[Federal Register Volume 70, Number 167 (Tuesday, August 30, 2005)]
[Rules and Regulations]
[Pages 51270-51286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17191]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-7962-4]
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: Direct Final Rule.
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SUMMARY: With this action EPA is taking direct final action to
authorize 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 list of exempted critical uses. With today's action
EPA is exempting methyl bromide for critical uses beyond the phaseout
under the authority of the Clean Air Act (CAA or the Act) and in
accordance with the Montreal Protocol on Substances that Deplete the
Ozone Layer (Protocol).
DATES: This rule is effective on October 31, 2005 without further
notice, unless EPA receives adverse comment by September 29, 2005, or
by October 14, 2005 if a hearing is requested. If adverse comments are
received, we will publish a timely withdrawal in the Federal Register
informing the public that this rule will not take effect. If anyone
contacts EPA requesting to speak at a public hearing by September 9,
2005, a public hearing will be held on September 14, 2005.
ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2004-
0506, by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Agency Website: http://www.epa.gov/edocket. EDOCKET, EPA's
electronic public docket and comment system, is EPA's preferred method
for receiving comments. Follow the on-line instructions for submitting
comments.
E-mail: [email protected].
Fax: 202-343-2337 attn: Marta Montoro.
Mail: Air Docket, Environmental Protection Agency,
Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. 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 Air Docket, EPA West 1301 Constitution
Avenue, NW., Room B108, Mail Code 6102T, Washington, DC 20460. 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. OAR-2004-0506.
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.epa.gov/edocket, 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 EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the federal regulations.gov websites are
``anonymous access'' systems, 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 EDOCKET or 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 information about EPA's public
docket visit EDOCKET on-line or see the Federal Register of May 31,
2002 (67 FR 38102).
Docket: 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 20460. 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 Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: For further information about this
direct final rule, contact Marta Montoro by telephone at (202) 343-
9321, or by e-mail at [email protected], or by mail at Marta
Montoro, U.S.
[[Page 51271]]
Environmental Protection Agency, Stratospheric Protection Division,
(6205J), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Overnight
or courier deliveries should be sent to 1310 L St., NW., Washington, DC
20005, attn: Marta Montoro. You may also visit the Ozone Depletion web
site of EPA's Stratospheric Protection Division at http://www.epa.gov/ozone/index.html for further information about EPA's Stratospheric
Ozone Protection regulations, the science of ozone layer depletion, and
other topics.
SUPPLEMENTARY INFORMATION: EPA is publishing this rule without prior
proposal because we view this as a noncontroversial amendment and
anticipate no adverse comment since EPA is not authorizing any
additional new production or import of methyl bromide. The additional
authorized amounts must come from inventories produced or imported
prior to January 1, 2005. However, in the ``Proposed Rules'' section of
today's Federal Register publication, we are publishing a separate
document that will serve as the proposal to authorize 610,665 kilograms
of methyl bromide for critical uses if adverse comments are filed. If
EPA receives adverse comment, we will publish a timely withdrawal in
the Federal Register informing the public that the rule will not take
effect. We will address all public comments in a subsequent final rule
based on the proposed rule. We will not institute a second comment
period on this action. Any parties interested in commenting must do so
at this time.
This action concerns regulation of methyl bromide pursuant to the
CAA as a class I, Group VI ozone-depleting substance. Under the CAA,
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. In today's action, EPA is amending the
list of approved critical uses of methyl bromide and issuing additional
CSAs for the 2005 control period. These actions are in accordance with
Decision XVI/2 of the countries that have ratified the Montreal
Protocol (the ``Parties''), taken at their November 2004 meeting.
Table of Contents
I. General Information
A. Regulated entities
B. How Can I Get Copies of This Document and Other Related
Information?
C. How and To Whom Do I Submit Comments?
D. How Should I Submit Confidential Business Information (CBI)
To the Agency?
II. What Is the Background of the Phaseout Regulations for Ozone-
Depleting Substances?
III. What Is Methyl Bromide?
IV. Legal Basis for This Action
V. What Is the Critical Use Exemption Process?
A. Background on Critical Use Exemption Process
B. 2005 Supplemental Request
C. International Review of Critical Use Exemption Nominations
VI. Distribution of Critical Stock Allowances (CSAs).
VII. Supplemental Additional Critical Uses for Calendar Year 2005
A. Baseline for Critical Stock Allowance Distribution
B. Distribution of Critical Stock Allowances
C. Type of Critical Stock Allowances: Universal
VIII. What Are the Statutory and Executive Order Reviews?
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Analysis
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 & Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Congressional Review Act
I. General Information
A. Regulated Entities
Entities potentially regulated by this action are those associated
with the production, import, export, sale, application and authorized
use of methyl bromide. Potentially regulated categories and entities
include:
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Category Examples of regulated entities
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Industry............................. Producers, Importers and
Exporters of methyl bromide;
Applicators, Distributors of
methyl bromide; Users of methyl
bromide, e.g. farmers of fruit
and vegetable crops, owners of
stored food commodity facilities
and structures.
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The above table is not intended to be exhaustive, but rather
provides a guide for readers regarding entities likely to be regulated
by this action. This table lists the types of entities that EPA is now
aware could potentially be regulated by this action. To determine
whether your facility, company, business, or organization is regulated
by this action, you should carefully examine the regulations
promulgated at 40 CFR Part 82, Subpart A. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
B. How Can I Get Copies of This Document and Other Related Information?
1. Docket. EPA has established an official public docket for this
action under the Office of Air and Radiation Docket & Information
Center, Electronic Air Docket ID No. OAR-2004-0506. The official public
docket consists of the documents specifically referenced in this
action, any public comments received, and other information related to
this action. Although a part of the official docket, the public docket
does not include Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. The official
public docket is the collection of materials that is available for
public viewing at EPA West, 1301 Constitution Ave., NW., Room B108,
Mail Code 6102T, Washington, DC 20460, Phone: (202) 566-1742, Fax:
(202) 566-1741. The materials may be inspected from 8:30 am until 4:30
pm Monday through Friday, excluding legal holidays. A reasonable fee
may be charged for copying docket materials.
Additional supporting documents related to this action may be found
in EPA's electronic docket system, docket numbers OAR-2002-0018, OAR-
2003-0017, OAR-2003-0230, and in EPA's
[[Page 51272]]
paper docket, Air Docket ID No. A-2000-24.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/. An electronic version of the
public docket is available through EPA's electronic public docket and
comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the
index listing of the contents of the official public docket, and to
access those documents in the public docket that are available
electronically. Once in the system, select ``search,'' then key in the
appropriate docket identification number, OAR-2004-0506.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA's policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. Although not all
docket materials may be available electronically, you may still access
any of the publicly available docket materials through the docket
facility identified in the ADDRESSES section of this document.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the Docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
C. How and To Whom Do I Submit Comments?
You may submit comments electronically, by mail, by fax, or through
hand delivery/courier. To ensure proper receipt by EPA, identify the
appropriate docket identification number in the subject line on the
first page of your comment, in this instance OAR-2004-0506. Please
ensure that your comments are submitted within the specified comment
period. Comments received after the close of comment period will be
marked late. EPA is not required to consider these late comments. If
you plan to submit comments, please also notify Marta Montoro, U.S.
Environmental Protection Agency, Stratospheric Protection Division
(6205J), 1200 Pennsylvania Ave., NW., Washington, DC 20460, (202) 343-
9321.
Information designated as Confidential Business Information (CBI)
under 40 CFR, Part 2, Subpart 2, must be sent directly to the contact
person for this notice. However, the Agency is requesting that all
respondents submit a non-confidential version of their comments to the
docket as well.
Electronically. If you submit an electronic comment as prescribed
below, EPA recommends that you include your name, mailing address, and
an e-mail address or other contact information in the body of your
comment. Also include this contact information on the outside of any
disk or CD-ROM you submit, and in any cover letter accompanying the
disk or CD-ROM. This ensures that you can be identified as the
submitter of the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. EPA's policy is that EPA
will not edit your comment, and any identifying or contact information
provided in the body of a comment will be included as part of the
comment that is placed in the official public docket, and made
available in EPA's electronic public docket. 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.
i. EPA Dockets. Your use of EPA's electronic public docket to
submit comments to EPA electronically is EPA's preferred method for
receiving comments. Go directly to EPA dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments to
docket OAR-2004-0506.
ii. By Mail. Send one copy of your comments to each of the
following two offices: U.S. Environmental Protection Agency, Air and
Radiation Docket (6102), Electronic Air Docket ID No. OAR-2003-0230.
Washington, DC 20460 and to U.S. Environmental Protection Agency,
(6205J) 1200 Pennsylvania Ave., N.W., Washington, DC 20460, attn: Marta
Montoro, docket no. OAR-2004-0506.
iii. By Hand Delivery or Courier. Deliver your comments to: Marta
Montoro, 1310 L Street NW., Washington, DC 20005, Attention Electronic
Air Docket ID No. OAR-2004-0506. Such deliveries are only accepted
during the normal hours of operation 9 a.m to 5 p.m.
iv. By Facsimile. Fax your comments to both: (202) 566-1741,
Attention Electronic Air Docket ID No. OAR-2003-0230, and to (202) 343-
2337 or (202) 343-2338, Attention Marta Montoro, Electronic Air Docket
No. OAR-2004-0506.
D. How Should I Submit Confidential Business Information (CBI) to the
Agency?
Do not submit information that you consider to be CBI
electronically through EPA's electronic public docket or by e-mail.
Send or deliver information identified as CBI only to the mail or
courier addresses listed in the FOR FURTHER INFORMATION CONTACT
Section, Electronic Air Docket ID No. OAR-2004-0506. You may claim
information that you submit to EPA as CBI by marking any part or all of
that information as CBI (if you submit CBI on disk or CD-ROM, 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 CBI).
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR Part 2. In addition to one complete
version of the comment that includes any 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 and EPA's
electronic public docket. If you submit the copy that does not contain
CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM clearly
that it does not contain CBI. Information not marked as CBI will be
included in the public docket and EPA's electronic public docket
without prior notice. If you have any questions about CBI or the
procedures for claiming CBI, please consult the person identified in
[[Page 51273]]
the FOR FURTHER INFORMATION CONTACT Section.
II. What Is the Background to the Phaseout Regulations for Ozone-
Depleting Substances?
The current regulatory requirements of the Stratospheric Ozone
Protection Program that limit production and consumption of ozone
depleting substances can be found at 40 CFR Part 82 Subpart A. The
regulatory program was originally published in the Federal Register on
August 12, 1988 (53 FR 30566), in response to the 1987 signing and
subsequent ratification of the Montreal Protocol on Substances that
Deplete the Ozone Layer (Protocol). The U.S. was one of the original
signatories to the 1987 Montreal Protocol and the U.S. ratified the
Protocol on April 21, 1988. Congress then enacted, and President Bush
signed into law, the Clean Air Act Amendments of 1990 (CAAA of 1990)
which included Title VI on Stratospheric Ozone Protection, codified as
42 U.S.C. Chapter 85, Subchapter VI, to ensure that the United States
could satisfy its obligations under the Protocol. EPA issued new
regulations to implement this legislation and has made several
amendments to the regulations since that time.
III. What Is Methyl Bromide?
Methyl bromide is an odorless, colorless, toxic gas which is used
as a broad-spectrum pesticide and is controlled under the CAA as a
Class I ozone depleting substance (ODS). Methyl bromide is used in the
U.S. and throughout the world as a fumigant to control a wide variety
of pests such as insects, weeds, rodents, pathogens, and nematodes.
Additional characteristics and details about the uses of methyl bromide
can be found in the proposed rule on the phaseout schedule for methyl
bromide published in the Federal Register on March 18, 1993 (58 FR
15014) and the final rule published in the Federal Register on December
10, 1993 (58 FR 65018).
The phaseout schedule for methyl bromide production and consumption
was revised in a direct final rulemaking on November 28, 2000 (65 FR
70795), which allowed for the phased reduction in methyl bromide
consumption and extended the phaseout to 2005. The revised phaseout
schedule was again amended to allow for an exemption for quarantine and
preshipment purposes on July 19, 2001 (66 FR 37751) with an interim
final rule and with a final rule (68 FR 238) on January 2, 2003.
Information on methyl bromide can be found at the following sites of
the World Wide Web: http://www.epa.gov/ozone/mbr and http://www.unep.org/ozone or by contacting the Stratospheric Ozone Hotline at
1-800-296-1996.
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. Because of this status, a restricted use
pesticide is 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 CAA restrictions on the production, consumption and use
of methyl bromide for critical uses exempted from the phaseout of
methyl bromide.
IV. Legal Basis for This Action
Methyl bromide was added to the Protocol as an ozone depleting
substance in 1992 through the Copenhagen amendment to the Protocol. The
Parties authorize critical use exemptions through their Decisions.
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 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). This 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
ozone-depleting substances 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 to freeze the level of methyl bromide production and
consumption for industrialized countries at the 1992 Meeting of the
Parties in Copenhagen.
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 with exemptions permitted
for critical uses. At this time, the U.S. continued to have a 2001
phaseout date in accordance with the CAAA of 1990 language. 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
[[Page 51274]]
critical uses in the 2005 control period. In addition, EPA is amending
the existing list of approved critical uses.
Today's action reflects Decision XVI/2, taken at the Parties'
Sixteenth Meeting in November 2004. 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, supplemented 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 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 FR notice (69 FR 76984-
76985). Briefly, EPA regards 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).
In Decision XVI/2, taken in November 2004, the Parties to the
Protocol agreed as follows: `` Section IA of the Annex to Decision XVI/
2 lists the following supplemental critical use categories for the
U.S.: 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''. These are the uses for which the U.S. requested
either initial authorization or a higher critical use level in its
supplemental request for 2005. EPA is amending the following uses
listed in Column A of Appendix L to 40 CFR Part 82; Subpart A to
reflect Decision XVI/2: Eggplant; ornamentals; peppers; strawberry
fruit; tomatoes; food processing; and commodity storage. Based on the
applications underlying the U.S. supplemental request, EPA is modifying
Columns B and C of Appendix L to 40 CFR Part 82, Subpart A to add new
approved critical users, locations of use, and limiting critical
conditions.
Section IB of the Annex to Decision XVI/2 does not list a
supplemental level of production or consumption for the U.S. EPA's
December 23, 2004 final rule already authorizes the full amount of
production and consumption approved in the Parties' prior Decision
regarding critical uses in 2005, Decision Ex. I/3. Therefore, EPA is
not authorizing any additional production or consumption beyond that
already authorized in the December 23, 2004 final rule. Instead, EPA is
authorizing sale of additional amounts of methyl bromide from inventory
for critical uses in the 2005 control period. This approach is in
accordance with the Parties' statement in Decision Ex I/3 that ``a
Party with a critical-use exemption level in excess of permitted levels
of production and consumption for critical uses is to make up any such
difference between those levels by using quantities of methyl bromide
from stocks that the Party has recognized to be available.''
The December 23, 2004 final rule authorized production of 7,659,000
kilograms (30% of the 1991 consumption baseline) and sale of 1,283,214
kilograms (5% of the 1991 baseline) from pre-phaseout inventories. In
today's action, EPA is authorizing the sale of an additional 610,665
kilograms (2.4% of the 1991 baseline) from pre-phaseout inventories for
critical uses. Thus, the total critical use amount for 2005 would be
9,552,879 kilograms, with 1,893,879 kilograms coming from pre-phaseout
inventories.
V. What Is the Critical Use Exemption Process?
A. Background on Critical Use Exemption Process
Starting in 2002, EPA began notifying applicants as to 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. 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 on an annual basis since then.
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 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.
In EPA's recently published regulation describing the operational
framework for the critical use exemption (69 FR 76982) the majority of
critical uses for the 2005 calendar year were established. This action
authorizes additional uses that the U.S. government submitted to the
Protocol's Ozone Secretariat as a supplemental request in February
2004. In addition, EPA is adding to the number of CSAs previously
allocated for the 2005 control period.
For this action, the operational framework for authorizing CSAs is
described in EPA's recent regulation, published in the Federal Register
on December 23, 2004 (69 FR 76982). All elements of the framework, such
as the cap, trading provisions, and reporting and recordkeeping
obligations, remain the same for this action. However, this rulemaking
also allows additional quantities of methyl bromide to be made
available from inventory and to augment the list of approved critical
uses.
For information on EPA's calculation of CSAs, please see E-Docket
OAR-2004-0506.
B. 2005 Supplemental Request
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. This memo applies equally to the 2004 Nomination, which
included the supplemental request for 2005. 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
[[Page 51275]]
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, (nomination) in February 2003, EPA and
other U.S. government agencies decided to make supplemental requests in
February 2004 for certain sectors that did not apply for an exemption
in time for the 2003 nomination. For example, in some cases the sector
consortia did not file an application during the first round of
exemption applications in 2002, but instead did so in 2003. In other
cases, sector consortia filed additional materials in 2003. Lastly,
some sectors were incorrectly characterized in the first nomination, so
EPA amended the sector chapters and amount of requests in the form of
the 2005 supplemental request. The review process for the supplemental
request was rigorous, with technical and economic criteria in place
during the review process.
With the second nomination submitted to the Ozone Secretariat in
February 2004, most of which was intended for the 2006 control period,
the U.S. government included the supplemental request for 2005 in
Appendix B. Appendix B was attached to each of the nomination chapters,
available on E-Docket OAR-2004-0506 and http://www.epa.gov/mbr/nomination_2006.html. All of the supplemental requests were
characterized in the corresponding chapters in the nomination,
including explanations of technically and economically infeasible
alternatives for each sector. The U.S. originally nominated the
following new applicants for the 2005 supplemental request:
Applicant Name
California Cut Flower Commission
National Country Ham Association
Wayco Ham Company
California Date 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
American Association of Meat Processors
This request was subsequently modified. In August 2004, all of the
tobacco applicants withdrew their CUE requests for the 2005 control
period and beyond. With regard to the strawberry fruit sector, MBTOC
initially recommended a reduction to the U.S. request in this sector.
After being provided with additional information, MBTOC revised this
recommendation, and the United States was granted a supplemental
allocation to make up the difference. The U.S. also requested an
additional amount for tomatoes, having received new data regarding pest
pressure in two California counties. More information on each of these
sectors, including calculations of production losses and other
technical data, can be found in the annual nomination on E-Docket OAR-
2004-0506. Memos explaining the technical contexts and corrections for
both of these sectors are available on E-Docket OAR-2004-0506.
Ornamentals (California Cut Flower Commission and Florida Growers)
This request for a methyl bromide CUE was made on behalf of growers
in Florida and members of the California Cut Flower Commission. The
ornamentals industry is complex and growers produce multiple species
and varieties in a single year. This diversity makes finding methyl
bromide alternatives for each crop species very complicated. The
nomination for the ornamental sector was for areas with moderate-severe
pest pressure and for areas in California where critical users may be
prohibited from using 1,3-dichloropropene products because local
township caps for this alternative have been reached.
Dry Cured Pork Products (National Country Ham Association, American
Association of Meat Processors, Nahunta Pork Center)
For this sector, EPA received several more CUE applications for the
2006 control period that were also requesting methyl bromide for the
2005 control period. It should be noted that Ozark Country Ham and
Wayco Ham in the above table were eventually nominated under the
National Country Ham Association. The U.S. government nomination
included only facilities where dry cured ham, dry cured country ham,
hard salami, pepperoni, and sausage are produced. There are no
registered alternatives for this sector. The nomination was for
facilities owned by the companies that are members of these
associations, and for the Nahunta Pork Center.
Dried Fruit and Nuts (California Date Commission)
California produces most of the domestic supply of dates. The
nomination was for peak production periods, because high volumes of
dates must be processed in order to enter the market quickly for the
holiday season, or if there is limited silo availability for using
alternatives. Substantial time and production losses would occur if
processors were relying on alternatives alone, as there is a short
period after harvest in which to fumigate. The nomination is limited to
Riverside county.
National Pest Management Association
The U.S. government nominated commodities and food processing
plants treated by members of this association. Commodities included are
processed foods, spices and herbs, cocoa, and dried milk, and other
commodities that were nominated but not authorized. The nomination for
facilities that are older and cannot be properly sealed in order to use
a methyl bromide alternative, or for facilities that contain sensitive
electronic equipment that is subject to corrosivity as a result of
fumigation with a methyl bromide alternative, or in instances where
heat treatment would cause a commodity to go rancid.
Michigan Pepper Growers/Michigan Eggplant Growers
EPA is including these sectors separately in Appendix L. Initially
the request for eggplant and pepper growers in Michigan was included
with the request for tomato growers, but the sectors are distinct. The
request is for areas where fungal pathogen infestation is moderate to
severe.
Michigan Herbaceous Perennials
The U.S. government nominated this group because the currently
registered alternatives do not provide adequate treatment for the
numerous plant species grown. Research trials for efficacy are ongoing
for alternatives not yet registered. The request was for areas where
pest pressure is moderate to severe. These growers comprise part of the
forest seedling sector but did not submit a CUE application to EPA in
2002, during the first round. They are not currently listed in Column B
of Appendix L.
The report prepared by the technical advisory body, discussed
further in section V.C., is silent with regard to the 2005 request for
Michigan Herbaceous Perennials. Decision XVI/2 did not authorize
supplemental amounts for the seedling sector in 2005, nor did it list
herbaceous perennials separately as an
[[Page 51276]]
agreed critical use category. Thus, Decision XVI/2 did not affect the
status of Michigan Herbaceous Perennials for 2005.
C. International Review of Critical Use Exemption Nominations
The criteria for the exemption are delineated in Decision IX/6 of
the Parties to the Protocol. In that Decision, the Parties agreed that
``a use of methyl bromide should qualify as ``critical'' only if the
nominating Party determines that: (I) The specific use is critical
because the lack of availability of methyl bromide for that use would
result in a significant market disruption; and (ii) there are no
technically and economically feasible alternatives or substitutes
available to the user that are acceptable from the standpoint of
environment and public health and are suitable to the crops and
circumstances of the nomination. The U.S. government reviews
applications using these criteria and creates a package for submission
to the Ozone Secretariat of the Protocol (the ``critical use
nomination'' or CUN). The CUNs of various countries are then reviewed
by the Methyl Bromide Technical Options Committee (MBTOC) and the
Technical and Economic Assessment Panel (TEAP), which are independent
advisory bodies to the Parties. These bodies make recommendations to
the Parties regarding the nominations.
On February 7, 2004, the U.S. government submitted the second U.S.
Nomination for a Critical Use Exemption for Methyl Bromide to the Ozone
Secretariat of the United Nations Environment Programme. The 2005
supplemental request was submitted as Appendix B to this nomination.
This supplemental request, like the remainder of the document, was
based on a thorough analysis of the technical and economic feasibility
of available alternatives specified by the MBTOC for each critical use
and the potential for significant market disruption. The nomination can
be found on E-docket on OAR-2004-0506.
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-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 Technical and Economic
Assessment Panel (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/MBCUN-october2004.pdf 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.
In today's action, EPA is adding the new uses to the list of
approved critical uses, and allocating additional CSAs for the sale of
methyl bromide from inventory for critical uses in 2005.
EPA is also amending the Reporting and Recordkeeping Requirements
in 40 CFR part 82 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.
VI. Distribution of Critical Stock Allowances (CSAs)
A. Basis for Critical Stock Allowance Distribution
With today's action, EPA is allocating critical stock allowances
(CSAs) to producers and importers of methyl bromide, and other entities
that hold pre-phaseout quantities of methyl bromide for sale, on a pro-
rated basis in relation to an average of their 2003 and 2004 holdings
of inventory. Each CSA is equivalent to one kilogram of methyl bromide.
Thus, an allowance holder must expend one CSA for each kilogram of
methyl bromide sold to an approved critical user for approved critical
uses.
The methodology for calculating the amount of CSAs for 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 EPA with information about their holdings of methyl bromide.
EPA is allocating CSAs on a pro-rated basis, calculated as an
average of the entities' December 31, 2003 and August 25, 2004 holdings
of pre-phaseout methyl bromide as baseline. This same baseline was also
used to calculate CSAs in the allocation framework rule (69 FR 76982).
EPA also notes that due to a slight baseline reporting error, one
entity was granted fewer CSAs in the December, 2004 framework rule than
they would have been had this reporting error not occurred. The entity
has since clarified the data submitted to EPA. Therefore, EPA is
granting this entity sufficient CSAs from the 610,665 supplemental
amount to make up the difference and is calculating the distribution of
the supplemental CSAs based on the revised baseline. The total amount
for distribution using the revised baseline is 610,665 kilograms minus
the amount granted off the top to correct the earlier distribution.
B. Distribution of Critical Stock Allowances
Allocated CSAs are granted for a specified control period. 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
[[Page 51277]]
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 stocks of methyl
bromide are confidential business information. The amount of CSAs
allocated to each company could be used to calculate the individual
stock holdings if information on aggregate stock holdings were
released. EPA has determined that the aggregate stock information is
not confidential business information but is currently withholding that
information due to the filing of complaints seeking to enjoin the
Agency from its release. Because release could occur depending on the
outcome of that litigation, EPA is not listing the number of allowances
proposed for distribution to each entity. EPA is placing a document
listing the proposed allocations and distribution basis of CSAs for
each entity in the confidential portion of the docket.
With today's action, EPA is determining that 610,665 kgs of methyl
bromide are required to satisfy critical uses for the 2005 supplemental
request. As discussed in Section VII, the amount of the U.S.
supplemental request is based on applications received, public and
private databases, and a rigorous technical review. EPA is authorizing
those entities that hold inventories of methyl bromide to sell an
additional 610,665 kgs for approved supplemental critical uses during
2005.
EPA is also clarifying 40 CFR 82.4 (p)(2), which was added to Sec.
82.4 by the final allocation framework rule published on December 23,
2004 (69 FR 76982). Specifically, 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 proposing to make 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.''
C. Type of Critical Stock Allowances: Universal
During the proposal and finalization of EPA's previous regulatory
action concerning the operational framework for methyl bromide
allocation (69 FR 76982), EPA considered several options for
authorizing CSAs and CUAs. For CUAs, EPA co-proposed two options for
the cap on critical use methyl bromide: a universal cap where all
approved critical uses would purchase critical use methyl bromide and a
sector-specific cap where each of the 16 critical use sectors would
have their own cap of reserved material. In addition, EPA raised the
possibility of adopting various hybrid options. The universal cap was
supported by most public commenters because of the ease of
implementation and cost savings and efficiencies to the regulated
community. In the final rulemaking, EPA established two types of CUAs:
one for pre-plant soil uses and the other for post-harvest, structural
uses.
However, the portion of critical use methyl bromide to come from
stocks was both proposed and finalized as a universal cap. EPA received
no adverse comment to the proposal to make the quantities from stocks
available in a universal fashion.
Paragraph 3 of Decision XVI/2 states that ``Parties should
endeavour to ensure that the quantities of methyl bromide recommended
by the Technology and Economic Assessment Panel are allocated as listed
in Sections IA [2005 quantities] and IIA [2006 quantities] to the annex
to the present decision.'' Similar language appeared in Decision Ex I/
3. As described in the December 23, 2004 Federal Register notice (69 FR
76982), there would be significant administrative and practical
difficulties associated with a sector-specific cap. Therefore, EPA has
arrived at an allocation system that relies at least partly on the
market to allocate quantities on a sectoral basis. EPA anticipates,
based on historical use patterns and the research undertaken pursuant
to submitting the U.S. nomination, that usage patterns will generally
reflect the sectoral quantities found in the relevant annexes to
Decisions Ex I/3 and XVI/2.
Therefore, in today's action, EPA is allocating the additional CSAs
totaling 610,665 kilograms of critical use methyl bromide, for calendar
year 2005, in a universal fashion.
VII. Supplemental Additional Critical Uses for Calendar Year 2005
Based on EPA's assessment of the technical and economic feasibility
of alternatives and the potential for a significant market disruption
if methyl bromide were not available for the uses proposed for addition
in Appendix L, and the lack of any new information received since the
submission of the U.S. supplemental request that would change EPA's
assessment, EPA is adding new uses to Appendix L as reflected in the
table below. EPA is authorizing the additional critical uses for the
year 2005 as well as conditions that make these uses ``critical.'' This
proposal is based on the data submitted by critical use exemption
applicants, as well as public and proprietary data sources.
During the development of the nomination, EPA determined that the
following additional uses with the limiting critical conditions
specified below qualify to obtain and use critical use methyl bromide.
EPA also does not believe that the technical and economic data have
changed significantly since submitting the nomination. Therefore EPA
believes that the amounts nominated in February 2004 and authorized by
the Parties in November 2004 reflect the best available data. However,
EPA welcomes submissions of current information regarding
[[Page 51278]]
substitutes and alternatives for these uses.
In June 2004, MBTOC submitted questions to the U.S. government
about the nomination. While these questions did not specifically
concern the supplemental request for 2005, the questions concerned all
of the sectors in the supplemental request except for dried fruit and
nuts (dates). The questions predominately focused on alternatives to
methyl bromide and requested further clarification on points made in
the nomination. All of the MBTOC questions and the U.S. government
responses, submitted on August 13, 2004, are available on E-docket OAR-
2004-0506.
Amendments to Appendix L of CFR Part 82
The following table shows the additions to Appendix L of CFR Part
82.
------------------------------------------------------------------------
Column B Approved
Column A Approved critical critical user and Column C Limiting
uses location of use critical conditions
------------------------------------------------------------------------
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 product
the National facilities who are
Country Ham owned by companies
Association. that are members of
the Association.
(B) Members of Pork product
the American facilities owned by
Association of companies that are
Meat Processors. members of the
Association.
(C) Nahunta Pork
Center (North
Carolina).
------------------------------------------------------------------------
Summary of Supporting Analysis
VIII. 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
[[Page 51279]]
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 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 only 2.5% of 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 these rules is authorized under
Sections 603(b), 603(d) and 614(b) of the Clean Air Act (CAA).
The mandatory reporting requirements included in these rules are
intended to:
(1) Satisfy U.S. obligations under the international treaty, 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 Title VI
of the Clean Air Act Amendments of 1990 (CAA) 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 Title VI of the CAA.
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 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.
----------------------------------------------------------------------------------------------------------------
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.
When this ICR is approved by OMB, the Agency will publish a
technical amendment to 40 CFR part 9 in the Federal Register to display
the OMB control number for the approved information collection
requirements contained in these rules.
To obtain 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 the use of automated
collection techniques, EPA has established a public docket for this
rule, which includes this ICR, under Electronic Docket ID number OAR-
2004-0506. Submit any comments related to the rule ICR for this 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 Street NW., Washington DC 20503 attn: Desk Officer for EPA.
Include the EPA ICR number 2179.03 in correspondence related to this
ICR.
Since OMB is required to make a decision concerning the ICR between
30 and 60 days after August 30, 2005, a comment to OMB is best assured
of having its full effect if OMB receives it by September 29, 2005. The
final rule will respond to any OMB or public concerns on the
information collection requirements contained in this rule.
C. Regulatory Flexibility Analysis
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.
[[Page 51280]]
----------------------------------------------------------------------------------------------------------------
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
farming. 0171--Berry Crops...........
1114--Greenhouse, Nursery, 0181--Ornamental
and Floriculture Production. Floriculture and Nursery
products.
Storage Uses........................ 115114--Postharvest crop 4221--Farm Product 21.5
activities (except Cotton Warehousing and Storage.
Ginning). 4225--General Warehousing
493110--General 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 there are 3,218 entities that
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 \1/4\ to \1/3\ 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 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 by State, local and tribal governments, in
the aggregate, or by 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 of 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 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 by the
private sector, in any one year. Today's action contains only one new
mandate, which is the reporting requirement for the drawdown of pre-
phaseout inventories. Today's amendment does not create a Federal
mandate resulting in costs of $100 million or more in any one year for
State, local, and tribal governments, in the aggregate, or for the
private sector. Thus, today's rule is not subject to the requirements
of Sections 202 and 205 of the UMRA.
EPA has also determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments; therefore, EPA is not required to develop a plan with
regard to small governments under Section 203. Finally, because this
rule does not contain a significant intergovernmental mandate, the
Agency is not required to develop a process to obtain input from
elected State, local, and tribal officials under Section 204.
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
[[Page 51281]]
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 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 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 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 rule does not have
tribal implications, as specified in Executive Order 13175. The rule
does not impose any enforceable duties on communities of Indian tribal
governments. Thus, Executive Order 13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health & 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 E.O. 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 E.O. 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 rule is not subject to E.O. 13045
because it does not establish an environmental standard intended to
mitigate health or safety risks.
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 rule does
not pertain to any segment of the energy production economy nor does it
regulate any manner of energy use. Further, we have concluded that this
rule is not likely to have any adverse energy effects.
I. The 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
rulemaking does not involve technical standards. Therefore, EPA is not
considering 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 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 October 31, 2005.
List of Subjects in 40 CFR Part 82
Environmental protection, Chemicals, Methyl Bromide, Ozone,
Reporting and Recordkeeping requirements, Treaties.
Dated: August 23, 2005.
Stephen L. Johnson,
Administrator.
0
40 CFR part 82 is to be 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 (a) 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 (b) 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.
[[Page 51282]]
Bill Clark Pest Control, Inc.
Blair Soil Fumigation
Burnside Services, Inc.
Cardinal Professional Products
Carolina Eastern, Inc.
Degesch America, Inc.
Dodson Bros. Products
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 by revising paragraph (g)(4) introductory
text, paragraphs (bb)(2)(iv), (cc)(2)(iv), and (dd) and by adding
paragraphs (f)(3)(xviii), (g)(4)(xix), (bb)(2)(v) and (cc)(2)(v) to
read as follows:
Sec. 82.13 Recordkeeping and Reporting Requirements for class I
controlled substances.
* * * * *
(f) * * *
(3) Reporting Requirements--Producers. For each quarter, except as
specified in this paragraph (f)(3), each producer of a class I
controlled substance must provide the Administrator with a report
containing the following information:
* * * * *
(xviii) Producers 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.
(g) * * *
(4) Reporting Requirements--Importers. For each quarter, except as
specified in this paragraph (g)(4), 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 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 being an approved critical user. The approved critical
user certification will state, in part: I certify, under penalty of
law, ``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 can not 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, the acreage/square footage treated and will be signed and
dated by the approved critical user.
Appendix L--[Amended]
0
5. Appendix L is revised to read as follows:
------------------------------------------------------------------------
Column B
Column A Approved critical Approved critical Column C Limiting
uses user and location critical conditions
of use
------------------------------------------------------------------------
PRE-PLANT USES
------------------------------------------------------------------------
Cucurbits..................... (a) Michigan With a reasonable
growers. expectation that
moderate to severe
fungal pathogen
infestation already
either 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 already either
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 exist
or could occur
without methyl
bromide fumigation.
[[Page 51283]]
(b) Florida With a reasonable
growers. expectation that one
or more of the
following limiting
critical conditions
either already exist
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 already
either 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 limiting
Cooperative critical conditions
limited to already either exist
growing or could occur
locations in 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 already either exist
Arkansas, or could occur
Alabama, 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 already either exist
Alabama, or could occur
Arkansas, North 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, already either exist
Idaho, Illinois, or could occur
Indiana, Kansas, 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 and
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 already either exist
locations in or could occur
Oregon and without methyl
Washington. bromide fumigation:
moderate to severe
yellow or purple
nutsedge
infestation, or
moderate to severe
disease infestation.
(f) Michigan With a reasonable
seedling expectation that one
nurseries. or more of the
following limiting
critical conditions
already exist 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 the
limiting critical
condition already
either exists or
could occur without
methyl bromide
fumigation, or
moderate to severe
bacterial wilt
infestation.
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 already either
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 of
California and on the use of 1,3-
Washington). dichloropropene
products due to
reaching local
township limits on
the use of this
alternative.
(b) Members of With a reasonable
the California expectation that one
Association of or more of the
Nurserymen- following of
Deciduous Fruit limiting critical
and Nut Tree conditions already
Growers. either exists or
could occur without
methyl bromide
fumigation: moderate
to severe nematode
infestation, medium
to heavy clay soils,
or a prohibition of
on the use of 1,3-
dichloropropene
products due to
reaching local
township limits on
the use of this
alternative.
(c) Members of With a reasonable
the California expectation that one
Association of or more of the
Nurserymen- following limiting
Citrus and critical conditions
Avocado Growers. already either
exists or could
occur without methyl
bromide fumigation:
moderate to severe
nematode
infestation, medium
to heavy clay soils,
or a prohibition of
on the use of 1,3-
dichloropropene
products due to
reaching local
township limits on
the use of this
alternative.
Orchard Replant............... (a) California With a reasonable
stone fruit expectation that one
growers. or more of the
following limiting
critical conditions
already either
exists or could
occur without methyl
bromide fumigation:
replanted (non-
virgin) orchard
soils to prevent
orchard replant
disease, or 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.
[[Page 51284]]
(b) California With a reasonable
table and raisin expectation that one
grape growers. or more of the
following limiting
critical conditions
already either
exists or could
occur without methyl
bromide fumigation:
replanted (non-
virgin) orchard
soils to prevent
orchard replant
disease, or 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
already either
exists or could
occur without methyl
bromide fumigation:
replanted (non-
virgin) orchard
soils to prevent
orchard replant
disease, or 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
already either
exists or could
occur without methyl
bromide fumigation:
replanted (non-
virgin) orchard
soils to prevent
orchard replant
disease, or 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
already either
exists or could
occur without methyl
bromide fumigation:
moderate to severe
disease infestation,
or 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 already either
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
already either
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 already
either exists or
could occur without
methyl bromide
fumigation.
Strawberry Nurseries.......... (a) 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, 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
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.
(b) Florida 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
yellow or purple
nutsedge, or karst
topography.
(c) Alabama, With a reasonable
Arkansas, expectation that one
Georgia, North or more of the
Carolina, South following limiting
Carolina, critical conditions
Tennessee, already either
Virginia, Ohio exists or could
and, New Jersey occur without methyl
growers. 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.
[[Page 51285]]
Tomatoes...................... (a) Michigan 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
disease infestation,
fungal pathogens
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 already either
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
already either
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. pest counties
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 can
not be properly
sealed to use an
alternative to
methyl bromide, or
the presence of
sensitive electronic
equipment subject to
corrosivity, 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 can
today's rule, not be properly
``pet food'' sealed to use an
refers to alternative to
domestic dog and methyl bromide, or
cat food). the presence of
sensitive electronic
equipment subject to
corrosivity, 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 can
not be properly
sealed to use an
alternative to
methyl bromide, or
the presence of
sensitive electronic
equipment subject to
corrosivity, 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.. already exists or
could occur without
methyl bromide
fumigation: older
structures that can
not be properly
sealed to use an
alternative to
methyl bromide, or
the presence of
sensitive electronic
equipment subject to
corrosivity, time to
transition to an
alternative.
(e) Members of With reasonable
the National expectation that one
Pest Management or more of the
Association following limiting
(associated with critical conditions
dry commodity already exists or
structure could occur without
fumigation methyl bromide
(cocoa) and dry fumigation: older
commodity structures that
fumigation cannot be properly
(processed food, sealed in order to
herbs, spices, use an alternative
and dried milk). to methyl bromide,
or the presence of
electronic equipment
that is subject to
corrosivity, or
where heat treatment
would cause
rancidity to a
particular
commodity, time to
transition to an
alternative.
Commodity Storage............. (a) Gwaltney of For smokehouse ham
Smithfield in curing facilities
the U.S.. owned by the
company.
Dry cured pork Pork product
products: (b) facilities who are
Members of the members of the
National Country Association.
Ham Association.
Dry cured pork Pork product
products: (c) facilities who are
Members of the members of the
American Association.
Association of
Meat Processors.
Dry cured pork For facilities owned
products: (d) by the company.
Nahunta Pork
Center.
(b) 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, 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.
[[Page 51286]]
(c) 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.
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[FR Doc. 05-17191 Filed 8-29-05; 8:45 am]
BILLING CODE 6560-50-U