers, would be exposed to more than 30 ppm. • Nine, or 64% of sprayers, would be exposed to more than 25 ppm. • Ten, or 71% of sprayers, would be exposed to more than 20 ppm. • Eleven, or 79% of sprayers, would be exposed to more than 15 ppm. • Thirteen, or 93% of sprayers, would be exposed to more than 10 ppm. At another facility using nPB-based adhesives, the average exposure was reduced from 58 pm to 19 ppm after the company installed ventilation recommended by NIOSH (NIOSH, 2001). Data on exposure for sprayers found fewer individuals receiving high exposures than at the facility monitored in NIOSH (2000b), but 65% (22 of 34) of exposure samples for sprayers were higher than 15 ppm, 33% (11 of 34) were higher than 20 ppm and 15% (5 of 34) were higher than 25 ppm after improving ventilation. Overall, 42% of sprayers in these two facilities using nPB-based adhesives were exposed to concentrations of nPB greater than 20 ppm (21 of 48 workers) and 23% (14 of 48 workers) were exposed to more than 25 ppm, even after installing state-of-the-art ventilation with assistance from NIOSH. Sprayers had significantly higher individual exposures than workers who did not work directly with the nPB-based adhesive. In response to public comment and additional information available to EPA since the June 2003 NPRM, we now propose that use of nPB-based adhesives poses significantly higher risks to human health than other available adhesives. Since the June 2003 NPRM, there have been a number of reports of workers working with nPB-based adhesives that have suffered adverse, persistent neurological effects that resulted in hospitalization (Beck and Caravati, 2003, and Majersik *et al.* , 2004, 2005; Calhoun County, 2005; Miller, 2005; Raymond and Ford, 2005). Based on data from actual facilities using adhesives, it is estimated that a facility using nPB with average adhesive application rates and average ventilation rates would have exposure levels of approximately 60 ppm on an 8-hr time-weighted average (ICF, 2006a). Modeling of exposures at high adhesive application rates and average or lower ventilation rates resulted in exposures of approximately 250 to 2530 ppm (ICF, 2006a). We believe these modeling results show that most adhesive users would exceed acceptable exposure levels by significant margins and that it is unlikely that adhesive users would be able to use nPB safely. Considering the exposure data for nPB-based adhesives, we believe it is unlikely that, even with improved ventilation, adhesive users could reduce exposures to acceptable levels on a consistent basis. In the best case seen, a facility with low to average initial exposure levels was able to reduce exposures to the middle of the range EPA is considering after extensive assistance from NIOSH in installing state-of-the-art ventilation. We expect that many facilities will begin with higher exposure levels and will not have the same level of assistance to improve ventilation, thus making it unlikely that they would achieve acceptable exposures. Given the information above, we are concerned that nPB-based adhesives cannot be reliably used in a manner that protects human health. We request comment and further data on whether it is feasible to use nPB-based adhesives with worker exposure levels consistently at or below any of the values in the range of exposure levels that EPA is considering potentially acceptable (i.e., 17 to 30 ppm). The available information indicates that all acceptable carrier solvents in adhesives other than nPB have projected or actual exposure less than the appropriate workplace exposure limit EPA used in finding those substitutes acceptable. Examples of other carrier solvents currently used in adhesives and acceptable under the SNAP Program include hydrocarbon solvents, acetone, methylene chloride, and water. EPA finds that there are other available alternatives that pose significantly less risk to human health and the environment compared to nPB in the adhesives end use. During the public comment period on the June 2003 NPRM, one commenter representing the adhesives industry stated that there are some small but critical applications that require nonflammability and high solvency (Collatz, 2003). The commenter did not specify what those applications are, and whether there was information showing that other types of adhesives, such as those using water, flammable solvents, or methylene chloride, are technically infeasible in these applications. We request comment and data on whether there are any unique applications in the adhesives end use for which there are no technically feasible alternatives other than nPB and thus, for which nPB should be allowed. If so, and if determined that nPB should be unacceptable except where no other substitutes are feasible, we would consider finding nPB acceptable subject to narrowed use limits, with requirements for each end user to perform a demonstration that there are no other technically feasible alternatives for their particular site, to install local exhaust ventilation equipment designed to reduce exposures to acceptable levels and to perform worker exposure monitoring. Alternatively, if there was sufficient information provided during the public comment period showing that there are applications in which nPB can be safely used, we would consider finding nPB acceptable in adhesives, subject to use conditions requiring installation of local exhaust ventilation and worker exposure monitoring. This would allow for use of nPB in any applications where it may be used safely if any such applications exist. C. Coatings We are proposing to find nPB acceptable, subject to use conditions, for facilities that, as of May 30, 2007, have provided EPA information demonstrating their ability to maintain workplace exposure levels below even the minimum level of the range of exposures that EPA is considering to be potentially acceptable (i.e., 17 to 30 ppm). The SNAP submission with information on coatings was made for a single facility and EPA is unaware of anyone else interested in using nPB in this end use. Therefore, there are currently no analyses indicating whether nPB would pose significantly greater risks in any coating applications other than this facility. Workplace exposure levels to nPB from ammunition sealant at Lake City Army Ammunition Plant ranged from less than 1 ppm up to 21 ppm on an eight-hour time-weighted average. Thirty-four of 35 samples had concentrations below 10 ppm, and the mean concentration for the plant was less than 4 ppm (Lake City Army Ammunition Plant, 2004). The vast majority of measurements show worker exposure well below the lowest level in the range of exposures that EPA is considering. Thus, we believe that nPB can be used as safely as other acceptable solvents used at their acceptable exposure limits under the conditions at this facility. Other acceptable substitutes for ozone-depleting substances in coatings, in general, include oxygenated solvents, hydrocarbon solvents, terpenes, hydrofluoroethers 7100 and 7200, benzotrifluorides (include parachlorobenzotrifluoride), monochlorotoluenes, trans-1,2-dichloroethylene, chlorinated solvents, water-based formulations, and high-solids formulations. In the particular application for ammunition coatings, the submitter evaluated a large number of alternatives and found that n-propyl bromide was the only one of 29 solvents tested that could meet performance specifications at this facility (Harper, 2005). Thus, it is not clear that there are other substitutes available for this specific application, and exposure data show that in this specific application, nPB can be used in a way that does not pose significantly greater risks to human health compared to other acceptable substitutes in the coatings end use. VII. What other regulatory options did EPA consider? EPA considered several different options, but we prefer the approach proposed in this rule. We also take comment on the options discussed below. A. Alternate Option for Comment: Acceptable With Use Conditions Requiring Exposure Limit and Monitoring We also take comment on a proposed alternate approach in which nPB would be acceptable subject to use conditions in all the end uses addressed in this action. Under this alternate approach, users would meet an exposure limit, monitor exposure of workers using nPB, and keep records to demonstrate compliance with these requirements. For purposes of this alternative proposal, we selected 20 ppm to use as an exposure limit above which use would be unacceptable, and 10 ppm as an action level that allows reduced exposure monitoring, for the reasons discussed below in section VII.A.1, “Use Conditions and Their Rationale.” However, we are soliciting comment on whether a different exposure level within the 17 to 30 ppm range should be selected. The following requirements would apply at each facility where nPB is used: Exposure Limit The owner or operator would be required to ensure that workers using nPB are exposed to no more than 20 ppm on an 8-hour time-weighted average. The exposure limit could be met through engineering controls (e.g., ventilation equipment), work practices, or reduced use of nPB. Initial Worker Exposure Monitoring For each facility where nPB is used, the owner or operator of the facility would be required to ensure that personal breathing zone air samples of each nPB user's exposure would be collected on an eight-hour, time-weighted average initially within 90 days after a final rule becomes effective. Monitoring measurements may be taken with an organic chemical monitoring badge on the collar or a tube filled with charcoal on the collar. Periodic Exposure Monitoring

(1)The owner or operator of the facility would be required to ensure that personal breathing zone air samples of user exposure are collected periodically on an eight-hour, time-weighted average depending on the results of the most recent set of exposure data. A monitoring program could be instituted by the company or by the nPB supplier for that facility. Periodic sampling requirements would be based on the most recent monitoring results, as follows: Table 10.—Alternative Approach Exposure Levels and Periodic Exposure Monitoring If exposure measurements for nPB are at this level: Then the owner or operator: all measurements at or below 10 ppm is not required to perform periodic exposure monitoring. all measurements at or below 20 ppm, with some measurements above 10 ppm must take personal breathing zone samples again at least once in the next six months. at least one measurement above 20 ppm must stop using nPB in the application exceeding the exposure limit until exposure data show that 20 ppm can be consistently met in the vast majority of cases. unknown, in cases of new workplace conditions increasing exposure or new applications of nPB must take personal breathing zone samples as a test before using nPB in new industrial applications or conditions, or within 7 days of an emergency caused by a leak, rupture or breakdown, and use this value to determine the next time monitoring is required.

(2)For periodic monitoring, the owner or operator would be allowed either to monitor each nPB user's exposure, or to monitor exposure of a representative nPB user in each job classification in a work area during every work shift, where the monitored nPB user is expected to have the highest exposure.

(3)The owner or operator would be allowed to discontinue the periodic 8-hour TWA monitoring for nPB users at the facility where at least two consecutive sets of measurements taken at least seven days apart are below 10 ppm. Monitoring for New Conditions or Applications Whenever there is a change in workplace conditions that may increase exposure or whenever a new application of nPB is introduced, the owner or operator would be required to take personal breathing zone samples accounting for all nPB users as a test before using nPB in manufacturing or repair. These could be either samples for each nPB user or samples representing each job classification in a work area during a work shift, so long as the samples are based on the user with the likely highest exposure. Examples of changes in workplace conditions that may increase exposure include changes in production, process control equipment, or work practices, or a leak, rupture, or other breakdown. 20 Examples of introduction of a new application of nPB include aerosol contact cleaning in a location with regional ventilation or natural ventilation, where previous measurements were carried out on workers in a location with local ventilation. If the change occurs because of an unpredictable emergency, then the owner or operator would need to ensure exposure monitoring takes place within 7 days of the change. 20 See 29 CFR 1910.1052(d)(4)(i). Sampling Methods and Accuracy Exposure samples would be required to be analyzed either by NIOSH method 1003 for halogenated hydrocarbons or method 1025 for 1-bromopropane and 2-bromopropane or by another method that is accurate to ±25% at the 95 percent confidence level. Recordkeeping Requirements The owner or operator of the facility would be required to keep records of the monitored exposure data at the facility for at least three years from the date the measurements were taken for purposes of this rule. These records would be required to be made available in the event of a facility inspection or a request for the data by EPA. Note that the EPA's recordkeeping requirement does not affect OSHA's standard on access to employee exposure and medical records, which requires retaining any exposure records for at least 30 years (29 CFR 1910.1020(d)(ii)). The regulatory listings by end-use under this alternate approach that the Agency requests comment on would be as follows: BILLING CODE 6560-50-P EP30MY07.000 EP30MY07.001 BILLING CODE 6560-50-C 1. Use Conditions and Their Rationale The major provisions of the use conditions and the related issues that EPA considered in developing the alternate approach that we are taking comment on are as follows: Exposure limit. A requirement to meet a workplace exposure limit would be an interim measure to ensure that nPB will be used safely until OSHA issues a final permissible exposure limit

(PEL)under the Occupational Safety and Health Act. In the event that OSHA issues a final PEL, it would supersede EPA's exposure limit. EPA is specifically deferring to OSHA, and has no intention to assume responsibility to displace OSHA's authority under Public Law 91-596. EPA's exposure limit would not pre-empt the authority of OSHA to take regulatory or enforcement action with respect to exposure to this substance. This is made clear by the Clean Air Act under which EPA would promulgate this regulation (Subchapter VI—Stratospheric Ozone Protection), which provides at 42 U.S.C. 7610 in pertinent part: “* * * this chapter [Chapter 85—Air Pollution Prevention] shall not be construed as superseding or limiting the authorities, under any other provision of law, of the Administrator or any other Federal officer, department, or agency.” By issuing an exposure limit for nPB, EPA's intention would be to fill existing regulatory gaps during the interim period of substitution away from ozone-depleting compounds and provide the needed margin of protection for human health and the environment until OSHA develops other regulatory controls or standards under appropriate authorities. As discussed above in section IV.E.1, EPA is considering exposures within the range of 17 to 30 ppm as potentially acceptable in order to determine whether nPB may be used safely in each end use. For purposes of having a clear compliance target under this alternative approach for public comment, we are using 20 ppm as the exposure limit above which use would be unacceptable. We chose this value because we expect it to be protective against the reproductive and developmental effects identified previously (live litter size, sperm motility, estrous cycles). *Worker exposure monitoring.* The worker exposure monitoring requirements under the use conditions in the alternate approach were modeled after OSHA's requirements for monitoring for methylene chloride. 29 CFR 1910.1052(d). We expect that the regulated community would be familiar with this approach and there might be fewer changes for regulated businesses if OSHA later were to establish a workplace standard for nPB. Because the exposure limit would be an 8-hr TWA value that is derived from studies that measured exposure via inhalation, the proposed use conditions require the owner or operator to monitor 8-hr TWA values that measure workers' exposure in the breathing zone (e.g., samples from a worker's collar). We are not proposing to monitor short-term exposures because acute, short-term exposures of nPB are not of significant health concern, so long as long-term exposures are below the 8-hour TWA limit or potentially acceptable exposure levels (ERG, 2004). *Option for monitoring representative set of workers.* Personal breath zone samples could be taken either from each worker using nPB or from a representative 21 set of exposed workers expected to have the highest exposure. Allowing exposure monitoring from representative workers using nPB, rather than requiring separate monitoring for each individual using nPB, would reduce overall compliance burden, while still detecting any exposure levels in excess of the exposure limit and avoiding underestimates of exposure. 21 In its methylene chloride standard, OSHA defined representative sampling as follows: “The employer has taken one or more personal breathing zone air samples for at least one employee in each job classification in a work area during every work shift, and the employee sampled is expected to have the highest * * * exposure.” (29 CFR 1910.1052(d)(1)(ii)(A)). *Initial monitoring.* Users already using nPB would need to undergo exposure monitoring no later than 90 days after the date the final rule becomes effective. A user that has never used nPB before would need to perform initial monitoring before beginning to use nPB in the facility's industrial applications. *Periodic monitoring.* Monitoring would have to be performed periodically on a schedule based on the results of the most recent set of exposure monitoring data. Monitoring from workers' personal breathing zone would be required during the next six months if an initial measurement finds exposure levels between the action level 22 and the 8-hour TWA exposure limit. No periodic monitoring would be required if initial measurements are below the action level. The action level would be the value that is half the exposure limit, in this case 10 ppm. OSHA standards also set an action level of half the PEL. 22 The action level is the exposure level that is half the 8-hour TWA exposure limit. In this case, the action level would be10 ppm. Under the alternate approach, monitoring would no longer be required where the most recent exposure monitoring data found all worker exposures at or below 10 ppm. OSHA rules also reduce monitoring requirements for exposures below the action level because if measured values are that low, it is unlikely that any measurement will exceed the PEL unless a major change to the process occurs. *Monitoring for changes in workplace conditions or nPB use.* New monitoring would be required if an event occurs that would make the most recent set of monitoring data no longer representative. EPA would expect that the owner or operator would plan new applications of nPB or changes to control equipment or work practices and would perform a test for worker exposure levels before using nPB on a regular basis in that application. In the case of an emergency, such as a breakdown of ventilation equipment or a leak, we would expect exposure monitoring to be performed as soon as possible, and no later than 7 days after the change in workplace conditions. This period is intended to give an owner or operator time to locate and purchase exposure monitoring equipment in an emergency where the equipment may not already be available at the facility. *Monitoring method and accuracy.* We take comment on the use of NIOSH methods 1003 and 1025 (NIOSH, 2003b and c) for analyzing nPB exposure under the proposed alternate approach. Several of the studies that supplied EPA with exposure data used this method and they are standardized methods prepared by NIOSH, a recognized authority on industrial hygiene. In addition, we would allow other methods that are accurate to ± 25% at the 95 percent confidence level. Based on the accuracy of available methods, most OSHA standards require exposure monitoring accurate to 25% at the 95 percent confidence level, as in the methylene chloride standard (29 CFR 1910.1052(d)(1)(iii)(A)) and other OSHA standards. *Recordkeeping requirements.* We would require that users keep records of the worker exposure data for three years from the date the measurement is taken. 23 This would provide information allowing EPA to determine if facilities are complying with the exposure limit and if workers exposed to nPB are sufficiently protected. 23 OSHA's standard on access to employee exposure and medical records requires retaining exposure records for at least 30 years (29 CFR 1910.1020(d)(ii)), and these requirements would not be affected by this regulation. *Responsibility for meeting requirements.* Under the alternate approach, the owner or operator of a facility using nPB would be responsible for meeting the rule's use conditions. 2. Advantages and Disadvantages of the Alternate Approach Setting use conditions that require users to meet an exposure limit and to monitor and keep records to demonstrate achieving the limit would protect the health of nPB users while giving industry more flexibility and more options for ODS substitutes, compared to finding nPB unacceptable. This could be especially useful for users of HCFC-141b as an aerosol solvent that are seeking an effective ODS substitute. If there were any situations in which other available alternatives did not provide as good performance, nPB would still be available as an option, provided the use conditions could be met. The monitoring requirements would encourage good industrial hygiene and safe use of nPB. Considering the list of use conditions above, we believe that setting use conditions requiring an exposure limit, worker exposure monitoring, and recordkeeping would be complex and potentially confusing. Requiring users to meet the exposure limit, although providing greater potential flexibility, also would provide less certainty about how to comply. A user could spend considerable time and expense trying to meet the exposure limit, only to find that it is not achievable. Given the limited circumstances under which we expect aerosol and adhesive users could meet an acceptable exposure limit and given the availability of other, less toxic alternatives in both of these end uses, EPA's preferred option is to find nPB unacceptable in aerosols and adhesives. Further, considering that without regulatory requirements, the users of nPB at the Lake City Army Ammunition Plant have been operating with the vast majority of exposure levels below 17 ppm, the low end of the range of exposures that EPA is considering to be potentially acceptable (Lake City Army Ammunition Plant, 2004), it appears unnecessary to require an exposure limit in that application. B. Regulatory Options Where nPB Would Be Acceptable With Use Conditions Requiring Specific Equipment We considered use conditions for the adhesive and aerosol solvent end uses that would reduce the human health risks of using nPB by reducing exposure levels with requirements for installation and use of ventilation equipment. We also offer for comment use conditions that would require aerosol dispensing equipment that would reduce exposure levels and that would allow use of aerosol blends with reduced amounts of nPB to maintain acceptable exposure levels. 1. Aerosols For the aerosol solvent end use, EPA considered proposing a requirement for installation of ventilation equipment. Such a use condition would need to specify and define which kinds of ventilation equipment would be necessary. For example, because one study on exposure levels found that exposure levels reliably fell in or below the range that EPA is considering (i.e., 17 to 30 ppm) only where both local exhaust ventilation and regional ventilation equipment were used, a possible requirement would be for installation of both local exhaust ventilation and regional ventilation. We would define local exhaust ventilation as ventilation that removes vapors from a specific work location using ducts and fans. We would define regional ventilation as ventilation that moves air around in a large working area, such as one or more fans used for an entire room. A problem with requiring the type of ventilation equipment that all facilities must use is that it still might not provide enough ventilation in some situations and in other situations may be unnecessary to meet an exposure limit. Another approach for aerosols we considered was to require a specific level of ventilation. Possible criteria for the level of ventilation would be the air flow rate, in cubic feet per minute

(cfm)or cubic meters per second, or the face velocity at the location where a user would work, in feet per minute

(fpm)or meters per second face velocity. Based on both modeling and exposure data from one study (ICF, 2006a; Linnel, 2003), an appropriate air flow rate for nPB-based aerosols would be greater than 1900 cfm and an appropriate face velocity would be 170 fpm. Alternatively, we considered requiring that facilities meet the guidelines for face velocity in spray booths from the ACGIH Ventilation Manual, in the range of 100 to 150 fpm, depending on the specific type of booth (ACGIH, 2002). These options would appear to provide greater flexibility for industry compared to finding nPB unacceptable in aerosol solvents. However, our understanding is that in most aerosol applications, it might not be feasible to install adequate ventilation, and thus, to reduce human health risks. In the case of benchtop cleaning or degreasing, such as during rework of individual parts that are not yet sufficiently clean, it is possible to transport the part to a hood or spray booth to provide sufficient ventilation. However, for applications that require in-place cleaning such as cleaning energized electrical contacts and switches, maintenance in underground mines, or cleaning hot elevator motors, it is not feasible to install ventilation equipment in place or to remove the parts for cleaning in ventilation equipment (CSMA, 1998; Linnell, 2003). Information available to EPA shows that benchtop cleaning is perhaps 25% or less of the market for the ODS being replaced in aerosols (US EPA, 2004) and that electrical contact cleaning makes up the vast majority of the market for nPB-based aerosols (Williams, 2005); thus, we expect that necessary ventilation cannot be installed in most aerosol applications for nPB. It would be difficult to explain and potentially confusing for users that an aerosol product may be used for cleaning in one location in a facility, but not in another, particularly when the ODS being substituted for could be used in all locations at safe exposure levels. Further, it would be difficult for EPA to enforce use conditions on ventilation equipment, because aerosols are portable and can easily be used outside of the ventilation equipment. Other acceptable substitutes, such as blends of HFEs or HFCs and trans-dichloroethylene, are available in these end uses. Another option that the Agency considered is finding nPB acceptable as an aerosol solvent, subject to the use condition that the aerosol product must be dispensed from a device or a system that is capable of maintaining acceptable exposure levels. The Agency is aware of at least two remote dispensing systems that could potentially mitigate exposures when used with low-pressure aerosols (Micro Care's Trigger Grip TM and Miller Stephenson's Cobra® Solvent Spray Cleaning Brush). Vendor data indicates that each aerosol can may last twice as long when using a remote dispensing system, compared to standard aerosol usage, indicating the ability to halve average exposure levels and reduce total solvent use (Micro Care, 2006). However, these types of systems would only be practical for benchtop cleaning, and not electrical contact cleaning, which comprises the majority of nPB aerosol use. The Agency requests comment on the viability and enforceability of a use condition requiring aerosol dispensing systems or other mitigation devices that could provide sufficient performance while ensuring acceptable workplace exposure levels of nPB. Finally, the Agency considered another option by which the use of nPB would be acceptable in aerosol solvent uses, subject to the condition that users may only use blends of no more than fifty percent nPB and the remainder being propellants and other solvents, with manufacturer's recommended exposure guidelines for compounds other than nPB being no lower than 100 ppm. Based on exposure modeling performed on simulations of several commercial blends of nPB and another compound with a higher exposure limit (HFC-365mfc), it appears that users should be able to maintain exposures reliably below the range that EPA is considering for acceptability (i.e., 17 to 30 ppm) when using a blend containing no more than fifty percent nPB by weight at the ventilation levels modeled (ICF, 2006a). We note that the modeling does not consider the possibility that a user might need to use more of a blend with less nPB, since nPB is more aggressive than many other solvents used in aerosols. It also does not address exposure levels in confined spaces as might occur during in-place cleaning with aerosols. We request comment and relevant, empirical data on the 8-hour TWA exposures that can be reliably attained when using blends containing 50% or less of nPB by weight. In order to make this option enforceable, EPA would require users to keep records of nPB-containing aerosol blends they purchase, including the MSDS or other documentation of the proportion of nPB in the blend they use. We request comment on whether this is a feasible, enforceable option and whether it would provide useful flexibility to industry while ensuring adequate health protection. 2. Adhesives EPA also considered use conditions for ventilation equipment or for specific ventilation levels for use of nPB-based adhesives. However, to date, we have found no study that demonstrates a ventilation option that could consistently achieve even the highest level within the range that EPA is considering for acceptability when using spray adhesives. Even with state-of-the-art ventilation equipment installed with the expert assistance of NIOSH, adhesives users were not able to lower exposure limits sufficient to protect the vast majority of their workers. Modeling of different levels of adhesive usage and ventilation, based on conditions at different facilities indicates that air flow rates would need to be more than 100,000 cfm. Even this high air flow rate might not be sufficient, since an air flow rate of 28,500 cfm resulted in exposure levels of 3.5 to 35 times an acceptable exposure level, depending on the amount of adhesive used (ICF, 2006a, Att. D). Less toxic substitutes such as water-based adhesives and acetone-based adhesives are available in this end use. VIII. What are the anticipated costs of this regulation to the regulated community? As part of our rulemaking process, EPA estimated potential economic impacts of this proposed regulation. In our analysis, we assumed that capital costs are annualized over 15 years or less using a discount rate for determining net present value of 7.0%. Because the use condition for coatings still permits nPB's use in the only known coatings application using nPB, we find no additional cost to the user community from this regulatory provision. We found that if this proposed rule were to become final, the cost to the user community of the unacceptability determinations, which are regulatory prohibitions on the use of nPB in adhesives and aerosols, would be in the range of $2.3 to $6.7 million per year for adhesive users and $36.3 to 39.7 million per year for aerosol users. EPA also estimated the cost to the user community of the use conditions in the proposed alternate approach for aerosols, adhesives, and coatings. The requirements for users to meet an acceptable exposure limit and to perform exposure monitoring would be in the range of $42.3 to 67.5 million per year. The upper end of the range of estimated impacts assumes laboratory grade ventilation for aerosols, which we expect to be significantly more expensive than standard industrial fume hoods or spray booths (approximately $10,000 compared to $1,000 for each hood). For coatings, use of nPB is limited to a single facility that already performs workplace exposure monitoring, and thus, no new costs would be incurred. For aerosols and adhesives, we assumed the installation of fume hoods or spray booths, the use of personal protective equipment, and monitoring for 1.9 to 2.0 times per year on average. Using these assumptions, we calculated the cost of the use conditions in the proposed alternate approach at $18.0 to 24.0 million for adhesive users, and $24.3 to 43.5 million for aerosol users. The estimated cost of the use conditions does not consider that some users could choose to switch to other alternatives at a lower cost. Estimated costs of the proposed regulation and proposed alternate approach are summarized in Table 13. For more detailed information, see section XIII.C. below and EPA's analysis in the docket (US EPA, 2006). Table 13.—Estimated Costs of Regulatory Options EPA is Providing for Comment Sector or end use Requirements under proposed rule Annual cost of proposed rule Requirements under alternate approach Annual cost of alternate approach Aerosol Solvents Cease use of nPB and switch to a different ODS substitute $36.3 to 39.7 million Achieve 20 ppm; exposure monitoring one or two times per year; Recordkeeping $24.3 to 43.5 million. Coatings Decision applies to use nPB in coatings at facilities that, as of May 30, 2007, have provided EPA information demonstrating their ability to maintain acceptable workplace exposures None Achieve 20 ppm; exposure monitoring, one or two times per year; recordkeeping None. Adhesives Cease use of nPB and switch to a different ODS substitute $2.3 to 6.7 million Achieve 20 ppm; exposure monitoring, one or two times per year; recordkeeping $18.0 to 24.0 million. Total $38.6 to 46.4 million $42.3 to 67.5 million. IX. How do the decisions for EPA's June 2003 proposal compare to those for this proposal? Table 14 compares the acceptability determination and evidence cited in the June 2003 proposal and this proposal. Table 14.— n **-Propyl Bromide Acceptability Decision** Proposed decision 2003 proposed rule Current proposed rule—preferred proposal Industrial End Use #1: Aerosol Solvents Acceptable, Subject to a Use Condition (Limiting use to nPB formulations containing no more than 0.05% by weight isopropyl bromide; AEL of 25 ppm 1 on 8-hr TWA recommended Unacceptable. Industrial End Use #2: Adhesives Acceptable, Subject to a Use Condition (Limiting use to nPB formulations containing no more than 0.05% by weight isopropyl bromide; AEL of 25 ppm 1 on 8-hr TWA recommended Unacceptable. Industrial End Use #3: Coatings Not addressed Acceptable, Subject to Use Conditions (Decision limited to coatings at facilities that, as of May 30, 2007, have provided EPA information demonstrating their ability to maintain acceptable workplace exposures. 2 1 Proposed acceptable exposure limit of 25 ppm adjust upward from value of 18 ppm based upon nPB's effect on sperm motility from evaluation of the WIL 2001 Study “An Inhalation Two-Generation Reproductive Toxicity Study of 1-Bromopropane in Rats.”

(a)ICF, 2001. ”Brief Discussion of the BMD Approach: Overview of its Purpose, Methods, Advantages, and Disadvantages.” Prepared for U.S. EPA.

(b)ICF, 2002a. ”Risk Screen for Use of N Propyl Bromide.” Prepared for U.S. EPA, May, 2002.

(c)ICF, 2002b. Comments on the NTP-Center for the Evaluation of Risks to Human Reproduction, Final Report on 1-Bromopropane. Cover Letter Dated 5/9/02. Also, evaluation of documents by CERHR (2002a, b), Doull and Rozman (2001), Rodricks (2002), Rozman and Doull (2002), SLR International (2001), and others. 2 For purposes of this proposal, EPA is considering levels within the range of 17-30 ppm based on the following information on nPB's health effects for purposes of determining acceptability: estrous cycle length at 17 to 22 ppm, live litter size at 20 ppm, and sperm motility at 18 to 30 ppm from evaluation of the WIL 2001 Study “An Inhalation Two-Generation Reproductive Toxicity Study of 1-Bromopropane in Rats” and confirmed by comparison with other studies. Also, considers evaluation of documents by Stelljes and Wood (2004); TERA (2004); ICF, 2006a; ACGIH (2005); Rozman and Doull (2005); Stelljes (2005); and others. X. How can I use nPB as safely as possible? Below are actions that will help nPB users minimize exposure levels: All end uses • All users of nPB should wear appropriate personal protective equipment, including chemical goggles, flexible laminate protective gloves (e.g., Viton, Silvershield) and chemical-resistant clothing. Special care should be taken to avoid contact with the skin since nPB, like many halogenated solvents, can be absorbed through the skin. Refer to OSHA's standard for the selection and use of Personal Protective Equipment, 29 CFR 1910.132. • Limit worker exposure to solvents to minimize any potential adverse health effects. Workers should avoid staying for long periods of time in areas near where they have been using the solvent. Where possible, shorten the period during each day when a worker is exposed. Where respiratory protection is necessary to limit worker exposures, respirators must be selected and used in accordance with OSHA's Respiratory Protection standard, 29 CFR 1910.134. • Use less solvent, or use a different solvent, either alone or in a mixture with nPB. • Follow all recommended safety precautions specified in the manufacturer's MSDS. • Workers should receive safety training and education that includes potential health effects of exposure to nPB, covering information included on the appropriate MSDSs, as required by OSHA's Hazard Communication Standard (29 CFR 1910.1200). • Request a confidential consultation from your State government on all aspects of occupational safety and health. You can contact the appropriate state agency that participates in OSHA's consultation program. These contacts are on OSHA's web site at * http://www.osha.gov/oshdir/consult.html.* For further information on OSHA's confidential consultancy program, visit OSHA's web page at * http://www.osha.gov/html/consultation.html.* • Use the employee exposure monitoring programs and product stewardship programs where offered by manufacturers and formulators of nPB-based products. • If the manufacturer or formulator of your nPB-based product does not have an exposure monitoring program, we recommend that you start your own exposure monitoring program, and/or request a confidential consultation from your State government. A medical monitoring program should be established for the early detection and prevention of acute and chronic effects of exposure to nPB. The workers' physician(s) should be given information about the adverse health effects of exposure to nPB and the workers' potential for exposure. Spray applications • For spray applications (e.g., aerosols), consider your available options, and if using nPB, use sufficient ventilation to reduce exposure to maintain acceptable exposure levels. • For ventilation, we recommend that you follow the design guidelines for ventilation in ACGIH's *Industrial Ventilation: A Manual of Recommended Practice* (ACGIH, 2002). In particular, the guidelines in Chapter 10.75 are appropriate for spray booths, and the guidelines in Chapter 10.35 are appropriate for laboratory hoods. • The ACGIH Ventilation Manual recommends a minimum flow rate of 150 cubic feet per minute

(cfm)for each sq-ft of opening for a small booth with at least 4 sq-ft of open face area. This equates to an average face velocity of 150 ft/min. For a large booth, the recommended face velocity is 100 ft/min for walk-in booths and 100 to 150 ft/min for a large spray booth where the operator works outside. In general, the opening should be kept as small as possible to accommodate the work-pieces, generally 12 inches wider and taller than the largest piece of work. If all spraying is not directed towards the back of the booth or the booth is too shallow for the size of the pieces being sprayed or if disruptive air currents are present at the face of the booth, a greater flow of air will be needed. We note that these steps are useful for reducing exposure to any industrial solvent, and not just nPB. XI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Under Executive Order

(OMB)under the *Paperwork Reduction Act,* 44 U.S.C. 3501 *et seq.* The Information Collection Request

(ICR)document prepared by EPA has been assigned EPA ICR number 2224.01. If the provisions of this proposed rule become final (i.e., if the proposed regulatory language at the end of this document is finalized), there would be no new information collection burden. This proposed rule contains no new requirements for reporting or recordkeeping. OMB has previously approved the information collection requirements contained in the existing regulations in subpart G of 40 CFR part 82 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* and has assigned OMB control number 2060-0226 (EPA ICR No. 1596.06). This ICR included five types of respondent reporting and record-keeping activities pursuant to SNAP regulations: Submission of a SNAP petition, filing a SNAP/Toxic Substance Control Act

(TSCA)Addendum, notification for test marketing activity, record-keeping for substitutes acceptable subject to use restrictions, and record-keeping for small volume uses. However, if EPA were to finalize the proposed alternate approach described in section VII.A of this preamble, users of nPB would have an information collection burden from exposure monitoring and recordkeeping. Under the proposed alternate approach, users of nPB would be required to monitor worker exposure initially and periodically (usually every 6 months) and keep records of these exposure data at the facility for at least three years from the date the samples were taken. This data is necessary to ensure that users of nPB are meeting the regulatory use conditions. If the data indicates that the use condition is not being met, it could be used by EPA or citizens in an enforcement action against the facility. These data would be considered available to the public and would not be considered confidential. The estimated burden of recordkeeping for the entire regulated community under the proposed alternate approach is as much as $7.0 million and 13,170 hours per year. The estimated recordkeeping burden for a typical user is $96 and 0.18 hours per worker per monitoring event. We estimate approximately 1.9 monitoring events per year per worker, assuming that roughly 90% of exposed workers must be monitored every six months and 10% must be monitored once annually. We estimate that up to 35,000 workers would be monitored for exposure to nPB. Costs under the proposed alternate approach include the annual cost of purchasing passive organic exposure monitoring badges, the annual cost of services for analyzing the resulting exposure, and the annual cost of reviewing and filing the data up to 2 times per year. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, EPA has established a public docket for this rule, which includes this ICR, under Docket ID number EPA-HQ-OAR-2002-0064. Submit any comments related to the ICR for this proposed rule to EPA and OMB. See Addresses section at the beginning of this notice for where to submit comments to EPA. Send comments to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th St., NW., Washington, DC 20503, marked “ *Attention:* Desk Officer for EPA.” Include the ICR number in any correspondence. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after May 30, 2007, a comment to OMB is best assured of having its full effect if OMB receives it by June 29, 2007. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal. C. Regulatory Flexibility Act The Regulatory Flexibility Act

(1)A small business as defined by the Small Business Administration's

(SBA)regulations at 13 CFR 121.201;

(2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and

(ODS)in metals, precision, and electronics cleaning, adhesives, and aerosol solvents in the June 2003 NPRM (68 FR 33309, June 3, 2003). EPA established this final definition under section 601(3) of the RFA when we promulgated the final rule on the acceptable use of nPB in metals, precision, and electronics cleaning in the Rules and Regulations section of today's **Federal Register** . For purposes of assessing the economic impacts of this proposed rule on small entities, EPA defined “small business” as a small business with less than 500 employees, rather than use the individual SBA size standards for the numerous NAICS subsectors and codes. We believe that no small governments or small organizations are affected by this rule. EPA chose to use the alternate definition to simplify the economic analysis. This approach slightly reduced the number of small businesses included in our analysis and slightly increased the percentage of small businesses for whom the analysis indicated the use of nPB in accordance with this proposed rule may have an economically significant impact. Furthermore, this size standard was set by the Small Business Administration for all NAICS codes for businesses using nPB-based adhesives, one of the end uses that would be affected by this rule. After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This rule proposes to list nPB as an unacceptable substitute for ODS in aerosols and adhesives. EPA has analyzed the economic impacts of switching from nPB to other alternative aerosol solvents or adhesives. EPA estimates that up to 3,380 small industrial end users currently use nPB in the end uses addressed by this proposed rule and thus could be subject to the regulatory impacts of this rule. This number includes approximately 3,100 users of nPB-based aerosol solvents, and 280 users of nPB-based adhesives. Considering the regulatory impacts on adhesive and aerosol users that must switch to other alternatives, we found that up to 258 (8%) of small businesses would experience impacts of 1% or greater of annual sales and no small businesses would experience impacts of 3% or greater of annual sales. Based on the relatively small number and low percentage of small businesses that would experience significant economic impacts, EPA concludes that this rule would not have a significant economic impact on a substantial number of small entities. In the case of coatings uses, our understanding is that only a single facility, the Lake City Army Ammunition Plant, is currently using coatings with nPB as the carrier solvent, and this facility could continue to use nPB following its current practices. Therefore, we consider there to be no economic impact of this rule on coatings users and have not done further analysis for this end use. Types of businesses that would be subject to this proposed rule include: • Manufacturers of computers and electronic equipment that clean with nPB cleaning solvents (NAICS subsector 334). • Manufacturers of appliances, electrical equipment, and components that require oil, grease, and solder flux to be cleaned off (NAICS subsection 335). • Manufacturers of transportation equipment, such as aerospace equipment that requires cleaning either in a tank or with aerosols, or aircraft seating, which is assembled using adhesives containing nPB as a carrier solvent; and ship or boat builders applying adhesives with nPB (NAICS subsector 336). • Manufacturers of furniture, including various kinds of furniture with cushions and countertops assembled using adhesives containing nPB as a carrier solvent (NAICS subsector 337). • Foam fabricators, who assemble foam cushions or sponges using adhesives containing nPB as a carrier solvent (NAICS code 326150). In order to consider the resources that affected small businesses have available to operate and to respond to the proposed regulatory requirements, EPA compared the cost of meeting the proposed regulatory requirements to small businesses' annual sales. In our analysis for this proposed rule, we used the average value of shipments for the products manufactured by the end user as a proxy for sales or revenues, since these data are readily available from the U.S. Department of Commerce. The following tables display the average value of shipments for different sizes of business and different NAICS subsectors or codes in the affected industrial sectors. EPA then used data from these sources to determine the potential economic impacts of this proposed rule on small businesses. Table 15.—Average Value of Shipments in NAICS Subsectors Using Aerosol Solvents, by Number of Employees at Business Number of employees at business Average value of shipments per business ($) by NAICS subsector code 334, computer and electronic products 335, electrical equipment, appliance, and component mfg 336, transportation equipment 1 to 4 employees 345,007 315,772 412,460 5 to 9 employees 1,317,238 1,243,065 1,414,384 10 to 19 employees 2,566,913 2,483,327 2,573,352 20 to 49 employees 5,672,245 5,389,945 5,738,739 50 to 99 employees 12,951,836 12,650,236 12,735,583 100 to 249 employees 31,258,875 31,290,638 34,256,544 250 to 499 employees 84,270,454 77,279,974 86,911,454 Avg. value ship small businesses in sub-sector 8,261,788 9,539,205 11,029,561 Avg. value ship all businesses in subsector 20,810,094 13,417,905 45,029,773 Avg. value shipments subset small businesses using nPB 11,246,045 12,066,562 13,422,547 Table 16.—Average Value of Shipments in NAICS Categories Using nPB as a Carrier Solvent in Adhesives, by Number of Employees at Business Number of employees at business Average value of shipments per small business ($) by NAICS sub sector 337121, upholstered household furniture 337110, wood kitchen cabinet and counter tops 326150, urethane and other foam products (except polystyrene) 336360, motor vehicle seating and interior trim 337124, metal household furniture 1 to 4 employees 234,345 156,833 496,318 425,863 187,950 5 to 9 employees 963,021 622,744 1,305,183 1,728,132 903,393 10 to 19 employees 1,771,416 1,141,119 3,152,283 3,082,486 1,431,480 20 to 49 employees 3,653,623 2,619,197 6,615,331 5,508,370 3,538,684 50 to 99 employees 8,089,968 7,386,365 13,281,000 14,088,500 7,547,536 100 to 249 employees 17,502,175 17,151,091 31,524,872 44,310,286 19,821,719 250 to 499 employees 40,250,813 55,982,674 64,119,800 123,803,610 d(1) Avg. Small Businesses in Sub sector 3,588,297 1,150,768 10,472,992 12,542,725 3,141,720 Avg. ALL Businesses in Sub sector 5,490,101 1,475,602 11,110,822 44,808,573 5,239,747 Avg. Subset Small Businesses using nPB 11,519,540 5,999,622 18,950,068 12,019,847 20,401,301

(1)“d” designates “Data withheld to avoid disclosing data of individual companies; data are included in higher level totals.” The average value of shipments for businesses estimates those values marked with “d,” and thus may be overestimated or underestimated. This proposed rule would list nPB as unacceptable for use in adhesives and aerosols. The available alternatives identified include adhesive formulations based on water, methylene chloride, or flammable solvents such as acetone and aerosol formulations of flammable solvents, combustible solvents, blends of trans-dichloroethylene and HFEs or HFCs, and HCFC-225ca/cb. We considered various aspects of the cost of switching to other alternatives, including the cost of meeting OSHA requirements and the cost of the alternative adhesive. We specifically request public comment on the assumptions and costs used in EPA's analysis (US EPA, 2007). We estimate that up to 9 small businesses using nPB-based adhesives, or roughly 3% of the 280 or so small businesses that use nPB-based adhesives, would experience a cost increase (i.e., an impact) of greater than 1.0% of annual sales, and no small businesses would experience an impact of greater than 3% of annual sales if this proposed rule became final. For small businesses using nPB-based aerosols, we estimate that approximately 249 would experience a cost increase of greater than 1.0% of annual sales. This equates to roughly 8% of the 3100 or so small businesses currently using nPB-based aerosol solvents. No small businesses using aerosols would experience an impact of greater than 3% of annual sales. Approximately eight percent of all 3380 or so small businesses choosing to use nPB in these end uses would experience an impact of greater than 1.0% of annual sales and no small businesses would experience an impact of greater than 3.0% of annual sales. Because of the small total number and small percentage of affected businesses that would experience an impact of greater than either 1.0% or 3.0% of annual sales, EPA does not consider this proposed rule to have a significant economic impact on a substantial number of small businesses. We also analyzed the potential small business impacts of the proposed alternate approach. Under the proposed alternate approach, users would have to:

(1)Meet an exposure level of 20 ppm on an eight-hour time-weighted average,

(3)keep records of the worker exposure data on site at the facility for at least three years from the date of the measurement. We assume that the cost of following the proposed alternate approach is the cost of installing ventilation for aerosols and adhesives or emission controls for solvent cleaning, the cost of using personal protective equipment, and the cost of monitoring worker exposure. Approximately 67 to 387 aerosol solvent users (2 to 13 percent), 25 to 54 adhesive users (9 to 19 percent), and 2.6 to 12.6 percent of all 3380 or so small businesses would experience impacts of greater than 1% of annual sales if they chose to use nPB subject to the proposed use conditions rather than switching to another ODS substitute. Four to nine users of nPB-based adhesives, or less than 1% of all small businesses affected by this proposal, would experience impacts of 3% or greater of annual sales under the proposed alternate approach. Based on this analysis, the proposed alternate approach would not create a significant adverse economic impact on a substantial number of small entities. Although this proposed rule would not have a significant economic impact on a substantial number of small entities if it became final, EPA nonetheless has tried to reduce the impact of this rule on small entities. Before selecting preferred the regulatory option in this proposed rule, we considered a number of regulatory options, such as: • Placing a narrowed use limit on the use of nPB in adhesives and aerosols that would allow its use only in those cases where alternatives are technically infeasible due to performance or safety issues. This would have required testing, recordkeeping, and some installation of capital equipment. • Requiring that when nPB is used in adhesives or aerosols, it must be used with local ventilation equipment and personal protective equipment. This would have required further installation of capital equipment, without necessarily protecting workers as thoroughly as a required acceptable exposure limit or requiring a switch to another alternative. • Prohibiting the use of nPB in all end uses. • Retaining the previously proposed requirement for a limit on iPB content in nPB formulations. The costs of a number of these options are included in EPA's analysis (US EPA, 2006; U.S. EPA, 2007). In developing our regulatory options, we considered information we learned from contacting small businesses using or selling nPB. EPA staff visited the site of a small business using nPB for cleaning electronics. We contacted several fabricators of foam cushions that have used adhesives containing nPB. We participated in meetings with a number of adhesive manufacturers and users of adhesives in furniture construction. We developed a fact sheet and updated our program Web site to inform small businesses about the proposed rule and to request their comments. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. This proposed rule does not affect State, local, or tribal governments. The enforceable requirements of the rule for the private sector affect a number of end users in manufacturing. The estimated cost of the proposed requirements for the private sector is approximately $38.6 to 46.4 million per year, and the proposed alternate approach would cost the private sector approximately $ 42.3 to 67.5 million per year. Therefore, the impact of this rule on the private sector is less than $100 million per year. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. This regulation applies directly to facilities that use these substances and not to governmental entities. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects 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.” This proposed rule does not have federalism implications. It will not have substantial direct effects 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, as specified in Executive Order 13132. This regulation applies directly to facilities that use these substances and not to governmental entities. Thus, Executive Order 13132 does not apply to this rule. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” This proposed rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. This proposed rule would not significantly or uniquely affect the communities of Indian tribal governments, because this regulation applies directly to facilities that use these substances and not to governmental entities. Thus, Executive Order 13175 does not apply to this proposed rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks *Executive Order 13045:* “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that:

(1)Is determined to be “economically significant” as defined under Executive Order 12866, and

(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This proposed rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The exposure limits and acceptability listings in this proposed rule apply to the workplace. These are areas where we expect adults are more likely to be present than children, and thus, the agents do not put children at risk disproportionately. The public is invited to submit or identify peer-reviewed studies and data, of which the agency may not be aware, that assessed results of early life exposure to nPB. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This action would impact manufacturing of various metal, electronic, medical, and optical products cleaned with solvents containing nPB and products made with adhesives containing nPB. Further, we have concluded that this rule is not likely to have any adverse energy effects. I. National Technology Transfer and Advancement Act As noted in the proposed rule, Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involved technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards. We note that the American Conference of Governmental Industrial Hygienists (ACGIH), although it sets voluntary standards, is not a voluntary consensus standards body. Therefore, use of an acceptable exposure limit from the ACGIH is not subject to the NTTAA. XII. References The documents below are referenced in the preamble. All documents are located in the Air Docket at the address listed in section I.B.1 at the beginning of this document. Unless specified otherwise, all documents are available electronically through the Federal Docket Management System, Docket # EPA-HQ-OAR-2002-0064. Some specific items are available only in hard copy in dockets A-2001-07 or A-92-42 (legacy docket numbers for SNAP nPB rule and for SNAP program and submissions). Numbers listed after the reference indicate the docket and item numbers. Availability Harper, 2005. Telephone call from M. Sheppard, EPA to Dr. S. Harper, ATK. Re: Availability of other methyl chloroform substitutes for the Lake City Army Ammunition Plant. October 11, 2005. (EPA-HQ-OAR-2002-0064-0150) IRTA, 2000. Alternative Adhesive Technologies in the Foam Furniture and Bedding Industries: A Cleaner Technologies Substitution Assessment, Cost and Performance Evaluation. Michael Morris and Katy Wolf, Institute for Research and Technical Assistance. Prepared for the U.S. EPA Office of Pollution Prevention Technology, June 2000. (A-2001-07, II-D-70) Seilheimer, 2001. Telephone Log of April 4, 2001 call between Margaret Sheppard, EPA, and Bob Seilheimer, Imperial Adhesives. (A-2001-07, II-B-5) Williams, 2005. Notes on conversation of Ed Williams, Technical Manager, LPS Laboratories, and Margaret Sheppard, EPA. November 3, 2005 (EPA-HQ-OAR-2002-0064-0198) Impacts on the Atmosphere, Local Air Quality, and Other Environmental Impacts Atmospheric and Environmental Research, Inc., 1995. Estimates of the Atmospheric Lifetime, Global Warming Potential and Ozone Depletion Potential of n-Propyl Bromide. Independent study prepared for Albemarle Corporation. (A-2001-07, II-D-17) ATSDR, 1994. Toxicological Profile For Acetone. Agency for Toxic Substances and Disease Registry. May, 1994. Available at *http://www.atsdr.cdc.gov/toxprofiles/tp21-c5.pdf* (EPA-HQ-OAR-2002-0064-0118) ATSDR, 1996. Toxicological Profile For 1,2-Dichloroethene. Agency for Toxic Substances and Disease Registry. August, 1996. Available at *http://www.atsdr.cdc.gov/toxprofiles/tp87-c5.pdf* (EPA-HQ-OAR-2002-0064-0113) ATSDR, 1997. Toxicological Profile For Trichloroethylene. Agency for Toxic Substances and Disease Registry. September, 1997. Available at *http://www.atsdr.cdc.gov/toxprofiles/tp19-c5.pdf* (EPA-HQ-OAR-2002-0064-0123) ATSDR, 2004. Draft Toxicological Profile For 1,1,1-Trichloroethane. Agency for Toxic Substances and Disease Registry. September, 2004. Updated draft for comment. Available at *http://www.atsdr.cdc.gov/toxprofiles/tp70-c6.pdf* (EPA-HQ-OAR-2002-0064-0132) EDSTAC, 1998. Final Report of the Endocrine Disruptor Screening and Testing Advisory Committee. August, 1998. (EPA-HQ-OAR-2002-0064-0136) Fisher Scientific, 2001. Material Safety Data Sheet for acetone. Updated March 19, 2001. Available at * http://www.mhatt.aps.anl.gov/dohn/msds/acetone.html* (EPA-HQ-OAR-2002-0064-0129) Geiger *et al.* , 1998. Geiger, D.L., Call, D.J., and Brooke, L.T. 1988. Acute Toxicities of Organic Chemicals to Fathead Minnows ( *Pimephales promelas* ), Vol. 4. In: Center for Lake Superior Environmental Stud., Univ. of Wisconsin-Superior, Superior, WI I:355. (Summarized in ICF, 2004a) HSDB, 2004. Hazardous Substances Databank File for 1-Bromopropane. Accessed 1/2004 from the World Wide Web at * http://toxnet.nlm.nih.gov/cgi-bin/sis/ search/f?./temp/dLwM9e:1 * (Summarized in ICF, 2004a) ICF, 2003a. ICF Consulting. Revised Evaluation of the Global Warming Potential for n-Propyl Bromide. (EPA-HQ-OAR-2002-0064-0164) ICF, 2004a. ICF Consulting. Memo to E. Birgfeld, EPA, re: nPB Aquatic Toxicity. January 19, 2004. (EPA-HQ-OAR-2002-0064-0177) ICF, 2006a. ICF Consulting. Risk Screen on Substitutes for Ozone-Depleting Substances for Adhesive, Aerosol Solvent, and Solvent Cleaning Applications. *Proposed Substitute:* n-Propyl Bromide. April 18, 2006. Attachments: A, Determination of an AEL; B, Derivation of an RfC; C, Evaluation of the Global Warming Potential; D, Occupational Exposure Analysis for Adhesive Applications; E, Occupational Exposure Analysis for Aerosol Solvent Applications; F, General Population Exposure Assessment for n-Propyl Bromide LaGrega, M., Buckingham, P., Evans, J., and Environmental Resources Management, 2001. *Hazardous Waste Management.* Second Edition. McGraw-Hill, New York, NY. 2001. (EPA-HQ-OAR-2002-0064-0112) Linnell, 2003. Comments from the Electronics Industry Alliance. (EPA-HQ-OAR-2002-0064 items -0043, -0044, and -0045) MOP 18, 2006. Report of the Eighteenth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer. November 16, 2006. (EPA-HQ-OAR-2002-0064-0163) NPS, 1997. Irwin, R.J., M. VanMouwerik, L. Stevens, M.S. Seese, and W. Basham. 1997. Environmental Contaminants Encyclopedia. National Park Service, Water Resources Division, Fort Collins, Colorado. (EPA-HQ-OAR-2002-0064-0086) Steminiski, 2003. July 27, 2003 Comment from J. Steminiski, Ph.D. (EPA-HQ-OAR-2002-0064-0035 and -0043) U.S. Economic Census, 2002a. General Summary: 2002. Subject Series. Report No. EC02-31SG-1, October, 2005. U.S. Census Bureau. (EPA-HQ-OAR-2002-0064-0133) U.S. Economic Census, 2002b. U.S. Economic Census for Island Areas, 2002. Report for Northern Marianas Islands, Rpt. No. IA02-00A-NMI, May, 2004. U.S. Census Bureau. (EPA-HQ-OAR-2002-0064-0091) U.S. Economic Census, 2002c. U.S. Economic Census for Island Areas, 2002. Report for Guam, Rpt. No. IA02-00A-GUAM, March, 2005. U.S. Census Bureau. (EPA-HQ-OAR-2002-0064-0102) U.S. Economic Census, 2002d. U.S. Economic Census for Island Areas, 2002. Report for Virgin Islands, Rpt. No. IA02-00A-VI , April, 2005. U.S. Census Bureau. (EPA-HQ-OAR-2002-0064-0131) U.S. Economic Census, 2002e. U.S. Economic Census for Island Areas, 2002. Report for American Samoa, Rpt. No. IA02-00A-AS, April, 2005. U.S. Census Bureau. (EPA-HQ-OAR-2002-0064-0103) U.S. Economic Census, 2002f. U.S. Economic Census for Island Areas, 2002. Report for Puerto Rico: Manufacturing, Rpt. No. IA02-00I-PRM, October, 2005. U.S. Census Bureau. (EPA-HQ-OAR-2002-0064-0107) U.S. EPA, 1980. Ambient Water Quality Criteria for Dichloroethylenes. EPA 440/5-80-041 October, 1980. Available at *http://www.epa.gov/waterscience/pc/ambientwqc/dichloroethylenes80.pdf* U.S. EPA, 1992. Hazard Assessment Guidelines for Listing Chemicals on the Toxic Release Inventory, Revised Draft. Washington, DC: Office of Pollution, Prevention and Toxics. As referenced in ICF, 2004f. U.S. EPA, 1994a. Chemical Summary for Methyl Chloroform, prepared by Office of Pollution Prevention and Toxics, August, 1994. (EPA-HQ-OAR-2002-0064-0121) WMO, 2002: Scientific Assessment of Ozone Depletion: 2002, Global Ozone Research and Monitoring Project—Report No. 47, Geneva, 2003 Full report available online at *http://esrl.noaa.gov/csd/assessments/* (A-2001-07, II-A-20) Wuebbles, Donald J. 2002. “The Effect of Short Atmospheric Lifetimes on Stratospheric Ozone.” Written for Enviro Tech International, Inc. Department of Atmospheric Sciences, University of Illinois-Urbana. (EPA-HQ-OAR-2002-0064-0114) Flammability and Fire Safety BSOC, 2000. February 1, 2000 Tabulation of Flammability Studies on n-Propyl Bromide from the Brominated Solvents Committee, and other information on flammability of n-propyl bromide. (A-2001-07, II-D-45) Miller, 2003. Albemarle Corporation comments-Flash Point Data for n-Propyl Bromide. (EPA-HQ-OAR-2002-0064-0040) Morford, 2003a. Enviro Tech International Comment re Section IV D Flammability with Exhibits (7/25/03) (EPA-HQ-OAR-2002-0064-0030) Morford, 2003b. Enviro Tech International Supporting Exhibits on Flammability (7/25/03) (EPA-HQ-OAR-2002-0064-0031) Morford, 2003c. Enviro Tech Int. Flammability of nPB & Comparison With Methylene Chloride-Additional Comments on Flammability (7/29/03) (EPA-HQ-OAR-2002-0064-0036) Shubkin, 2003. R. Shubkin, Poly Systems, EPA received 7/23/03 Re: Comment on Flammability of n-Propyl Bromide as Discussed in Proposed Rule Published in **Federal Register** (EPA-HQ-OAR-2002-0064-0025) Weiss Cohen, 2003. T. Weiss Cohen, Dead Sea Bromine Group, 7/31/2003 Comment to Federal Register Proposed Rules of June 3, 2003, on Protection of Stratospheric Ozone: Listing of Substitutes for Ozone-Depleting Substances—n-Propyl Bromide (EPA-HQ-OAR-2002-0064-0053) Impact on human health; how did EPA assess impacts on human health? ACGIH, 1991. Skin Notation Documentation for Methyl Chloride. Available online at *http://www.acgih.org.* ACGIH, 2005. Documentation for Threshold Limit Value for 1-Bromopropane. 2005. Available online at *www.acgih.org.* Albemarle, 2003. Product Description for Abzol® Cleaners. 2003. (EPA-HQ-OAR-2002-0064-0148) Beck and Caravati, 2003. Neurotoxicity associated with 1-bromopropane exposure. Utah Poison Control Center, University of Utah, Salt Lake City, UT. *J Toxicology Clinical Toxicology* 41(5):729. (Abstract from conference). 2003. (EPA-HQ-OAR-2002-0064-0111) CERHR, 2002a. NTP-Center for the Evaluation of Risks to Human Reproduction Expert Panel Report on the Reproductive and Developmental Toxicity of 1-Bromopropane [nPB]. March 2002. (EPA-HQ-OAR-2002-0064-0096) CERHR, 2002b. NTP-Center for the Evaluation of Risks to Human Reproduction Expert Panel Report on the Reproductive and Developmental Toxicity of 2-Bromopropane [iPB]. March 2002. (EPA-HQ-OAR-2002-0064-0083) CERHR, 2003a. NTP-CERHR Monograph on the Potential Human Reproductive and Developmental Effects of 1-Bromopropane. October 2003. (EPA-HQ-OAR-2002-0064-0084) CERHR, 2003b. NTP-CERHR Monograph on the Potential Human Reproductive and Developmental Effects of 2-Bromopropane. October 2003. (EPA-HQ-OAR-2002-0064-0079) CERHR, 2004a. NTP-CERHR Expert Panel report on the reproductive and developmental toxicity of 1-bromopropane. Center for the Evaluation of Risks to Human Reproduction. *Repro Toxicol.* Vol. 18, pp. 157-188. 2004. (EPA-HQ-OAR-2002-0064-0096) CERHR, 2004b. NTP-CERHR Expert Panel report on the reproductive and developmental toxicity of 2-bromopropane. Boekelheide, *et al. Repro Toxicol.* Vol. 18, pp. 189-217. 2004. (EPA-HQ-OAR-2002-0064-0098) Chemtura, 2006. Material Safety Data Sheet for n-propyl bromide. April, 2006. (EPA-HQ-OAR-2002-0064-0151) ClinTrials, 1997a. A 28-Day Inhalation Study of a Vapor Formulation of ALBTA1 in the Albino Rat. Report No. 91189. Prepared by ClinTrials BioResearch Laboratories, Ltd., Senneville, Quebec, Canada. May 15, 1997. Sponsored by Albemarle Corporation, Baton Rouge, LA. (A-91-42, X-A-4) ClinTrials, 1997b. ALBTA1: A 13-Week Inhalation Study of a Vapor Formulation of ALBTA1 in the Albino Rat. Report No. 91190. Prepared by ClinTrials BioResearch Laboratories, Ltd., Senneville, Quebec, Canada. February 28, 1997. Sponsored by Albemarle Corporation, Baton Rouge, LA. (A-91-42, X-A-5) Confidential submission, 1998. Airborne Exposure Assessment of 1-Bromopropane, 1998. (A-2001-07, II-D-89). Dunson *et al,* 2002. Dunson, D., Colombo, and B., Baird, D. Changes with age in the level and duration of fertility in the menstrual cycle. *Human Reproduction,* Vol. 17, No. 5, pp. 1399-1403, 2002. (EPA-HQ-OAR-2002-0064-0120) Elf Atochem, 1995. Micronucleus Test by Intraperitoneal Route in Mice. n-Propyl Bromide. Study No. 12122 MAS. Study Director, Brigitte Molinier. Study performed by Centre International de Toxoicologie, Misery, France, September 6, 1995. (A-91-42, X-A-9) Enviro Tech International, 2006. Material Safety Data Sheet for Ensolv (n-propyl bromide solvent) (EPA-HQ-OAR-0064-0143) Farr, 2003. Comment on proposed rule on n-propyl bromide from Craig Farr, Atofina. July 31, 2003. (EPA-HQ-OAR-2002-0064-0060) Fueta *et al.* , 2002. Y. Fueta, K. Fukunaga, T. Ishidao, H. Hori. Hyperexcitability and changes in activities of Ca2+/calmodulin-dependent kinase II and mitogen-activated protein kinase in the hippocampus of rats exposed to 1-bromopropane. 2002. *Life Sciences* 72

(2004)593-603. (EPA-HQ-OAR-2002-0064-0142) Furuhashi, *et al.* , 2006. K. Furuhashi, J. Kitoh, J. Tsukamura, K. Maeda, H. Wang, W. Li, S. Ichihara, T. Nakajima, and G. Ichihara. Effects of exposure of rat dams to 1-bromopropane during pregnancy and lactation on growth and sexual maturation of their offspring. *Toxicology* 224

(2006)219-228. Available online at *http://www.sciencedirect.com.* Great Lakes Chemical Corporation, 2001. Letter from E. Stouder, Great Lakes Chemical Corporation, 2/20/01. (A-2001-07, II-D-80) HESIS, 2003. California Department of Health Services—HESIS 1-Bromopropane (n-Propyl Bromide) Health Hazard Alert. (EPA-HQ-OAR-2002-0064-0039) Honma *et al.* , 2003. Honma, T., Suda, M., Miyagawa, M. “Inhalation of 1-bromopropane causes excitation in the central nervous system of male F344 rats.” *Neurotoxicology.* 2003 Aug; 24 (4-5):563-75. (EPA-HQ-OAR-2002-0064-0138) Huntingdon Life Sciences, 2001. A Developmental Toxicity Study in Rat Via Whole Body Inhalation Exposure. (A-2001-07, II-D-27) ICF, 2002a. Risk Screen for Use of N-Propyl Bromide. ICF Consulting. Prepared for U.S. EPA, May, 2002. (EPA-HQ-OAR-2002-0064-0006 through -0012) ICF, 2003. ICF Consulting. General Population Exposure Assessment for N-Propyl Bromide. June 03, 2003. (EPA-HQ-OAR-2002-0064-0011) ICF, 2004b. ICF Consulting. External Expert Review Panel on N-Propyl Bromide. December 13, 2004. ICF, 2004c. ICF Consulting. ICF Consulting Review of the TERA Report. December 13, 2004. ICF, 2004d. ICF Consulting. Review of ACGIH's Proposed Threshold Limit Value for 1-Bromopropane. April 26, 2004. ICF, 2006a. Full citation given above in section on “Impacts on the atmosphere, local air quality, and other environmental impacts” ICF, 2006b. ICF Consulting. Revised Memorandum regarding RTI Metabolism Study on nPB. April, 2006. (EPA-HQ-OAR-2002-0064-0179) ICF, 2006c. ICF Consulting. Evaluation of Memorandum from Dr. M. Stelljes. April, 2006. Ichihara *et al.* , 1998. Ichihara, M., Takeuchi, Y., Shibata, E., Kitoh, J., *et al.* Neurotoxicity of 1-Bromopropane. 1998. Translated by Albemarle Corporation. (A-91-42, X-A-33) Ichihara, G., Jong, X., Onizuka, J., *et al.* , 1999. Histopathological changes of nervous system and reproductive organ and blood biochemical findings in rats exposed to 1-bromopropane. (Abstract only) Abstracts of the 72nd Annual Meeting of Japan Society for Occupational Health. May 1999. Tokyo. (A-2001-07, II-A-15) Ichihara G., Kitoh J., Yu, X., *et al.* , 2000a. 1-Bromopropane, an alternative to ozone layer depleting solvents, is dose-dependently neurotoxic to rats in long-term inhalation exposure. *Toxicol Sciences* 55:116-123. (A-2001-07, II-A-8) Ichihara, G., Yu, X., Kitoh, J., *et al.* 2000b. Reproductive toxicity of 1-bromopropane, a newly introduced alternative to ozone layer depleting solvents, in male rats. *Toxicol Sciences* 54:416-423. (A-2001-07, II-A-7) Ichihara G. *et al.* , 2002. Neurological Disorders in Three Workers Exposed to 1-Bromopropane. *J Occu. Health* 44:1-7. (A-2001-07, II-D-64) Ichihara *et al.* , 2004a. G. Ichihara, W. Li, X. Ding, S. Peng, X. Yu, E. Shibata, T. Yamada, H. Wang, S. Itohara, S. Kanno, K. Sakai, H. Ito, K. Kanefusa, and Y. Takeuchi. A Survey on Exposure Level, Health Status, and Biomarkers in Workers Exposed to 1-Bromopropane. *Am Jrnl of Ind Med* 45:63-75

(2004)(EPA-HQ-OAR-2002-0064-0093) Ichihara *et al.* , 2004b. Gaku Ichihara, Weihua Li, Eiji Shibata, Xuncheng Ding, Hailan Wang, Yideng Liang, Simeng Peng, Seiichiro Itohara, Michihiro Kamijima, Qiyuan Fan, Yunhui Zhang, Enhong Zhong, Xiaoyun Wu, William M. Valentine, and Yasuhiro Takeuchi. Neurological Abnormalities in Workers of 1-Bromopropane Factory. *Env'l Health Perspectives* , 30 June 2004. (EPA-HQ-OAR-2002-0064-0139) Ishidao *et al.* , 2002. Ishidao, T., Kunugita, N., Fueta, Y., Arashidani, K., Hori, H. Effects of inhaled 1-bromopropane vapor on rat metabolism. *Toxicol Lett.* 2002 Aug 5; 134(1-3):237-43 (EPA-HQ-OAR-2002-0064-0125) Lake City Army Ammunition Plant, 2003. SNAP application for n-Propyl Bromide in coatings, T.J. Herman, ATK Alliant Lake City Small Caliber Ammunition Company, dated 7/8/2003. EPA Received 7/14/2003. (EPA-HQ-OAR-2002-0064-0029) Lake City Army Ammunition Plant, 2004. March 9, 2004 Industrial Hygiene Air Sampling Report for Normal Propyl Bromide Based Mouth Waterproofing in Manufacture of 5.56 mm Ammunition. S.A. Hawk. (EPA-HQ-OAR-2002-0064-0211) Majersik *et al.* , 2004. Chronic Exposure to 1-Bromopropane Associated with Spastic Paraparesis and Distal Neuropathy: A Report of Six Foam Cushion Gluers. Poster paper from 129th Annual Meeting of the American Neurological Association, Toronto. October, 2004. (EPA-HQ-OAR-2002-0064-0219) Majersik *et al,* 2005. “Spastic Paraparesis and Distal Neuropathy Associated with Chronic Exposure to 1BP,” Presentation by Drs. J. Majersik, M. Caravati, and J. Steffens at the North American Congress of Clinical Toxicologists. September 14, 2005. (EPA-HQ-OAR-2002-0064-0116) Miller, 2005. “1-Bromopropane: A Private Neurological Practice Experience in 2000,” Presentation by Dr. J.M. Miller, at the North American Congress of Clinical Toxicologists. September 14, 2005. (EPA-HQ-OAR-2002-0064-0216) Morford, 2003d. *White Paper:* “EPA Is Unlawfully Regulating Occupational Exposures” Attachment to public comments. (EPA-HQ-OAR-2003-0064-0049) Morford, 2003e. Comment regarding proposed restriction on isopropyl bromide Richard Morford, Enviro Tech International. August 3, 2003. (EPA-HQ-OAR-2002-0064-0042) Morford, 2003f. Support for EPA Proposal to Approve n propyl bromide and Comments Pursuant to Section D. Flammability of Protection of Stratospheric Ozone: Listing of Substitutes for Ozone Depleting Substances—n-Propyl Bromide: Proposed Rule **Federal Register** Vol. 68 No. 106, June 3, 2003. Enviro Tech International, Inc. Comments Regarding Proposed Rule & Exhibit A Richard Morford, Enviro Tech International. August 3, 2003. (EPA-HQ-OAR-2002-0064-0047) Morford, 2003g. Enviro Tech International, Inc. Combined Exhibits to Comment 0047/Morford, 2003f on Proposed Rule Richard Morford, Enviro Tech International. August 3, 2003. (EPA-HQ-OAR-2002-0064-0048) Morford, 2003h. Initial Comments to Protection of Stratospheric Ozone: Listing of Substitutes for Ozone Depleting Substances—n-Propyl bromide: Proposed Rule **Federal Register** Vol. 68 No. 106, June 3, 2003. Richard Morford, Enviro Tech International. June 26, 2003. (EPA-HQ-OAR-2002-0064-0002) NAS, 1983. The National Academies of Science, *Risk Assessment in the Federal Government: Managing the Process,* 1983. Available online at *http://newton.nap.edu/catalog/366.html* (Executive summary in docket as EPA-HQ-OAR-2002-0064-0108) Nemhauser, 2005. “Bromopropane: A Health Hazard Evaluation Revisited” Presentation by Dr. J. Nemhauser, U.S. Public Health Service, Centers for Disease Control & Presentation at the North American Congress of Clinical Toxicologists. September 14, 2005. (EPA-HQ-OAR-2002-0064-0105) NIOSH, 2002a. NIOSH Health Hazard Evaluation Report: HETA # 98-0153-2883; Custom Products, Inc.; Mooresville, NC. National Institute for Occupational Safety and Health. November 2002. Available online at *http://www.cdc.gov/niosh/hhe/reports/pdfs/1998-0153-2883.pdf.* (EPA-HQ-OAR-2002-0064-0090) NIOSH, 2002b. NIOSH Health Hazard Evaluation Report: HETA #2000-0410-2891; STN Cushion Company; Thomasville, NC. National Institute for Occupational Safety and Health. August 2002. Available online at * http://www.cdc.gov/niosh/hhe/reports/pdfs/2000-410-2891.pdf.* (A-2001-07, II-A-31) NIOSH, 2003a. NIOSH Health Hazard Evaluation Report #99-0260-2906 Marx Industries, Inc. Sawmills, NC. Available online at * http://www.cdc.gov/niosh/hhe/reports/pdfs/1999-0260-2906.pdf.* (EPA-HQ-OAR-2002-0064-0094) NTP, 2003. Results of 13-week Inhalation Testing by the National Toxicology Program. Available at *http://ntp-apps.niehs.nih.gov/ntp_tox/ index.cfm?fuseaction=ntpsearch.searchresults&searchterm=106-94-5* OEHHA, 2006. State Of California Environmental Protection Agency, Office Of Environmental Health Hazard Assessment. Chemicals Known To The State To Cause Cancer Or Reproductive Toxicity. June 9, 2006. (EPA-HQ-OAR-2002-0064-0124) O'Malley, 2004. Letter from Nancy O'Malley, Toxicology Advisor, Albemarle Corporation to The Science Group of the American Conference of Governmental Industrial Hygienists. Comments on the draft Documentation for proposed TLV for 1-bromopropane (1-BP). July 30, 2004. (EPA-HQ-OAR-2002-0064-0128) Raymond and Ford, 2005. “Clinical Case Presentations from a Foam Furniture Fabrication Plant in North Carolina,” Presentation by Drs. Larry Raymond and Marsha Ford at the North American Congress of Clinical Toxicologists. September 14, 2005. (EPA-HQ-OAR-2002-0064-0170) Risotto, 2003. Comments of the Halogenated Solvents Industry Alliance on nPB proposed rule. June, 2003. (EPA-HQ-OAR-2002-0064-0050) Rodricks, 2002. October 21, 2002 remarks from Dr. J. Rodricks, Environ, to R. Morford, Enviro Tech International concerning derivation of an OEL for n-propyl bromide with cover letter to EPA from Enviro Tech International (A-2001-07, II-D-65) Rozman and Doull, 2002. “Derivation of an Occupational Exposure Limit for n-Propyl Bromide Using an Improved Methodology” *App Occu. Env. Hyg.* 17: 711-716 (A-2001-07, II-D-63) Rozman and Doull, 2005. Presentation by Drs. Rozman and Doull at the North American Congress of Clinical Toxicologists. September 14, 2005. (EPA-HQ-OAR-2002-0064-0126) RTI, 2005. Report on uptake and metabolism of 1-bromopropane in rats and mice. Research Triangle Institute report for the National Toxicology Program. June, 2005. (EPA-HQ-OAR-2002-0064-0077, -0080, -0081, -0082, -0101, -0104, -0137, -0137.1) Ruckriegel, 2003. Comment on n-Propyl Bromide Recommended Workplace Exposure Level in Proposed Rule Published in **Federal Register** Vol. 68, No. 106, June 3, 2003. August 2, 2003 (EPA-HQ-OAR-2002-0064-0055) Rusch and Bernhard, 2003. Comments on proposed regulation of n-propyl bromide from Steven Bernhardt and George Rusch, Honeywell. August 1, 2003. (EPA-HQ-OAR-2002-0064-0059) Rusch, 2003. Late comments on proposed regulation of n-propyl bromide from George Rusch, Honeywell. (EPA-HQ-OAR-2002-0064-0068) Sekiguchi S, Suda M, Zhai YL, Honma T., “Effects of 1-bromopropane, 2-bromopropane, and 1,2-dichloropropane on the estrous cycle and ovulation in F344 rats.” *Toxicol Lett* 2002 Jan 5;126(1):41-9 (A-2001-07, II-D-39) SLR International, 2001. “Inhalation Occupational Exposure Limit for n-Propyl Bromide.” Prepared for Enviro Tech International, Inc. 2001. (A-2001-07, II-D-15) Smith, 2003. Comments on Protection of Stratospheric Ozone: Listing of Substitutes for Ozone-Depleting Substances—n-Propyl Bromide, FR Vol. 68, No. 106, June 3, 2003. R.L. Smith, Albemarle Corporation. July 23, 2003. (EPA-HQ-OAR-2002-0064-0067) Sohn *et al.* , 2002. Sohn YK, Suh JS, Kim JW, Seo HH, Kim JY, Kim HY, Lee JY, Lee SB, Han JH, Lee YM, Lee JY. “A histopathologic study of the nervous system after inhalation exposure of 1-bromopropane in rat.” *Toxicol Lett.* 2002 May 28;131(3):195-201. (EPA-HQ-OAR-2002-0064-0127) Stelljes, 2003. Comments from Dr. Marc Stelljes, SLR International, on proposed rule on n-propyl bromide. (HQ-EPA-OAR-2002-0064-0022) Stelljes and Wood, 2004. Stelljes, M., Wood, R. Development of an occupational exposure limit for n-propylbromide using benchmark dose methods. *Regulatory Toxicology and Pharmacology* 40

(2004)136-150 (EPA-HQ-OAR-2002-0064-0087) Stelljes, ME, 2005. Mechanistic Hypothesis for n-Propylbromide and Ramifications for Occupational Exposure Limit in the United States. Technical Memorandum to EnviroTech International. 7 September, 2005. (EPA-HQ-OAR-2002-0064-0144) Stump, 2005. “The Reproductive Toxicity of nPB in Rats,” Presentation by Dr. Donald Stump at the North American Congress of Clinical Toxicologists. September 14, 2005. (EPA-HQ-OAR-2002-0064-0076) Swanson, M.B., J.R. Geibig, and K.E. Kelly. 2002. Alternative Adhesives Technologies: Foam Furniture and Bedding Industries, Final Draft. Volume 2: Risk Screening and Comparison. Chapter 4: Exposure Assessment. Produced by the University of Tennessee Center for Clean Products and Clean Technologies under a grant from EPA's Design for the Environment Branch, Office of Pollution and Prevention and Toxics. June 2002. Available online at *http://eerc.ra.utk.edu/ccpct/aap1.html.* TERA, 2004. Toxicological Excellence for Risk Assessment. Scientific Review of 1-Bromopropane Occupational Exposure Limit Derivations—Preliminary Thoughts and Areas for Further Analysis. 2004. (EPA-HQ-OAR-2002-0064-0189) Toraason, M., Lynch, D.W., DeBorda, D.G., Singh, N., Krieg, E., Butler, M.A.,Toennis, C.A., Nemhauser, J.B., 2006. DNA damage in leukocytes of workers occupationally exposed to 1-bromopropane. *Mutation Research* 603

(SNAP)List” submitted by Mark Collatz, Director of Government Relations, The Adhesive and Sealant Council, Inc. 04-Aug-2003. (EPA-HQ-OAR-2002-0064-0066) Confidential submission, 1998. Full citation above in “Human Health” section. CSMA, 1998. Letter with attachments from J. DiFazio, Chemical Specialties Manufacturers Association to C. Newberg, EPA Re: Maintaining the Current Exemption under Section 610 of the Clean Air Act for Use of HCFC-141b in Electronic Cleaning and Aircraft Maintenance. September 10, 1998. (EPA-HQ-OAR-2002-0064-0153) Harper, 2005. Full citation above for “Availability” section. ICF, 2006a. Full citation above for section on “Impacts on the atmosphere, local air quality, and other environmental impacts”. Lake City Army Ammunition Plant, 2004. Full citation above in “Human Health”section. Linnell, 2003. Comments from the Electronics Industry Alliance. (IV-D-25/EPA-HQ-OAR-2002-0064 items -0043, -0044, and -0045) Majersik *et al.* , 2004. Full citation above for “Human Health” section. Majersik *et al,* 2005. Full citation above for “Human Health” section. Miller, 2005. Full citation above for “Human Health” section. NIOSH, 2000a. U.S. Dept. of Health and Human Services, Letter to Marx Industries, Inc., February 1, 2000. Re: results of nPB exposure assessment survey conducted Nov. 16-17, 1999. (A-2001-07, II-D-7) NIOSH, 2000b. U.S. Dept. of Health and Human Services, Letter to Custom Products Inc., December 21, 2000. Re: results of nPB exposure assessment survey conducted Nov. 16, 2000. (HHE Report 98-0153) (A-2001-07, II-D-8) NIOSH, 2001. U.S. Dept. of Health and Human Services, Letter to STN Cushion Company, March 7, 2001. Re: Results of nPB exposure assessment survey conducted November 14, 2000. (A-2001-07, II-D-9) NIOSH, 2002a. Full citation above in “Human Health” section. NIOSH, 2002b. Full citation above in “Human Health” section. NIOSH, 2003a. NIOSH Health Hazard Evaluation Report #99-0260-2906 Marx Industries, Inc. Sawmills, NC Available online at *http://www.cdc.gov/niosh/hhe/reports/pdfs/1999-0260-2906.pdf.* (EPA-HQ-OAR-2002-0064-0094) Raymond and Ford, 2005. Full citation above for “Human Health” section. U.S. EPA, 2004. U.S. EPA Solvent Market Report: The U.S. Solvent Cleaning Industry and the Transition to Non Ozone Depleting Substances. Prepared for U.S. Environmental Protection Agency, Significant New Alternatives Policy

(SNAP)Program by ICF Consulting. September 2004. (EPA-HQ-OAR-2002-0064-0106) Werner, 2003. Full citation above for “Human Health” section. Williams, 2005. Full citation above for “Availability” section. What other options did EPA consider? ACGIH, 2002. *Industrial Ventilation: A Manual of Recommended Practice 23rd Edition.* American Conference of Governmental Industrial Hygienists, Cincinnati, Ohio Available online at *http://www.acgih.org.* CSMA, 1999. Full citation above for “Decisions for Each Sector and End Use” section. Ensolv, 2006. Material Safety Data Sheet for Ensolv Solvents. Enviro Tech International. February, 2006. (EPA-HQ-OAR-2002-0064-0143) ERG, 2004. Analysis of Health and Environmental Impacts of ODS Substitutes— *Evaluating the need to set a short-term exposure or ceiling limit for n-propyl bromide.* ERG. June 8, 2004. ICF, 2006a. Full citation above for section on “Impacts on the atmosphere, local air quality, and other environmental impacts”. Lake City Army Ammunition Plant, 2004. Full citation above for “Decisions for Each Sector and End Use” section. Linnell, 2003. Full citation above for “Ozone Depletion Potential and Other Environmental Impacts” section. Micro Care, 2006. Web page for Micro Care Corporation on the Trigger Grip TM Dispensing System. URL at *http://www.microcare.com/products/PDF/PS-05T_G.html* , last update January 19, 2006. Also see *http://www.microcare.com/images/PDF-CSP-Allied%20Worker%20Exposures.pdf.* NIOSH, 2000a. U.S. Dept. of Health and Human Services, Letter to Marx Industries, Inc., February 1, 2000. Re: Results of nPB exposure assessment survey conducted Nov. 16-17, 1999. (A-2001-07, II-D-7) NIOSH, 2002a. NIOSH Health Hazard Evaluation Report: HETA # 98-0153-2883; Custom Products, Inc.; Mooresville, NC. National Institute for Occupational Safety and Health. November 2002. Available online at *http://www.cdc.gov/niosh/hhe/reports/pdfs/1998-0153-2883.pdf.* (EPA-HQ-OAR-2002-0064-0093) NIOSH. 2002b. NIOSH Health Hazard Evaluation Report: HETA #2000-0410-2891; STN Cushion Company; Thomasville, NC. National Institute for Occupational Safety and Health. August 2002. Available online at *http://www.cdc.gov/niosh/hhe/reports/pdfs/2000-0410-2891.pdf.* (A-2001-07, II-A-31) NIOSH, 2003a. NIOSH Health Hazard Evaluation Report #99-0260-2906 Marx Industries, Inc. Sawmills, NC Available online at *http://www.cdc.gov/niosh/hhe/reports/pdfs/1999-0260-2906.pdf.* (EPA-HQ-OAR-2002-0064-0094) NIOSH, 2003b. Method 1025 for 1- and 2-Bromopropane. NIOSH Manual of Analytical Methods, 4th Edition, March 15, 2003. (EPA-HQ-OAR-2002-0064-0173) NIOSH, 2003c. Method 1003 for Halogenated Hydrocarbons. NIOSH Manual of Analytical Methods, 4th Edition, March 15, 2003. (EPA-HQ-OAR-2002-0064-0134) Williams, 2005. Full citation above for “Availability” section. What are the anticipated costs of this regulation to the regulated community? U.S. EPA, 2006. Analysis of Economic Impacts of nPB Rulemaking. 2006. Comparison of EPA's June 2003 Proposal and This Proposal ACGIH, 2005. Full citation above for “Human Health” section. CERHR, 2002a. Full citation above for “Human Health” section. CERHR, 2002b. Full citation above for “Human Health” section. Doull and Rozman, 2001. Derivation of an Occupational Exposure Limit for n-Propyl Bromide, prepared by John Doull, PhD., M.D., and Karl K. Rozman, PhD., D.A.B.T. submitted by Envirotech International, Inc. (A-2001-07, II-D-14) ICF, 2001. Brief Discussion of the BMD Approach: Overview of its Purpose, Methods, Advantages, and Disadvantages. Prepared for U.S. EPA. (A-2001-07, II-A-52) ICF, 2002a. Full citation above for “Human Health” section. ICF, 2002b. Comments on the NTP-Center for the Evaluation of Risks to Human Reproduction, Final Report on 1-Bromopropane. Cover Letter Dated 5/9/02. (EPA-HQ-OAR-2002-0064-0013) ICF, 2006a. Full citation above for section on “Impacts on the atmosphere, local air quality, and other environmental impacts”. Rodricks, 2002. Full citation above for “Human Health” section. Rozman and Doull, 2002. Full citation above for “Human Health” section. Rozman and Doull, 2005. Full citation above for “Human Health” section. SLR International, 2001. Full citation above for “Human Health” section. Stelljes and Wood, 2004. Full citation above for “Human Health” section. Stelljes, ME. 2005. Full citation above for “Human Health” section. TERA, 2004. Full citation above for “Human Health” section. WIL, 2001. Full citation above for “Human Health” section. How can I use nPB as safely as possible? ACGIH, 2002. Full citation above for “What other options did EPA consider” section. Statutory and Executive Order Reviews U.S. EPA, 2006. Analysis of Economic Impacts of nPB Rulemaking. 2006. U.S. EPA, 2007. Analysis of Economic Impacts of Proposed nPB Rule for Aerosols and Adhesives. 2007. List of Subjects in 40 CFR Part 82 Environmental protection, Administrative practice and procedure, Air pollution control, Reporting and recordkeeping requirements. Dated: May 15, 2007. Stephen L. Johnson, Administrator. For the reasons set out in the preamble, 40 CFR part 82 is proposed to be amended as follows: PART 82—PROTECTION OF STRATOSPHERIC OZONE 1. The authority citation for Part 82 continues to read as follows: Authority: 42 U.S.C. 7414, 7601, 7671—7671q. 2. Subpart G is amended by adding Appendix S to read as follows: Subpart G—Significant New Alternatives Policy Program Appendix S to Subpart G—Substitutes Subject to Use Restrictions and Unacceptable Substitutes Listed in the May 30, 2007 final rule. Aerosols—Unacceptable Substitutes End use Substitute Decision Further information Aerosol solvents n-propyl bromide

(nPB)as a substitute for CFC-113, HCFC-141b, and methyl chloroform Unacceptable EPA finds unacceptable risks to human health in this end use compared to other available alternatives. nPB, also known as 1-bromopropane, is Number 106-94-5 in the CAS Registry. Adhesives, Coatings, and Inks—Substitutes That Are Acceptable Subject to Use Conditions End use Substitute Decision Use conditions Further information Coatings n-propyl bromide

(nPB)as a substitute for methyl chloroform, CFC-113, and HCFC-141b Acceptable subject to use conditions Use is limited to coatings at facilities that, as of May 30, 2007, have provided EPA information demonstrating acceptable workplace exposures EPA recommends the use of personal protective equipment, including chemical goggles, flexible laminate protective gloves and chemical-resistant clothing. EPA expects that all users of nPB would comply with any final Permissible Exposure Limit that the Occupational Safety and Health Administration issues in the future under 42 U.S.C. 7610(a). nPB, also known as 1-brompropane, is Number 106-94-5 in the CAS Registry. As of May 30, 2007, the Lake City Army Ammunition Plant is the only facility using nPB in coatings that has provided information to EPA that meets this condition. Adhesives, Coatings, and Inks—Unacceptable Substitutes End use Substitute Decision Further information Adhesives n-propyl bromide

(nPB)as a substitute for CFC-113, HCFC-141b, and methyl chloroform Unacceptable EPA finds unacceptable risks to human health in this end use compared to other available alternatives. nPB, also known as 1-bromopropane, is Number 106-94-5 in the CAS Registry. [FR Doc. E7-9706 Filed 5-29-07; 8:45 am] BILLING CODE 6560-50-P 72 103 Wednesday, May 30, 2007 Notices Part IV Department of Justice The National Guidelines for Sex Offender Registration and Notification; Notice DEPARTMENT OF JUSTICE [Docket No. OAG 121; A.G. Order No. 2880-2007]. RIN 1105-AB28 Office of the Attorney General; The National Guidelines for Sex Offender Registration and Notification AGENCY: Department of Justice. ACTION: Notice; Proposed guidelines. SUMMARY: The United States Department of Justice is publishing Proposed Guidelines to interpret and implement the Sex Offender Registration and Notification Act. DATES: Comments must be received by August 1, 2007. ADDRESSES: Comments may be mailed to Laura L. Rogers, Director, SMART Office, Office of Justice Programs, United States Department of Justice, 810 7th Street NW., Washington, DC 20531. To ensure proper handling, please reference OAG Docket No. 121 on your correspondence. You may view an electronic version of these proposed guidelines at *http://www.ojp.gov/smart* or *http://www.regulations.gov.* You may also comment via the Internet to the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART Office) of the Justice Department's Office of Justice Programs at *getsmart@usdoj.gov.* Electronically submitted comments must include Docket No. OAG 121 in the subject box. FOR FURTHER INFORMATION CONTACT: Laura L. Rogers, Director, SMART Office, Office of Justice Programs, United States Department of Justice, Washington, DC 202-514-4689. SUPPLEMENTARY INFORMATION: Since the enactment of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (42 U.S.C. 14071) in 1994, there have been national standards for sex offender registration and notification in the United States. All states currently have sex offender registration and notification programs and have endeavored to implement the Wetterling Act standards in their existing programs. Title I of the Adam Walsh Child Protection and Safety Act of 2006 (Pub. L. 109-248), the Sex Offender Registration and Notification Act (SORNA), contains a comprehensive revision of the national standards for sex offender registration and notification. The SORNA reforms are generally designed to strengthen and increase the effectiveness of sex offender registration and notification for the protection of the public, and to eliminate potential gaps and loopholes under the pre-existing standards by means of which sex offenders could attempt to evade registration requirements or the consequences of registration violations. These proposed guidelines carry out a statutory directive to the Attorney General in section 112(b) of SORNA (42 U.S.C. 16912(b)) to issue guidelines to interpret and implement SORNA. They provide guidance and assistance to the states and other jurisdictions in incorporating the SORNA requirements into their sex offender registration and notification programs. Matters addressed in the guidelines include general principles for SORNA implementation; the jurisdictions responsible for implementing the SORNA standards in their programs; the sex offenders required to register under SORNA and the registration and notification requirements they are subject to based on the nature of their offenses and the extent of their recidivism; the information to be included in the sex offender registries and the disclosure and sharing of such information; the jurisdictions in which sex offenders are required to register; the procedures for initially registering sex offenders and for keeping the registration current and the registration information up to date; the duration of registration; and the means of enforcing registration requirements. Proposed National Guidelines for Sex Offender Registration and Notification Contents I. Introduction II. General Principles A. Terminology B. Minimum National Standards C. Retroactivity D. Automation—Electronic Databases and Software E. Implementation III. Covered Jurisdictions IV. Covered Sex Offenses and Sex Offenders A. Convictions Generally B. Foreign Convictions C. Sex Offenses Generally D. Specified Offenses Against Minors E. Protected Witnesses V. Classes of Sex Offenders VI. Required Registration Information VII. Disclosure and Sharing of Information A. Sex Offender Web Sites B. Community Notification and Targeted Disclosures VIII. Where Registration Is Required IX. Initial Registration X. Keeping the Registration Current A. Changes of Name, Residence, Employment, or School Attendance B. Changes in Other Registration Information C. International Travel XI. Verification/Appearance Requirements XII. Duration of Registration XIII. Enforcement of Registration Requirements I. Introduction The Sex Offender Registration and Notification Act (“SORNA” or “the Act”), which is title I of the Adam Walsh Child Protection and Safety Act of 2006 (Pub. L. 109-248), provides a new comprehensive set of minimum standards for sex offender registration and notification in the United States. These guidelines are issued to provide guidance and assistance to covered jurisdictions—the 50 States, the District of Columbia, the principal U.S. territories, and Indian tribal governments—in implementing the SORNA standards in their registration and notification programs. The adoption of these guidelines carries out a statutory directive to the Attorney General, appearing in SORNA section 112(b), to issue guidelines to interpret and implement SORNA. Other provisions of SORNA establish the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (the “SMART Office”), a component of the Office of Justice Programs of the U.S. Department of Justice. The SMART Office is authorized by law to administer the standards for sex offender registration and notification that are set forth in SORNA and interpreted and implemented in these guidelines. It is further authorized to cooperate with and provide assistance to States, local governments, tribal governments, and other public and private entities in relation to sex offender registration and notification and other measures for the protection of the public from sexual abuse or exploitation. See SORNA section 146(c). Accordingly, the SMART Office should be regarded by jurisdictions discharging registration and notification functions as their key partner and resource in the federal government in further developing and strengthening their sex offender registration and notification programs, and the SMART Office will provide all possible assistance for this purpose. The development of sex offender registration and notification programs in the United States has proceeded rapidly since the early 1990s, and at the present time such programs exist in all of the States, the District of Columbia, and some of the territories and tribes. These programs serve a number of important public safety purposes. In their most basic character, the registration aspects of these programs are systems for tracking sex offenders following their release into the community. If a sexually violent crime occurs or a child is molested, information available to law enforcement through the registration program about sex offenders who may have been present in the area may help to identify the perpetrator and solve the crime. If a particular released sex offender is implicated in such a crime, knowledge of the sex offender's whereabouts through the registration system may help law enforcement in making a prompt apprehension. The registration program may also have salutary effects in relation to the likelihood of registrants committing more sex offenses. Registered sex offenders will perceive that the authorities' knowledge of their identities, locations, and past offenses reduces the chances that they can avoid detection and apprehension if they reoffend, and this perception may help to discourage them from doing so. Registration also provides the informational base for the other key aspect of the programs—notification—which involves making information about released sex offenders more broadly available to the public. The means of public notification currently include sex offender Web sites in all States, the District of Columbia, and some territories, and may involve other forms of notice as well. The availability of such information helps members of the public to take common sense measures for the protection of themselves and their families, such as declining the offer of a convicted child molester to watch their children or head a youth group, or reporting to the authorities approaches to children or other suspicious activities by such a sex offender. Here as well, the effect is salutary in relation to the sex offenders themselves, since knowledge by those around them of their sex offense histories reduces the likelihood that they will be presented with opportunities to reoffend. While sex offender registration and notification in the United States are generally carried out through programs operated by the individual States and other non-federal jurisdictions, their effectiveness depends on also having effective arrangements for tracking of registrants as they move among jurisdictions and some national baseline of registration and notification standards. In a federal union like the United States with a mobile population, sex offender registration could not be effective if registered sex offenders could simply disappear from the purview of the registration authorities by moving from one jurisdiction to another, or if registration and notification requirements could be evaded by moving from a jurisdiction with an effective program to a nearby jurisdiction that required little or nothing in terms of registration and notification. Hence, there have been national standards for sex offender registration in the United States since the enactment of the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Act (42 U.S.C. 14071) in 1994. The national standards from their inception have addressed such matters as the offenses for which registration should be required, updating and periodic verification of registration information, the duration of registration, public notification, and continued registration and tracking of sex offenders when they relocate from one jurisdiction to another. Following the enactment of the Wetterling Act in 1994, that Act was amended a number of times, in part reflecting and in part promoting trends in the development of the State registration and notification programs. Ultimately, Congress concluded that the patchwork of standards that had resulted from piecemeal amendments should be replaced with a comprehensive new set of standards—the SORNA reforms, whose implementation these Guidelines concern—that would close potential gaps and loopholes under the old law, and generally strengthen the nationwide network of sex offender registration and notification programs. Important areas of reform under the SORNA standards include: • Extending the jurisdictions in which registration is required beyond the 50 States, the District of Columbia, and the principal U.S. territories, to include Indian tribal jurisdictions. • Extending the classes of sex offenders and sex offenses for which registration is required. • Consistently requiring that sex offenders in the covered classes register and keep the registration current in the jurisdictions in which they reside, work, or go to school. • Requiring more extensive registration information. • Adding to the national standards periodic in-person appearances by registrants to verify and update the registration information. • Broadening the availability of information concerning registered sex offenders to the public, through posting on sex offender Web sites and by other means. • Adopting reforms affecting the required duration of registration. In addition, SORNA strengthens the federal superstructure elements that leverage and support the sex offender registration and notification programs of the registration jurisdictions. These strengthened elements are:

(i)Stepped-up federal investigation and prosecution efforts to assist jurisdictions in enforcing sex offender registration requirements;

(ii)new statutory provisions for the national database and national Web site (i.e., the National Sex Offender Registry and the Dru Sjodin National Sex Offender Public Web site) that effectively compile information obtained under the registration programs of the States and other jurisdictions and make it readily available to law enforcement or the public on a nationwide basis;

(iii)development by the federal government of software tools, which the States and other registration jurisdictions will be able to use to facilitate the operation of their registration and notification programs in conformity with the SORNA standards; and

(iv)establishment of the SMART Office to administer the national standards for sex offender registration and notification and to assist registration jurisdictions in their implementation. Through the cooperative effort of the 50 States, the District of Columbia, the U.S. territories, and Indian tribal governments with the responsible federal agencies, the SORNA goal of an effective and comprehensive national system of registration and notification programs can be realized, with great benefit to the ultimate objective of “protect[ing] the public from sex offenders and offenders against children.” SORNA section102. These Guidelines provide the blueprint for that effort. Alberto R. Gonzales, Attorney General II. General Principles Before turning to the specific SORNA standards and requirements discussed in the remainder of these Guidelines, certain general points should be noted concerning the interpretation and application of the Act and these Guidelines: A. Terminology These Guidelines use key terms with the meanings defined in SORNA. In particular, the term “jurisdiction” is consistently used with the meaning set forth in SORNA section 111(10). As defined in that provision, it refers to the 50 States, the District of Columbia, the five principal U.S. territories—i.e., the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, and the United States Virgin Islands—and Indian tribes that elect to function as registration jurisdictions under SORNA section 127. (For more concerning covered jurisdictions, see Part III of these Guidelines.) Thus, when these Guidelines refer to “jurisdictions” implementing the SORNA registration and notification requirements, the reference is to implementation of these requirements by the jurisdictions specified in SORNA section 111(10). Likewise, the term “sex offense” is not used to refer to any and all crimes of a sexual nature, but rather to those covered by the definition of “sex offense” appearing in SORNA section 111(5), and the term “sex offender” has the meaning stated in SORNA section 111(1). (For more concerning covered sex offenses and offenders, see Part IV of these Guidelines.) SORNA itself includes a number of references relating to implementation by jurisdictions of the requirements of “this title.” Section 125 provides a mandatory 10% reduction in certain federal justice assistance funding for jurisdictions that fail, as determined by the Attorney General, to substantially implement “this title” within the time frame specified in section 124, and section 126 authorizes a Sex Offender Management Assistance grant program to help offset the costs of implementing “this title.” In the context of these provisions, the references to “this title” function as a shorthand for the SORNA sex offender registration and notification standards. They do not mean that funding under these provisions is affected by a jurisdiction's implementation or non-implementation of reforms unrelated to sex offender registration and notification that appear in later portions of title I of the Adam Walsh Act Child Protection and Safety Act of 2006 (particularly, subtitle C of that title). Section 125(d) of SORNA states that the provisions of SORNA “that are cast as directions to jurisdictions or their officials constitute, in relation to States, only conditions required to avoid the reduction of Federal funding under this section.” Statements in these Guidelines that SORNA requires jurisdictions to adopt certain measures should be understood accordingly in their application to the States. Since the SORNA requirements relating to sex offender registration and notification are, in relation to the States, only partial funding eligibility conditions, creation of these requirements is within the constitutional authority of the federal government. B. Minimum National Standards SORNA establishes a national baseline for sex offender registration and notification programs. In other words, the Act generally constitutes a set of minimum national standards and sets a floor, not a ceiling, for jurisdictions' programs. Hence, for example, a jurisdiction may have a system that requires registration by broader classes of convicted sex offenders than those identified in SORNA, or that requires, in addition, registration by certain classes of non-convicts (such as persons acquitted on the ground of insanity of sexually violent crimes or child molestation offenses, or persons released following civil commitment as sexually dangerous persons). A jurisdiction may require verification of the registered address or other registration information by sex offenders with greater frequency than SORNA requires, or by other means in addition to those required by SORNA (e.g., through the use of mailed address verification forms, in addition to in-person appearances). A jurisdiction may require sex offenders to register for longer periods than those required by the SORNA standards. A jurisdiction may require that changes in registration information be reported by registrants on a more stringent basis than the SORNA minimum standards—e.g., requiring that changes of residence be reported before the sex offender moves, rather than within three business days following the move. A jurisdiction may extend Web site posting to broader classes of registrants than SORNA requires and may post more information concerning registrants than SORNA and these Guidelines require. Such measures, which encompass the SORNA baseline of sex offender registration and notification requirements but go beyond them, generally have no negative implication concerning jurisdictions' implementation of or compliance with SORNA. This is so because the general purpose of SORNA is to protect the public from sex offenders and offenders against children through effective sex offender registration and notification, and it is not intended to preclude or limit jurisdictions' discretion to adopt more extensive or additional registration and notification requirements to that end. There are exceptions to this general rule, however. For example, SORNA section 118(b) requires that certain limited types of information, such as victim identity and registrants' Social Security numbers, be excluded from jurisdictions' publicly accessible sex offender Web sites, as discussed in Part VII of these Guidelines. In most other respects, jurisdictions' discretion to go further than the SORNA minimum is not limited. C. Retroactivity The applicability of the SORNA requirements is not limited to sex offenders whose predicate sex offense convictions occur following a jurisdiction's implementation of a conforming registration program. Rather, SORNA's requirements apply to all sex offenders, including those whose convictions predate the enactment of the Act. The Attorney General has so provided in 28 CFR part 72, pursuant to the authority under SORNA section 113(d) to “specify the applicability of the requirements of [SORNA] to sex offenders convicted before the enactment of this Act or its implementation in a particular jurisdiction.” As noted in the rulemaking document for the cited regulations, the application of the SORNA standards to sex offenders whose convictions predate SORNA creates no ex post facto problem “because the SORNA sex offender registration and notification requirements are intended to be non-punitive, regulatory measures adopted for public safety purposes, and hence may validly be applied (and enforced by criminal sanctions) against sex offenders whose predicate convictions occurred prior to the creation of these requirements. See *Smith* v. *Doe,* 538 U.S. 84 (2003).” 72 FR 8894, 8896 (Feb. 28, 2007). As a practical matter, jurisdictions may not be able to identify all sex offenders who fall within the SORNA registration categories, where the predicate convictions predate the enactment of SORNA or the jurisdiction's implementation of the SORNA standards in its registration program, particularly where such sex offenders have left the justice system and merged into the general population long ago. But many sex offenders with such convictions will remain in (or reenter) the system because: • They are incarcerated or under supervision, either for the predicate sex offense or for some other crime; • They are already registered or subject to a pre-existing sex offender registration requirement under the jurisdiction's law; or • They hereafter reenter the jurisdiction's justice system because of conviction for some other crime (whether or not a sex offense). Sex offenders in these three classes are within the cognizance of the jurisdiction, and the jurisdiction will often have independent reasons to review their criminal histories for penal, correctional, or registration/notification purposes. Accordingly, a jurisdiction will be deemed to have substantially implemented the SORNA standards with respect to sex offenders whose predicate convictions predate the enactment of SORNA or the implementation of SORNA in the jurisdiction's program if it registers these sex offenders, when they fall within any of the three classes described above, in conformity with the SORNA standards. (For more about the registration of sex offenders in these classes, see the discussion under “retroactive classes” in Part IX of these Guidelines.) The required retroactive application of the SORNA requirements will also be limited in some cases by the limits on the required duration of registration. As discussed in Part XII of these Guidelines, SORNA requires minimum registration periods of varying length for sex offenders in different categories, defined by criteria relating to the nature of their sex offenses and their history of recidivism. This means that a sex offender with a pre-SORNA conviction may have been in the community for a greater amount of time than the registration period required by SORNA. For example, SORNA section 115 requires registration for 25 years for a sex offender whose offense satisfies the “tier II” criteria of section 111(3). A sex offender who was released from imprisonment for such an offense in 1980 is already more than 25 years out from the time of release. In such cases, a jurisdiction may credit the sex offender with the time elapsed from his or her release (or the time elapsed from sentencing, in case of a non-incarcerative sentence), and does not have to require the sex offender to register on the basis of the conviction, even if the criteria for retroactive application of the SORNA standards under this Part are otherwise satisfied. As with other requirements under SORNA and these Guidelines, the foregoing discussion identifies only the minimum required for SORNA compliance. Jurisdictions are free to require registration for broader classes of sex offenders with convictions that predate SORNA or the jurisdiction's implementation of the SORNA standards in its program. D. Automation—Electronic Databases and Software Several features of SORNA contemplate, or will require as a practical matter, the use of current electronic and cyber technology to track seamlessly sex offenders who move from one jurisdiction to another, ensure that information concerning registrants is immediately made available to all interested jurisdictions, and make information concerning sex offenders immediately available to the public as appropriate. These include provisions for immediate information sharing among jurisdictions under SORNA section 113(c); a requirement in section 119(b) that the Attorney General ensure “that updated information about a sex offender is immediately transmitted by electronic forwarding to all relevant jurisdictions”; and requirements in section 121(b) that sex offender registration information and updates thereto be provided immediately to various public and private entities and individuals. (For more about these information sharing requirements and associated time frames, see Parts VII.B and X of these Guidelines.) Carrying out the SORNA information sharing requirements accordingly will entail maintenance by jurisdictions of their registries in the form of electronic databases, whose included information can be electronically transmitted to other jurisdictions and entities. This point is further discussed in connection with the specific SORNA standards, particularly in Parts VI, VII, and X of these Guidelines. Section 123 of SORNA directs the Attorney General, in consultation with the jurisdictions, to develop and support registry management and Web site software. The purposes of the software include facilitating the immediate exchange of sex offender information among jurisdictions, public access through the Internet to sex offender information and other forms of community notification, and compliance in other respects with the SORNA requirements. As required by section 123, the Department of Justice will develop and make available to the jurisdictions software tools for the operation of their sex offender registration and notification programs, which will, as far as possible, be designed to automate these processes and enable the jurisdictions to implement SORNA's requirements by utilizing the software. E. Implementation Section 124 of SORNA sets a general time frame of three years for implementation, running from the date of enactment of SORNA, i.e., from July 27, 2006. The Attorney General is authorized to provide up to two one-year extensions of this deadline. Failure to comply within the applicable time frame would result in a 10% reduction of Federal justice assistance funding under 42 U.S.C. 3750 *et seq* . (“Byrne Justice Assistance Grant” funding). See SORNA section 125(a). Funding withheld from jurisdictions because of noncompliance would be reallocated to other jurisdictions that are in compliance, or could be reallocated to the noncompliant jurisdiction to be used solely for the purpose of SORNA implementation. While SORNA sets minimum standards for jurisdictions' registration and notification programs, it does not require that its standards be implemented by statute. Hence, in assessing compliance with SORNA, the totality of a jurisdiction's rules governing the operation of its registration and notification program will be considered, including administrative policies and procedures as well as statutes. The SMART Office will be responsible for determining whether a jurisdiction has substantially implemented the SORNA requirements. The affected jurisdictions are encouraged to submit information to the SMART Office concerning existing and proposed sex offender registration and notification provisions with as much lead time as possible, so the SMART Office can assess the adequacy of existing or proposed measures to implement the SORNA requirements and work with the submitting jurisdictions to overcome any shortfalls or problems. At the latest, submissions establishing compliance with the SORNA requirements should be made to the SMART Office at least three months before the deadline date of July 27, 2009—i.e., by April 27, 2009—so that the matter can be determined before the Byrne Grant funding reduction required by SORNA section 125 for noncompliant jurisdictions takes effect. If it is anticipated that a submitting jurisdiction may need an extension of time as described in SORNA section 124(b), the submission to the SMART Office—which should be made by April 27, 2009, as noted—should include a description of the jurisdiction's implementation efforts and an explanation why an extension is needed. SORNA section 125 refers to “substantial” implementation of SORNA. The standard of “substantial implementation” is satisfied with respect to an element of the SORNA requirements if a jurisdiction carries out the requirements of SORNA as interpreted and explained in these Guidelines. Hence, the standard is satisfied if a jurisdiction implements measures that these Guidelines identify as sufficient to implement (or “substantially” implement) the SORNA requirements. The “substantial” compliance standard also contemplates that there is some latitude to approve a jurisdiction's implementation efforts, even if they do not exactly follow in all respects the specifications of SORNA or these Guidelines. For example, section 116 of SORNA requires periodic in-person appearances by sex offenders to verify their registration information. In some cases this will be impossible, such as the case of a sex offender who is hospitalized and unconscious as a result of an injury at the time of a scheduled appearance. In other cases, the appearance may not be literally impossible, but there may be reasons to allow some relaxation of the requirement. For example, a sex offender may unexpectedly need to deal with a family emergency at the time of a scheduled appearance, where failure to make the appearance will mean not verifying the registration information within the exact time frame specified by SORNA section 116. A jurisdiction may wish to authorize rescheduling of the appearance in such cases. Doing so would not necessarily undermine substantially the objectives of the SORNA verification requirements, so long as the jurisdiction's rules or procedures require that the sex offender notify the official responsible for monitoring the sex offender of the difficulty, and that the appearance promptly be carried out once the interfering circumstance is resolved. In general, the SMART Office will consider on a case-by-case basis whether jurisdictions' rules or procedures that do not exactly follow the provisions of SORNA or these Guidelines “substantially” implement SORNA, assessing whether the departure from a SORNA requirement will or will not substantially disserve the objectives of the requirement. If a jurisdiction is relying on the authorization to approve measures that “substantially” implement SORNA as the basis for an element or elements in its system that depart in some respect from the exact requirements of SORNA or these Guidelines, the jurisdiction's submission to the SMART Office should identify these elements and explain why the departure from the SORNA requirements should not be considered a failure to substantially implement SORNA. Beyond the general standard of substantial implementation, SORNA section 125(b) includes special provisions for cases in which the highest court of a jurisdiction has held that the jurisdiction's constitution is in some respect in conflict with the SORNA requirements. If a jurisdiction believes that it faces such a situation, it should inform the SMART Office. The SMART Office will then work with the jurisdiction to see whether the problem can be overcome, as the statute provides. If it is not possible to overcome the problem, then the SMART Office may approve the jurisdiction's adoption of reasonable alternative measures that are consistent with the purposes of SORNA. Section 125 of SORNA, as discussed above, provides for a funding reduction for jurisdictions that do not substantially implement SORNA within the applicable time frame. Section 126 of SORNA authorizes positive funding assistance—the Sex Offender Management Assistance (“SOMA”) grant program—to all registration jurisdictions to help offset the costs of SORNA implementation, with enhanced payments authorized for jurisdictions that effect such implementation within one or two years of SORNA's enactment. Congress has not appropriated funding for the SOMA program at the time of the issuance of these Guidelines. If funding for this program is forthcoming in the future, additional guidance will be provided concerning application for grants under the program. III. Covered Jurisdictions Section 112(a) of SORNA states that “[e]ach jurisdiction shall maintain a jurisdiction-wide sex offender registry conforming to the requirements of this title,” and section 124 provides specific deadlines for “jurisdictions” to carry out the SORNA implementation. Related definitions appear in section 111(9) and (10). Section 111(9) provides that “sex offender registry” means a registry of sex offenders and a notification program. Section 111(10) provides that “jurisdiction” refers to: • The 50 States; • The District of Columbia; • The five principal U.S. territories—the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, and the United States Virgin Islands; and • Indian tribes to the extent provided in section 127. Some of the provisions in SORNA are formulated as directions to sex offenders, including those appearing in sections 113(a)-(b), 113(c) (first sentence), 114(a), 115(a), and 116. Other SORNA provisions are cast as directions to jurisdictions or their officials, such as those appearing in sections 113(c) (second sentence), 113(e), 114(b), 117(a), 118, 121(b), and 122. To meet the requirement under sections 112 and 124 that covered jurisdictions must implement SORNA in their registration and notification programs, each jurisdiction must incorporate in the laws and rules governing its registration and notification program the requirements that SORNA imposes on sex offenders, as well as those that are addressed directly to jurisdictions and their officials. While the “jurisdictions” assigned sex offender registration and notification responsibilities by SORNA are the 50 States, the District of Columbia, the principal territories, and Indian tribes (to the extent provided in section 127), as described above, this does not limit the ability of these jurisdictions to carry out these functions through their political subdivisions. For example, a jurisdiction may assign responsibility for initially registering sex offenders upon their release from imprisonment to correctional personnel who are employees of the jurisdiction's government, but the responsibility for continued tracking and registration of sex offenders thereafter may be assigned to personnel of local police departments, sheriffs' offices, or supervision agencies who are municipal employees. Moreover, in carrying out their registration and notification functions, jurisdictions are free to utilize (and to allow their agencies and political subdivisions to utilize) entities and individuals who may not be governmental agencies or employees in a narrow sense, such as contractors, volunteers, and community-based organizations that are capable of discharging these functions. SORNA does not limit jurisdictions' discretion concerning such matters. Rather, so long as a jurisdiction's laws and rules provide consistently for the discharge of the required registration and notification functions by some responsible individuals or entities, the specifics concerning such assignments of responsibility are matters within the jurisdiction's discretion. References in these Guidelines should be understood accordingly, so that (for example) a reference to an “official” carrying out a registration function does not mean that the function must be carried out by a government employee, but rather is simply a way of referring to whatever individual is assigned responsibility for the function. With respect to Indian tribes, SORNA recognizes that tribes may vary in their capacities and preferences regarding the discharge of sex offender registration and notification functions, and accordingly section 127 of SORNA has special provisions governing the treatment of Indian tribes as registration jurisdictions or the delegation of registration and notification functions to the States. Specifically, section 127(a)(1) generally affords federally recognized Indian tribes a choice between electing to carry out the sex offender registration and notification functions specified in SORNA in relation to sex offenders subject to its jurisdiction, or delegating those functions to a State or States within which the tribe is located. (Delegation to the State or States is automatic for a tribe subject to state law enforcement jurisdiction under 18 U.S.C. 1162, however—see the discussion of section 127(a)(2) below.) The choice by a tribe whether to become a SORNA registration jurisdiction or to delegate registration and notification functions to a State or States must be made within one year of SORNA's enactment on July 27, 2006. If a tribe elects to become a SORNA registration jurisdiction, its functions and responsibilities regarding sex offender registration and notification are the same as those of a State. Duplication of registration and notification functions by tribes and States is not required, however, and such tribes may enter into cooperative agreements with the States for the discharge of these functions, as discussed below in connection with section 127(b). If a tribe elects to delegate to a State, then the State is fully responsible for carrying out the SORNA registration and notification functions, and the delegation includes an undertaking by the tribe to “provide access to its territory and such other cooperation and assistance as may be needed to enable [the State] to carry out and enforce the requirements of [SORNA].” SORNA section 127(a)(1)(B). The election to become a SORNA registration jurisdiction, or to delegate to a State or States, must be made by resolution or other enactment of the tribal council or comparable governmental body. Hence, the decision must be made by a tribal governmental entity—”the tribal council or comparable governmental body”—that has the legal authority to make binding legislative decisions for the tribe. The tribal government should promptly notify the SMART Office of its decision and forward the text of the resolution or other enactment to the SMART Office by a reliable means of transmission—preferably by the decision deadline of July 27, 2007, or if that is not feasible, as soon thereafter as possible. To satisfy the requirements of SORNA section 127(a)(1), the resolution or enactment must be adopted on or prior to July 27, 2007, and must state a decision by the tribal council (or comparable governmental body) to do one of the following: • Carry out the SORNA requirements relating to sex offender registration and notification as a jurisdiction subject to those requirements; or • Delegate the tribe's functions relating to sex offender registration and notification under SORNA to the State or States within which the territory of the tribe is located and provide access to its territory and such other cooperation and assistance as may be needed to enable the State or States to carry out and enforce the SORNA requirements. Additional suggested elements for inclusion in the tribal resolution (or other enactment) include the following: • Authorization of an appropriate tribal official or officials to negotiate or enter into cooperative agreements with state or local governments, if the tribe elects to become a SORNA registration jurisdiction, and if it is expected that the SORNA requirements will be carried out wholly or in part through such agreements. • A direction to tribal officials and agencies to provide such cooperation and assistance as the State or States may need to carry out and enforce the SORNA requirements, if the tribe elects to delegate the SORNA functions to a State or States. • A date or timing notation that shows the resolution was adopted on or prior to July 27, 2007. • A direction that the SMART Office of the U.S. Department of Justice be notified of the tribe's election and that the resolution or enactment be transmitted to the SMART Office. Subsection (a)(2) of SORNA section 127 specifies three circumstances in which registration and notification functions are deemed to be delegated to the State or States in which a tribe is located, even if the tribe does not make an affirmative decision to delegate: • Under subparagraph

(A)of subsection (a)(2), these functions are always delegated to the State if the tribe is subject to the law enforcement jurisdiction of the State under 18 U.S.C. 1162. (If a tribe's land is in part subject to state law enforcement jurisdiction under 18 U.S.C. 1162 and in part outside of the areas subject to 18 U.S.C. 1162, then:

(i)Sex offender registration and notification functions are automatically delegated to the relevant State in the portion of the tribal land subject to 18 U.S.C. 1162, and

(ii)the tribe has a choice between functioning as a registration jurisdiction or delegating registration and notification functions to the State in the portion of its land that is not subject to 18 U.S.C. 1162.) • Under subparagraph

(B)of subsection (a)(2), these functions are delegated to the State or States if the tribe does not make an affirmative election to function as a registration jurisdiction within one year of the enactment of SORNA—i.e., within one year of July 27, 2006—or rescinds a previous election to function as a registration jurisdiction. • Under subparagraph

(C)of subsection (a)(2), these functions are delegated to the State or States if the Attorney General determines that the tribe has not substantially implemented the requirements of SORNA and is not likely to become capable of doing so within a reasonable amount of time. If a tribe does elect under section 127 to become a SORNA registration jurisdiction, section 127(b) specifies that this does not mean that the tribe must duplicate registration and notification functions that are fully carried out by the State or States within which the tribe is located, and subsection

(b)further authorizes the tribes and the States to make cooperative arrangements for the discharge of some or all of these functions. For example, SORNA section 118 requires jurisdictions to make information concerning their sex offenders available to the public through the Internet. If a tribe did not want to maintain a separate sex offender Web site for this purpose, it would not need to do so, as long as a cooperative agreement was made with the State to have information concerning the tribe's registrants posted on the State's sex offender Web site. Likewise, a tribe that elects to be a SORNA registration jurisdiction remains free to make cooperative agreements under which the State (or a political subdivision thereof) will handle registration of the tribe's sex offenders—such as initially registering these sex offenders, conducting periodic appearances of the sex offenders to verify the registration information, and receiving reports by the sex offenders concerning changes in the registration information—to the extent and in a manner mutually agreeable to the tribe and the State. In general, the use of cooperative agreements affords tribes flexibility in deciding which functions under SORNA they would seek to have state authorities perform, and which they wish to control or discharge directly. For example, the State could carry out certain registration functions, but the tribe could retain jurisdiction over the arrest within its territory of sex offenders who fail to register, update registrations, or make required verification appearances, if a cooperative agreement between the tribe and the State so provided. IV. Covered Sex Offenses and Sex Offenders SORNA refers to the persons required to register under its standards as “sex offenders,” and section 111(1) of SORNA defines “sex offender” in the relevant sense to mean “an individual who was convicted of a sex offense.” “Sex offense” is in turn defined in section 111(5) and related provisions. The term encompasses a broad range of offenses of a sexual nature under the law of any jurisdiction—including offenses under federal, military, state, territorial, local, tribal, and foreign law, but with some qualification regarding foreign convictions as discussed below. A. Convictions Generally A “sex offender” defined in SORNA section 111(1) is a person who was “convicted” of a sex offense. Hence, whether an individual has a sex offense “conviction” determines whether he or she is within the minimum categories for which the SORNA standards require registration. The convictions for which SORNA requires registration include convictions for sex offenses by any United States jurisdiction, including convictions for sex offenses under federal, military, state, territorial, or local law. Indian tribal court convictions for sex offenses are generally to be given the same effect as convictions by other United States jurisdictions. It is recognized, however, that Indian tribal court proceedings may differ from those in other United States jurisdictions in that the former do not uniformly guarantee the same rights to counsel that are guaranteed in the latter. Accordingly, a jurisdiction may choose not to require registration based on a tribal court conviction resulting from proceedings in which:

(i)The defendant was denied the right to the assistance of counsel, and

(ii)the defendant would have had a right to the assistance of counsel under the United States Constitution in comparable state proceedings. A jurisdiction will not be deemed to have failed to substantially implement SORNA based on its adoption of such an exception. Since the SORNA registration requirements are predicated on convictions, registration (or continued registration) is normally not required under the SORNA standards if the predicate conviction is reversed, vacated, or set aside, or if the person is pardoned for the offense on the ground of innocence. This does not mean, however, that nominal changes or terminological variations that do not relieve a conviction of substantive effect negate the SORNA requirements. For example, the need to require registration would not be avoided by a jurisdiction's having a procedure under which the convictions of sex offenders in certain categories (e.g., young adult sex offenders who satisfy certain criteria) are referred to as something other than “convictions,” or under which the convictions of such sex offenders may nominally be “vacated” or “set aside,” but the sex offender is nevertheless required to serve what amounts to a criminal sentence for the offense. Rather, an adult sex offender is “convicted” for SORNA purposes if the sex offender remains subject to penal consequences based on the conviction, however it may be styled. Likewise, the sealing of a criminal record or other action that limits the publicity or availability of a conviction, but does not deprive it of continuing legal validity, does not change its status as a “conviction” for purposes of SORNA. “Convictions” for SORNA purposes include convictions of juveniles who are prosecuted as adults. It does not include juvenile delinquency adjudications, except under the circumstances specified in SORNA section 111(8). Section 111(8) provides that delinquency adjudications count as convictions “only if the offender is 14 years of age or older at the time of the offense and the offense adjudicated was comparable to or more severe than aggravated sexual abuse (as described in section 2241 of title 18, United States Code), or was an attempt or conspiracy to commit such an offense.” Hence, SORNA does not require registration for juveniles adjudicated delinquent for all sex offenses for which an adult sex offender would be required to register, but rather requires registration only for a defined class of older juveniles who are adjudicated delinquent for committing particularly serious sexually assaultive crimes or child molestation offenses. Considering the definition of the federal “aggravated sexual abuse” offense referenced in section 111(8), offenses under a jurisdiction's laws “comparable to” that offense are those that cover: • Engaging in a sexual act with another by force or the threat of serious violence (see 18 U.S.C. 2241(a)); • Engaging in a sexual act with another by rendering unconscious or involuntarily drugging the victim (see 18 U.S.C. 2241(b)); or • Engaging in a sexual act with a child under the age of 12 (see 18 U.S.C. 2241(c)). “Sexual act” for this purpose should be understood to include any of the following:

(i)Oral-genital or oral-anal contact,

(ii)any degree of genital or anal penetration, and

(iii)direct genital touching of a child under the age of 16. This follows from the definition of sexual act in 18 U.S.C. 2246(2), which applies to the 18 U.S.C. 2241 “aggravated sexual abuse” offense. As with other aspects of SORNA, the foregoing defines minimum standards. Hence, the inclusions and exclusions in the definition of “conviction” for purposes of SORNA do not constrain jurisdictions from requiring registration by additional individuals—e.g., more broadly defined categories of juveniles adjudicated delinquent for sex offenses—if they are so inclined. B. Foreign Convictions Section 111(5)(B) of SORNA instructs that registration need not be required on the basis of a foreign conviction if the conviction “was not obtained with sufficient safeguards for fundamental fairness and due process for the accused under guidelines or regulations established [by the Attorney General].” The following standards are adopted pursuant to section 111(5)(B): • Sex offense convictions under the laws of Canada, Great Britain, Australia, and New Zealand are deemed to have been obtained with sufficient safeguards for fundamental fairness and due process, and registration must be required for such convictions on the same footing as domestic convictions. • Sex offense convictions under the laws of any foreign country are deemed to have been obtained with sufficient safeguards for fundamental fairness and due process if the U.S. State Department, in its Country Reports on Human Rights Practices, has concluded that an independent judiciary generally (or vigorously) enforced the right to a fair trial in that country during the year in which the conviction occurred. Registration must be required on the basis of such convictions on the same footing as domestic convictions. • With respect to sex offense convictions in foreign countries that do not satisfy the criteria stated above, a jurisdiction is not required to register the convicted person if the jurisdiction determines—through whatever process or procedure it may choose to adopt—that the conviction does not constitute a reliable indication of factual guilt because of the lack of an impartial tribunal, because of denial of the right to respond to the evidence against the person or to present exculpatory evidence, or because of denial of the right to the assistance of counsel. The foregoing standards do not mean that jurisdictions must incorporate these particular criteria or procedures into their registration systems, if they wish to register foreign sex offense convicts with fewer qualifications or no qualifications. Rather, the stated criteria define the minimum categories of foreign convicts for whom registration is required for compliance with SORNA, and as is generally the case under SORNA, jurisdictions are free to require registration more broadly than the SORNA minimum. C. Sex Offenses Generally The general definition of sex offenses for which registration is required under the SORNA standards appears in section 111(5)(A). The clauses in the definition cover the following categories of offenses: • Sexual Act And Sexual Contact Offenses (section 111(5)(A)(i)): The first clause in the definition covers “a criminal offense that has an element involving a sexual act or sexual contact with another.” (“Criminal offense” in the relevant sense refers to offenses under any body of criminal law, including state, local, tribal, foreign, military, and other offenses, as provided in section 111(6).) The offenses covered by this clause should be understood to include all sexual offenses whose elements involve:

(i)Any type or degree of genital, oral, or anal penetration, or

(ii)any sexual touching of or contact with a person's body, either directly or through the clothing. Cf. 18 U.S.C. 2246(2)-(3) (federal law definitions of sexual act and sexual contact). • Specified Offenses Against Minors (section 111(5)(A)(ii)): The second clause in the definition covers “a criminal offense that is a specified offense against a minor.” The statute provides a detailed definition of “specified offense against a minor” in section 111(7), which is discussed separately below. • Specified Federal Offenses (section 111(5)(A)(iii)): The third clause covers most sexual offenses under federal law. The covered chapters and offense provisions in the federal criminal code are explicitly identified by citation. • Specified Military Offenses (section 111(5)(A)(iv)): The fourth clause covers sex offenses under the Uniform Code of Military Justice, as specified by the Secretary of Defense. • Attempts And Conspiracies (section 111(5)(A)(v)): The final clause in the definition covers attempts and conspiracies to commit offenses that are otherwise covered by the definition of “sex offenses.” This includes both offenses prosecuted under general attempt or conspiracy provisions, where the object offense falls under the SORNA “sex offense” definition, and particular offenses that are defined as, or in substance amount to, attempts or conspiracies to commit offenses that are otherwise covered. For example, in the latter category, a jurisdiction may define an offense of “assault with intent to commit rape.” Whether or not the word “attempt” is used in the definition of the offense, this is in substance an offense that covers certain attempts to commit rapes and hence is covered under the final clause of the SORNA definition. SORNA section 111(5)(C) qualifies the foregoing definition of “sex offense” to exclude “[a]n offense involving consensual sexual conduct * * * if the victim was an adult, unless the adult was under the custodial authority of the offender at the time of the offense, or if the victim was at least 13 years old and the offender was not more than four years older than the victim.” The general exclusion with respect to consensual sexual offenses involving adult victims means, for example, that a jurisdiction does not have to require registration based on prostitution offenses that consist of the offender paying or receiving payment from an adult for a sexual act between them (unless the victim is under the custodial authority of the offender). The exclusion for certain cases involving child victims based on victim age and age difference means that a jurisdiction may not have to require registration in some cases based on convictions under provisions that prohibit sexual acts or contact (even if consensual) with underage persons. For example, under the laws of some jurisdictions, an 18-year-old may be criminally liable for engaging in consensual sex with a 15-year-old. The jurisdiction would not have to require registration in such a case to comply with the SORNA standards, since the victim was at least 13 and the offender was not more than four years older. D. Specified Offenses Against Minors The offenses for which registration is required under the SORNA standards include any “specified offense against a minor” as defined in section 111(7). The SORNA section 111(7) definition of specified offense against a minor covers any offense against a minor—i.e., a person under the age of 18, as provided in section 111(14)—that involves any of the following: • Kidnapping or False Imprisonment of a Minor (section 111(7)(A)-(B)): These clauses cover “[a]n offense (unless committed by a parent or guardian) involving kidnapping [of a minor]” and “[a]n offense (unless committed by a parent or guardian) involving false imprisonment [of a minor].” The relevant offenses are those whose gravamen is abduction or unlawful restraint of a person, which go by different names in different jurisdictions, such as “kidnapping,” “criminal restraint,” or “false imprisonment.” Jurisdictions can implement the offense coverage requirement of these clauses by requiring registration for persons convicted of offenses of this type (however designated) whose victims were below the age of 18. It is left to jurisdictions' discretion under these clauses whether registration should be required for such offenses in cases where the offender is a parent or guardian of the victim. • Solicitation of a Minor to Engage in Sexual Conduct (section 111(7)(C)): This clause covers “[s]olicitation [of a minor] to engage in sexual conduct.” “Solicitation” under this clause and other SORNA provisions that use the term should be understood broadly to include any direction, request, enticement, persuasion, or encouragement of a minor to engage in sexual conduct. “Sexual conduct” should be understood to refer to any sexual activity involving physical contact. (See the discussion later in this list of “criminal sexual conduct” under section 111(7)(H).) Hence, jurisdictions can implement the offense coverage requirement under this clause by requiring registration, in cases where the victim was below the age of 18, based on: ○ Any conviction for an offense involving solicitation of the victim under a general attempt or solicitation provision, where the elements of the object offense include sexual activity involving physical contact, and ○ Any conviction for an offense involving solicitation of the victim under any provision defining a particular crime whose elements include soliciting or attempting to engage in sexual activity involving physical contact. • Use of a Minor in a Sexual Performance (section 111(7)(D)): This clause covers offenses involving “[u]se [of a minor] in a sexual performance.” That includes both live performances and using minors in the production of pornography, and has some overlap with section 111(7)(G), which expressly covers child pornography offenses. • Solicitation of a Minor to Practice Prostitution (section 111(7)(E)): This clause covers offenses involving “[s]olicitation [of a minor] to practice prostitution.” Jurisdictions can implement the offense coverage requirement under this clause by requiring registration, in cases where the victim was below the age of 18, based on: ○ Any conviction for an offense involving solicitation of the victim under a general attempt or solicitation provision, where the object offense is a prostitution offense, and ○ Any conviction for an offense involving solicitation of the victim under any provision defining a particular crime whose elements include soliciting or attempting to get a person to engage in prostitution. • Video Voyeurism Involving a Minor (section 111(7)(F)): This clause covers “[v]ideo voyeurism as described in section 1801 of title 18, United States Code [against a minor].” The cited federal offense in essence covers capturing the image of a private area of another person's body, where the victim has a reasonable expectation of privacy against such conduct. Jurisdictions can implement the offense coverage requirement under this clause by requiring registration for offenses of this type, in cases where the victim was below the age of 18. • Possession, Production, or Distribution of Child Pornography (section 111(7)(G)): This clause covers “possession, production, or distribution of child pornography.” Jurisdictions can implement the offense coverage requirement under this clause by requiring registration for offenses whose gravamen is creating or participating in the creation of sexually explicit visual depictions of persons below the age of 18, making such depictions available to others, or having or receiving such depictions. • Criminal Sexual Conduct Involving a Minor and Related Internet Activities (section 111(7)(H)): This clause covers “[c]riminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.” The definition has two parts: ○ The “criminal sexual conduct involving a minor” language in this definition covers sexual offenses whose elements involve physical contact with the victim—such as provisions defining crimes of “rape,” “sexual assault,” “sexual abuse,” or “incest”—in cases where the victim was below 18 at the time of the offense. In addition, it covers offenses whose elements involve using other persons in prostitution—such as provisions defining crimes of “pandering,” “procuring,” or “pimping”—in cases where the victim was below 18 at the time of the offense. Coverage is not limited to cases where the victim's age is an element of the offense, such as prosecution for specially defined child molestation or child prostitution offenses. Jurisdictions can implement the offense coverage requirement under the “criminal sexual conduct involving a minor” language of this clause by requiring registration for “criminal sexual conduct” offenses as described above whenever the victim was in fact below the age of 18 at the time of the offense. (Section 111(7)(C) and

(E)separately require coverage of offenses involving solicitation of a minor to engage in sexual conduct or to practice prostitution, but registration must be required for offenses involving sexual conduct with a minor or the use of a minor in prostitution in light of section 111(7)(H), whether or not the offense involves “solicitation” of the victim.) ○ Jurisdictions can implement the “use of the Internet to facilitate or attempt such conduct” part of this definition by requiring registration for offenses that involve use of the Internet in furtherance of criminal sexual conduct involving a minor as defined above, such as attempting to lure minors through Internet communications for the purpose of sexual activity. • Conduct By Its Nature A Sex Offense Against a Minor (section 111(7)(I)): The final clause covers “[a]ny conduct that by its nature is a sex offense against a minor.” It is intended to ensure coverage of convictions under statutes defining sexual offenses in which the status of the victim as a minor is an element of an offense, such as specially defined child molestation or child prostitution offenses, and other offenses prohibiting sexual activity with underage persons. Jurisdictions can comply with the offense coverage requirement under this clause by including convictions for such offenses in their registration requirements. E. Protected Witnesses The requirement that jurisdictions substantially implement SORNA does not preclude their taking measures needed to protect the security of individuals who have been provided new identities and relocated under the federal witness security program (see 18 U.S.C. 3521 *et seq.* ) or under other comparable witness security programs operated by non-federal jurisdictions. A jurisdiction may conclude that it is necessary to exclude an individual afforded protection in such a program from its sex offender registry or from public notification for security reasons, though the individual otherwise satisfies the criteria for registration and notification under SORNA. Alternatively, the jurisdiction may choose not to waive registration but may identify the registrant in the registration system records only by his or her new identity or data, if such modifications can be so devised that they are not transparent and do not permit the registrant's original identity or participation in a witness security program to be inferred. Jurisdictions are permitted and encouraged to make provision in their laws and procedures to accommodate consideration of the security of such individuals and to honor requests from the United States Marshals Service and other agencies responsible for witness protection in order to ensure that their original identities are not compromised. With respect to witnesses afforded federal protection, 18 U.S.C. 3521(b)(1)(H) specifically authorizes the Attorney General to “protect the confidentiality of the identity and location of persons subject to registration requirements as convicted offenders under Federal or State law, including prescribing alternative procedures to those otherwise provided by Federal or State law for registration and tracking of such persons.” U.S. Department of Justice Witness Security Program officials accordingly determine on a case-by-case basis whether such witnesses will be required to register, and if registration occurs, whether it will utilize new identities, modified data, or other special conditions or procedures that are warranted to avoid jeopardizing the safety of the protected witnesses. V. Classes of Sex Offenders Section 111(2)-(4) of SORNA defines three “tiers” of sex offenders. The tier classifications have implications in three areas:

(i)Under section 115, the required duration of registration depends primarily on the tier;

(ii)under section 116, the required frequency of in-person appearances by sex offenders to verify registration information depends on the tier;

(iii)under section 118(c)(1), information about tier I sex offenders convicted of offenses other than specified offenses against a minor may be exempted from Web site disclosure. The use of the “tier” classifications in SORNA relates to substance, not form or terminology. Thus, to implement the SORNA requirements, jurisdictions do not have to label their sex offenders as “tier I,” “tier II,” and “tier III,” and do not have to adopt any other particular approach to labeling or categorization of sex offenders. Rather, the SORNA requirements are met so long as sex offenders who satisfy the SORNA criteria for placement in a particular tier are consistently subject to at least the duration of registration, frequency of in-person appearances for verification, and extent of Web site disclosure that SORNA requires for that tier. For example, suppose that a jurisdiction decides to subject all sex offenders to lifetime registration, quarterly verification appearances, and full Web site posting as described in Part VII of these Guidelines. That would meet the SORNA requirements with respect to sex offenders satisfying the “tier III” criteria, and exceed the minimum required by SORNA with respect to sex offenders satisfying the “tier II” or “tier I” criteria. Hence, such a jurisdiction would be able to implement the SORNA requirements with respect to all sex offenders without any labeling or categorization, and without having to assess individual registrants against the tier criteria in the SORNA definitions. Likewise, any other approach a jurisdiction may devise is acceptable if it ensures that sex offenders satisfying the criteria for each SORNA tier are subject to duration of registration, appearance frequency, and Web site disclosure requirements that meet those SORNA requires for the tier. Turning to the specific tier definitions, SORNA section 111(2) defines “tier I sex offender” to mean “a sex offender other than a tier II or tier III sex offender.” Thus, tier I is a residual class that includes all sex offenders who do not satisfy the criteria for tier II or tier III. For example, tier I includes a sex offender whose registration offense is not punishable by imprisonment for more than one year, a sex offender whose registration offense is the receipt or possession of child pornography, and a sex offender whose registration offense is a sexual assault against an adult that involves sexual contact but not a completed or attempted sexual act. The definitions of tier II and tier III—in section 111(3) and 111(4) respectively—are both limited to cases in which the offense for which the sex offender is required to register “is punishable by imprisonment for more than 1 year.” This means that the statutory maximum penalty possible for the offense exceeds one year. It does not mean that inclusion in these tiers is limited to cases in which the sex offender is actually sentenced to more than a year of imprisonment. Because the definitions of tier II and tier III are limited to certain offenses punishable by imprisonment for more than one year, and federal law does not permit imprisonment for more than one year based on Indian tribal court convictions, all tribal court convictions are tier I offenses. Moreover, regardless of which jurisdiction convicts the sex offender, the requirements with respect to the potential length of imprisonment under the statute relate to individual offenses rather than to aggregate penalties. For example, suppose that a sex offender is charged in three counts with the commission of sex offenses each of which is punishable by at most one year of imprisonment, and upon conviction is sentenced to three consecutive terms of six months of incarceration. Though the aggregate penalty is 18 months, these convictions do not place the sex offender above tier I, because each offense was not punishable by more than one year of imprisonment. If the requirement of an offense punishable by imprisonment for more than one year is satisfied, the remaining offense-related criteria for tier II are that the registration offense falls within one of two lists. In general terms, these lists cover most sexual abuse or exploitation offenses against minors. (Here as elsewhere in SORNA, “minor” means a person under the age of 18—see SORNA section 111(14).) The first list, appearing in section 111(3)(A), covers offenses committed against minors that are comparable to or more severe than a number of cited federal offenses—those under 18 U.S.C. 1591, 2422(b), 2423(a), and 2244—and attempts and conspiracies to commit such offenses. The second list, appearing in section 111(a)(3)(B), covers use of a minor in a sexual performance, solicitation of a minor to practice prostitution, and production or distribution of child pornography. Determining whether a jurisdiction's offenses satisfy the criteria for this tier is simplified by recognizing that the various cited and described offenses essentially cover: • Offenses involving the use of minors in prostitution, and inchoate or preparatory offenses (including attempts, conspiracies, and solicitations) that are directed to the commission of such offenses; • Offenses against minors involving sexual contact—i.e., any sexual touching of or contact with the intimate parts of the body, either directly or through the clothing—and inchoate or preparatory offenses (including attempts, conspiracies, and solicitations) that are directed to the commission of such offenses; • Offenses involving use of a minor in a sexual performance; and • Offenses involving the production or distribution of child pornography, i.e., offenses whose gravamen is creating or participating in the creation of sexually explicit visual depictions of minors or making such depictions available to others. Hence, jurisdictions can implement the relevant SORNA requirements by according “tier II” treatment to sex offenders convicted of offenses of these four types. The sex offenders who must be so treated are not limited to those convicted of offenses of these types whose elements require that the victim be below a certain age, but rather include as well those convicted of more generally defined offenses that may be committed against either adult or child victims, in cases in which the victim was in fact below the age of 18. For example, in a case in which the sex offender was convicted of a generally defined “sexual contact” offense, whose elements include no specification as to victim age, tier II treatment is required if the victim was in fact below 18. The corresponding offense coverage specifications for “tier III” in section 111(4)(A)-(B) cover offenses punishable by more than one year of imprisonment in the following categories: • Offenses comparable to or more severe than aggravated sexual abuse or sexual abuse as described in 18 U.S.C. 2241 and 2242, or an attempt or conspiracy to commit such an offense. Considering the definitions of the cited federal offenses, comparable offenses under the laws of other jurisdictions would be those that cover: ○ Engaging in a sexual act with another by force or threat (see 18 U.S.C. 2241(a), 2242(1)); ○ Engaging in a sexual act with another who has been rendered unconscious or involuntarily drugged, or who is otherwise incapable of appraising the nature of the conduct or declining to participate (see 18 U.S.C. 2241(b), 2242(2)), or ○ Engaging in a sexual act with a child under the age of 12 (see 18 U.S.C. 2241(c)). Considering the related definition in 18 U.S.C. 2246(2), “sexual act” for this purpose would include:

(i)Oral-genital or oral-anal contact,

(ii)any degree of genital or anal penetration, and

(iii)direct genital touching of a child under the age of 16. (This definition of “sexual act” is the same as that applicable in the SORNA requirement of registration based on certain juvenile delinquency adjudications—see Part IV.A of these Guidelines—but the range of covered offenses is in some respects broader here, as indicated; compare SORNA section 111(4)(A)(i), which references both aggravated sexual abuse and sexual abuse, with SORNA section 111(8), the juvenile coverage provision, which references only aggravated sexual abuse.) • Offenses against a child below the age of 13 that are comparable to or more severe than abusive sexual contact as defined in 18 U.S.C. 2244, or an attempt or conspiracy to commit such an offense. Considering the definitions of the federal offenses in 18 U.S.C. 2244 and the related definition in 18 U.S.C. 2246(3), comparable offenses under the laws of other jurisdictions would be those that cover sexual touching of or contact with the intimate parts of the body, either directly or through the clothing, where the victim is under 13. • Kidnapping of a minor (unless committed by a parent or guardian). Hence, jurisdictions can implement the relevant SORNA requirements by according “tier III” treatment to sex offenders convicted of offenses of these three types. In addition to including criteria relating to the nature of the registration offense, the definitions of tier II and tier III accord significance to a registrant's history of recidivism. Specifically, section 111(3)(C) places in tier II any sex offender whose registration offense is punishable by imprisonment for more than one year, where that offense “occurs after the offender becomes a tier I sex offender.” Thus, any sex offender whose registration offense is punishable by more than one year of imprisonment who has a prior sex offense conviction is at least in tier II. Likewise, section 111(4)(C) places in tier III any sex offender whose registration offense is punishable by imprisonment for more than one year, where that offense “occurs after the offender becomes a tier II sex offender.” Thus, any sex offender whose registration offense is punishable by more than one year of imprisonment, and who at the time of that offense already satisfied the criteria for inclusion in tier II, is in tier III. VI. Required Registration Information Section 114 of SORNA defines the required minimum informational content of sex offender registries. It is divided into two lists. The first list, set forth in subsection

(a)of section 114, describes information that the registrant will normally be in a position to provide. The second list, set forth in subsection (b), describes information that is likely to require some affirmative action by the jurisdiction to obtain, beyond asking the sex offender for the information. Supplementary to the information that the statute explicitly describes, section 114(a)(7) and (b)(8) authorize the Attorney General to specify additional information that must be obtained and included in the registry. This expansion authority is utilized to require including in the registries a number of additional types of information, such as information about registrants' e-mail addresses, telephone numbers, and the like, information concerning the whereabouts of registrants who lack fixed abodes or definite places of employment, and information about temporary lodging, as discussed below. In order to implement requirements for the sharing or disclosure of registration information appearing in other sections of SORNA (sections 113(c), 119(b), 121(b)—see Parts VII and X of these Guidelines for discussion), jurisdictions will need to maintain all required registration information in digitized form that will enable it to be immediately accessed by or transmitted to various entities. Hence, the jurisdiction's registry must be an electronic database, and descriptions of required types of information in section 114 should consistently be understood as referring to digitizable information rather than hard copies or physical objects. This does not mean, however, that all required registration information must be reproduced in a single segregated database, since the same effect may be achieved by including in the central registry database links or identification numbers that provide access to the information in other databases in which it is included (e.g., with respect to criminal history, fingerprint, and DNA information). These points are further discussed in connection with the relevant informational items. As with SORNA's requirements generally, the informational requirements of section 114 and these Guidelines define a floor, not a ceiling, for jurisdictions' registries. Hence, jurisdictions are free to obtain and include in their registries a broader range of information than the minimum requirements described in this Part. The required minimum informational content for sex offender registries is as follows: • Name, Aliases, and Remote Communication Identifiers and Addresses (section 114(a)(1), (a)(7)): ○ Names and Aliases (section 114(a)(1)): The registry must include “[t]he name of the sex offender (including any alias used by the individual).” The names and aliases required by this provision include, in addition to the registrant's primary or given name, nicknames and pseudonyms generally, regardless of the context in which they are used, any designations or monikers used for self-identification in Internet communications or postings, and traditional names given by family or clan pursuant to ethnic or tribal tradition. ○ Internet Identifiers and Addresses (section 114(a)(7)): In the context of Internet communications there may be no clear line between names or aliases that are required to be registered under SORNA section 114(a)(1) and addresses that are used for routing purposes. Moreover, regardless of the label, including in registries information on designations used by sex offenders for purposes of routing or self-identification in Internet communications—e.g., e-mail and instant messaging addresses—serves the underlying purposes of sex offender registration and notification. Among other potential uses, having this information may help in investigating crimes committed online by registered sex offenders—such as attempting to lure children or trafficking in child pornography through the Internet—and knowledge by sex offenders that their Internet identifiers are known to the authorities may help to discourage them from engaging in such criminal activities. The authority under section 114(a)(7) is accordingly exercised to require that the information included in the registries must include all designations used by sex offenders for purposes of routing or self-identification in Internet communications or postings. ○ Telephone Numbers (section 114(a)(7)): Requiring sex offenders to provide their telephone numbers (both for fixed location phones and cell phones) furthers the objectives of sex offender registration. One obvious purpose in having such information is to facilitate communication between registration personnel and a sex offender in case issues arise relating to the sex offender's registration. Moreover, as communications technology advances, the boundaries blur between text-based and voice-based communications media. Telephone calls may be transmitted through the Internet. Text messages may be sent between cell phones. Regardless of the particular communication medium, and regardless of whether the communication involves text or voice, sex offenders may potentially utilize remote communications in efforts to contact or lure potential victims. Hence, including phone numbers in the registration information may help in investigating crimes committed by registrants that involved telephonic communication with the victim, and knowledge that their phone numbers are known to the authorities may help sex offenders to resist the temptation to commit crimes by this means. The authority under section 114(a)(7) is accordingly exercised to require that the information included in the registries must include sex offenders' telephone numbers and any other designations used by sex offenders for purposes of routing or self-identification in telephonic communications. • Social Security Number (section 114(a)(2), (a)(7)): The registry must include “[t]he Social Security number of the sex offender.” In addition to any valid Social Security number issued to the registrant by the government, the information the jurisdiction requires registrants to provide under this heading must include any number that the registrant uses as his or her purported Social Security number since registrants may, for example, attempt to use false Social Security numbers in seeking employment that would provide access to children. To the extent that purported (as opposed to actual) Social Security numbers may be beyond the scope of the information required by section 114(a)(2), the authority under section 114(a)(7) is exercised to require that information on such purported numbers be obtained and included in the registry as well. • Residence, Lodging, and Travel Information (section 114(a)(3), (a)(7)): ○ Residence Address (section 114(a)(3)): The registry must include “the address of each residence at which the sex offender resides or will reside.” As provided in SORNA section 111(13), residence refers to “the location of the individual's home or other place where the individual habitually lives.” (For more as to the meaning of “resides” under SORNA, see Part VIII of these Guidelines.) The statute refers to places in which the sex offender “will reside” so as to cover situations in which, for example, a sex offender is initially being registered prior to release from imprisonment, and hence is not yet residing in the place or location to which he or she expects to go following release. ○ Other Residence Information (section 114(a)(7)): Sex offenders who lack fixed abodes are nevertheless required to register in the jurisdictions in which they reside, as discussed in Part VIII of these Guidelines. Such sex offenders cannot provide the residence address required by section 114(a)(3) because they have no definite “address” at which they live. Nevertheless, some more or less specific description should normally be obtainable concerning the place or places where such a sex offender habitually lives—e.g., information about a certain part of a city that is the sex offender's habitual locale, a park or spot on the street (or a number of such places) where the sex offender stations himself during the day or sleeps at night, shelters among which the sex offender circulates, or places in public buildings, restaurants, libraries, or other establishments that the sex offender frequents. Having this type of location information serves the same public safety purposes as knowing the whereabouts of sex offenders with definite residence addresses. Hence, the authority under SORNA section 114(a)(7) is exercised to require that information be obtained about where sex offenders who lack fixed abodes habitually live with whatever definiteness is possible under the circumstances. Likewise, in relation to sex offenders who lack a residence address for any other reason—e.g., a sex offender who lives in a house in a rural or tribal area that has no street address—the registry must include information that identifies where the individual has his or her home or habitually lives. ○ Temporary Lodging Information (section 114(a)(7)): Sex offenders who reoffend may commit new offenses at locations away from the places in which they have a permanent or long-term presence. Indeed, to the extent that information about sex offenders' places of residence is available to the authorities, but information is lacking concerning their temporary lodging elsewhere, the relative attractiveness to sex offenders of molesting children or committing other sexual crimes while traveling or visiting away from home increases. Hence, to achieve the objectives of sex offender registration, it is valuable to have information about other places in which sex offenders are staying, even if only temporarily. The authority under SORNA section 114(a)(7) is accordingly exercised to provide that jurisdictions must require sex offenders to provide information about any place in which the sex offender is staying for seven or more days, including identifying the place and the period of time the sex offender is staying there. The benefits of having this information include facilitating the successful investigation of crimes committed by sex offenders while away from their normal places of residence, employment, or school attendance, and decreasing the attractiveness to sex offenders of committing crimes in such circumstances. ○ Travel and Immigration Documents (section 114(a)(7)): The authority under SORNA section 114(a)(7) is exercised to provide that registrants must be required to produce or provide information about their passports, if they have passports, and that registrants who are aliens must be required to produce or provide information about documents establishing their immigration status. The registry must include digitized copies of these documents, the critical information from these documents, or links to another database or databases that contain such information. Having this type of information in the registries serves various purposes, including helping to locate and apprehend registrants who may attempt to leave the United States after committing new sex offenses or registration violations; facilitating the tracking and identification of registrants who leave the United States but later reenter while still required to register (see SORNA section 128); and crosschecking the accuracy and completeness of other types of information that registrants are required to provide—e.g., if immigration documents show that an alien registrant is in the United States on a student visa but the registrant fails to provide information concerning the school attended as required by SORNA section 114(a)(5). • Employment Information (section 114(a)(4), (a)(7)): ○ Employer Name and Address (section 114(a)(4)): The registry must include “[t]he name and address of any place where the sex offender is an employee or will be an employee.” SORNA section 111(12) explains that “employee” includes “an individual who is self-employed or works for any other entity, whether compensated or not.” As the definitional provisions indicate, the information required under this heading is not limited to information relating to compensated work or a regular occupation, but includes as well name and address information for any place where the registrant works as a volunteer or otherwise works without remuneration. ○ Other Employment Information (section 114(a)(7)): A sex offender who is employed may not have a fixed place of employment—e.g., a long-haul trucker whose “workplace” is roads and highways throughout the country, or a self-employed handyman who works out of his home and does repair or home-improvement work at other people's homes. Knowing as far as possible where such a sex offender is in the course of employment serves the same public safety purposes as the corresponding information regarding a sex offender who is employed at a fixed location. The authority under section 114(a)(7) is accordingly exercised to require that information be obtained and included in the registry concerning the places where such a sex offender works with whatever definiteness is possible under the circumstances, such as information about normal travel routes or the general area(s) in which the sex offender works. ○ Professional Licenses (section 114(a)(7)): The authority under section 114(a)(7) is exercised to require that information be obtained and included in the registry concerning all licensing of the registrant that authorizes the registrant to engage in an occupation or carry out a trade or business. Information of this type may be helpful in locating the registrant if he or she absconds, may provide a basis for notifying the responsible licensing authority if the registrant's conviction of a sex offense may affect his or her eligibility for the license, and may be useful in crosschecking the accuracy and completeness of other information the registrant is required to provide—e.g., if the registrant is licensed to engage in a certain occupation but does not provide name or place of employment information as required by section 114(a)(4) for such an occupation. • School Information (section 114(a)(5)): The registry must include “[t]he name and address of any place where the sex offender is a student or will be a student.” Section 111(11) defines “student” to mean “an individual who enrolls in or attends an educational institution, including (whether public or private) a secondary school, trade or professional school, and institution of higher education.” As the statutory definition indicates, the requirement extends to all types of educational institutions. Hence, this information must be provided for private schools as well as public schools, including both parochial and non-parochial private schools, and regardless of whether the educational institution is attended for purposes of secular, religious, or cultural studies. The registration information requirement of section 114(a)(5) refers to the names and addresses of educational institutions where a sex offender has or will have a physical presence as a student. It does not require information about a sex offender's participating in courses only remotely through the mail or the Internet. (Internet identifiers and addresses used by a sex offender in such remote communications, however, must be included in the registration information as provided in the discussion of “Internet Identifiers and Addresses” earlier in this list.) • Vehicle Information (section 114(a)(6), (a)(7)): The registry must include “[t]he license plate number and a description of any vehicle owned or operated by the sex offender.” This includes, in addition to vehicles registered to the sex offender, any vehicle that the sex offender regularly drives, either for personal use or in the course of employment. A sex offender may not regularly use a particular vehicle or vehicles in the course of employment, but may have access to a large number of vehicles for employment purposes, such as using many vehicles from an employer's fleet in a delivery job. In a case of this type, jurisdictions are not required to obtain information concerning all such vehicles to satisfy SORNA's minimum informational requirements, but jurisdictions are free to require such information if they are so inclined. The authority under section 114(a)(7) is exercised to define and expand the required information concerning vehicles in two additional respects. First, the term “vehicle” should be understood to include watercraft and aircraft, in addition to land vehicles, so descriptive information must be required for all such vehicles owned or operated by the sex offender. The information must include the license plate number if it is a type of vehicle for which license plates are issued, or if it has no license plate but does have some other type of registration number or identifier, then information concerning such a registration number or identifier must be included. To the extent that any of the information described above may be beyond the scope of section 114(a)(6), the authority under section 114(a)(7) is exercised to provide that it must be obtained and included in the registry. Second, the sex offender must be required to provide and the registry must include information concerning the place or places where the registrant's vehicle or vehicles are habitually parked, docked, or otherwise kept. Having information of this type may help to prevent flight, facilitate investigation, or effect an apprehension if the registrant is implicated in the commission of new offenses or violates registration requirements. • Date of Birth (section 114(a)(7)). The authority under section 114(a)(7) is exercised to require date of birth information for registrants, which must be included in the registry. Since date of birth is regularly utilized as part of an individual's basic identification information, having this information in the registry is of obvious value in helping to identify, track, and locate registrants. The information the jurisdiction requires registrants to provide under this heading must include any date that the registrant uses as his or her purported date of birth—not just his or her actual date of birth—since registrants may, for example, provide false date of birth information in seeking employment that would provide access to children. • Physical Description (section 114(b)(1)): The registry must include “[a] physical description of the sex offender.” This must include a description of the general physical appearance or characteristics of the sex offender, and any identifying marks, such as scars or tattoos. • Text of Registration Offense (section 114(b)(2)): The registry must include “[t]he text of the provision of law defining a criminal offense for which the sex offender is registered.” As with other information in the registries, this does not mean that the registry must be a paper records system that includes a hard copy of the statute defining the registration offense. Rather, the registry must be an electronic database, and the relevant statutory provision must be included as electronic text. Alternatively, this requirement can be satisfied by including in the central registry database a link or citation to the statute defining the registration offense if:

(i)Doing so provides online access to the linked or cited provision, and

(ii)the link or citation will continue to provide access to the offense as formulated at the time the registrant was convicted of it, even if the defining statute is subsequently amended. • Criminal History and Other Criminal Justice Information (section 114(b)(3)): The registry must include “[t]he criminal history of the sex offender, including the date of all arrests and convictions; status of parole, probation, or supervised release; registration status [i.e., whether the sex offender is in violation of the registration requirement and unlocatable]; and the existence of any outstanding arrest warrants for the sex offender.” This requirement can be satisfied by including the specified types of information in the central registry database, or by including in that database links or identifying numbers that provide access to these types of information in criminal justice databases that contain them. • Current Photograph (section 114(b)(4)): The registry information must include “[a] current photograph of the sex offender.” As with other information in the registries, this does not mean that the registry must be a paper records system that includes physical photographs. Rather, the photographs of sex offenders must be included in digitized form in an electronic registry, so as to permit the electronic transmission of registration information that is necessary to implement other SORNA requirements. (For more about the taking of photographs and keeping them current, see the discussion of periodic in-person appearances in Part XI of these Guidelines.) • Fingerprints and Palm Prints (section 114(b)(5)): The registry information must include “[a] set of fingerprints and palm prints of the sex offender.” As with other registration information, this should be understood to refer to digitized fingerprint and palm print information rather than physical fingerprint cards and palm prints. The requirement can be satisfied by including such digitized fingerprint and palm print information in the central registry database, or by providing links or identifying numbers in the central registry database that provide access to fingerprint and palm print information in other databases for each registered sex offender. • DNA (section 114(b)(6)): The registry information must include “[a] DNA sample of the sex offender.” This means that a DNA sample must be taken, or must have been taken, from the sex offender, for purposes of analysis and entry of the resulting DNA profile into the Combined DNA Index System (CODIS). The requirement is satisfied by including information in the central registry database that confirms collection of such a sample from the sex offender for purposes of analysis and entry of the DNA profile into CODIS or inclusion of the sex offender's DNA profile in CODIS. Driver's License or Identification Card (section 114(b)(7)): The registry information must include “[a] photocopy of a valid driver's license or identification card issued to the sex offender by a jurisdiction.” The requirement can be satisfied by including a digitized photocopy of the specified documents in the central registry database for each sex offender to whom such a document has been issued. Alternatively, it can be satisfied by including in the central registry database links or identifying numbers that provide access in other databases (such as a Department of Motor Vehicles database) to the information that would be shown by such a photocopy. VII. Disclosure and Sharing of Information The SORNA requirements for disclosure and sharing of information about registrants appear primarily in section 118, which is concerned with sex offender Web sites, and section 121, which is concerned with community notification in a broader sense and with some more targeted types of disclosures. The two sections will be discussed separately. A. Sex Offender Web Sites Section 118(a) of SORNA states a general rule that jurisdictions are to “make available on the Internet, in a manner that is readily accessible to all jurisdictions and to the public, all information about each sex offender in the registry.” This general requirement is subject to certain mandatory and discretionary exemptions, appearing in subsections

(b)and

(c)of section 118, which are discussed below. Currently, all 50 States, the District of Columbia, Puerto Rico, and Guam have sex offender Web sites that make information about registered sex offenders available to the public. The listed jurisdictions may need to modify their existing Web sites to varying degrees to implement the requirements of section 118. Beyond stating a general rule of Web site posting for sex offender information, subsection

(a)of section 118 includes requirements about the field-search capabilities of the jurisdictions' Web sites. In part, it states that these field search capabilities must include searches by “zip code or geographic radius set by the user.” In other words, the Web sites must be so designed that members of the public who access a Web site are able to specify particular zip code areas, and are able to specify geographic radii—e.g., within one mile of a specified address—and thereby bring up on the Web site the information about all of the posted sex offenders in the specified zip code or geographic area. Subsection

(a)of section 118 further states that each Web site “shall also include * * * all field search capabilities needed for full participation in the Dru Sjodin National Sex Offender Public Web site and shall participate in that Web site as provided by the Attorney General.” The statutory basis for the referenced National Sex Offender Public Web site (NSOPW) appears in SORNA section 120. It is operated by the Department of Justice at the address *http://www.nsopr.gov.* All 50 States, the District of Columbia, Puerto Rico, and Guam currently participate in the NSOPW, which provides public access to the information in their respective sex offender Web sites through single-query searches on a national site. As noted, participation in the NSOPW is a required element of SORNA implementation. To satisfy the requirement under section 118(a) of having “all field search capabilities needed for full participation in [the NSOPW],” jurisdictions' sex offender Web sites must allow searches by name, county, and city/town, as well as having the zip code and geographic radius search capacities mentioned specifically in the statute. Other SORNA requirements relating to sex offender Web sites are discussed in the remainder of this subpart under the following headings: mandatory exemptions, discretionary exemptions and required inclusions, remote communication addresses, and other provisions. Mandatory Exemptions Section 118(b)(1)-(3) identifies three types of information that are mandatorily exempt from disclosure, and section 118(b)(4) gives the Attorney General the authority to create additional mandatory exemptions. The limitations of subsection

(b)only constrain jurisdictions in relation to the information made available on their publicly accessible sex offender Web sites. They do not limit the discretion of jurisdictions to disclose these types of information in other contexts. The types of information that are within the mandatory exemptions from public sex offender Web site disclosure are as follows: • *Victim Identity:* Section 118(b)(1) exempts “the identity of any victim of a sex offense.” The purpose of this exemption is to protect victim privacy. So long as the victim is not identified, this does not limit jurisdictions' discretion to include on the Web site information about the nature and circumstances of the offense, which may include information relating to the victim, such as the age and gender of the victim, and the conduct engaged in by the sex offender against the victim. • *Social Security Number:* Section 118(b)(2) exempts “the Social Security number of the sex offender.” • *Arrests Not Resulting in Conviction:* Section 118(b)(3) exempts “any reference to arrests of the sex offender that did not result in conviction.” As noted, this mandatory exemption, like the others, only affects the information that may be posted on a jurisdiction's public sex offender Web site. It does not limit a jurisdiction's use or disclosure of arrest information in any other context, such as disclosure to law enforcement agencies for law enforcement purposes, or disclosure to the public (by means other than posting on the sex offender Web site) under “open records” laws. • *Travel and Immigration Document Numbers:* The authority under section 118(b)(4) is exercised to exempt the numbers assigned to registrants' passports and immigration documents. This exemption reflects concerns that public posting of such information could facilitate identity theft and could provide a source of passport and immigration document numbers to individuals seeking to enter, remain in, or travel from the United States using forged documents or false identities. Like the other mandatory exemptions, this exemption only affects the information that may be posted on a jurisdiction's public sex offender Web site. It does not limit a jurisdiction's use or disclosure of registrants' travel or immigration document information in any other context, such as disclosure to agencies with law enforcement, immigration, or national security functions. Discretionary Exemptions and Required Inclusions Section 118(c)(1)-(3) provides three optional exemptions, which describe information that jurisdictions may exempt from their Web sites in their discretion. The first of these is “any information about a tier I sex offender convicted of an offense other than a specified offense against a minor.” The meaning of “tier I sex offender” is explained in Part V of these Guidelines, and the meaning of “specified offense against a minor” is explained in Part IV.D of these Guidelines. The second and third optional exemptions are, respectively, “the name of an employer of the sex offender” and “the name of an educational institution where the sex offender is a student.” As noted, these exclusions are discretionary. Jurisdictions are free to include these types of information on their sex offender Web sites if they are so inclined. Section 118(c)(4) provides a further optional exemption of “any other information exempted from disclosure by the Attorney General.” This authorization recognizes that there are some additional types of information that are required to be included in sex offender registries by section 114, but whose required disclosure through public sex offender Web sites may reasonably be regarded by particular jurisdictions as inappropriate or unnecessary. For example, public access to registrants' remote communication routing addresses (such as e-mail addresses) presents both risks and benefits. Minimizing the risks and maximizing the benefits depends on the appropriate design of the means and form of access. The recommended treatment of such information is discussed later in this subpart. A number of other types of required registration information, such as fingerprints, palm prints, and DNA information, are primarily or exclusively of interest to law enforcement. Following the exclusion of types of information that are exempt from public Web site disclosure on a mandatory basis under section 118(b), that are expressly identified as subject to discretionary exemptions under section 118(c)(1)-(3), or that will be allowed as additional discretionary exemptions on the basis of section 118(c)(4), several core types of information remain whose public disclosure through the sex offender Web sites has the greatest value in promoting public safety by enabling members of the public to identify sex offenders, to know where they are, and to know what crimes they have committed. These core informational items, which are not within a mandatory or discretionary exemption, and do have to be included by jurisdictions on their public sex offender Web sites, are as follows: • The name of the sex offender, including any aliases. • The address of each residence at which the sex offender resides or will reside and, if the sex offender does not have any (present or expected) residence address, other information about where the sex offender has his or her home or habitually lives. If current information of this type is not available because the sex offender is in violation of the requirement to register or unlocatable, the Web site must so note. • The address of any place where the sex offender is an employee or will be an employee and, if the sex offender is employed but does not have a definite employment address, other information about where the sex offender works. • The address of any place where the sex offender is a student or will be a student. • The license plate number and a description of any vehicle owned or operated by the sex offender. • A physical description of the sex offender. • The sex offense for which the sex offender is registered and any other sex offense for which the sex offender has been convicted. • A current photograph of the sex offender. Part VI of these Guidelines includes more detailed explanation concerning the informational items that the list above requires to be included on the public sex offender Web sites. This list remains subject to the discretionary authority of jurisdictions under section 118(c)(1) to exempt information about a tier I sex offender convicted of an offense other than a specified offense against a minor. Remote Communication Addresses Public access to or disclosure of sex offenders' remote communication routing addresses and their equivalent—such as e-mail addresses and telephone numbers—is discussed separately because the issue presents both risks and benefits and merits careful handling by jurisdictions. On the one hand, appropriately designed forms of access to such information may further the public safety objectives of sex offender registration and notification. For example, the operators of Internet social networking services that serve children may validly wish to check whether the e-mail addresses of individuals on their user lists are those of registered sex offenders, so that they can prevent sex offenders from using their services as avenues for Internet luring of children for purposes of sexual abuse. Likewise, a parent may legitimately wish to check whether the e-mail address of an unknown individual who is communicating with his or her child over the Internet is that of a registered sex offender, for the same protective purpose. On the other hand, some forms of public disclosure of this type of information—such as including sex offenders' e-mail addresses as part of the information in their individual listings on the sex offender Web sites, which also include their names, locations, etc.—could raise serious concerns about unintended consequences and misuse. Posting of the information in this form could provide ready access by sex offenders to the e-mail addresses of other sex offenders, thereby facilitating networking among such offenders through the Internet for such purposes as: Exchanging information about or providing access to child victims for purposes of sexual abuse; recruiting confederates and accomplices for the purpose of committing child sexual abuse or exploitation offenses or other sexually violent crimes; trafficking in child pornography; and sharing ideas and information about how to commit sexual crimes, avoid detection and apprehension for committing such crimes, or evade registration requirements. The public safety benefits of public access in this context may be realized, and the risks and concerns addressed, by not including remote communication routing addresses or information that would enable sex offenders to contact each other on the individual public Web site postings of registrants, but including on the Web sites a function by which members of the public may enter, e.g., an e-mail address or phone number and receive an answer whether the specified address or number has been registered as that of a sex offender. In the case of a concerned parent as described above, for example, this could enable the parent to ascertain that the e-mail address of an individual attempting to communicate through the Internet with his or her child is the address of a sex offender, but without providing sex offenders access to listings showing the e-mail addresses of other persons who may share their dispositions to commit sexual crimes. Jurisdictions are accordingly permitted and encouraged to provide public access to remote communication address information included in the sex offender registries, in the form described above, i.e., a function that allows checking whether specified addresses are included in the registries as the addresses of sex offenders. The registry management and Web site software that the Justice Department is developing pursuant to SORNA section 123 will include software for such a Web site function. Other Provisions The final three subsections in section 118 contain additional Web site specifications as follows: Subsection

(d)requires that sites “include, to the extent practicable, links to sex offender safety and education resources.” Subsection

(e)requires that sites “include instructions on how to seek correction of information that an individual contends is erroneous.” A jurisdiction could comply with this requirement, for example, by including on its Web site information identifying the jurisdiction's agency responsible for correcting erroneous information, and advising persons that they can contact this agency if they believe that information on the site is erroneous. Subsection

(f)requires that sites include “a warning that information on the site should not be used to unlawfully injure, harass, or commit a crime against any individual named in the registry or residing or working at any reported address,” and further provides that the warning “shall note that any such action could result in civil or criminal penalties.” B. Community Notification and Targeted Disclosures Section 121(b) of SORNA states that “immediately after a sex offender registers or updates a registration * * * the information in the registry (other than information exempted from disclosure by the Attorney General) about that offender” must be provided to various specified entities and individuals. The requirement that the information must be provided to the specified recipients “immediately” should be understood to mean that it must be provided within three business days. Cf. SORNA sections 113(b)(2), 117(a) (equating within three business days and “immediately” in relation to initial registration). The requirement that the information be provided immediately is qualified by section 121(c), which provides that recipients described in section 121(b)(6)-(7)—i.e., volunteer organizations in which contacts with minors or other vulnerable individuals might occur, and any organization, company, or individual who requests notification—“may opt to receive the notification * * * no less frequently than once every five business days.” These requirements will be discussed in turn in relation to two groups of recipients—a group of four types of recipients that require special treatment, followed by suggestions for a uniform approach in relation to the remaining types of recipients. The four types that require special treatment are as follows: • *National Databases:* Section 121(b)(1) states that the information is to be provided to “[t]he Attorney General, who shall include that information in the National Sex Offender Registry or other appropriate databases.” The National Sex Offender Registry

(NSOR)is a national database maintained by the Federal Bureau of Investigation (FBI), which compiles information from the registration jurisdictions' sex offender registries and makes it available to criminal justice agencies on a nationwide basis. The current statutory basis for NSOR appears in SORNA section 119(a). The statute refers to the Attorney General including the information submitted by jurisdictions in NSOR “or other appropriate databases” because some types of registry information described in SORNA section 114, such as criminal history information, may be maintained by the FBI in other databases rather than directly in the NSOR database. In addition, the United States Marshals Service, which is the lead federal agency in investigating registration violations by sex offenders and assisting jurisdictions in enforcing their registration requirements, may establish an additional national database or databases to help in detecting, investigating, and apprehending sex offenders who violate registration requirements. Jurisdictions accordingly can implement the requirement of section 121(b)(1) by submitting to the FBI within three business days the types of registry information that the FBI includes in NSOR or other national databases, and by submitting information within the same time frame to other federal agencies (such as the United States Marshals Service) in conformity with any requirements the Department of Justice or the Marshals Service may adopt for this purpose. • *Law Enforcement and Supervision Agencies:* Section 121(b)(2), in part, identifies as further required recipients “appropriate law enforcement agencies (including probation agencies, if appropriate) * * * in each area in which the individual resides, is an employee or is a student.” “Law enforcement agencies” should be understood to refer to agencies with criminal investigation or prosecution functions, such as police departments, sheriffs' offices, and district attorneys' offices. “Probation agencies, if appropriate” should be understood to refer to all offender supervision agencies that are responsible for a sex offender's supervision. Jurisdictions can implement the requirement of section 121(b)(2) by making registration information available to these agencies within three business days, by any effective means—permissible options include electronic transmission of registration information and provision of online access to registration information. Jurisdictions may define the relevant “area[s]” in which a registrant resides, is an employee, or is a student for purposes of section 121(b)(2) in accordance with their own policies, or may avoid the need to have to specify such areas by providing access to sex offender registry information to law enforcement and supervision agencies generally, since doing so makes the information available to recipients in all areas (however defined). The authority under the introductory language in section 121(b) to exempt information from disclosure is not exercised in relation to these recipients with respect to any of the information required to be included in registries under section 114 because law enforcement and supervision agencies need access to complete information about sex offenders to carry out their protective, investigative, prosecutorial, and supervisory functions. • *Jurisdictions:* Section 121(b)(3) identifies as required recipients “[e]ach jurisdiction where the sex offender resides, is an employee, or is a student, and each jurisdiction from or to which a change of residence, employment, or student status occurs.” This is part of a broader group of SORNA provisions concerning the exchange of registration information among jurisdictions and ensuring that all relevant jurisdictions have such information in an up-to-date form. The implementation of section 121(b)(3) and other provisions relating to these matters is discussed in Parts IX and X of these Guidelines. • *National Child Protection Act Agencies:* Section 121(b)(4) identifies as required recipients “[a]ny agency responsible for conducting employment-related background checks under section 3 of the National Child Protection Act of 1993 (42 U.S.C. 5119a).” The National Child Protection Act

(NCPA)provides procedures under which qualified entities (e.g., prospective employers of child care providers) may request an authorized state agency to conduct a criminal history background check to obtain information bearing on an individual's fitness to have responsibility for the safety and well-being of children, the elderly, or individuals with disabilities. The authorized agency makes a determination whether the individual who is the subject of the background check has been convicted of, or is under indictment for, a crime bearing on the individual's fitness for such responsibilities, and conveys that determination to the qualified entity. Considering the nature of the recipients under section 121(b)(4) and the functions for which they need information about sex offenders, jurisdictions can implement section 121(b)(4) by making available to such agencies—i.e., those authorized to conduct NCPA background checks—within three business days all criminal history information in the registry relevant to the conduct of such background checks. Beyond the four categories specified above, section 121(b) requires that sex offender registration information be provided to several other types of recipients, as follows: • Each school and public housing agency in each area in which the sex offender resides, is an employee, or is a student (section 121(b)(2)). • Social service entities responsible for protecting minors in the child welfare system (section 121(b)(5)). • Volunteer organizations in which contact with minors or other vulnerable individuals might occur (section 121(b)(6)). • Any organization, company, or individual who requests such notification pursuant to procedures established by the jurisdiction (section 121(b)(7)). Implementing the required provision of information about registrants to these entities potentially presents a number of difficulties for jurisdictions, such as problems in identifying and maintaining comprehensive lists of recipients in these categories, keeping those lists up to date, subdividing recipients by “area” with respect to the notification under section 121(b)(2), and developing means of transmitting or providing access to the information for the various types of recipients. The objectives of these provisions, however, can be achieved by augmenting public sex offender Web sites to include appropriate notification functions. Specifically, a jurisdiction will be deemed to have satisfied the requirements of these provisions of section 121(b) if it adopts an automated notification system that incorporates substantially the following features: • The information required to be included on sex offender Web sites, as described in Part VII.A of these Guidelines, is posted on the jurisdiction's sex offender Web site within three business days. • The jurisdiction's sex offender Web site includes a function under which members of the public and organizations can request notification when sex offenders commence residence, employment, or school attendance within zip code or geographic radius areas specified by the requester, where the requester provides an e-mail address to which the notice is to be sent. • Upon posting on the jurisdiction's sex offender Web site of new residence, employment, or school attendance information for a sex offender within an area specified by the requester, the system automatically sends an e-mail notice to the requester that identifies the sex offender, thus enabling the requester to access the jurisdiction's Web site and view the new information about the sex offender. VIII. Where Registration Is Required Section 113(a) of SORNA provides that a sex offender shall register and keep the registration current in each jurisdiction in which the sex offender resides, is an employee, or is a student. It further provides that, for initial registration purposes only, a sex offender must also register in the jurisdiction in which convicted if it is different from the jurisdiction of residence. Starting with the last-mentioned requirement—registration in jurisdiction of conviction if different from jurisdiction of residence—in some cases the jurisdiction in which a sex offender is convicted is not the same as the jurisdiction to which the sex offender goes to live immediately following release. For example, a resident of jurisdiction A is convicted for a sex offense in jurisdiction B. After being released following imprisonment or sentenced to probation in jurisdiction B, the sex offender returns immediately to jurisdiction A. Although jurisdiction B is not the sex offender's jurisdiction of residence following his release or sentencing, jurisdiction B as the convicting jurisdiction is in the best position initially to take registration information from the sex offender and to inform him of his registration obligations, as required by SORNA section 117(a), and is likely to be the only jurisdiction in a position to do so within the time frames specified in SORNA sections 113(b) and 117(a)—i.e., before release from imprisonment, or within 3 business days of sentencing for a sex offender with a non-incarcerative sentence. Hence, SORNA section 113(a) provides for initial registration in the jurisdiction of conviction in such cases. Beyond the special case of initial registration in the conviction jurisdiction where it differs from the residence jurisdiction, section 113(a) requires both registration and keeping the registration current in each jurisdiction where a sex offender resides, is an employee, or is a student. Starting with jurisdictions of residence, this means that a sex offender must initially register in the jurisdiction of residence if it is the jurisdiction of conviction, and must thereafter register in any other jurisdiction in which the sex offender subsequently resides. The notion of “residence” requires definition for this purpose. Requiring registration only where a sex offender has a residence or home in the sense of a fixed abode would be too narrow to achieve SORNA's objective of “comprehensive” registration of sex offenders (see section 102), because some sex offenders have no fixed abodes. For example, a sex offender may be homeless, living on the street or moving from shelter to shelter, or a sex offender may live in something that itself moves from place to place, such as a mobile home, trailer, or houseboat. SORNA section 111(13) accordingly defines “resides” to mean “the location of the individual's home or other place where the individual habitually lives.” This entails that a sex offender must register: • In any jurisdiction in which he has his home; and • In any jurisdiction in which he habitually lives (even if he has no home or fixed address in the jurisdiction, or no home anywhere). The scope of “habitually lives” in this context is not self-explanatory and requires further definition. An overly narrow definition would undermine the objectives of sex offender registration and notification under SORNA. For example, consider the case of a sex offender who nominally has his home in one jurisdiction—e.g., he maintains a mail drop there, or identifies his place of residence for legal purposes as his parents' home, where he visits occasionally—but he lives most of the time with his girlfriend in an adjacent jurisdiction. Registration in the nominal home jurisdiction alone in such a case would mean that the registration information is not informative as to where the sex offender is actually residing, and hence would not fulfill the public safety objectives of tracking sex offenders' whereabouts following their release into the community. “Habitually lives” accordingly should be understood to include places in which the sex offender lives with some regularity, and with reference to where the sex offender actually lives, not just in terms of what he would choose to characterize as his home address or place of residence for self-interested reasons. The specific interpretation of this element of “residence” these Guidelines adopt is that a sex offender habitually lives in the relevant sense in any place in which the sex offender lives for at least 30 days. Hence, a jurisdiction must require a sex offender to register in the jurisdiction as a resident under SORNA if the sex offender has a home in the jurisdiction, or if the sex offender lives in the jurisdiction for at least 30 days. Jurisdictions may choose how the 30-day requirement is satisfied (e.g., 30 consecutive days, 30 nonconsecutive days over a 45-day period, or 30 nonconsecutive days within a calendar year). SORNA also requires sex offenders to register and keep the registration current in any jurisdiction in which the sex offender is an employee. Hence, a sex offender who resides in jurisdiction A and commutes to work in an adjacent jurisdiction B must register and keep the registration current in both jurisdictions—in jurisdiction A as a resident, and in jurisdiction B as an employee. SORNA section 111(12) defines “employee” for this purpose to include “an individual who is self-employed or works for any other entity, whether compensated or not.” As with residence, the SORNA requirement to register in jurisdictions of employment is not limited to sex offenders who have fixed places of employment or definite employment addresses. For example, consider a person residing in jurisdiction A who works out of his home as a handyman, regularly doing repair or home-improvement work at other people's houses both in jurisdiction A and in an adjacent jurisdiction B. Since the sex offender works in both jurisdictions, he must register in jurisdiction B as well as jurisdiction A. The implementation measure for these SORNA requirements is for jurisdictions to require sex offenders who are employed in the jurisdiction, as described above, to register in the jurisdiction. To the extent that a sex offender has some employment-related presence in a jurisdiction, but does not have a fixed place of employment or regularly work within the jurisdiction, line drawing questions will arise, and jurisdictions may resolve these questions based on their own judgments. For example, if a sex offender who is a long haul trucker regularly drives through dozens of jurisdictions in the course of his employment, it is not required that all such jurisdictions must make the sex offender register based on his transient employment-related presence, but rather they may treat such cases in accordance with their own policies. (For more about required employment information, see the discussion in Part VI of these Guidelines.) The final SORNA basis of registration is being a student, which SORNA section 111(11) defines to mean “an individual who enrolls in or attends an educational institution, including (whether public or private) a secondary school, trade or professional school, and institution of higher education.” Hence, for example, a sex offender who resides in jurisdiction A, and is enrolled in a college in an adjacent jurisdiction B to which he commutes for classes, must be required to register in jurisdiction B as well as jurisdiction A. School enrollment or attendance in this context should be understood as referring to attendance at a school in a physical sense. It does not mean that a jurisdiction has to require a sex offender in some distant jurisdiction to register in the jurisdiction based on his taking a correspondence course through the mail with a school in the jurisdiction, or based on his taking courses at the school remotely through the Internet, unless the participation in the educational program also involves some physical attendance at the school in the jurisdiction. IX. Initial Registration Under sections 113(b) and 117(a) of SORNA, jurisdictions must normally require that sex offenders be initially registered before release from imprisonment for the registration offense or, in case of a non-imprisonment sentence, within three business days of sentencing for the registration offense. Upon entry of the registration information into the registry, the initial registration jurisdiction must immediately forward the registration information to all other jurisdictions in which the sex offender is required to register. This is required by SORNA section 121(b)(3) (registration information is to be provided immediately to “[e]ach jurisdiction where the sex offender resides, is an employee, or is a student.”). Hence, for example, if an imprisoned sex offender advises the conviction jurisdiction on initial registration that he will be residing in another jurisdiction following release, or that he will stay in the conviction jurisdiction but will be commuting to work in another jurisdiction, the conviction jurisdiction must notify the expected residence or employment jurisdiction by forwarding to that jurisdiction the sex offender's registration information (including the information about the expected residence or employment in that jurisdiction). The sex offender will then be required to make an in-person registration appearance within three business days of commencing residence or employment in that jurisdiction, as discussed in Part X of these Guidelines. With respect to sex offenders released from imprisonment, the initial registration procedures must be carried out prior to release from imprisonment. SORNA does not include a specific requirement as to how long before release from imprisonment the initial registration process must be conducted. But jurisdictions are encouraged, as a matter of sound policy, to effect initial registration with ample time in advance whenever possible so that the following can be done before the sex offender is released into the community:

(i)Subjecting the registration information provided by the sex offender to any verification the jurisdiction carries out to ensure accuracy (e.g., cross checking with other records),

(ii)obtaining any information needed for the registry that must be secured from sources other than the sex offender,

(iii)posting of the sex offender's information on the jurisdiction's sex offender Web site, and

(iv)effecting other required notifications and disclosures of information relating to the sex offender. The specific initial registration procedures required by section 117(a) are as follows: • Informing the sex offender of his or her duties under SORNA and explaining those duties. (Of course if the jurisdiction adopts registration requirements that encompass but go beyond the SORNA minimum, the sex offender should be informed of the full range of duties, not only those required by SORNA.) • Requiring the sex offender to read and sign a form stating that the duty to register has been explained and that the sex offender understands the registration requirement. • Ensuring that the sex offender is registered—i.e., obtaining the required registration information for the sex offender and submitting that information for inclusion in the registry. SORNA sections 113(d) and 117(b) recognize that the normal initial registration procedure described above will not be feasible in relation to certain special classes of sex offenders, and provides that the Attorney General may prescribe alternative rules for the registration of such sex offenders. The specific problem is one of timing; it is not always possible to carry out the initial registration procedures for sex offenders who are required to register under SORNA prior to release from imprisonment (or within three days of sentencing) for the registration offense. The situations in which there may be problems of this type, and the rules adopted for those situations, are as follows: Retroactive Classes As discussed in Part II.C of these Guidelines, SORNA applies to all sex offenders, including those convicted of their registration offenses prior to the enactment of SORNA or prior to particular jurisdictions' incorporation of the SORNA requirements into their programs. Jurisdictions are specifically required to register such sex offenders if they remain in the system as prisoners, supervisees, or registrants, or if they later reenter the system because of conviction for some other crime (whether or not the new crime is a sex offense). In some cases this will create no difficulty for registering these sex offenders in conformity with the normal SORNA registration procedures. For example, suppose that a sex offender is convicted of an offense in the SORNA registration categories in 2005, that the jurisdiction implements SORNA in its registration program in 2008, and that the sex offender is released on completion of imprisonment in 2010. Such a sex offender can be registered prior to release from imprisonment in the same manner as sex offenders convicted following the enactment of SORNA and its implementation by the jurisdiction. But in other cases this will not be possible, as illustrated by the following examples: • *Example 1:* A sex offender convicted by a State for an offense in the SORNA registration categories is sentenced to probation, or released on post-imprisonment supervision, in 2005. The sex offender is not registered near the time of sentencing or before release from imprisonment, because the State did not require registration for the offense in question at that time. The State subsequently implements SORNA in 2008, which will include registering such a sex offender. But it is impossible to do so near the time of his sentencing or before his release from imprisonment, because that time is past. Likewise, a person convicted of a sex offense by an Indian tribal court in, e.g., 2005 may have not been registered near the time of sentencing or release because the tribe had not yet established any sex offender registration program at the time. If the person remains under supervision when the tribe implements SORNA, registration will be required by the SORNA standards, but the normal time frame for initial registration under SORNA will have passed some years ago, so registration within that time frame is impossible. • *Example 2:* A sex offender is required to register for life by a jurisdiction based on a rape conviction in 1995 for which he was released from imprisonment in 2005. The sex offender was initially registered prior to his release from imprisonment on the basis of the jurisdiction's existing law, but the information concerning registration duties he was given at the time of release did not include telling him that he would have to appear periodically in person to verify and update the registration information (as required by SORNA § 116), because the jurisdiction did not have such a requirement at the time. So the sex offender will have to be required to appear periodically for verification and will have to be given new instructions about that as part of the jurisdiction's implementation of SORNA. • *Example 3:* A sex offender convicted in 1980 for an offense subject to lifetime registration under SORNA is released from imprisonment in 1990 but is not required to register at the time because the jurisdiction had not yet established a sex offender registration program. In 2010, following the jurisdiction's implementation of SORNA, the sex offender reenters the system because of conviction for a robbery. The jurisdiction will need to require the sex offender to register based on his 1980 conviction for a sex offense when he is released from imprisonment for the robbery offense. But it is not possible to carry out the initial registration procedure for the sex offender prior to his release from imprisonment for the registration offense—i.e., the sex offense for which he was convicted in 1980—because that time is past. With respect to sex offenders with pre-SORNA or pre-SORNA-implementation convictions who remain in the prisoner, supervision, or registered sex offender populations at the time of implementation—illustrated by the examples in the first and second bullets above—jurisdictions should endeavor to register them in conformity with SORNA as quickly as possible, including fully instructing them about the SORNA requirements, obtaining signed acknowledgments of such instructions, and obtaining and entering into the registry all information about them required under SORNA. But it is recognized that this may entail newly registering or re-registering a large number of sex offenders in the existing sex offender population, and that it may not be feasible for a jurisdiction to do so immediately. Jurisdictions are accordingly authorized to phase in SORNA registration for such sex offenders in conformity with the appearance schedule of SORNA section 116. In other words, sex offenders in these existing sex offender populations who cannot be registered within the normal SORNA time frame (i.e., before release from imprisonment or within three business days of sentencing for the registration offense) must be registered by the jurisdiction when it implements the SORNA requirements in its system within a year for sex offenders who satisfy the tier I criteria, within six months for sex offenders who satisfy the tier II criteria, and within three months for sex offenders who satisfy the tier III criteria. If a jurisdiction believes that it is not feasible for the jurisdiction to fully register the existing sex offender population in conformity with SORNA within these time frames, the jurisdiction should inform the SMART Office of the difficulty, and the SMART Office will consider whether an extension of time for implementation of SORNA under section 124(b) is warranted on that basis. In cases in which a sex offender reenters the system based on conviction of some other offense—illustrated by the third example above—and is sentenced or released from imprisonment following the jurisdiction's implementation of SORNA, the normal SORNA initial registration procedures and timing requirements will apply, but with the new offense substituting for the predicate registration offense as the basis for the time frame. In other words, such a sex offender must be initially registered in the manner specified in SORNA section 117(a) prior to release from imprisonment for the new offense that brought him back into the system, or within three business days of sentencing for the new offense in case of a non-incarcerative sentence. Federal and Military Sex Offenders There is no separate federal registration program for sex offenders required to register under SORNA who are released from federal or military custody. Rather, such sex offenders are integrated into the sex offender registration programs of the States and other (non-federal) jurisdictions following their release. Provisions of federal law, appearing in 18 U.S.C. 4042(c) and section 115(a)(8)(C) of Public Law 105-119, require federal and military correctional and supervision personnel to notify the receiving jurisdiction's authorities concerning the release to their areas of such sex offenders so that this integration can be effected. Moreover, these sex offenders are required to comply with the SORNA registration requirements in the jurisdictions in which they reside, are employed, or attend school as mandatory conditions of their federal supervision, as provided in 18 U.S.C. 3563(a)(8), 3583(d), 4209(a), and may be prosecuted under 18 U.S.C. 2250 if they fail to do so. For example, consider a person convicted of aggravated sexual abuse under 18 U.S.C. 2241, who is released following his completion of the prison term for this offense. As provided in 18 U.S.C. 4042(c), the Federal Bureau of Prisons is required to inform the sex offender prior to his release that he must register as required by SORNA, and must notify law enforcement and registration authorities in the jurisdiction in which the sex offender will reside following release. Situations of this type are in principle the same as those in which a sex offender enters a jurisdiction to reside following conviction in another (non-federal) jurisdiction—see Part X of these Guidelines for discussion—except that the federal authorities will not have registered the sex offender in the same manner that a non-federal jurisdiction would. The jurisdiction to which such a sex offender goes to reside following release from federal custody (or after sentencing for a federal offense, in case of a non-incarcerative sentence) accordingly must require the sex offender to appear in person to register within three business days, and must carry out the procedure described in SORNA section 117(a) when the sex offender appears for that purpose. The jurisdiction must also immediately forward the registration information for the sex offender to any other jurisdiction in which the sex offender is required to register under SORNA (e.g., on the basis of employment), as required by SORNA section 121(b)(3). If federal authorities notify the jurisdiction concerning the release of a sex offender to the jurisdiction, but the sex offender fails to appear and register as required, the jurisdiction must proceed as discussed in Part XIII of these Guidelines for cases involving possible violations of registration requirements. Sex Offenders Incarcerated in Non-Conviction Jurisdictions A sex offender sentenced to imprisonment may serve his or her prison term in a facility outside of the convicting jurisdiction. For example, an Indian tribe may not have its own correctional facility and may accordingly lease bed space from a county jail. Or a State may lease prison space in a facility in an adjacent State, so that some of its offenders serve their prison terms in the other State's facilities. In such a case, the jurisdiction incarcerating the sex offender may be neither the jurisdiction of conviction nor the jurisdiction of expected residence following release. But it is likely to be in the best position to initially take the required registration information from the sex offender and to instruct the sex offender concerning registration obligations, while the jurisdiction that convicted the sex offender may be in no position to do so prior to the sex offender's release, because the facility in which the sex offender is incarcerated is in another jurisdiction. In such cases, the jurisdiction incarcerating the sex offender must carry out the initial registration procedure described in SORNA section 117(a) prior to releasing the sex offender and must immediately forward the registration information for the sex offender to any other jurisdiction in which the sex offender is required to register under SORNA (e.g., on the basis of expected residence), as required by SORNA section 121(b)(3). Registrants Based on Foreign Convictions Persons with foreign sex offense convictions are often required to register under SORNA, as discussed in Part IV.B of these Guidelines. Section 128 of SORNA directs the Attorney General, in consultation with the Secretary of State and the Secretary of Homeland Security, to establish a system for informing the relevant jurisdictions about persons entering the United States who are required to register under SORNA. Persons with foreign sex offense convictions provide an additional class who cannot be initially registered within the normal SORNA time frame. Since they are convicted and imprisoned in a foreign country, no domestic jurisdiction would normally be in a position to register them prior to their release from imprisonment (or near the time of sentencing in case of a non-incarcerative sentence). The procedure for initial registration of such persons is logically the same as that for other analogous classes discussed above: A jurisdiction must require a person with a foreign conviction for which registration is required under SORNA to appear in person to register within three business days of entering the jurisdiction to reside or commencing employment or school attendance in the jurisdiction. If the sex offender has not previously been registered by another jurisdiction, the jurisdiction must carry out the initial registration procedure as provided in SORNA section 117(a) when the sex offender appears. The jurisdiction must immediately forward the registration information to any other jurisdiction in which the sex offender is required to register under SORNA. If a jurisdiction is notified, by federal authorities pursuant to SORNA section 128 or otherwise, that a sex offender is entering the United States and is expected to be locating in the jurisdiction, but the sex offender fails to appear and register as required, the jurisdiction must follow the procedures discussed in Part XIII of these guidelines for cases involving possible violations of registration requirements. X. Keeping the Registration Current There are a number of provisions in SORNA that are designed to ensure that changes in registration information are promptly reported, and that the registration information is kept fully up to date in all jurisdictions in which the sex offender is required to register: • Section 113(a) provides that a sex offender must keep the registration current in each jurisdiction in which the sex offender resides, is an employee, or is a student. • Section 113(c) provides that a sex offender must, not later than three business days after each change of name, residence, employment, or student status, appear in person in at least one jurisdiction in which the sex offender is required to register and inform that jurisdiction of all changes in the information required for that sex offender in the sex offender registry. It further provides that that information must immediately be provided to all other jurisdictions in which the sex offender is required to register. • Section 119(b) provides that updated information about a sex offender must be immediately transmitted by electronic forwarding to all relevant jurisdictions. • Section 121(b)(3) provides that immediately after a sex offender registers or updates a registration, the information in the registry (other than any exempted from disclosure by the Attorney General) must be provided to each jurisdiction where the sex offender resides, is an employee, or is a student, and each jurisdiction from or to which a change of residence, employment, or student status occurs. • Section 128 directs the Attorney General, in consultation with the Secretary of State and the Secretary of Homeland Security, to establish a system for informing relevant jurisdictions about persons entering the United States who are required to register under SORNA. Implementation of these provisions requires the definition of implementation measures that can be carried out by the individual jurisdictions, whose collective effect will be to realize these provisions' objectives. The remainder of this Part of these Guidelines details the required implementation measures. A. Changes of Name, Residence, Employment, or School Attendance The in-person appearance requirements of section 113(c) described above serve to ensure—in connection with the most substantial types of changes bearing on the identification or location of sex offenders (name, residence, employment, school attendance)—that there will be an opportunity to obtain all required registration information from sex offenders in an up to date form, including direct meetings for this purpose between the sex offenders and the personnel or agencies who will be responsible for their registration. The purposes served by in-person appearances under the SORNA standards are further explained in Part XI of these Guidelines, in relation to the periodic in-person appearance requirements of section 116. The required implementation measures for the appearances required by section 113(c)—and other information updating/sharing and enforcement provisions under SORNA as they bear on such appearances—are as follows: • Residence Jurisdictions: Each jurisdiction must require a sex offender who enters the jurisdiction to reside, or who is registered in the jurisdiction as a resident and changes his or her name or place of residence within the jurisdiction, to appear in person to register or update the registration within three business days. Also, each jurisdiction in which a sex offender is registered as a resident must: ○ Require the sex offender to inform the jurisdiction if the sex offender intends to commence residence, employment, or school attendance in another jurisdiction; and ○ If so informed by the sex offender, notify that other jurisdiction by transmitting the sex offender's registration information (including the information concerning the sex offender's expected residence, employment, or school attendance in that jurisdiction) immediately by electronic forwarding to that jurisdiction. • Employment Jurisdictions: Each jurisdiction must require a sex offender who commences employment in the jurisdiction, or changes employer or place of employment in the jurisdiction, to appear in person to register or update the registration within three business days. • School Jurisdictions: Each jurisdiction must require a sex offender who commences school attendance in the jurisdiction, or changes the school attended or place of school attendance in the jurisdiction, to appear in person to register or update the registration within three business days. • Information Sharing: In all cases in which a sex offender makes an in-person appearance in a jurisdiction and registers or updates a registration as described above, the jurisdiction must immediately transmit by electronic forwarding the registration information for the sex offender (including any updated information concerning name, residence, employment, or school attendance provided in the appearance) to all other jurisdictions in which: ○ The sex offender is or will be required to register as a resident, employee, or student; or ○ The sex offender was required to register as a resident, employee, or student until the time of a change of residence, employment, or student status reported in the appearance, even if the sex offender may no longer be required to register in that jurisdiction in light of the change of residence, employment, or student status. • Failure to Appear: If a jurisdiction is notified that a sex offender is expected to commence residence, employment, or school attendance in the jurisdiction, but the sex offender fails to appear for registration as required, the jurisdiction must inform the jurisdiction that provided the notification that the sex offender failed to appear, and must follow the procedures for cases involving possible violations of registration requirements, as discussed in Part XIII of these guidelines. B. Changes in Other Registration Information By incorporating the foregoing procedures into their registration programs, jurisdictions can implement the SORNA requirements for keeping the registration current in relation to name, residence, employment, and school attendance information through in-person appearances. The registration information that sex offenders are required to provide under SORNA section 114, however, as discussed in Part VI of these Guidelines, includes as well information about vehicles owned or operated by sex offenders, temporary lodging information, and information about designations that sex offenders use for self-identification or routing purposes in Internet communications or postings or telephonic communications. If changes occur in these types of information, the changes may eventually be reported as part of the periodic verification appearances required by section 116 of SORNA, as discussed in Part XI of these Guidelines. But the registration information may become in some respects seriously out of date if the verification appearances are relied on exclusively for this purpose. For example, if a sex offender is on a yearly appearance schedule, the sex offender's motor vehicle information may be a year out of date by the time the sex offender reports at the next appearance that he has acquired a new vehicle. Temporary lodging at places away from a sex offender's residence might not be reported until long after the time when the sex offender was at the temporary location. Likewise, given the ease with which Internet addresses and identifiers and telephone numbers are added, dropped, or changed, the value of requiring information about them from registrants could be seriously undermined if they were only required to report changes periodically in the context of general verification meetings. Hence, an additional implementation measure is necessary to keep registrations current with respect to these informational items: • Each jurisdiction in which a sex offender is registered as a resident must require the sex offender to report immediately changes in vehicle information, lodging of seven days or more duration, and changes in designations used for self-identification or routing in Internet communications or postings or telephonic communications, and must immediately transmit such changes in the registration information by electronic forwarding to all other jurisdictions in which the sex offender is required to register. • In addition, with respect to lodging of seven days or more duration, the residence jurisdiction must immediately transmit the information by electronic forwarding to the jurisdiction in which the temporary lodging by the sex offender takes place (if different from the residence jurisdiction), even if that is not a jurisdiction in which the sex offender is required to register. C. International Travel A sex offender who moves to a foreign country may pass beyond the reach of U.S. jurisdictions and hence may not be subject to any enforceable registration requirement under U.S. law unless and until he or she returns to the United States. But effective tracking of such sex offenders remains a matter of concern to the United States and its domestic jurisdictions, and some measures relating to them are necessary for implementation of SORNA. Relevant provisions include SORNA section 128, which directs the Attorney General to establish a system for informing domestic jurisdictions about persons entering the United States who are required to register under SORNA, and 18 U.S.C. 2250(a)(2)(B), which makes it a federal crime for a sex offender to travel in foreign commerce and knowingly fail to register or update a registration as required by SORNA. To carry out its responsibilities under these provisions, the Department of Justice needs to know if sex offenders registered in U.S. jurisdictions are leaving the country, since such offenders will be required to resume registration if they later return to the United States to live, work, or attend school while still within their registration periods. Also, both for sex offenders who are convicted in the United States and then go abroad, and for sex offenders who are initially convicted in other countries, identifying such sex offenders when they enter or reenter the United States will require cooperative efforts between the Department of Justice (including the United States Marshals Service) and agencies of foreign countries. As a necessary part of such cooperative activities, foreign authorities may expect U.S. authorities to inform them about sex offenders coming to their jurisdictions from the United States, in return for their advising the United States about sex offenders coming to the United States from their jurisdictions. For this reason as well, federal authorities in the United States will need information about sex offenders leaving domestic jurisdictions to go abroad in order to effectively carry out the requirements of SORNA section 128 and enforce 18 U.S.C. 2250(a)(2)(B). International travel also implicates the requirement of SORNA section 113(a) that sex offenders keep the registration current in all jurisdictions in which they reside, work, or attend school. If a sex offender simply leaves the country and does not inform the jurisdiction or jurisdictions in which he has been registered, then the requirement to keep the registration current will not have been fulfilled. Rather, the registry information in the domestic jurisdictions will show that the sex offender is residing in the jurisdiction (or present as an employee or student) when that is no longer the case. In addition, a sex offender who goes abroad may remain subject in some respects to U.S. jurisdiction. For example, a sex offender may be leaving to live on an overseas U.S. military base, as a servicemember, dependent, or employee, or to work as or for a U.S. military contractor in another country. In such cases, notification about the individual's status as a sex offender and intended activities abroad is of interest to federal authorities, because the presence of sex offenders implicates the same public safety concerns in relation to communities abroad for which the United States has responsibility (such as U.S. military base communities in foreign countries) as it does in relation to communities within the United States. The following requirements accordingly apply in relation to sex offenders who leave the United States: • Each jurisdiction in which a sex offender is registered as a resident must require the sex offender to inform the jurisdiction if the sex offender intends to commence residence, employment, or school attendance outside of the United States. If so informed by the sex offender, the jurisdiction must:

(i)Notify all other jurisdictions in which the sex offender is required to register through immediate electronic forwarding of the sex offender's registration information (including the information concerning the sex offender's expected residence, employment, or school attendance outside of the United States), and

(ii)notify the United States Marshals Service and update the sex offender's registration information in the national databases pursuant to the procedures under SORNA section 121(b)(1). XI. Verification/Appearance Requirements Section 116 of SORNA States that “a sex offender shall appear in person, allow the jurisdiction to take a current photograph, and verify the information in each registry in which that offender is required to be registered not less frequently than”:

(i)Each year for a tier I sex offender,

(ii)every six months for a tier II sex offender, and

(iii)every three months for a tier III sex offender. Jurisdictions accordingly must require such periodic appearances by sex offenders who reside or are employees or students in the jurisdiction, since sex offenders must register in the jurisdictions of their residence, employment, and school attendance, as explained in Part VIII of these Guidelines. As with other SORNA requirements, jurisdictions may require in-person appearances by sex offenders with greater frequency than the minimum required by section 116. The in-person appearance requirements of section 116 further the purposes of sex offender registration and notification in a number of ways. A sex offender's physical appearance, like that of any other person, will change in the course of time. The in-person appearance requirements provide reasonably frequent opportunities to obtain a photograph of the sex offender and a physical description that reflects his or her current appearance, types of registration information that are required by section 114(b)(1), (4). The in-person appearances further provide an opportunity to review with the sex offender the full range of information in the registry, and to obtain from the sex offender information about any changes in the registration information or new information that has not been reported since the initial registration or the last appearance. Beyond these functions of directly helping to ensure the accuracy and currency of the registration information, the appearance requirement ensures periodic face-to-face encounters between the sex offender and persons responsible for his or her registration. For example, if the appearance requirement is implemented by a jurisdiction to require that registrants report to local police departments or sheriffs' offices, these meetings help to familiarize law enforcement personnel with the sex offenders in their areas. This may contribute to the effective discharge of the local law enforcement agency's protective and investigative functions in relation to these sex offenders, and help to ensure that the agency's responsibility to track these sex offenders is taken seriously and consistently enforced. Likewise, from the perspective of the sex offender, periodic in-person encounters with officials responsible for their monitoring may help to impress on them with greater vividness than remote communications that their identities, locations, and past criminal conduct are known to the authorities. Hence, there is a reduced likelihood of their avoiding detection and apprehension if they reoffend, and this may help them to resist the temptation to reoffend. As long as the appearances involve meetings between the sex offenders and officials who can carry out the required functions of the meetings, the specific arrangements for such appearances and the officials who will conduct them are matters that jurisdictions may determine in their discretion. For example, jurisdictions may require sex offenders to report to local law enforcement offices for this purpose, or may combine the appearances with meetings between sex offenders and their supervision officers if they are under supervision, or may have law enforcement, supervision, or registration personnel visit with sex offenders at their homes or meet with them at other arranged locations. The specific requirements for the conduct of such appearances are as follows: • Appearances must be conducted at least annually for sex offenders satisfying the “tier I” criteria, at least semiannually for sex offenders satisfying the “tier II” criteria, and at least quarterly for sex offenders satisfying the “tier III” criteria. (The “tier” classifications and what they entail are explained in Part V of these Guidelines.) • The sex offender must allow a current photograph to be taken. This does not mean that jurisdictions must require officials conducting these meetings to take a new photograph at every appearance and enter the new photograph into the registry. Where the official sees that the sex offender's appearance has not changed significantly from a photograph in the registry, it may be concluded that the existing photograph remains sufficiently current and the taking of a new photograph does not have to be required in such circumstances. • The sex offender must be required to review the existing information in the registry that is within his or her knowledge, to correct any item that has changed or is otherwise inaccurate, and to provide any new information there may be in the required registration information categories. • Upon entry of the updated information into the registry, it must be immediately transmitted by electronic forwarding to all other jurisdictions:

(i)In which the sex offender is or will be required to register as a resident, employee, or student, or

(ii)in which the sex offender was required to register as a resident, employee, or student until the time of a change of residence, employment, or student status reported in the appearance, even if the sex offender may no longer be required to register in that jurisdiction in light of the updated information. (This is necessary to carry out information sharing requirements appearing in SORNA sections 119(b) and 121(b)(3).) Like other SORNA registration requirements, the in-person appearance requirements of section 116 are only minimum standards. They do not limit, and are not meant to discourage, adoption by jurisdictions of more extensive or additional measures for verifying registration information. Thus, jurisdictions may require verification of registration information with greater frequency than that required by section 116, and may wish to include in their systems additional means of verification for registration information, such as mailing address verification forms to the registered residence address that the sex offender is required to sign and return, and cross-checking information provided by the sex offender for inclusion in the registry against other records systems. Section 631 of the Adam Walsh Act (Pub. L. 109-248) authorizes a separate grant program to assist in residence address verification for sex offenders. Additional guidance will be provided concerning application for grants under that program if funding for the program becomes available. XII. Duration of Registration Section 115(a) of SORNA specifies the minimum required duration of sex offender registration. It generally requires that sex offenders keep the registration current for 15 years in the case of a tier I sex offender, for 25 years in the case of a tier II sex offender, and for the life of the sex offender in the case of a tier III sex offender, “excluding any time the sex offender is in custody or civilly committed.” (The tier classifications and their import are explained in Part V of these Guidelines.) The required registration period begins to run upon release from custody for a sex offender sentenced to incarceration for the registration offense, and begins to run at the time of sentencing for a sex offender who receives a nonincarcerative sentence for the offense. The proviso relating to custody or civil commitment reflects the fact that the SORNA procedures for keeping up the registration—including appearances to report changes of residence or other key information under section 113(c), and periodic appearances for verification under section 116—generally presuppose the case of a sex offender who is free in the community. Where a sex offender is confined, the public is protected against the risk of his reoffending in a more direct way, and more certain means are available for tracking his whereabouts. Hence, SORNA does not require that jurisdictions apply the registration procedures applicable to sex offenders in the community during periods in which a sex offender is in custody or civilly committed. Subsection

(b)of section 115 provides that the registration period shall be reduced by 5 years for a tier I sex offender who has maintained a “clean record” for 10 years, and provides that registration be terminated for a tier III sex offender required to register on the basis of a juvenile delinquency adjudication if the sex offender has maintained a “clean record” for 25 years. (The circumstances in which registration is required on the basis of juvenile delinquency adjudications are explained in Part IV.A of these Guidelines.) Subsection

(b)does not provide for the reduction of the required 25-year duration of registration for tier II sex offenders, or for the reduction of the required lifetime registration for tier III sex offenders required to register on the basis of adult convictions. The specific requirements under section 115(b) to satisfy the “clean record” precondition for reduction of the registration period are as follows: • The sex offender must not be convicted of any sex offense for which imprisonment for more than one year may be imposed (section 115(b)(1)(A)). • The sex offender must not be convicted of any sex offense (section 115(b)(1)(B)). In contrast to section 115(b)(1)(A), section 115(b)(1)(B) is not limited to cases in which the offense is one potentially punishable by imprisonment for more than a year. Hence, conviction for a sex offense prevents satisfaction of the “clean record” requirement, even if the maximum penalty for the offense is less than a year. • The sex offender must successfully complete any periods of supervised release, probation, and parole (section 115(b)(1)(C)). The requirement of “successfully” completing periods of supervision means completing these periods without revocation. • The sex offender must successfully complete an appropriate sex offender treatment program certified by a jurisdiction or by the Attorney General (section 115(b)(1)(D)). Jurisdictions may make their own decisions concerning the design of such treatment programs, and jurisdictions may choose the criteria to be applied in determining whether a sex offender has “successfully” completed a treatment program, which may involve relying on the professional judgment of the persons who conduct or oversee the treatment program. XIII. Enforcement of Registration Requirements This final part of the Guidelines discusses enforcement of registration requirements under the SORNA provisions. It initially discusses the penalties for registration violations under SORNA, and then the practical procedures for investigating and dealing with such violations. SORNA contemplates that substantial criminal penalties will be available for registration violations at the state, local, and federal levels. Section 113(e) of SORNA requires jurisdictions (other than Indian tribes) to provide a criminal penalty that includes a maximum term of imprisonment greater than one year for the failure of a sex offender to comply with the SORNA requirements. Hence, a jurisdiction's implementation of SORNA includes having a failure-to-register offense for which the maximum authorized term of imprisonment exceeds a year. (Indian tribes are not included in this requirement because tribal court jurisdiction does not extend to imposing terms of imprisonment exceeding a year.) Section 141(a) of SORNA enacted 18 U.S.C. 2250, a new federal failure-to-register offense, which provides federal criminal penalties of up to 10 years of imprisonment for sex offenders required to register under SORNA who knowingly fail to register or update a registration as required where circumstances supporting federal jurisdiction exist, such as interstate or international travel by a sex offender, or conviction of a federal sex offense for which registration is required. Federal sex offenders are also required to comply with the SORNA registration requirements as mandatory conditions of their federal probation, supervised release, or parole, as provided pursuant to amendments adopted by section 141(d)-(e),

(j)of SORNA. In terms of practical enforcement measures, SORNA section 122 requires that an appropriate official notify the Attorney General and appropriate law enforcement agencies of failures by sex offenders to comply with registration requirements, and that such registration violations must be reflected in the registries. The section further provides that the official, the Attorney General, and each such law enforcement agency are to take any appropriate action to ensure compliance. Complementary measures for federal enforcement appear in section 142, which directs the Attorney General to use the resources of federal law enforcement, including the United States Marshals Service, to assist jurisdictions in locating and apprehending sex offenders who violate registration requirements. (Also, SORNA section 623 authorizes grants by the Attorney General to States, local governments, tribal governments, and other public and private entities to assist in enforcing sex offender registration requirements—additional guidance will be provided concerning application for grants under this provision if funding is made available for this program.) Translating the requirements of section 122 into practical procedures that will ensure effective enforcement of sex offender registration requires further definition. Jurisdictions can implement the requirements of section 122 by adopting the following procedures: • Information may be received by a jurisdiction indicating that a sex offender has absconded—i.e., has not registered at all, or has moved to some unknown place other than the registered place of residence. For example, a sex offender may fail to make a scheduled appearance for periodic verification of registration information in his jurisdiction of residence as required by SORNA section 115, or may fail to return an address verification form mailed to the registered address in a jurisdiction that uses that verification procedure. Or a jurisdiction may receive notice from some other jurisdiction providing grounds to expect that a sex offender will be coming to live in the jurisdiction—such as notice that a sex offender will be moving to the jurisdiction from a jurisdiction in which he was previously registered, or notice from federal authorities about the expected arrival in the jurisdiction of a released federal sex offender or sex offender entering the United States from abroad—but the sex offender then fails to appear and register as required. Or a jurisdiction may notify another jurisdiction, based on information provided by a sex offender, that the sex offender will be relocating to the other jurisdiction, but the supposed destination jurisdiction thereafter informs the original registration jurisdiction that the sex offender has failed to appear and register. • When such information is received by a jurisdiction indicating that a sex offender may have absconded, whether one registered in the jurisdiction or expected to arrive from another jurisdiction, an effort must be made to determine whether the sex offender has actually absconded. If non-law-enforcement registration personnel cannot determine this, then a law enforcement agency with jurisdiction to investigate the matter must be notified. Also, if the information indicating the possible absconding came through notice from another jurisdiction or federal authorities, the authorities that provided the notification must be informed that the sex offender has failed to appear and register. • If a jurisdiction receives information indicating that a sex offender may have absconded, as described in the preceding bullets, and takes the measures described therein but cannot locate the sex offender, then the jurisdiction must take the following steps: ○ The information in the registry must be revised to reflect that the sex offender is an absconder or unlocatable. ○ A warrant must be sought for the sex offender's arrest, if the legal requirements for doing so are satisfied. ○ The United States Marshals Service, which is the lead federal agency for investigating sex offender registration violations, must be notified. Also, the jurisdiction must update the National Sex Offender Registry to reflect the sex offender's status as an absconder or unlocatable and enter the sex offender into the National Crime Information Center Wanted Person File (assuming issuance of a warrant meeting the requirement for entry into that file). The foregoing procedures must be adopted for possible absconder cases to implement SORNA section 122. In addition, a jurisdiction's policies must require appropriate follow-up measures when information is received indicating violation of the requirement to register in jurisdictions of employment or school attendance, whether or not a violation of the requirement to register in jurisdictions of residence is implicated. Specifically, a jurisdiction may receive information indicating that a sex offender may be employed or attending school in the jurisdiction but has not registered as required—for example, failure by the sex offender to appear for a required periodic in-person appearance in the employment or school jurisdiction, as required by SORNA section 116, or failure by a sex offender to appear and register in the jurisdiction following receipt of notice from another jurisdiction that the sex offender is expected to be commencing employment or school attendance in the jurisdiction. In such cases, an effort must be made to determine whether the sex offender is actually employed or attending school in the jurisdiction but has failed to register. If (non-law enforcement) registration personnel cannot determine this, then a law enforcement agency with jurisdiction to investigate the matter must be notified. Dated: May 17, 2007. Alberto R. Gonzalez, Attorney General. [FR Doc. E7-10210 Filed 5-29-07; 8:45 am] BILLING CODE 4410-18-P 72 103 Wednesday, May 30, 2007 Presidential Documents Part V The President Proclamation 8149—Great Outdoors Month, 2007 Title 3— The President Proclamation 8149 of May 25, 2007 Great Outdoors Month, 2007 By the President of the United States of America A Proclamation During Great Outdoors Month, we celebrate the rich blessings of our Nation's natural beauty, and we renew our commitment to protecting our environment so that we can leave our children and grandchildren a healthy and flourishing land. This month is also an opportunity to pay tribute to those whose hard work and dedication keep our country's open spaces beautiful and accessible to our citizens. Through recreational activities such as fishing, skiing, biking, and nature watching, we can teach our young people about the wonders of our Nation's landscapes. Experiencing our Nation's natural splendor contributes to healthier lives for our citizens and a deeper appreciation for the great outdoors. My Administration is working to protect and conserve our natural wonders for future generations. To keep our National Park System vibrant, we requested the highest increase ever in park operations funding in the FY 2008 Budget and launched the National Parks Centennial Initiative. We are also promoting responsible stewardship and conservation of our air, water, and land. Harmful air pollutants are down more than 10 percent since 2001, but there is more work to be done. Through the “Twenty in Ten” plan, my Administration aims to limit greenhouse gas emissions from motor vehicles and reduce America's dependence on oil by cutting our gasoline usage by 20 percent over the next 10 years. In addition, we have restored, improved, or protected millions of acres of wetlands and enhanced our parks and wildlife refuges. We are also encouraging cooperative conservation, innovation, and new technologies to help ensure America's outdoors remain places where families and friends can learn, exercise, and create meaningful memories. Countless citizens volunteer their time and talents to protect America's natural resources. By working together with the private and non-profit sectors and the general public, we can help preserve our local parks, lakes, rivers, and working lands. I am grateful for the efforts of all those who work to conserve our Nation's natural wonders, and I encourage citizens to visit takepride.gov to learn about more opportunities to help keep our environment healthy and safe. NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim June 2007 as Great Outdoors Month. I call on all Americans to observe this month with appropriate programs and activities and to take time to experience and enjoy the outdoors. IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fifth day of May, in the year of our Lord two thousand seven, and of the Independence of the United States of America the two hundred and thirty-first. GWBOLD.EPS [FR Doc. 07-2716 Filed 5-29-07; 11:05 am]

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