[Federal Register Volume 70, Number 238 (Tuesday, December 13, 2005)]
[Rules and Regulations]
[Pages 73604-73618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23971]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-8007-9]
RIN 2060-AN13
Protection of Stratospheric Ozone; Process for Exempting Critical
Uses of Methyl Bromide for the 2005 Supplemental Request
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: With this action EPA is authorizing the use of 610,665
kilograms of methyl bromide for supplemental critical uses in 2005
through the allocation of additional critical stock allowances (CSAs).
This allocation supplements the critical use allowances (CUAs) and CSAs
previously allocated for 2005, as published in the Federal Register on
December 23, 2004 (69 FR 76982). Further, EPA is amending the existing
list of exempted critical uses to add uses authorized by the Parties to
the Montreal Protocol at their Sixteenth Meeting in November 2004.
Today's
[[Page 73605]]
action is authorized under the Clean Air Act (CAA or the Act) and is in
accordance with the Montreal Protocol on Substances that Deplete the
Ozone Layer (Protocol).
DATES: Effective Date: This final rule is effective on December 9,
2005.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. OAR-2004-0506. All documents in the docket are listed in the
EDOCKET index at http://www.epa.gov/edocket. 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
EDOCKET or in hard copy at the Air Docket, EPA/DC, EPA West, Room B102,
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 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 Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Hodayah Finman, U.S. Environmental
Protection Agency, Office of Air and Radiation, Stratospheric
Protection Division (6205J), 1200 Pennsylvania Avenue, NW., Washington,
DC 20460; telephone number: (202) 343-9246; fax number: (202) 343-2338;
[email protected]. You may also visit the EPA's Ozone Depletion
Web site at http://www.epa.gov/ozone for further information about
EPA's Stratospheric Ozone Protection regulations, the science of ozone
layer depletion, and other related topics.
SUPPLEMENTARY INFORMATION: This action concerns regulation of methyl
bromide, a class I, Group VI ozone-depleting substance. Under the Clean
Air Act, as amended in 1990 and 1998, methyl bromide production and
consumption (defined as production plus imports minus exports) were
phased out on January 1, 2005, apart from certain exemptions, including
the critical use exemption which is the subject of today's rule. In a
final rule published December 23, 2004 (69 FR 76982), EPA established
the framework for the critical use exemption; set forth a list of
approved critical uses for 2005; and specified the amount of methyl
bromide that could be supplied in 2005 from stocks and new production
or import to meet approved critical uses. As part of that rule, EPA
issued critical use allowances (CUAs) for new production and import and
critical stock allowances (CSAs) for sale of methyl bromide stocks.
On August 30, 2005, EPA issued a direct final rule and parallel
proposal to add additional uses of methyl bromide to the list of
approved critical uses and to issue additional CSAs for the 2005
control period (70 FR 51270). These actions were taken to reflect a
decision by the Parties to the Montreal Protocol at their sixteenth
meeting to authorize supplemental critical uses and amounts. Due to the
receipt of adverse comment, EPA withdrew the direct final rule, and it
did not go into effect (70 FR 60443). Today EPA is taking final action
based on the August 30, 2005 proposal. Today's final action is in
accordance with Decision XVI/2 taken by the Montreal Protocol Parties
at their November 2004 meeting and with prior decisions of the parties
on critical uses.
Section 533(d) of the Administrative Procedure Act (APA), 5 U.S.C.,
Chapter 5, generally provides that rules may not take effect earlier
than 30 days after they are published in the Federal Register. Today's
final rule is issued under section 307(d) of the CAA, which states:
``The provisions of section 553 through 557 * * * of Title 5 shall not,
except as expressly provided in this subsection, apply to actions to
which this subsection applies.'' CAA section 307(d)(1). Thus, section
553(d) of the APA does not apply to this rule. EPA nevertheless is
acting consistently with the policies underlying APA section 553(d) in
making this rule effective on December 9, 2005. APA section 553(d)
provides an exception for any action that grants or recognizes an
exemption or relieves a restriction. Today's final rule grants an
exemption from the phaseout of methyl bromide. Because the allowances
issued through this action will expire at the end of 2005, EPA is
making this rule effective immediately to provide allowance holders an
opportunity to expend the allowances before they expire.
Table of Contents
I. Background on the Montreal Protocol and the Critical Use Exemption
II. Background on the Critical Use Exemption Process
III. Today's Action
IV. Statutory and Executive Order Reviews
A. Executive Order No. 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order No. 13132: Federalism
F. Executive Order No. 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order No. 13045: Protection of Children From
Environmental Health & Safety Risks
H. Executive Order No. 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Congressional Review Act
I. Background on the Montreal Protocol and the Critical Use Exemption
The Montreal Protocol on Substances that Deplete the Ozone Layer
(Protocol) is an international agreement aimed at reducing and
eliminating the production and consumption of stratospheric ozone
depleting substances (ODS).\1\ The elimination of production and
consumption of ODSs is accomplished through adherence to phase-out
schedules for specific class I ODSs \2\, including: chlorofluorocarbons
(CFCs), halons, carbon tetrachloride, and methyl chloroform. The Clean
Air Act, as amended in 1990 and 1998, requires EPA to promulgate
regulations implementing the Protocol's phaseout schedules in the
United States. Those regulations are codified at 40 CFR Part 82. As of
January 1, 1996, production and import of most class I ODSs were phased
out in developed countries, including the United States. Production and
import of methyl bromide were phased out in those countries as of
January 1, 2005. However, the Protocol provides exemptions that allow
for the continued import and/or production of ODSs, including methyl
bromide.
---------------------------------------------------------------------------
\1\ ``Consumption'' is defined as the amount of a substance
produced in the United States, plus the amount imported into the
United States, minus the amount exported to Parties to the Montreal
Protocol (see Section 601(6) of the Clean Air Act). Stockpiles of
class I ODSs produced or improted prior to the 1996 phase out may be
used for purposes not expressly banned at 40 CFR part 82.
\2\ Class I ozone depleting substances are listed at 40 CFR Part
82 subpart A, appendix A.
---------------------------------------------------------------------------
Methyl bromide was added to the Protocol as an ODS in 1992 through
the Copenhagen amendment to the Protocol. The Parties agreed that each
industrialized country's level of methyl bromide production and
consumption in 1991 should be the baseline for establishing a freeze in
the level of methyl bromide production and consumption for
industrialized countries. EPA published a final rule in the Federal
Register on December 10, 1993 (58 FR 65018), listing methyl
[[Page 73606]]
bromide as a class I, Group VI controlled substance, freezing U.S.
production and consumption at this 1991 level, and, in Section 82.7 of
the rule, setting forth the percentage of baseline allowances for
methyl bromide granted to companies in each control period (each
calendar year) until the year 2001, when the complete phaseout would
occur (58 FR 65018).
The 2001 phaseout date was established in response to a petition
filed in 1991 under sections 602 (c)(3) and 606 (b) of the Clean Air
Act Amendments (CAAA) of 1990, requesting that EPA list methyl bromide
as a class I substance and phase out its production and consumption.
This date was consistent with section 602(d) of the CAAA of 1990, which
for newly-listed class I ODSs provides that ``no extension [of the
phaseout schedule in section 604] under this subsection may extend the
date for termination of production of any class I substance to a date
more than 7 years after January 1 of the year after the year in which
the substance is added to the list of class I substances.'' EPA based
its action on scientific assessments and actions by the Parties to the
Montreal Protocol at their 1992 Meeting in Copenhagen to freeze the
level of methyl bromide production and consumption for industrialized
countries.
At their 1995 meeting, the Parties made adjustments to the methyl
bromide control measures and agreed to reduction steps and a 2010
phaseout date for industrialized countries along with certain allowable
exemptions such as the critical use exemption. At the time the Parties
adopted this phasedown schedule for methyl bromide, the U.S. continued
to have a 2001 phaseout date in accordance with the language of the
1990 CAAA. At their 1997 meeting, the Parties agreed to further
adjustments to the phaseout schedule for methyl bromide in
industrialized countries, with reduction steps leading to a 2005
phaseout for industrialized countries. In October 1998, the U.S.
Congress amended the CAA to prohibit the termination of production of
methyl bromide prior to January 1, 2005; to require EPA to bring the
U.S. phaseout of methyl bromide in line with the schedule specified
under the Protocol; and to authorize EPA to provide exemptions for
critical uses. These amendments were contained in Section 764 of the
1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act
(Pub. L. 105-277, October 21, 1998) and were codified in Section 604 of
the CAA, 42 U.S.C. 7671c. On November 28, 2000, EPA issued regulations
to amend the phaseout schedule for methyl bromide and extend the
complete phaseout of production and consumption to 2005 (65 FR 70795).
On December 23, 2004 (69 FR 76982), EPA published a final rule in
the Federal Register that established the framework for the critical
use exemption, set forth a list of approved critical uses for 2005, and
specified the amount of methyl bromide that could be supplied in 2005
from available stocks and new production or import to meet approved
critical uses. Today, EPA is authorizing sale of additional amounts of
methyl bromide from inventory for critical uses in the 2005 control
period. In addition, EPA is amending the existing list of approved
critical uses to add uses authorized by the Parties at their sixteenth
meeting in Prague under Decision XVI/2.
In accordance with Article 2H(5), the Parties have issued several
Decisions pertaining to the critical use exemption. These include
Decision IX/6, which set forth criteria for review of proposed critical
uses; Decision Ex. I/3, which addressed agreed critical uses, critical-
use exemption levels, and allowable levels of new production and
consumption for critical uses in 2005; and Decision XVI/2, which, in
part, supplements the critical use categories and exemption levels
discussed in Decision Ex. I/3.
For a discussion of the relationship between the relevant
provisions of the CAA, as amended in 1990 and 1998, and Article 2H of
the Protocol, and the extent to which EPA takes into account Decisions
of the Parties that interpret Article 2H, refer to the December 23,
2004, final rule (69 FR 76984-76985). Briefly, EPA regards certain
provisions of Decisions IX/6, Ex. I/3, and XVI/2 as subsequent
consensus agreements of the Parties that address the interpretation and
application of the critical use provision in Article 2H(5) of the
Protocol. In today's action, EPA is following the terms of these
Decisions. This will ensure consistency with the Montreal Protocol, 42
U.S.C. 7671c(d)(6).
Because it is a pesticide, methyl bromide is also regulated by EPA
under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
and other statutes and regulatory authority and by States under their
own statutes and regulatory authority. Under FIFRA, methyl bromide is a
restricted use pesticide and therefore subject to certain Federal and
State requirements governing its sale, distribution, and use. Nothing
in this final rule implementing the Clean Air Act is intended to
derogate from provisions in any other Federal, State, or Local laws or
regulations governing actions including, but not limited to, the sale,
distribution, transfer, and use of methyl bromide. All entities that
would be affected by provisions of this final rule must continue to
comply with FIFRA and other pertinent statutory and regulatory
requirements for pesticides (including, but not limited to,
requirements pertaining to restricted use pesticides) when importing,
exporting, acquiring, selling, distributing, transferring, or using
methyl bromide for critical uses. The regulations in today's action are
intended only to implement the critical use exemption under the CAA.
II. Background on the Critical Use Exemption Process
Starting in 2002, EPA began informing applicants of the
availability of an application process for a critical use exemption to
the methyl bromide phaseout. The Agency published a notice in the
Federal Register (68 FR 24737) announcing the deadline to apply, and
directing applicants to announcements posted on EPA's methyl bromide
Web site at http://www.epa.gov/ozone/mbr. On May 8, 2003 (68 FR 24737),
EPA published a notice in the Federal Register announcing the August 6,
2003, deadline for applications for 2005. Applicants were told they may
apply as individuals or as part of a group of users (a ``consortium'')
who face the same limiting critical conditions (i.e. specific
conditions which establish a critical need for methyl bromide). This
process has been repeated annually since 2002.
In response to the yearly requests for critical use exemption
applications published in the Federal Register, applicants have
provided information supporting their position that they have no
technically and economically feasible alternatives to methyl bromide
available to them. Applicants for the exemption have submitted
information on their use of methyl bromide, on research into the use of
alternatives to methyl bromide, on efforts to minimize use of methyl
bromide and efforts to reduce emissions and on the specific technical
and economic research results of testing alternatives to methyl
bromide.
The CAA, as amended in 1990 and 1998, allows the Agency to create
an exemption for critical uses to the extent consistent with the
Protocol. The critical use exemption process is designed to meet the
needs of methyl bromide users who do not have technically and
economically feasible alternatives available. EPA's December 23, 2004,
final rule describing the
[[Page 73607]]
operational framework for the critical use exemption (69 FR 76982)
established the majority of critical uses for the 2005 calendar year.
In today's action, EPA is establishing supplemental critical uses
available in the U.S. for the 2005 calendar year.
A detailed explanation of the development of the nomination,
including the criteria used by expert reviewers, is available in a memo
titled ``2003 Nomination Process: Development of 2003 Nomination for a
Critical Use Exemption for Methyl Bromide from the United States of
America'' on E-Docket OAR-2003-0230 (document 104) and E-Docket OAR-
2004-0506. The process described in this memo applies equally to the
2004 nomination process. The 2004 nomination included the supplemental
request for 2005 critical uses which are the subject of today's action.
All critical use exemption applications, including those described
in the supplemental request for 2005, underwent a rigorous review by
highly qualified technical experts. The CUE applications (except to the
extent claimed confidential) are available on E-Docket OAR-2004-0506.
Data from the applications served as the basis for the nomination and
was augmented by multiple other sources, including but not limited to
the National Agricultural Statistics Service of the U.S. Department of
Agriculture, the State of California Department of Pesticide
Regulation, peer-reviewed articles, and crop budgets.
After submission of the first U.S. Nomination for a Critical Use
Exemption for Methyl Bromide, in February 2003, the U.S. Government
decided to request additional critical uses for 2005 in the second
nomination sent to the Ozone Secretariat in February 2004. The U.S.
decided to do so, in part, because certain sectors were not able to
apply for an exemption in time for the 2003 nomination.
With the second nomination submitted to the Ozone Secretariat in
February 2004, most of which referred to uses for the 2006 control
period, the U.S. Government included some limited supplemental requests
for 2005. These requests may be found in Appendix B of each chapter of
the U.S. nomination and are available on E-docket OAR-2004-0506 and
http://www.epa.gov/mbr/nomination_2006.html.
The U.S. originally nominated the following applicants for
supplemental 2005 consideration: California Cut Flower Commission,
National Country Ham Association, Wayco Ham Company, California Date
Commission, California Strawberry Commission, California Tomato
Commission, National Pest Management Association, Michigan Pepper
Growers, Michigan Eggplant Growers, Burley & Dark Tobacco USA--
transplant trays, Burley & Dark Tobacco USA--field grown, Virginia
Tobacco Growers--transplant trays, Michigan Herbaceous Perennials,
Ozark Country Hams, Nahunta Pork Center and, American Association of
Meat Processors. Subsequent to the submission of the supplemental
nomination, all of the tobacco applicants withdrew their CUE requests
for the 2005 control period and beyond. In addition, the U.S. requested
correction to the amounts for two other sectors.
The Ozone Secretariat referred the U.S. nomination to the Technical
and Economic Assessment Panel (TEAP) and its subsidiary body, the
Methyl Bromide Technical Options Committee (MBTOC) for review. The TEAP
and the MBTOC reviewed the nominations, asked clarifying questions of
the U.S. Government, and provided recommendations on the requested
exemptions to the Parties to the Montreal Protocol for their
consideration at the Sixteenth Meeting of the Parties.
In June 2004, the MBTOC sent questions to the U.S. Government
concerning technical and economic issues in the nomination. These
questions, as well as the U.S. Government's response, can be accessed
on E-docket OAR-2004-0506. The U.S. Government's response was
transmitted on August 13, 2005. When responding to these questions, the
U.S. Government explained that critical use exemptions were being
sought only in areas with moderate-to-severe pest pressure, where the
use of alternatives would result in substantial yield losses, or where
regulatory restrictions or geophysical conditions prohibit the adoption
of alternatives. There were questions on all of the sectors described
in today's action; however, many questions focused on alternatives in
the overall sector instead of the specific supplemental requested
amount.
In October, 2004, the MBTOC and the TEAP issued a final report on
critical use nominations for methyl bromide. This report, issued by the
United Nations Environment Programme (UNEP) and TEAP, is titled
``Critical Use Nominations for Methyl Bromide: Final Report'' and can
be accessed at http://www.unep.ch/ozone/teap/Reports/MBTOC or on E-
docket OAR-2004-0506. In Annex I of the report, the advisory bodies
recommended an additional 584,093 kilograms of methyl bromide for U.S.
critical uses in 2005. The additional kilograms were recommended for
the following sectors: dried fruit and nuts (dates); dry commodities/
structures (cocoa beans); dry commodities/structures (processed foods,
herbs and spices, dried milk and cheese processing facilities);
eggplant; ornamentals; peppers; smokehouse ham; strawberry fruit; and
tomatoes.
Based on the recommendations from the advisory bodies, the Parties
authorized 610,655 kilograms of methyl bromide for 2005 supplemental
uses in the U.S., in Decision XVI/2. The authorization adds 26,562
kilograms to the TEAP recommendation by restoring the full amount of
the U.S. request for dry commodities/structures (cocoa beans). The
Parties approved the above-mentioned uses referenced in the MBTOC/TEAP
report.
More information on each of the nominated sectors, including
calculations of production losses and other technical data, can be
found in the annual nomination on E-docket OAR-2004-0506.
I. Today's Action
With today's action, EPA has determined that an additional 610,665
kg of methyl bromide are required to satisfy critical uses for the
2005. EPA is allocating an additional 610,665 critical stock allowances
(CSAs) to companies that hold pre-phaseout inventories of methyl
bromide. These allowances, consistent with the CUE framework rule
published on December 23, 2004, allow the holder to sell pre-phaseout
inventories of methyl bromide to critical uses. In addition, with
today's action, EPA is amending the list of approved critical uses
found at 40 CFR 82 appendix L to include new critical uses authorized
by the Parties at their sixteenth meeting in November 2004.
Consistent with the framework for the critical use exemption
established in the December rulemaking, each CSA is equivalent to one
kilogram of methyl bromide and all allowances expire at the end of the
control period. Therefore, the supplemental allowances allocated in
today's rule expire at the end of 2005.
The methodology for calculating the amount of CSAs allocated to
each entity is explained in a memorandum titled ``CSA Description
Memo,'' available on E-docket OAR-2004-0506. In summary, EPA has used
its authority under Section 114 of the CAA to require that certain
regulated entities provide the Agency with information about their
holdings of methyl bromide.
EPA is allocating CSAs in this rule on a pro-rated basis,
calculated as an average of the entities' December 31, 2003, and August
25, 2004, holdings of
[[Page 73608]]
pre-phaseout methyl bromide. This same baseline was also used to
calculate CSAs in the framework rule (69 FR 76982). However, EPA notes
that due to a slight baseline reporting error, one entity was granted
fewer CSAs in the December 2004 framework rule than it would have been
allocated had this reporting error not occurred because its relative
share of the entire stockpile was underreported. The entity has since
clarified the data submitted to EPA. Based on the new data, EPA was
able to correctly apportion the ownership of the total stockpile to
each company to reflect actual holdings of methyl bromide as of an
average of the December 31, 2003, and August 25, 2004, data. Therefore,
EPA is granting this entity sufficient CSAs from the 610,665-kg
supplemental amount to make up the quantity of CSAs it would have
received had the data been reported correctly, and is distributing the
remaining allowances using the baselines as previously established but
reflecting the correct percentage ownership of the total stockpile.
EPA is allocating CSAs to the following companies for the 2005
supplemental authorized amounts of critical use methyl bromide.
Company
Albemarle
Ameribrom, Inc.
Bill Clark Pest Control, Inc.
Blair Soil Fumigation
Burnside Services, Inc.
Cardinal Professional Products
Carolina Eastern, Inc.
Degesch America, Inc.
Dodson Bros.
Great Lakes Chemical Corporation
Harvey Fertilizer and Gas
Helena Chemical Co.
Hendrix and Dail
Hy Yield Bromine
Industrial Fumigation Company
J.C. Ehrlich Co.
Pacific Ag
Pest Fog Sales Corporation
ProSource One
Reddick Fumigants
Royster-Clark, Inc.
Southern State Cooperative, Inc.
Trical, Inc.
Trident Agricultural Products
UAP Southeast (NC)
UAP Southeast (SC)
Univar
Vanguard Fumigation Co.
Western Fumigation
TOTAL 610,665 KILOGRAMS
EPA has determined that the individual holdings of methyl bromide
stocks are Confidential Business Information (CBI). Therefore,
individual baseline data and individual company allocations of CSAs are
only available in the confidential portion of the docket for this
rulemaking and do not appear in this Federal Register document. EPA has
determined that the aggregate stock information is not CBI but is
currently withholding that information due to the filing of complaints
seeking to enjoin the Agency from its release.
EPA received comments on the previously published direct final and
concurrent proposed rule from four entities. EPA received one comment
requesting the Agency to finalize the rule before October 31, 2005,
because even though the supplemental critical uses and amounts will not
be available until close to the end of the control period, it is better
to have them late in the year than not at all. EPA understands the
concerns of the regulated community and is making every effort to
publish the final rule expeditiously.
One commenter suggested that EPA must account for language in
Decision Ex. II/1 in making critical uses available in 2005. Decision
Ex. II/1 refers to critical uses for the year 2006. EPA addressed
language in the Decision the notice of proposed rulemaking for 2006
critical uses (70 FR 62030), published on October 27, 2005.
This commenter further questioned the process the Agency has
established to make critical uses available in the U.S. and contested
EPA's interpretation of decisions related to the critical use
exemption. The commenter referred repeatedly to Decision IX/6,
paragraph 1(b), which states in part that ``production and consumption,
if any, of methyl bromide for critical uses should be permitted only if
* * * [a]ll technically and economically feasible steps have been taken
to minimize the critical use and any associated emissions.'' The
commenter referred to additional Decisions in stating what it believes
EPA should consider ``in deciding how much new production and
importation to allow after 2004.'' EPA's interpretation of the cited
Decisions differs from the commenter's. However, EPA is not responding
in detail to these comments because they are not relevant to today's
action. EPA is not authorizing any additional production or import in
this final rule; it is only authorizing the sale of additional amounts
of methyl bromide from pre-phaseout inventories.
In addition, EPA has already responded to many of the points raised
by the commenter. In particular, the commenter does not agree with
EPA's accounting of stocks, evaluation of the amount of methyl bromide
needed to meet critical uses, levels of critical use, and the ability
of users to access non-critical-use methyl bromide for non-critical
uses. The commenter raised substantially the same issues in its
comments on the CUE framework rule proposed on August 25, 2004, and
finalized on December 23, 2004 (69 FR 76982). EPA addressed these
comments as part of that rulemaking and refers the public to E-docket
OAR-2003-0230 to view specific responses to those comments contained in
the response to comment document for the framework rule. These issues
are further addressed in briefs filed in NRDC v. EPA, D.C. Cir No. 04-
1438, which have also been placed in E-docket OAR-2004-0506.
The supplemental critical use amount that we are authorizing today,
in the form of additional critical stock allowances, is based on the
information described in this notice and in the August 30, 2005, notice
of proposed rulemaking. This includes information received from
applicants as well as other data sources noted above. The approach to
assessing critical need discussed in the December 23, 2004 framework
rule and in the response to comments document for the framework rule
was used for this supplemental amount. Those documents also explain the
limitations of the 2003 use estimate to which the commenter refers.
The commenter further stated that EPA should not establish
additional uses as ``critical'' because the Agency did not find,
pursuant to Decision IX/6, paragraph 1(a), that the lack of methyl
bromide for those uses ``would result in a significant market
disruption.'' However, the Agency did make such a finding, as noted in
the preamble to the direct final rule on August 30, 2005 (70 FR 51277).
In addition, EPA's interpretation of the phrase ``significant market
disruption'' appears in the memorandum entitled ``2003 Nomination
Process: Development of 2003 Nomination for a Critical use Exemption
for Methyl Bromide from the United States of America'' which appears in
docket OAR-2004-0506 and was referenced at 70 FR 51274. As previously
noted, that memorandum applied equally to the supplemental request for
2005. Specific discussions of the economic feasibility of alternatives
for each of the uses addressed in today's action appear in the
corresponding chapters of the 2004 U.S. Nomination, available on E-
docket OAR-2004-0506.
The commenter states that a ``significant market disruption''
refers to ``a decrease or delay in supply or increase in price of a
commodity produced with methyl bromide.'' EPA understands the commenter
to suggest that market disruption is a disruption
[[Page 73609]]
where consumers are unable to obtain a commodity, are delayed in
obtaining a commodity, or must pay more for that commodity. EPA does
not disagree with the commenter that the outcome described by the
commenter could constitute a significant market disruption. However, in
the aforementioned memorandum available in E-docket OAR-2004-0506, EPA
outlined additional circumstances which could result in a significant
market disruption. EPA stated that ``markets are partially defined by
the interaction between supply and demand, which determines the price
and quantity of a good traded in a market. EPA's position is that a
disruption to either side of a commodity market, demand or supply,
would result in market disruption.'' Therefore, a significant market
disruption could be experienced on the demand side, as explained by the
commenter, or on the supply side, should agricultural producers be
economically harmed as a result of the loss of methyl bromide. For
example, if the loss of methyl bromide in strawberry production would
mean that no strawberry farmers in the U.S. would be able to continue
to produce this crop, the EPA would likely find that such a situation
constitutes a significant market disruption even if consumers could
still buy supplies of strawberries from Central and South America.
Lastly, the commenter has filed a Freedom of Information Act (FOIA)
request as part of its comment submission for data on 2004 levels of
methyl bromide use. EPA is responding to this FOIA request through the
standard Agency process.
As described in the direct final rule (70 FR 51276), EPA is
finalizing an amendment to the reporting and recordkeeping requirements
at 40 CFR 82.13 to require that entities report the amount of pre-
phaseout methyl bromide inventory, held for sale or transfer to another
entity, to the Agency on an annual basis. Entities will be required to
differentiate between the amounts owned by them and those owned by
other entities. Pre-phaseout refers to inventories of methyl bromide
produced or imported prior to January 1, 2005. This additional
requirement will allow EPA to track the drawdown of pre-phaseout
inventories. The Agency did not receive any comments on this amendment
to the reporting requirements.
For the reasons stated in the direct final rule, EPA is authorizing
the sale of additional amounts of methyl bromide for critical uses from
pre-phaseout inventories and is not authorizing new production or
import. In the December 23, 2004, framework rule, EPA allocated
1,283,214 CSAs to satisfy critical uses. Consistent with the framework
established in the framework rule and with Decisions Ex. I/3 and XVI/2,
EPA is allocating an additional 610,665 CSAs in today's rule.
In Decision XVI/2, taken in November 2004, the Parties to the
Protocol agreed to add the following uses to the list of approved
critical uses for 2005: Dried fruit and nuts; eggplant, field; peppers,
field; tomato, field; dry commodities--structures (cocoa); dry
commodities--processed foods, herbs, spices, dried milk; ornamentals;
smokehouse ham; strawberry fruit. Some of these uses, such as
strawberry fruit, were previously authorized by the Parties in Decision
Ex. I/3, however, in Decision XVI/2 the Parties allowed for new
portions of the strawberry fruit industry to qualify for the critical
use exemption. Other uses, such as herbs, spices, and dried milk, are
new categories of critical use altogether.
EPA has determined that the uses identified in Decision XVI/2 are
critical uses and is amending Appendix L to 40 CFR Part 82 to reflect
the new uses, locations of use, and limiting critical conditions. The
August 30, 2005, Federal Register notice contained summaries of the
technical and or economic basis for the Agency's proposed determination
that these uses are critical uses. More extensive discussions of the
technical and economic basis can be found in the U.S. Government's 2004
nomination and responses to questions from MBTOC. In instances where
the Agency believes the circumstances of the use have changed--for
example, the registration of a new alternative--EPA would also take
such developments into account in developing a proposed determination
on critical uses.
EPA solicited comments from the public on the proposed critical use
determination and did not receive any comments that a change in
circumstance has occurred in a particular critical use category. In
addition, the Agency did not receive any comments on the technical and
economic evaluation that led to EPA's critical use determination.
Therefore, EPA does not have new information which leads the Agency to
conclude that the proposed determination reached by the Agency in the
August 30, 2005, Federal Register notice should be altered.
EPA did receive one comment that states that there are ``no
critical uses'' for methyl bromide. The CAA does allow for critical
uses and EPA has used the criteria in Decision IX/6--which include such
factors as the lack of technically and economically feasible
alternatives--to assess whether a given use qualifies as critical. The
Agency, through the nomination process, established that certain uses
met these criteria. The commenter did not provide any technical data to
substantiate a claim that there are ``no critical uses'' based on the
availability of alternatives, thus the Agency is not changing its
proposed determination.
Another commenter stated that methyl bromide can cause acute health
problems and that her family may be suffering from methyl bromide
exposure. Statutory authority to address issues of exposure and health
effects lies under FIFRA and other programs run by pesticide licensing
agencies at the Federal, State, and local level. The commenter further
states that there are alternatives to methyl bromide and that an
exemption is therefore not necessary.
EPA does not dispute that there are alternatives to methyl bromide
for many uses of this fumigant. However, in some cases the alternative
may not be registered or otherwise available for use; in other
instances, the alternative may not be technically feasible under
certain circumstances; last, an alternative may not be economically
feasible for certain uses. EPA conducts a detailed analysis of these
and other factors to determine whether a particular use should be
designated a critical use. The uses proposed by the agency in the
August 30, 2005, notice are uses that EPA believes, based on extensive
analysis, do not have feasible alternatives in the circumstances of the
use. EPA solicited comments on the specific proposed uses and did not
receive any information that would change this technical analysis.
Therefore, in today's action, EPA is finalizing the proposed
amendments to Appendix L of 40 CFR Part 82 and adding several new uses
to the list of approved critical uses for 2005 as follows:
Amendments to 40 CFR Part 82, Subpart A, Appendix L
The following table shows the additions to Appendix L of 40 CFR
Part 82, Subpart A.
[[Page 73610]]
------------------------------------------------------------------------
Column A Column B Column C
------------------------------------------------------------------------
Approved Critical Uses........ Approved Critical Limiting Critical
User and Conditions.
Location of Use.
-------------------------------
Pre-plant uses
------------------------------------------------------------------------
Eggplant...................... Michigan growers. With a reasonable
expectation that
moderate to severe
fungal pathogen
infestation either
already exists or
could occur without
methyl bromide
fumigation.
Ornamentals (Cut flowers)..... California Cut With a reasonable
Flower expectation that
Commission and moderate to severe
Florida growers. pest pressure either
already exists or
could occur without
methyl bromide
fumigation, or with
reasonable
expectation that the
user may be
prohibited from
using 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
Peppers (field)............... Michigan growers. With a reasonable
expectation that
moderate to severe
fungal pathogen
infestation either
already exists or
could occur without
methyl bromide
fumigation.
Strawberry fruit.............. California With a reasonable
growers. expectation that one
or more of the
following limiting
critical conditions
already either
exists or could
occur without methyl
bromide fumigation:
moderate to severe
black root rot or
crown rot, moderate
to severe yellow or
purple nutsedge
infestation, a
prohibition of the
use of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached, time
to transition to an
alternative, hilly
terrain that
prevents the
distribution of
alternative.
Tomatoes...................... California With a reasonable
growers in San expectation that
Diego and moderate to severe
Ventura Counties. pest pressure either
already exists or
could occur or where
alternatives are
ineffective because
of hilly terrain.
-------------------------------
Post-harvest uses
------------------------------------------------------------------------
Food processing............... Members of the With reasonable
National Pest expectation that one
Management or more of the
Association following limiting
associated with critical conditions
dry commodity exists: Older
structure facilities that
fumigation cannot be properly
(cocoa) and dry sealed to use an
commodity alternative to
fumigation methyl bromide, or
(processed food, the presence of
herbs, spices, sensitive electronic
and dried milk). equipment subject to
corrosivity, or
where heat treatment
would cause
rancidity to
commodities, time to
transition to an
alternative.
Dried Fruit and Nuts (dates Growers and With a reasonable
only). packers who are expectation that one
members of the or more of the
California Date following limiting
Commission, critical conditions
whose facilities exists: Rapid
are located only fumigation is
in Riverside required to meet a
County. critical market
window such as
during the holiday
season, rapid
fumigation is
required when a
buyer provides short
(2 days or less)
notification for a
purchase, or there
is a short period
after harvest in
which to fumigate
and there is limited
silo availability
for using
alternatives.
Dry Cured Pork Products....... (A) Members of Pork products
the National facilities owned by
Country Ham companies that are
Association. members of the
Association.
(B) Members of Pork product
the American facilities owned by
Association of companies that are
Meat Processors. members of the
(C) Nahunta Pork Association.
Center (North
Carolina).
------------------------------------------------------------------------
Lastly, in today's rule EPA is finalizing a clarification to 40 CFR
82.4(p)(2) proposed in the August 30, 2005, notice (70 FR 51270). In
the CUE rule published on December 23, 2004 (69 FR 76982), EPA created
a prohibition as follows. Paragraph (p)(2)(vi) states that, with some
exceptions: ``No person who purchases critical use methyl bromide
during the control period shall use that methyl bromide on a field or
structure for which that person has used non-critical use methyl
bromide for the same use (as defined in Columns A and B of Appendix L)
in the same control period.'' However, EPA did not intend this
prohibition to prevent end users who have been using non-critical use
methyl bromide during the first part of 2005 from using critical use
methyl bromide on the same field or structure for the same use if they
became approved critical users as a result of this supplemental
rulemaking. Such a result would deprive those end users of the benefit
of the exemption solely as a result of the timing of the rule. Thus,
EPA is adding the following exception to paragraph (p)(2)(vi): ``or
unless, subsequent to that person's use of the non-critical use methyl
bromide, that person * * * (b) becomes an approved critical user as a
result of rulemaking.'' EPA is also making a corresponding change to
Sec. 82.13, paragraph (2)(dd), which describes the self-certification
process for approved critical users: `` * * * I am aware that any
agricultural commodity within a treatment chamber, facility, or field I
fumigate with critical use methyl bromide cannot subsequently be
fumigated with non-critical use methyl bromide during the same control
period, excepting a QPS treatment or a treatment for a different use *
* * unless a local township cap limit now prevents me from using methyl
bromide alternatives, or I have now become an approved critical user as
a result of rulemaking.''
EPA received one comment on this clarification. The commenter
stated that he did not support the approach outlined above because it
would allow for ``double dipping'' and he was concerned that critical
users would be allowed to use more methyl bromide than is set forth in
Decisions Ex 1/3 and XVI/2. EPA disagrees with the commenter's
assumptions and notes that the comment inappropriately focuses on
``users'' as opposed to ``uses.'' Under the framework rule, EPA
established a system where there are two types of use: critical uses
and non-critical uses. A single entity may have both critical and non-
critical uses. For example, a particular walnut producer
[[Page 73611]]
may have some silos that require rapid fumigation (a limiting critical
condition) and therefore have a critical need for methyl bromide, and
other silos that do not require rapid fumigation and whose fumigation
therefore does not qualify as a critical use. In addition, an entity
may become subject to a prohibition on the use of methyl bromide
alternatives due to the reaching of a local township limit, as provided
in Appendix L, Column C. There would then be a critical need for methyl
bromide later in the year that did not occur at the onset of the year.
As a result, a use that was formerly non-critical may become critical.
Because a single entity may have both non-critical and critical uses
and because circumstances of use may change throughout the year causing
the same site to either be critical or non-critical within the same
control period, EPA created a framework that controls not the user but
rather the individual use.
The commenter contends that if a user can have both non-critical
and critical uses that more methyl bromide could be used in the U.S.
than is set forth in the decisions on critical uses. However, the
critical use exemption level contained in the decisions applies to
critical uses only; use of methyl bromide for non-critical uses does
not count against this cap. In addition, there is no corresponding cap
on use of methyl bromide by non-critical uses. In the U.S., use of
methyl bromide for critical uses is limited through an allowance system
that limits the supply of methyl bromide for these uses. Therefore,
methyl bromide use for critical uses will not exceed the critical use
exemption level.
The commenter states that non-critical uses should not have any
access to methyl bromide whatsoever. EPA understands that the commenter
disagrees with EPA's approach of allowing non-critical users to have
access to methyl bromide after 2005, which is a separate issue and one
that the Agency previously addressed in the framework rule. The Agency
has not typically banned the use of Class I ozone-depleting substances
at the same time as production and import but rather has allowed use of
these substances to decline gradually over a period of time as the
supply diminishes. This approach was taken, for example, in the
phaseout of chlorofluorocarbons (CFCs) and halons, two powerful ozone
depleting substances. A period of continued use of previously produced
or imported quantities generally helps to ensure a smooth transition to
alternatives. This same approach has been taken by the Agency in the
phaseout of methyl bromide, with one narrow exception: a partial
restriction on access to stocks for critical uses as a condition of new
production. The issue of not affecting a ban on all non-exempt uses has
been addressed by the Agency in the framework rule and briefs filed by
the government in NRDC vs. EPA, D.C. Cir No. 04-1438. EPA refers the
public to the response to comment document for the framework rule and
the briefs that are available in E-docket OAR-2004-0560.
Fumigations may already have occurred in 2005 for uses that today's
final rule are determining, for the first time, to be critical. In
fact, since the control period is close to ending, that is the likely
case. At the time the fumigations occurred, however, the uses did not
qualify as approved critical uses, and thus any methyl bromide used in
those fumigations did not count against the total critical use
exemption level. As of December 9, 2005 these uses may now qualify for
the critical use exemption. Based on the architecture of the exemption
program as set forth in the framework rule, these uses are no
different, for example, than uses that may be non-critical at one point
during the control period and critical at a later point due to reaching
of a local township cap on the use of methyl bromide alternatives.
Therefore, EPA is treating these uses consistently with the Agency's
treatment under 40 CFR 82.4(p)(2)(vi) of uses affected by the reaching
of a local township cap. Again, the question of whether non-critical
uses should be able to use methyl bromide after the date when the U.S.
was obligated to cease production and import of the chemical is a
separate issue and one previously addressed in the framework rule.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, OMB has notified
EPA that it considers this a ``significant regulatory action'' within
the meaning of the Executive Order. EPA has submitted this action to
OMB for review. Changes made in response to OMB suggestions will be
documented in the public record.
This final action will likely have a minor cost savings associated
with its implementation, but the Agency did not conduct a formal
analysis of savings given that such an analysis would have resulted in
negligible savings. This action represents the authorization of only
2.5 percent of the 1991 consumption baseline of methyl bromide to be
made available for critical uses.
B. Paperwork Reduction Act
The information collection requirements in this rule have been
submitted for approval to the Office of Management and Budget (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 2179.03. This rule supplements the rule
published in the Federal Register on December 23, 2004 (69 FR 76982).
The information collection under this rule is authorized under Sections
603(b), 603(d) and 614(b) of the Clean Air Act (CAA).
The mandatory reporting requirements included in this rule are
intended to:
(1) Satisfy U.S. obligations under The Montreal Protocol on
Substances that Deplete the Ozone Layer (Protocol), to report data
under Article 7;
(2) Fulfill statutory obligations under Section 603(b) of the Clean
Air Act mendments of 1990 (CAAA) for reporting and monitoring;
(3) Provide information to report to Congress on the production,
use and consumption of class I controlled substances as statutorily
required in Section 603(d) of the CAAA.
In this rule, EPA is amending the reporting and recordkeeping
Requirements in 40 CFR part 82 to require that entities report the
amount of pre-phaseout methyl bromide
[[Page 73612]]
inventory, held for sale or for transfer to another entity, to the
Agency on an annual basis. Pre-phaseout refers to inventories of methyl
bromide produced or imported prior to January 1, 2005. This additional
requirement will allow EPA to track the drawdown of pre-phaseout
inventories. The additional burden associated with the new
recordkeeping and reporting requirements is summarized in the table
below.
----------------------------------------------------------------------------------------------------------------
Number of Total number Hours per
Collection activity respondents of responses response Total hours
----------------------------------------------------------------------------------------------------------------
Rule Familiarization............................ 54 54 .5 27
Data Compilation (annual basis)................. 54 54 .5 27
Data Reporting (annual basis)................... 54 54 .5 27
-----------------
Total Burden Hours.......................... .............. 162 .............. 81
----------------------------------------------------------------------------------------------------------------
EPA informs respondents that they may assert claims of business
confidentiality for any of the information they submit. Information
claimed confidential will be treated in accordance with the procedures
for handling information claimed as confidential under 40 CFR Part 2,
Subpart B, and will be disclosed only to the extent, and by means of
the procedures, set forth in that subpart. If no claim of
confidentiality is asserted when the information is received by EPA, it
may be made available to the public without further notice to the
respondents (40 CFR 2.203).
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; process and maintain information; disclose and
provide 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.
C. Regulatory Flexibility Act
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this final rule. For purposes
of assessing the impacts of today's rule on small entities, small
entity is defined as: (1) A small business that is identified by the
North American Industry Classification System (NAICS) Code in the Table
below; (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.
----------------------------------------------------------------------------------------------------------------
NAICS small business
size standard (in
Category NAICS code SIC code number of employees or
millions of dollars)
----------------------------------------------------------------------------------------------------------------
Agricultural production.......... 1112--Vegetable and Melon 0171--Berry.............. $0.75 million.
farming. 0171--Berry Crops........
1114--Greenhouse, 0181--Ornamental
Nursery, and Floriculture and Nursery
Floriculture Production. products.
Storage Uses..................... 115114--Postharvest crop 4221--Farm Product 21.5 million.
activities (except Warehousing and Storage.
Cotton Ginning).
493110--General 4225--General Warehousing
Warehousing and Storage. and Storage.
493130--Farm Product
Warehousing Storage.
----------------------------------------------------------------------------------------------------------------
Agricultural producers of minor crops and entities that store
agricultural commodities are categories of affected entities that
contain small entities. This rule only affects entities that applied to
EPA for a de-regulatory exemption. In most cases, EPA received
aggregated requests for exemptions from industry consortia. On the
exemption application, EPA asked consortia to describe the number and
size distribution of entities their application covered. Based on the
data provided, EPA estimates that 3,218 entities petitioned EPA for an
exemption. Since many applicants did not provide information on the
distribution of sizes of entities covered in their applications, EPA
estimated that between one-fourth and one-third of the entities may be
small businesses based on the definition given above. In addition,
other categories of affected entities do not contain small businesses
based on the above description.
After considering the economic impacts of today's rule on small
entities, EPA has concluded that this action will not have a
significant economic impact on a substantial number of small entities.
The small entities directly regulated by this rule are primarily
agricultural entities, producers, importers, and distributors of methyl
bromide, as well as any entities holding inventory of methyl bromide.
In determining whether a rule has a significant economic impact on
a substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any
[[Page 73613]]
significant economic impact of the rule on small entities.'' (5 U.S.C.
603-604). Thus, an Agency may conclude that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves a regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule. Since
this rule will make additional methyl bromide available for approved
critical uses after the phaseout date of January 1, 2005, this is a de-
regulatory action which will confer a benefit to users of methyl
bromide. EPA believes the estimated de-regulatory value for users of
methyl bromide is between $20 million to $30 million annually, as a
result of the entire critical use exemption program over its projected
duration. We have therefore concluded that today's final rule will
relieve regulatory burden for all small entities.
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. Today's rule creates a recordkeeping and
reporting burden on the private sector that is estimated to be under
$200,000 on an annual basis. Thus, today's rule is not subject to the
requirements of sections 202 and 205 of the UMRA. Further, EPA has
determined that this rule contains no regulatory requirements that
might significantly or uniquely affect small governments because it
does not create any requirements on any State, local, or tribal
government.
E. Executive Order No. 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. Today's rule is expected to
primarily affect producers, suppliers, importers and exporters and
users of methyl bromide. Thus, Executive Order 13132 does not apply to
this rule.
F. Executive Order No. 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order No. 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 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.'' This final rule does not have
tribal implications, as specified in Executive Order No. 13175. Today's
final rule does not significantly or uniquely affect the communities of
Indian tribal governments. The final rule does not impose any
enforceable duties on communities of Indian tribal governments. Thus,
Executive Order No. 13175 does not apply to this final rule.
G. Executive Order No. 13045: Protection of Children From Environmental
Health & Safety Risks
Executive Order No. 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.
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under Section 5-501 of the Order has the
potential to influence the regulation. This final rule is not subject
to Executive Order 13045 because it does not establish an environmental
standard intended to mitigate health or safety risks.
H. Executive Order No. 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not a ``significant energy action'' as defined in
Executive Order No. 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 rule does
not pertain to any segment of the energy production economy nor does it
regulate any manner of energy use. Therefore, we have concluded that
this rule is not likely to have any adverse energy effects.
I. National Technology Transfer Advancement Act
As noted in the proposed rule, Section 12(d) of the National
[[Page 73614]]
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 on December 9, 2005.
List of Subjects in 40 CFR Part 82
Environmental protection, Administrative practice and procedures,
Air pollution control, Chemicals, Exports, Imports, Ozone, Production,
Reporting and recordkeeping requirements, and Treaties.
Dated: December 7, 2005.
Stephen L. Johnson,
Administrator.
0
40 CFR Part 82 is amended as follows:
PART 82--PROTECTION OF STRATOSPHERIC OZONE
0
1. The authority citation for part 82 continues to read as follows:
Authority: 42 U.S.C. 7414, 7601, 7671-7671q.
0
2. Section 82.4 is amended by revising paragraph (p)(2)(vi) to read as
follows:
Sec. 82.4 Prohibitions for class I controlled substances.
* * * * *
(p) * * *
(2) * * *
(vi) No person who purchases critical use methyl bromide during the
control period shall use that methyl bromide on a field or structure
for which that person has used non-critical use methyl bromide for the
same use (as defined in Columns A and B of Appendix L) in the same
control period, excepting methyl bromide used under the quarantine and
pre-shipment exemption, unless, subsequent to that person's use of the
non-critical use methyl bromide, that person becomes subject to a
prohibition on the use of methyl bromide alternatives due to the
reaching of a local township limit described in Appendix L of this
part, or becomes an approved critical user as a result of rulemaking.
* * * * *
0
3. Section 82.8 is amended by revising paragraph (c)(2) to read as
follows:
Sec. 82.8 Grant of essential use allowances and critical use
allowances.
* * * * *
(c) * * *
(2) Allocated critical stock allowances granted for specified
control period. The following companies are allocated critical stock
allowances for 2005 on a pro-rata basis in relation to the stocks held
by each.
Company
Albemarle
Ameribrom, Inc.
Bill Clark Pest Control, Inc.
Blair Soil Fumigation
Burnside Services, Inc.
Cardinal Professional Products
Carolina Eastern, Inc.
Degesch America, Inc.
Dodson Bros.
Great Lakes Chemical Corporation
Harvey Fertilizer and Gas
Helena Chemical Co.
Hendrix and Dail
Hy Yield Bromine
Industrial Fumigation Company
J.C. Ehrlich Co.
Pacific Ag
Pest Fog Sales Corporation
ProSource One
Reddick Fumigants
Royster-Clark, Inc.
Southern State Cooperative, Inc.
Trical, Inc.
Trident Agricultural Products
UAP Southeast (NC)
UAP Southeast (SC)
Univar
Vanguard Fumigation Co.
Western Fumigation
TOTAL 1,893,879 KILOGRAMS
0
4.Section 82.13 is amended as follows:
0
a. By revising paragraphs (f)(3) introductory text, (f)(3)(xvii) and by
adding (f)(3)(xviii).
0
b. By revising paragraph (g)(4) introductory text.
0
c. By adding paragraph (g)(4)(xix).
0
d. By revising paragraph (bb)(2)(iv) and adding paragraph (b)(2)(v).
0
e. By revising paragraph (cc)(2)(iv) and adding paragraph (cc)(2)(v).
0
f. By revising paragraph (dd).
Sec. 82.13 Recordkeeping and Reporting Requirements for class I
controlled substances.
* * * * *
(f) * * *
(3) Reporting Requirements--Producers. For each quarter, except as
specified below, each producer of a class I controlled substance must
provide the Administrator with a report containing the following
information:
* * * * *
(xvii) A list of the quantities of class I, Group VI controlled
substances produced by the producer and exported by the producer and/or
by other U.S. companies in that control period, solely to satisfy the
critical uses authorized by the Parties for that control period; and
(xviii) On an annual basis, the amount of methyl bromide produced
or imported prior to the January 1, 2005, phaseout date owned by the
reporting entity, as well as quantities held by the reporting entity on
behalf of another entity, specifying the name of the entity on whose
behalf the material is held.
(g) * * *
(4) Reporting Requirements--Importers. For each quarter, except as
specified below, every importer of a class I controlled substance
(including importers of used, recycled or reclaimed controlled
substances) must submit to the Administrator a report containing the
following information:
* * * * *
(xix) Importers shall report annually the amount of methyl bromide
produced or imported prior to the January 1, 2005, phaseout date owned
by the reporting entity, as well as quantities held by the reporting
entity on behalf of another entity, specifying the name of the entity
on whose behalf the material is held.
* * * * *
(bb) * * *
(2) * * *
(iv) The number of unexpended and expended critical stock
allowances;
(v) The amount of methyl bromide produced or imported prior to the
January 1, 2005, phaseout date owned
[[Page 73615]]
by the reporting entity, as well as quantities held by the reporting
entity on behalf of another entity, specifying the name of the entity
on whose behalf the material is held.
* * * * *
(cc) * * *
(2) * * *
(iv) The number of unexpended and expended critical stock
allowances;
(v) The amount of methyl bromide produced or imported prior to the
January 1, 2005 phaseout date owned by the reporting entity, as well as
quantities held by the reporting entity on behalf of another entity,
specifying the name of the entity on whose behalf the material is held.
(dd) Every approved critical user purchasing an amount of critical
use methyl bromide or purchasing fumigation services with critical use
methyl bromide must, for each request, identify the use as a critical
use and certify that it is an approved critical user. The approved
critical user certification will state, in part: ``I certify, under
penalty of law, that I am an approved critical user and I will use this
quantity of methyl bromide for an approved critical use. My action
conforms to the requirements associated with the critical use exemption
published in 40 CFR part 82. I am aware that any agricultural commodity
within a treatment chamber, facility, or field I fumigate with critical
use methyl bromide cannot subsequently or concurrently be fumigated
with non-critical use methyl bromide during the same control period,
excepting a QPS treatment or a treatment for a different use (e.g., a
different crop or commodity). I will not use this quantity of methyl
bromide for a treatment chamber, facility, or field that I previously
fumigated with non-critical use methyl bromide purchased during the
same control period, excepting a QPS treatment or a treatment for a
different use (e.g., a different crop or commodity), unless a local
township limit now prevents me from using methyl bromide alternatives
or I have now become an approved critical user as a result of
rulemaking.'' The certification will also indicate the type of critical
use methyl bromide purchased, the location of the treatment, the crop
or commodity treated, the quantity of critical use methyl bromide
purchased, and the acreage/square footage treated, and will be signed
and dated by the approved critical user.
0
5. Appendix L is revised to read as follows:
Appendix L to Subpart A of Part 82--Approved Critical Uses, and
Limiting Critical Conditions for Those Uses for the 2005 Control Period
------------------------------------------------------------------------
Column A Column B Column C
------------------------------------------------------------------------
Approved Critical Uses........ Approved Critical Limiting Critical
User and Conditions.
Location of Use.
-------------------------------
Pre-plant uses
------------------------------------------------------------------------
Cucurbits..................... (a) Michigan With a reasonable
growers. expectation that
moderate to severe
fungal pathogen
infestation either
already exists or
could occur without
methyl bromide
fumigation.
(b) Alabama, With a reasonable
Arkansas, expectation that
Georgia, North moderate to severe
Carolina, South yellow or purple
Carolina, nutsedge infestation
Tennessee, and either already
Virginia growers. exists or could
occur without methyl
bromide fumigation.
Eggplant...................... (a) Georgia With a reasonable
growers. expectation that
moderate to severe
yellow or purple
nutsedge infestation
either already
exists or could
occur without methyl
bromide fumigation.
(b) Florida With a reasonable
growers. expectation that one
or more of the
following limiting
critical conditions
either already
exists or could
occur without methyl
bromide fumigation:
moderate to severe
yellow or purple
nutsedge
infestation, or
karst topography.
(c) Michigan With a reasonable
Growers. expectation that
moderate to severe
fungal pathogen
infestation either
already exists or
could occur without
methyl bromide
fumigation.
Forest Seedlings.............. (a) Members of With a reasonable
the Southern expectation that one
Forest Nursery or more of the
Management following imiting
Cooperative critical conditions
limited to either already
growing exists or could
locations in occur without methyl
Alabama, bromide fumigation:
Arkansas, moderate to severe
Florida, yellow or purple
Georgia, nutsedge
Louisiana, infestation, or
Mississippi, moderate to severe
North Carolina, disease infestation.
Oklahoma, South
Carolina,
Tennessee,
Texas, and
Virginia.
(b) International With a reasonable
Paper and its expectation that one
subsidiaries or more of the
limited to following limiting
growing critical conditions
locations in either already
Alabama, exists or could
Arkansas, occur without methyl
Georgia, South bromide fumigation:
Carolina, and moderate to severe
Texas. yellow or purple
nutsedge
infestation, or
moderate to severe
disease infestation.
(c) Weyerhaeuser With a reasonable
Company and its expectation that one
subsidiaries or more of the
limited to following limiting
growing critical conditions
locations in either already
Alabama, exists or could
Arkansas, North occur without methyl
Carolina, South bromide fumigation:
Carolina, moderate to severe
Oregon, and yellow or purple
Washington. nutsedge
infestation, or
moderate to severe
disease infestation.
(d) Public With a reasonable
(government- expectation that one
owned) seedling or more of the
nurseries in the following limiting
states of critical conditions
California, either already
Idaho, Illinois, exists or could
Indiana, Kansas, occur without methyl
Kentucky, bromide fumigation:
Maryland, moderate to severe
Missouri, yellow or purple
Nebraska, New nutsedge
Jersey, Ohio, infestation, or
Oregon, moderate to severe
Pennsylvania, disease infestation.
Utah,
Washington, West
Virginia,
Wisconsin.
(e) Members of With a reasonable
the Nursery expectation that one
Technology or more of the
Cooperative following limiting
limited to critical conditions
growing either already
locations in exists or could
Oregon and occur without methyl
Washington. bromide fumigation:
moderate to severe
yellow or purple
nutsedge
infestation, or
moderate to severe
disease infestation.
[[Page 73616]]
(f) Michigan With a reasonable
seedling expectation that one
nurseries. or more of the
following limiting
critical conditions
either already
exists or could
occur without methyl
bromide fumigation:
moderate to severe
yellow or purple
nutsedge
infestation, or
moderate to severe
disease infestation.
Ginger........................ Hawaii growers... With a reasonable
expectation that
moderate to severe
bacterial wilt
infestation either
already exists or
could occur without
methyl bromide
fumigation.
Orchard Nursery Seedlings..... (a) Members of With a reasonable
the Western expectation that one
Raspberry or more of the
Nursery following limiting
Consortium critical conditions
limited to either already
growing exists or could
locations in occur without methyl
California and bromide fumigation:
Washington moderate to severe
(Driscoll's nematode
raspberries and infestation, medium
their contract to heavy clay soils,
growers in or a prohibition on
California and the use of 1,3-
Washington). dichloropropene
products because
local township
limits on this
alternative have
been reached.
(b) Members of With a reasonable
the California expectation that one
Association of or more of the
Nurserymen- following limiting
Deciduous Fruit critical conditions
and Nut Tree either already
Growers. exists or could
occur without methyl
bromide fumigation:
moderate to severe
nematode
infestation, medium
to heavy clay soils,
or a prohibition on
the use of 1,3-
dichloropropene
products because
local township
limits on this
alternative have
been reached.
(c) Members of With a reasonable
the California expectation that one
Association of or more of the
Nurserymen--Citr following limiting
us and Avocado critical conditions
Growers. either already
exists or could
occur without methyl
bromide fumigation:
moderate to severe
nematode
infestation, medium
to heavy clay soils,
or a prohibition on
the use of 1,3-
dichloropropene
products because
local township
limits on this
alternative have
been reached.
Orchard Replant............... (a) California With a reasonable
stone fruit expectation that one
growers. or more of the
following limiting
critical conditions
either already
exists or could
occur without methyl
bromide fumigation:
replanted (non-
virgin) orchard
soils to prevent
orchard replant
disease, medium to
heavy soils, or a
prohibition on the
use of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
(b) California With a reasonable
table and raisin expectation that one
grape growers. or more of the
following limiting
critical conditions
either already
exists or could
occur without methyl
bromide fumigation:
replanted (non-
virgin) orchard
soils to prevent
orchard replant
disease, medium to
heavy soils, or a
prohibition on the
use of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
(c) California With a reasonable
walnut growers. expectation that one
or more of the
following limiting
critical conditions
either already
exists or could
occur without methyl
bromide fumigation:
replanted (non-
virgin) orchard
soils to prevent
orchard replant
disease, medium to
heavy soils, or a
prohibition on the
use of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
(d) California With a reasonable
almond growers. expectation that one
or more of the
following limiting
critical conditions
either already
exists or could
occur without methyl
bromide fumigation:
replanted (non-
virgin) orchard
soils to prevent
orchard replant
disease, medium to
heavy soils, or a
prohibition on the
use of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
Ornamentals................... (a) Yoder For use in all
Brothers Inc. in chrysanthemum
Florida. production.
(b) California With a reasonable
rose nurseries. expectation that the
user may be
prohibited from
using 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
(c) California With a reasonable
Cut Flower expectation that the
Commission user may be
growers and prohibited from
Florida growers. using 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
Peppers....................... (a) California With a reasonable
growers. expectation that one
or more of the
following limiting
critical conditions
either already
exists or could
occur without methyl
bromide fumigation:
moderate to severe
disease infestation,
moderate to severe
yellow or purple
nutsedge
infestation, or a
prohibition on the
use of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
(b) Alabama, With a reasonable
Arkansas, expectation that one
Georgia, North or more of the
Carolina, South following limiting
Carolina, critical conditions
Tennessee and either already
Virginia growers. exists or could
occur without methyl
bromide fumigation:
moderate to severe
yellow or purple
nutsedge
infestation, or the
presence of an
occupied structure
within 100 feet of a
grower's field the
size of 100 acres or
less.
(c) Florida With a reasonable
growers. expectation that one
or more of the
following limiting
critical conditions
either already
exists or could
occur without methyl
bromide fumigation:
moderate to severe
yellow or purple
nutsedge
infestation, or
karst topography.
(d) Michigan With a reasonable
growers. expectation that
moderate to severe
fungal pathogen
infestation either
already exists or
could occur without
methyl bromide
fumigation.
[[Page 73617]]
Strawberry Nurseries.......... (a) California With a reasonable
growers. expectation that one
or more of the
following limiting
critical conditions
either already
exists or could
occur without methyl
bromide fumigation:
moderate to severe
black root rot or
crown rot, or
moderate to severe
yellow or purple
nutsedge
infestation.
(b) North With a reasonable
Carolina and expectation that the
Tennessee use will occur in
growers. the presence of an
occupied structure
within 100 feet of a
grower's field the
size of 100 acres or
less.
Strawberry Fruit.............. (a) California With a reasonable
growers. expectation that one
or more of the
following limiting
critical conditions
either already
exists or could
occur without methyl
bromide fumigation:
moderate to severe
black root rot or
crown rot, moderate
to severe yellow or
purple nutsedge
infestation, a
prohibition on the
use of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached, or
time to transition
to an alternative.
(b) Florida With a reasonable
growers. expectation that one
or more of the
following limiting
critical conditions
either already
exists or could
occur without methyl
bromide fumigation:
moderate to severe
yellow or purple
nutsedge, or karst
topography.
(c) Alabama, With a reasonable
Arkansas, expectation that one
Georgia, New or more of the
Jersey, North following limiting
Carolina, Ohio, critical conditions
South Carolina, either already
Tennessee, and exists or could
Virginia growers. occur without methyl
bromide fumigation:
moderate to severe
yellow or purple
nutsedge, or the
presence of an
occupied structure
within 100 feet of a
grower's field the
size of 100 acres or
less.
Sweet Potatoes................ California With a reasonable
growers. expectation that the
user may be
prohibited from
using 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
Tomatoes...................... (a) Michigan With a reasonable
growers. expectation that one
or more of the
following limiting
critical conditions
either already
exists or could
occur without methyl
bromide fumigation:
moderate to severe
disease infestation,
or fungal pathogen
infestation.
(b) Alabama, With a reasonable
Arkansas, expectation that one
Georgia, North or more of the
Carolina, South following limiting
Carolina, critical conditions
Tennessee, and either already
Virginia growers. exists or could
occur without methyl
bromide fumigation:
moderate to severe
yellow or purple
nutsedge
infestation, or the
presence of an
occupied structure
within 100 feet of a
grower's field the
size of 100 acres or
less.
(c) Florida With a reasonable
growers. expectation that one
or more of the
following limiting
critical conditions
either already
exists or could
occur without methyl
bromide fumigation:
moderate to severe
yellow or purple
nutsedge
infestation, or
karst topography.
(d) California With a reasonable
growers in San expectation that
Diego and moderate to severe
Ventura counties. pest pressure exists
and where
alternatives are
ineffective because
of hilly terrain.
Turfgrass..................... (a) U.S. For the production of
turfgrass sod industry-certified
nursery pure sod.
producers who
are members of
Turfgrass
Producers
International
(TPI).
(b) U.S. golf For establishing sod
courses. in the construction
of new golf courses
or the renovation of
putting greens,
tees, and fairways.
-------------------------------
Post-harvest uses
------------------------------------------------------------------------
Food Processing............... (a) Rice millers With a reasonable
in all locations expectation that one
in the U.S. who or more of the
are members of following limiting
the USA Rice critical conditions
Millers exists: older
Association. structures that
cannot be properly
sealed to use an
alternative to
methyl bromide, the
presence of
sensitive electronic
equipment subject to
corrosivity, or time
to transition to an
alternative.
(b) Pet food With a reasonable
manufacturing expectation that one
facilities in or more of the
the U.S. who are following limiting
active members critical conditions
of the Pet Food exists; older
Institute. (For structures that
today's rule, cannot be properly
``pet food'' sealed to use an
refers to alternative to
domestic dog and methyl bromide, the
cat food). presence of
sensitive electronic
equipment subject to
corrosivity, or time
to transition to an
alternative.
(c) Kraft Foods With a reasonable
in the U.S.. expectation that one
or more of the
following limiting
critical conditions
exists: older
structures that
cannot be properly
sealed to use an
alternative to
methyl bromide, the
presence of
sensitive electronic
equipment subject to
corrosivity, or time
to transition to an
alternative.
(d) Members of With a reasonable
the North expectation that one
American or more of the
Millers' following limiting
Association in critical conditions
the U.S. either already
exists or could
occur without methyl
bromide fumigation:
older structures
that cannot be
properly sealed to
use an alternative
to methyl bromide,
the presence of
sensitive electronic
equipment subject to
corrosivity, or time
to transition to an
alternative.
(e) Members of With a reasonable
the National expectation that one
Pest Management or more of the
Association following limiting
(associated with critical conditions
dry commodity either already
structure exists or could
fumigation occur without methyl
(cocoa) and dry bromide fumigation:
commodity older structures
fumigation that cannot be
(processed food, properly sealed in
herbs, spices, order to use an
and dried milk)). alternative to
methyl bromide, the
presence of
electronic equipment
that is subject to
corrosivity, where
heat treatment would
cause rancidity to a
particular
commodity, or time
to transition to an
alternative is
needed.
Commodity Storage............. (a) Gwaltney of For smokehouse ham
Smithfield in curing facilities
the U.S. owned by the
company.
[[Page 73618]]
(b) Dry cured Pork product
pork products: facilities who are
Members of the members of the
National Country Association.
Ham Association.
(c) Dry cured Pork product
pork products: facilities who are
Members of the members of the
American Association.
Association of
Meat Processors.
(d) Dry cured For facilities owned
pork products: by the company.
Nahunta Pork
Center.
(e) California With a reasonable
entities storing expectation that one
walnuts, beans, or more of the
dried plums, following limiting
figs, raisins, critical conditions
and pistachios exists: rapid
in California. fumigation is
required to meet a
critical market
window, such as
during the holiday
season; when a buyer
provides short (2
days or less)
notification for a
purchase; or there
is a short period
after harvest in
which to fumigate
and there is limited
silo availability
for using
alternatives.
(f) Growers and With a reasonable
packers who are expectation that one
members of the or more of the
California Date following limiting
Commission, critical conditions
whose facilities exists: rapid
are located in fumigation is
Riverside County. required to meet a
critical market
window, such as
during the holiday
season, when a buyer
provides short (2
days or less)
notification for a
purchase, or there
is a short period
after harvest in
which to fumigate
and there is limited
silo availability
for using
alternatives.
------------------------------------------------------------------------
[FR Doc. 05-23971 Filed 12-12-05; 8:45 am]
BILLING CODE 6560-50-P