[Federal Register Volume 71, Number 24 (Monday, February 6, 2006)]
[Rules and Regulations]
[Pages 5985-6010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1019]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-8028-2]
RIN 2060-AN18
Protection of Stratospheric Ozone: The 2006 Critical Use
Exemption From the Phaseout of Methyl Bromide
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to exempt methyl bromide production
and import for 2006 critical uses. Specifically, EPA is authorizing
uses that will qualify for the 2006 critical use exemption, and the
amount of methyl bromide that may be produced, imported, or made
available from inventory for those uses in 2006. EPA's action is taken
under the authority of the Clean Air Act (CAA) and reflects recent
consensus Decisions taken by the Parties to the Montreal Protocol on
Substances that Deplete the Ozone Layer (Protocol) at the 16th and 17th
Meetings of the Parties (MOPs) and the 2nd Extraordinary Meeting of the
Parties (ExMOP).
DATES: This final rule is effective on February 1, 2006.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-OAR-2005-0122. All documents in the docket are listed on the
http://www.regulations.gov web site. Although listed in the index, some
information is not publicly available, e.g., 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 through
www.regulations.gov or in hard copy at the Air Docket, EPA/DC, EPA
West, Room B102, 1301 Constitution Ave., NW., Washington DC. This
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The Docket telephone number is (202)
566-1742. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal holidays. The telephone number
for the Public Reading Room is (202) 566-1744, and the telephone number
for the Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: Marta Montoro, Office of Atmospheric
Programs, Stratospheric Protection Division, Mail Code 6205 J,
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460; telephone number: (202) 343-9321; fax number:
(202) 343-2337; e-mail address: [email protected].
SUPPLEMENTARY INFORMATION: This final rule concerns Clean Air Act
restrictions on the consumption, production, and use of methyl bromide
(class I, Group VI controlled substance) for critical uses during
calendar year 2006. Under the Clean Air Act, methyl bromide consumption
and production was phased out on January 1, 2005 apart from certain
exemptions, including the critical use exemption and the quarantine and
preshipment exemption. With this action, EPA is listing the uses that
will qualify for the 2006 critical use exemption, as well as
authorizing specific amounts of methyl bromide that may be produced,
imported, or made available from inventory for critical uses in 2006.
Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C.
Chapter 5, generally provides that rules may not take effect earlier
than 30 days after they are published in the Federal Register. EPA is
issuing this final rule under section 307(d) of the CAA, which states:
``The provisions of section 553 through 557 * * * of Title 5 shall not,
except as expressly provided in this subsection, apply to actions to
which this subsection applies.'' CAA section 307(d)(1). Thus, section
553(d) of the APA does not apply to this rule. EPA nevertheless is
acting consistently with the policies underlying APA section 553(d) in
making this rule effective on February 1, 2006. APA section 553(d)
provides an exception for any action that grants or recognizes an
exemption or relieves a restriction. This final rule grants an
exemption from the phaseout of methyl bromide.
Table of Contents
I. General Information
A. Regulated Entities
II. What Is the Background to the Phaseout Regulations for Ozone-
Depleting Substances?
III. What Is Methyl Bromide?
IV. What Is the Legal Authority for Exempting the Production and
Import of Methyl Bromide for Critical Uses Authorized by the Parties
to the Montreal Protocol?
V. What Is the Critical Use Exemption Process?
A. Background of the Process
B. How Does This Final Rulemaking Relate to Previous Rulemakings
Regarding the Critical Use Exemption?
C. What Are the Approved Critical Uses?
D. What Are the Uses That May Obtain Methyl Bromide for
Research?
E. What Amount of Methyl Bromide Is Necessary for Critical Uses?
F. What Are the Sources of Critical Use Methyl Bromide?
G. What Are the Critical Use Allowance Allocations?
H. What Are the Critical Stock Allowance Allocations?
I. Clarifications to the Framework Rule
J. Supplemental Critical Use Exemptions for 2006
VI. Statutory and Executive Order Reviews
A. Executive Order No. 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility
D. Unfunded Mandates Reform Act
E. Executive Order No. 13132: Federalism
F. Executive Order No. 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order No. 13045: Protection of Children From
Environmental Health & Safety Risks
H. Executive Order No. 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and 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 use of
methyl bromide covered by an approved critical use exemption.
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 such as farmers
of vegetable crops, fruits and
seedlings, owners of stored
food commodities and
structures such as grain mills
and processors, and government
and non-government
researchers.
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The above table is not intended to be exhaustive, but rather to
provide a guide for readers regarding entities likely to be regulated
by this action. This table lists the types of entities that EPA is
aware could be potentially 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.
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 United States was one of the
original signatories to the 1987 Montreal Protocol and the U.S.
ratified the Protocol on April 12, 1988. Congress then enacted, and
President George H.W. 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 U.S. 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 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 with a final rule (68 FR 238) on January 2, 2003.
Information on methyl bromide can be found at http://www.epa.gov/ozone/mbr and http://www.unep.org/ozone or by contacting EPA's 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, as well as 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 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 this 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. What Is the Legal Authority for Exempting the Production and Import
of Methyl Bromide for Critical Uses Authorized by the Parties to the
Montreal Protocol?
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. 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 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. 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 (the ``Framework Rule'') 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 inventory and new production
or import to meet approved critical uses. With this action, EPA is
authorizing the uses that will qualify as approved critical uses in
2006 and the
[[Page 5987]]
amount of the 2006 critical use exemption.
This action reflects Decision XVI/2, taken at the Parties' 16th
Meeting in November 2004; Decision Ex.II/I, taken at the Second
Extraordinary Meeting of the Parties in July 2005; and Decision XVII/9,
taken at the Parties' 17th Meeting in December 2005. In accordance with
Article 2H(5), the Parties have issued several Decisions pertaining to
the critical use exemption. These include Decision IX/6, which sets
forth criteria for review of proposed critical uses, as well as the
Decisions noted above. 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 Framework Rule (69
FR 76984-76985). Briefly, EPA regards certain provisions of Decisions
IX/6, XVI/2, Ex.II/1, and XVII/9 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 this
action, EPA is following the relevant terms of these Decisions. This
will ensure consistency with the Montreal Protocol and satisfy the
requirements of Section 604(d)(6) and Section 614(b) of the Clean Air
Act.
In Decision XVI/2, taken in November 2004, the Parties to the
Protocol agreed as follows: ``for the agreed critical-use categories
for 2006, set forth in section IIA to the annex to the present Decision
for each Party, to permit, subject to the conditions set forth in
Decision Ex.I/4, to the extent those conditions are applicable, the
levels of production and consumption for 2006 set forth in section IIB
to the annex to the present Decision which are necessary to satisfy
critical uses, with the understanding that additional levels of
production and consumption and categories of uses may be approved by
the Meeting of the Parties to the Montreal Protocol in accordance with
Decision IX/6.'' Section IIA of the Annex to Decision XVI/2 lists the
following critical use categories for the U.S.: Cucurbits--field; dried
fruit and nuts; forest nursery seedlings; nursery stock--fruit trees,
raspberries, roses; strawberry runners; turfgrass; dry commodities/
cocoa beans; dry commodities/structures; eggplant/field; mills and
processors; peppers/field; strawberry fruit/field; tomato/field; and
orchard replant with a total agreed critical-use level of 6,897,680
kilograms, which is equivalent to 27% of the U.S. 1991 methyl bromide
consumption baseline.
In Decision Ex.II/1, taken in July 2005, the Parties to the
Protocol agreed as follows: ``for the agreed critical uses for 2006,
set forth in table A of the annex to the present Decision, to permit,
subject to the conditions set forth in the present Decision and in
Decision Ex. I/4, to the extent those conditions are applicable, the
supplementary levels of production and consumption for 2006 set forth
in table B of the annex to the present Decision which are necessary to
satisfy critical uses, with the understanding that additional levels
and categories of uses may be approved by the Seventeenth Meeting of
the Parties in accordance with Decision IX/6.'' Table A of the Annex to
Decision Ex.II/1 lists the following critical use categories for the
U.S.: Ornamentals; dry-cured ham; dry commodities/structures (cocoa
beans); dry commodities/structures (processed foods, herbs and spices,
dried milk and cheese processing facilities); eggplant--field, for
research only; mills and processors; peppers--field; strawberry fruit--
field; tomato--field with a total agreed critical-use level of
1,117,003 kilograms, which is equivalent to 5% of the U.S. 1991 methyl
bromide consumption baseline. When combined, the agreed critical use
levels for 2006 from Decision XVI/2 and Decision Ex.II/1 total
8,074,683 kilograms, which is equivalent to 32% of the U.S. 1991 methyl
bromide consumption baseline. Decision XVII/9, taken at the 17th
Meeting of the Parties in December 2005, authorizes an additional 26.4%
of baseline for 6,749,000 kilograms for 2007, and an additional
supplemental request of 7,070 kilograms for 2006. This supplemental
amount is discussed more fully in Section J below. Based, in part, on
the applications underlying the U.S. 2006 nomination, the extensive
review of those applications culminating in the preparation of that
nomination, and the Decisions noted above, EPA is modifying Columns B
and C of Appendix L to 40 CFR Part 82, Subpart A to reflect agreed
critical use categories, locations of use, and limiting critical
conditions applicable to the 2006 control period.
The question of whether, and to what extent, EPA should adjust the
total critical use level agreed by the Parties for 2006 is addressed in
Section E below. The question of what amount of the total should come
from new production or import, and what amount should come from pre-
phaseout inventories, is addressed in Section F below. For the reasons
given in those sections, and based, in part, on the applications
underlying the U.S. 2006 nomination, the extensive review of those
applications culminating in the preparation of that nomination, and the
Decisions noted above, EPA is modifying the table in 40 CFR 82.8 to
reflect the amount of methyl bromide that may be produced or imported,
and sold from pre-phaseout inventories, for the 2006 control period.
V. What Is the Critical Use Exemption Process?
A. Background of the 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. On May 8, 2003, the Agency published a
notice in the Federal Register (68 FR 24737) announcing the deadline to
apply for critical uses for the 2006 calendar year, and directing
applicants to announcements posted on EPA's methyl bromide Web site at
http://www.epa.gov/ozone/mbr. Applicants were told they could 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. The critical use exemption is
designed to meet the needs of methyl bromide users who do not have
technically and economically feasible alternatives available.
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.'' These criteria are reflected in
EPA's definition of ``critical use'' at 40 CFR 82.3.
In response to the annual 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
[[Page 5988]]
use of methyl bromide and reduce emissions, and on the specific
technical and economic research results of testing alternatives to
methyl bromide.
EPA's December 23, 2004, Framework Rule describing the operational
framework for the critical use exemption (69 FR 76982) established the
majority of critical uses for the 2005 calendar year. Today's action
authorizes exemptions for 2006 reflecting information that the U.S.
Government submitted to the Protocol's Ozone Secretariat in its annual
nomination submission in February 2004, as approved by the Parties in
November 2004, July 2005, and December 2005. The domestic review
process is discussed in detail in a memo titled ``Development of 2003
Nomination for a Critical Use Exemption for Methyl Bromide for the
United States of America'' on Docket ID OAR-2005-0122. Briefly, the
U.S. Government reviews applications using the criteria in Decision IX/
6 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. This second
nomination contained a supplemental request for critical use methyl
bromide for 2005 and the initial request for 2006. In June 2004, MBTOC
sent questions to the U.S. Government concerning technical and economic
issues in the nomination. The U.S. Government transmitted its response
on August 12, 2004. The U.S. submitted a revised request in conjunction
with ``The U.S. Nomination for Critical Uses for Methyl Bromide in 2007
and Beyond.'' This revised request was for an additional amount of
622,053 kilograms of methyl bromide for a total of 2,844,985 kilograms
of methyl bromide for the year 2006. This revised request was included
in the U.S. rebuttal to MBTOC's recommendation issued in its October
2004 report. These documents, together with reports by the advisory
bodies noted above, can be accessed on Docket ID OAR-2005-0122.
EPA received five comments requesting the Agency not to exempt any
methyl bromide for critical uses. The CAA allows the Agency to create
an exemption for critical uses from the production and consumption
phaseout of methyl bromide. In Decisions XVI/2, Ex II/1, and XVII/9,
the Parties decided to authorize an exemption for uses nominated by the
United States. EPA, in conjunction with other U.S. Government entities,
spent substantial time reviewing applications for critical use
exemptions and preparing a nomination due to the lack of technically
and economically feasible alternatives for the nominated uses. Although
the Act does not require EPA to establish an exemption, EPA believes
the lack of suitable alternatives for the uses listed as approved
critical uses in this rulemaking warrants the continuation of the
exemption process begun in 2005.
The history of ozone protection programs has been the transition of
industries away from production, import, and use of ozone-depleting
substances to alternatives. In some instances a successful transition
was possible within the allotted time. In other instances, additional
time has been required to allow for the development and market
penetration of alternatives. In fact, more than ten years after the
phaseout of chlorofluorocarbons (CFCs), the U.S. Government is still
exempting the production of CFCs for essential uses in metered dose
inhalers. In the instance of critical uses where suitable alternatives
are not yet available for all uses, EPA believes it would be
inconsistent with the history and the goals of the ozone protection
program not to allow for a safety valve in accordance with the
provisions of both international and domestic law.
B. How Does This Final Rulemaking Relate to Previous Rulemakings
Regarding the Critical Use Exemption?
EPA's December 23, 2004 Framework Rule (69 FR 76982) established
the framework for the critical use exemption in the U.S., including
trading provisions and recordkeeping and reporting obligations. The
Framework Rule defines the terms ``critical use allowances'' (CUAs) and
``critical stock allowances'' (CSAs) at 40 CFR 82.3. Each allowance
represents the right to produce or import, or to sell from inventory,
respectively, one kilogram of methyl bromide for an approved critical
use. For example, a distributor with 100 CSAs may sell 100 kilograms of
pre-phaseout methyl bromide from inventory for an approved critical
use. Today's action authorizes the uses that will qualify as approved
critical uses for 2006 and allocates CUAs and CSAs for those uses. In
the future, EPA will continue to undertake rulemakings that address
both the approved critical uses and the amounts of methyl bromide to be
allocated for critical uses in specific control periods.
On August 30, 2005, EPA published a direct final rule and
concurrent proposal relating to supplemental critical use exemptions
for 2005 (70 FR 51270). These recent notices in the Federal Register
addressed three additional uses as well as additional CSAs for
supplementary amounts of critical use methyl bromide in 2005. EPA
received adverse comments on the direct final rule and published a
withdrawal notice in the Federal Register on October 18, 2005 (70 FR
60443), which stopped the rule from going into effect. EPA addressed
the comments and published a final rule for supplemental 2005 CSAs and
uses in the Federal Register on December 13, 2005 (70 FR 73604). In
this action, the Agency is finalizing: (1) The list of uses that
qualify for the critical use exemption in 2006; and (2) the amounts of
methyl bromide that may be produced or imported, or supplied from pre-
phaseout inventories, for those uses in 2006.
In the proposed rulemaking, published on October 27, 2005 (70 FR
62030), EPA sought comment on critical use exemptions for the 2006
calendar year. Only discrete, specific changes to the operational
framework were proposed. Some commenters, however, requested that EPA
re-examine significant portions of the operational framework identified
in the December 23, 2004 Framework Rule. In this action, EPA is only
addressing comments within the scope of the proposal, but may consider
additional suggestions pertaining to other areas in future critical use
exemption rulemakings. With respect to many of the comments on the
operational framework, EPA has already addressed similar points in the
Response to Comments document for the Framework Rule, accessible on
Docket ID OAR-2005-0122.
With respect to the critical use exemption regulatory process
generally, EPA received eight comments expressing concern about the
late publication of the proposed rule. EPA understands this concern but
notes that the Second Extraordinary Meeting of the Parties, where the
final 2006 amounts for critical uses in the U.S. were authorized by the
Parties, did not take place until July 1, 2005.
EPA received one comment asking how the critical use exemption
process will be affected by the enforcement of ISPM 15 (the
international standard for
[[Page 5989]]
trade in wood packaging material, including dunnage). EPA notes that
ISPM 15 is unrelated to the critical use exemption process.
EPA received two comments concerning the term significant market
disruption, as described in Decision IX/6. One commenter stated that
the proposal was flawed because EPA does not define significant market
disruption. A description of EPA's application of this concept is
available in the memo titled ``Development of the 2003 Nomination for a
Critical Use Exemption for Methyl Bromide for the United States of
America,'' on E-Dockets OAR-2003-0017, OAR-2004-0506, and OAR-2005-
0122. The commenter states that a ``significant market disruption''
refers to ``a decrease or delay in supply or an increase in price of a
commodity produced with methyl bromide.'' EPA views this as one
possible type of market disruption. As stated in the memo available on
E-docket OAR-2004-0506, ``markets are partially defined by the
interaction between supply and demand, which determines the price and
quantity of a good traded in a market. EPA's position is that a
disruption to either side of a commodity market, demand or supply,
would result in market disruption.'' That is, a significant market
disruption could be experienced on the demand side as an increase in
price, as noted by the commenter, or on the supply side if growers or
processors experience a loss of production or delays in production. For
example, if the loss of methyl bromide in strawberry production
resulted in significant production decreases--and loss of grower
income--EPA could determine that it constitutes a significant market
disruption.
In determining whether a change in supply or demand is significant,
EPA considers several dimensions of which two are key: (1) Individual
versus aggregate and (2) absolute versus relative. EPA typically
evaluates losses at the individual level, e.g., on a per-acre basis. We
then extrapolate to the aggregate loss by multiplying this
representative loss by the number of acres affected, using crop budgets
and other relevant information. EPA balances the two measures to
determine whether impacts are significant. For example, if the loss of
methyl bromide in Michigan for vegetable production results in
shortages and high prices in the upper Midwest, EPA may determine that
it constitutes a significant market disruption, even if producers and
consumers in the rest of the country are unaffected.
The other key dimension is absolute versus relative impacts. The
loss of a single processing plant may not seem significant. However, if
there are only three such plants, the loss of one could still result in
significant market disruption. EPA relies on detailed crop budgets and
other sources of information for data on production costs, gross
revenues, and other measures.
One commenter, in requesting a clearer definition of significant
market disruption, provided an example of a situation that it did not
believe would constitute a significant market disruption. The example
was a price increase of less than 1 cent per pound of flour as a result
of the use of a methyl bromide alternative. In analyzing this example,
however, EPA would look not only at the market price, but also at the
effects on users, bearing in mind the dimensions explained above.
C. What Are the Approved Critical Uses?
In Decision XVI/2, taken in November 2004, the Parties to the
Protocol agreed as follows: ``for the agreed critical-use categories
for 2006, set forth in section IIA to the annex to the present Decision
for each Party, to permit, subject to the conditions set forth in
Decision Ex.I/4, to the extent those conditions are applicable, the
levels of production and consumption for 2006 set forth in section IIB
to the annex to the present Decision which are necessary to satisfy
critical uses, with the understanding that additional levels of
production and consumption and categories of uses may be approved by
the Meeting of the Parties to the Montreal Protocol in accordance with
Decision IX/6.'' Section IIA of the Annex to Decision XVI/2 lists the
following critical use categories for the U.S.: Cucurbits--field; dried
fruit and nuts; forest nursery seedlings; nursery stock--fruit trees,
raspberries, roses; strawberry runners; turfgrass; dry commodities/
cocoa beans; dry commodities/structures; eggplant field; mills and
processors; peppers field; strawberry fruit field; tomato field; and
orchard replant. These categories represent a total agreed critical-use
level for 2006 of 6,897,680 kilograms, which is equivalent to 27% of
the U.S. 1991 methyl bromide consumption baseline.
In Decision Ex.II/1, taken in July 2005, the Parties to the
Protocol agreed as follows: ``for the agreed critical uses for 2006,
set forth in table A of the annex to the present Decision, to permit,
subject to the conditions set forth in the present Decision and in
Decision Ex. I/4, to the extent those conditions are applicable, the
supplementary levels of production and consumption for 2006 set forth
in table B of the annex to the present Decision which are necessary to
satisfy critical uses, with the understanding that additional levels
and categories of uses may be approved by the Seventeenth Meeting of
the Parties in accordance with Decision IX/6.'' Table A of the Annex to
Decision Ex.II/1 lists the following critical use categories for the
U.S.: Ornamentals; dry-cured ham; dry commodities/structures (cocoa
beans); dry commodities/structures (processed foods, herbs and spices,
dried milk and cheese processing facilities); eggplant--field, for
research only; mills and processors; peppers--field; strawberry fruit--
field; tomato--field. These categories represent an additional agreed
critical-use level for 2006 of 1,117,003 kilograms, which is equivalent
to 5% of the U.S. 1991 methyl bromide consumption baseline. When
combined, the agreed critical-use levels for 2006 from Decision XVI/2
and from Decision Ex.II/1 total 8,074,683 kilograms, which is
equivalent to 32% of the U.S. 1991 methyl bromide consumption baseline.
Based, in part, on the applications underlying the U.S. 2006
nomination, the extensive review of those applications culminating in
the preparation of that nomination, and the Decisions noted above, EPA
is modifying Columns B and C of Appendix L to 40 CFR Part 82, Subpart A
to reflect agreed critical-use categories.
Under the December 23, 2004, Framework Rule (69 FR 76982), an
approved critical user may obtain access to exempted production/import
and limited inventories of pre-phaseout methyl bromide inventory, the
combination of which constitute the supply of ``critical use methyl
bromide'' intended to meet the needs of agreed critical uses.
As set out in the Framework Rule, an approved critical user is a
self-identified entity who meets the following requirements:
(1) For the applicable control period, applied to EPA for a
critical use exemption or is a member of a consortium that applied to
EPA for a critical use exemption for a use and location of use that was
included in the U.S. nomination, authorized by a Decision of the
Parties to the Montreal Protocol, and then finally determined by EPA in
a notice-and-comment rulemaking to be an approved critical use, and
(2) Has an area in the applicable location of use that requires
methyl bromide fumigation because the user reasonably expects that the
area will be subject to a limiting critical condition during the
applicable control period.
[[Page 5990]]
Using these criteria, an approved critical user could be a tomato
farmer in Florida whose farm is over karst topography, but would not
include a tomato farmer in Oklahoma even if he too has a farm over
karst topography because no exemption application was filed on behalf
of Oklahoma tomato farmers. Similarly, a Florida tomato farmer who did
not have a field with karst topography, or one of the other limiting
critical conditions specified in this rule, would not be an approved
critical user because the circumstance of the use is not an approved
critical use.
A ``limiting critical condition'' is the basis on which the
critical need for methyl bromide is demonstrated and authorized. It is
defined as ``the regulatory, technical, and economic circumstances * *
* that establish conditions of critical use of methyl bromide in a
fumigation area.'' 40 CFR 82.3. The limiting critical condition placed
on a use category reflects certain regulatory, technical, or economic
factors that either prohibit the use of alternatives or represent the
lack of a technically or economically feasible alternative for that use
or circumstance. For example, EPA may determine that a critical use
exemption for tomatoes is only necessary for areas of tomato production
in karst topography even if the EPA received applications for all of
U.S. fresh market tomato production. In this example, not all tomato
growers would be eligible to acquire exempted critical use methyl
bromide. Only those growers with production in an area with the
limiting critical condition of karst topography would have access to
critical use methyl bromide. Another example is as follows: EPA
received applications for exemptions for all U.S. grain milling
companies that are members of the North American Milling Association
(NAMA). The Parties authorized the exemption because grain milling
companies have a critical need for methyl bromide because the
alternatives can not be used, in part, due to corrosivity to electronic
equipment. Thus, one of the limiting critical conditions for this
critical use category is the presence of sensitive electronic equipment
subject to corrosion associated with fumigation with the alternative.
All grain mills that are members of NAMA that have sensitive electronic
equipment would be eligible to acquire and use critical use methyl
bromide.
EPA is authorizing the critical uses and limiting critical
conditions for the year 2006 based on its 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 authorized for 2006. This authorization is based on the
information submitted by CUE applicants, as well as public and
proprietary data sources. The CUE applications (except to the extent
claimed confidential), the U.S. nomination, the questions and answers
between the MBTOC and the U.S. Government about the nomination, and
procedural memos are all available on Docket ID OAR-2005-0122. Data
submitted by the CUE applicants served as a basis for the nomination.
EPA and other government experts also sought data from 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, and proprietary
agricultural databases available to EPA. All of the CUE applications
underwent a rigorous review by highly qualified technical experts. A
detailed explanation of the nomination process, including the criteria
used by expert reviewers, is available in a memo titled ``Development
of the 2003 Nomination for a Critical Use Exemption for Methyl Bromide
from the United States of America'' on Docket ID OAR-2005-0122. The
memo was originally written to describe the process leading to the 2005
critical use exemption rules, but it applies generally to the process
leading to this action.
The U.S. Government, in developing the nomination, defined the
limiting critical conditions for which exempted methyl bromide was
being sought. The U.S. Government used the information referenced above
to determine: (a) Whether the lack of availability of methyl bromide
for a particular use would result in significant market disruption, and
(b) whether there were any technically and economically feasible methyl
bromide alternatives available to the user. The analysis was described
in the U.S. critical use nomination. The nomination was then sent to
the Parties to the Protocol, and the Parties used the information in
the nomination and the report from the MBTOC (which was based in part
on the iterative exchange of questions and answers with the U.S.
Government) as the basis for the Decisions that authorized critical
uses.
Based on the information described above, EPA determined that the
uses in Table I, with the limiting critical conditions specified,
qualify to obtain and use critical use methyl bromide in 2006, as
discussed in Section E. However, as discussed in Section E, some of the
circumstances for some of the critical use categories have changed due
to recent registrations of an alternative and therefore EPA is
decreasing the total CUE level for 2006. EPA has determined, based on
the U.S. nomination and its supporting documents, that users who are in
a specific geographic location, identified below, or who are members of
a specific industry consortium, identified below, or companies
specifically identified below, are approved critical users provided
that such users are subject to the specified limiting critical
condition(s).
EPA notes the endorsement of emission minimization techniques in
paragraph 6 of Decision Ex.II/1 and urges the users listed in Table I
to use ``emission minimization techniques such as virtually impermeable
films, barrier film technologies, deep shank injection and/or other
techniques that promote environmental protection, whenever technically
and economically feasible.'' Indeed, many emissions minimization
techniques are already being applied, some of which are required in
accordance with methyl bromide label requirements. Users should make
every effort to decrease overall emissions of methyl bromide by
implementing such measures, to the extent consistent with state and
local laws and regulations. EPA notes that research continues to be
conducted on the potential to reduce application rates and emissions
using high-barrier films.
Table I.--Approved Critical Uses
------------------------------------------------------------------------
Column B
Column A Approved critical Approved critical Column C Limiting
uses user and location critical conditions
of use
------------------------------------------------------------------------
Pre-Plant Uses:
[[Page 5991]]
Cucurbits................. (a) Michigan 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
soilborne fungal
disease infestation,
or moderate to
severe disease
infestation could
occur without methyl
bromide fumigation;
or with a need for
methyl bromide for
research purposes.
(b) Southeastern with a reasonable
U.S. except expectation that one
Georgia limited or more of the
to growing following limiting
locations in critical conditions
Alabama, either already exist
Arkansas, or could occur
Kentucky, without methyl
Louisiana, North bromide fumigation:
Carolina, South moderate to severe
Carolina, yellow or purple
Tennessee, and nutsedge
Virginia. infestation, or to a
lesser extent:
fungal disease
infestation and root
knot nematodes; or
with a need for
methyl bromide for
research purposes.
(c) Georgia 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,
moderate to severe
fungal disease
infestation, or to a
lesser extent: root
knot nematodes; or
with a need for
methyl bromide for
research purposes.
Eggplant.................. (a) 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
moderate to severe
nematodes, or
moderate to severe
disease infestation,
or restrictions on
alternatives due to
karst geology; or
with a need for
methyl bromide for
research purposes.
(b) Georgia 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
moderate to severe
nematodes, or
moderate to severe
pythium root and
collar rots, or
moderate to severe
southern blight
infestation, and to
a lesser extent:
crown and root rot;
or with a need for
methyl bromide for
research purposes.
(c) Michigan with a reasonable
growers. expectation that
moderate to severe
soilborne fungal
disease infestation
could occur without
methyl bromide
fumigation; or with
a need for methyl
bromide for research
purposes.
Forest Nursery 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
Alabama, or could occur
Arkansas, without methyl
Georgia, South bromide fumigation:
Carolina and moderate to severe
Texas. yellow or purple
nutsedge
infestation, or
moderate to severe
disease infestation.
(c) Public with a reasonable
(government- expectation that one
owned) seeding or more of the
nurseries in the following limiting
states of critical conditions
Illinois, either already exist
Indiana, or could occur
Kentucky, without methyl
Maryland, bromide fumigation:
Missouri, New moderate to severe
Jersey, Ohio, weed infestation
Pennsylvania, including purple and
West Virginia yellow nutsedge
and Wisconsin. infestation, or
moderate to severe
Canada thistle
infestation, or
moderate to severe
nematodes, and to a
lesser extent:
fungal disease
infestation.
(d) 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 and bromide fumigation:
South Carolina. moderate to severe
yellow or purple
nutsedge
infestation,
moderate to severe
disease infestation,
and to a lesser
extent: nematodes
and worms.
(e) 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
Washington and or could occur
Oregon. without methyl
bromide fumigation:
moderate to severe
yellow nutsedge
infestation, or
moderate to severe
fungal disease
infestation.
(f) Michigan with a reasonable
growers. expectation that one
or more of the
following limiting
critical conditions
already either exist
or could occur
without methyl
bromide fumigation:
moderate to severe
disease infestation,
moderate to severe
Canada thistle
infestation,
moderate to severe
nutsedge
infestation, and to
a lesser extent:
nematodes.
[[Page 5992]]
(g) Michigan with a reasonable
herbaceous expectation that one
perennials or more of the
growers. following limiting
critical conditions
already exist or
could occur without
methyl bromide
fumigation: moderate
to severe nematodes,
moderate to severe
fungal disease
infestation, and to
a lesser extent:
yellow nutsedge and
other weeds
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 on
California and the use of 1,3-
Washington). dichloropropene
products due to
reaching local
township limits on
the use of this
alternative; or with
a need for methyl
bromide for research
purposes.
(b) Members of with a reasonable
the California expectation that one
Association of or more of the
Nurserymen- following limiting
Deciduous Fruit critical conditions
and Nut Tree already either
Growers. exists or could
occur without methyl
bromide fumigation:
moderate to severe
nematodes, medium to
heavy clay soils, or
a prohibition on the
use of 1,3-
dichloropropene
products due to
reaching local
township limits on
the use of this
alternative; or with
a need for methyl
bromide for research
purposes.
(c) California with a reasonable
rose nurseries. expectation that one
or more of the
following limiting
critical conditions
already either
exists or could
occur without methyl
bromide fumigation:
moderate to severe
nematodes, or user
may be prohibited
from using 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached; or
with a need for
methyl bromide for
research purposes.
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
disease infestation,
or moderate to
severe yellow or
purple nutsedge
infestation, or
moderate to severe
nematodes; or with a
need for methyl
bromide for research
purposes.
(b) North with a reasonable
Carolina, expectation that one
Tennessee and or more of the
Maryland growers. following limiting
critical conditions
already either
exists or could
occur without methyl
bromide fumigation:
moderate to severe
black root rot, or
moderate to severe
root-knot nematodes,
or moderate to
severe yellow and
purple nutsedge
infestation, and to
a lesser extent:
crown rot; or with a
need for methyl
bromide for research
purposes.
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:
moderate to severe
nematodes, or
moderate to severe
fungal disease
infestation, or
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; or
with a need for
methyl bromide for
research purposes.
(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:
moderate to severe
nematodes, or
moderate to severe
fungal disease
infestation, or
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; or
with a need for
methyl bromide for
research purposes.
(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:
moderate to severe
nematodes, or
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; or
with a need for
methyl bromide for
research purposes.
[[Page 5993]]
(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:
moderate to severe
nematodes, or
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; or
with a need for
methyl bromide for
research purposes.
Ornamentals............... (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 nematodes, or
a prohibition on the
use of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached; or
with a need for
methyl bromide for
research purposes.
(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
weed infestation, or
moderate to severe
disease infestation,
or moderate to
severe nematodes, or
karst topography; or
with a need for
methyl bromide for
research purposes.
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 nematodes, or
a prohibition on the
use of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached; or
with a need for
methyl bromide for
research purposes.
(b) Alabama, with a reasonable
Arkansas, expectation that one
Kentucky, or more of the
Louisiana, North following limiting
Carolina, South critical and
Carolina, conditions already
Tennessee and either exists or
Virginia growers. could occur without
methyl bromide
fumigation: moderate
to severe yellow or
purple nutsedge
infestation, or
moderate to severe
nematodes, or
moderate to severe
pythium root,
collar, crown and
root rots, or the
presence of an
occupied structure
within 100 feet of a
grower's field the
size of 100 acres or
less; or with a need
for methyl bromide
for research
purposes.
(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
moderate to severe
disease infestation,
or moderate to
severe nematodes, or
karst topography; or
with a need for
methyl bromide for
research purposes.
(d) Georgia 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
moderate to severe
nematodes, or
moderate to severe
pythium root and
collar rots, or
moderate to severe
southern blight
infestation, and to
a lesser extent:
crown and root rot;
or with a need for
methyl bromide for
research purposes.
(e) Michigan with a reasonable
growers. expectation that
moderate to severe
fungal disease
infestation would
occur without methyl
bromide fumigation;
or with a need for
methyl bromide for
research purposes.
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, or
moderate to severe
yellow or purple
nutsedge
infestation, or
moderate to severe
nematodes, or 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; or with
a need for methyl
bromide for research
purposes.
(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
moderate to severe
nematodes, or
moderate to severe
disease infestation,
or karst topography
and to a lesser
extent: carolina
geranium or cut-leaf
evening primrose
infestation; or with
a need for methyl
bromide for research
purposes.
[[Page 5994]]
(c) Alabama, with a reasonable
Arkansas, expectation that one
Georgia, or more of the
Illinois, following limiting
Kentucky, critical conditions
Louisiana, already either
Maryland, New exists or could
Jersey, North occur without methyl
Carolina, Ohio, bromide fumigation:
South Carolina, moderate to severe
Tennessee and yellow or purple
Virginia growers. nutsedge, or
moderate to severe
nematodes, or
moderate to severe
black root and crown
rot, or the presence
of an occupied
structure within 100
feet of a grower's
field the size of
100 acres or less;
or with a need for
methyl bromide for
research purposes.
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,
or moderate to
severe fungal
pathogen
infestation; or with
a need for methyl
bromide for research
purposes.
(b) Alabama, with a reasonable
Arkansas, expectation that one
Florida, or more of the
Georgia, following limiting
Kentucky, critical conditions
Louisiana, North already either
Carolina, South exists or could
Carolina, and occur without methyl
Tennessee bromide fumigation:
growers. moderate to severe
yellow or purple
nutsedge
infestation, or
moderate to severe
disease infestation,
or moderate to
severe nematodes, or
the presence of an
occupied structure
within 100 feet of a
grower's field the
size of 100 acres or
less, or karst
topography; or with
a need for methyl
bromide for research
purposes.
(c) 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 nematodes; or
with a need for
methyl bromide for
research purposes.
Turfgrass................. (a) U.S. for the production of
turfgrass sod industry certified
nursery pure sod; with a
producers who reasonable
are members of expectation that one
Turfgrass or more of the
Producers following limiting
International critical conditions
(TPI). already either
exists or could
occur without methyl
bromide fumigation:
moderate to severe
bermudagrass,
nutsedge and off-
type perennial grass
infestation, or
moderate to severe
white grub
infestation; or with
a need for methyl
bromide for research
purposes.
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: moderate to
Association. severe infestation
of beetles, weevils
or moths, or 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.
(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: moderate to
Institute. (For severe infestation
this rule, ``pet or beetles, moths,
food'' refers to or cockroaches, or
domestic dog and older structures
cat food). 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.
(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
North American expectation that one
Millers' or more of the
Association in following limiting
the U.S. critical conditions
already exists or
could occur without
methyl bromide
fumigation: moderate
to severe beetle
infestation, or
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 a reasonable
the National expectation that one
Pest Management or more of the
Association following limiting
treating cocoa critical conditions
beans in storage already exists or
and associated could occur without
spaces and methyl bromide
equipment in fumigation: moderate
processed food, to severe pest
cheese, dried infestation, or
milk, herbs and older structures
spices and that can not be
spaces in properly sealed to
equipment in use an alternative
associated to methyl bromide,
processing or the presence of
facilities. sensitive electronic
equipment subject to
corrosivity, time to
transition to an
alternative.
[[Page 5995]]
Commodity Storage......... (a) California with a reasonable
entities storing expectation that one
walnuts, beans, or more of the
dried plums, following limiting
figs, raisins, critical conditions
dates and exists: rapid
pistachios in fumigation is
California. required to meet a
critical market
window, such as
during the holiday
season, rapid
fumigation is
required when a
buyer provides short
(2 working 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; or
with a need for
methyl bromide for
research purposes.
Dry Cured Pork Products... (a) Members of with a reasonable
the National expectation that one
Country Ham or more of the
Association. following limiting
critical conditions
already exists or
could occur without
methyl bromide
fumigation: moderate
to severe red legged
ham beetle, cheese/
ham skipper,
dermestid beetle or
ham mite
infestation.
(b) Members of with a reasonable
the American expectation that one
Association of or more of the
Meat Processors. following limiting
critical conditions
already exists or
could occur without
methyl bromide
fumigation: moderate
to severe red legged
ham beetle, cheese/
ham skipper,
dermestid beetle or
ham mite
infestation.
(c) Nahunta Pork with a reasonable
Center (North expectation that one
Carolina). or more of the
following limiting
critical conditions
already exists or
could occur without
methyl bromide
fumigation: moderate
to severe red legged
ham beetle, cheese/
ham skipper,
dermestid beetle or
ham mite
infestation.
------------------------------------------------------------------------
EPA received seven comments on the proposed critical uses. Four
commenters stated that the ``Southern Forest Nursery Management
Cooperative'' should have been explicitly identified as an approved
critical user. EPA has corrected this omission from the proposed rule.
Another commenter proposed revised language describing the National
Pest Management Association, discussed the inclusion of dried milk as
an approved critical use, and noted that the spelling of the scientific
name of a pest described in the corresponding ``Limiting Critical
Conditions'' column was incorrect. EPA has changed the incorrect
spelling of ``dermisted'' beetle to ``dermestid'' beetle, in the last
three paragraphs of the ``Limiting Critical Conditions'' table. In
Decision Ex.II/1, issued by the Parties on July 1, 2005, in Table A of
the Annex, ``dry commodities/structures (processed foods, herbs, and
spices, dried milk and cheese processing facilities)'' are noted as
``agreed critical-use categories.'' Since dried milk was authorized by
the Parties, EPA is including dried milk, as well as cheese processing
facilities, in the Approved Critical Uses table. EPA has incorporated
this revised language describing the National Pest Management
Association because it clarifies that commodities will be fumigated as
part of space fumigations.
EPA received one set of comments pertaining to the proposed
limiting critical conditions. These comments are addressed in the
Response to Comments document for this action, accessible on Docket ID
OAR-2005-0122.
EPA notes that an additional error was made in Column B of the
Table of Approved Critical Uses concerning the Forest Nursery sector.
The states of Idaho, Kansas, Nebraska, Oregon, Utah, and Washington
should not have been included as states where publicly owned nurseries
are exempted. The corresponding consortia did not apply to EPA for a
critical use exemption for 2006 and as a result, were not approved by
the Parties and are not approved critical users. Therefore, EPA is not
exempting these uses.
D. What Are the Uses That May Obtain Methyl Bromide for Research?
The categories listed in Section C above were approved for critical
uses for 2006 in Decisions XVI, Ex.II/1, and XVII/9 of the Parties. The
amount of methyl bromide approved for research purposes is included in
the amount of methyl bromide approved by the Parties for the
commodities for which ``research'' is indicated as a limiting critical
condition in Table I above. However, the Agency is not setting aside a
specific quantity of methyl bromide to be associated with research
activities. Methyl bromide is needed for research purposes including
experiments that require methyl bromide as a control chemical with
which to compare the trial alternatives' results. EPA is allowing the
following sectors to use critical use methyl bromide for research
purposes: Cucurbits, dried fruit and nuts, nursery stock, strawberry
nurseries, turfgrass, eggplant, peppers, strawberry fruit, tomatoes,
ornamentals, and orchard replant. These are the sectors that requested
methyl bromide for research in their applications to EPA. In Decision
XVII/9, the Parties requested that Parties ``endeavor to use stocks,
where available, to meet any demand for methyl bromide for the purposes
of research and development.'' Although we read this Decision to apply
prospectively to amounts authorized by that Decision, for the above
2006 research uses, we nonetheless encourage all relevant research
users to use pre-phaseout inventory, where available, for research
purposes.
E. What Amount of Methyl Bromide Is Necessary for Critical Uses?
In this section, EPA authorizes the amount of methyl bromide that
may be produced or imported for critical uses in 2006, and the amount
that may be sold for critical uses from pre-phaseout inventories.
Section IIB of the Annex to Decision XVI/2 lists a ``permitted level of
production and consumption'' for the United States in 2006 of 6,897,680
kilograms, which is equivalent to 27% of the 1991 baseline. Table B of
the Annex to Decision Ex.II/1 lists a ``permitted level of production
and consumption'' for the United States in 2006 of 760,585 kilograms,
which is equivalent to 3% of the 1991 baseline. When combined, the
permitted level of production and consumption from the two Decisions is
7,658,265 kilograms, which is equivalent to 30% of the 1991 baseline.
Paragraph 2 of Decision Ex.II/1 states, ``that a Party with a critical-
use exemption level in excess of permitted levels of exempted
production and consumption for critical uses is to make up any such
difference between those levels by using quantities of methyl
[[Page 5996]]
bromide available from existing stocks.'' The difference between the
agreed 2006 critical-use exemption level of 8,074,683 kilograms and the
permitted level of exempted production and consumption of 7,658,265
kilograms is 416,418 kilograms, which is equivalent to 2% of the 1991
baseline. In accordance with paragraph 2 of Decision Ex.II/1, this
amount is to come from inventory. The supplemental amount for 2006,
authorized in Decision XVII/9, is also to come from inventory. In this
final rule, EPA is determining that an additional amount should come
from inventory. A further elaboration of the amounts that EPA is
authorizing to come from inventory and from new exempted production or
import in 2006 is found below in Sections F and H.
With this action, the Agency is authorizing critical use levels of
methyl bromide for 2006 that are slightly less than the amount
authorized by the Parties because of recent registrations of an
alternative to methyl bromide, sulfuryl fluoride. As noted above, the
U.S. Government submitted the nomination for 2006 critical use
exemptions on February 7, 2004. The information in the U.S. nomination
reflected the most up-to-date information on alternatives to methyl
bromide that was available at that time of submission to the Ozone
Secretariat in February 2004. In addition, through an iterative process
of questions and answers with the MBTOC, the U.S. Government was able
to provide new information about the status of methyl bromide
alternatives in the United States for the nominated sectors up until
the time the MBTOC issued its final report in the weeks prior to the
2nd Extraordinary Meeting of the Parties in July 2005. Since the
MBTOC's final review and report on the 2006 nomination there have been
several new actions in the U.S. relevant to uses included in Decision
XVI/2 and Decision Ex.II/1. The most recent Federal action, on July 15,
2005, was the issuance of an EPA rule establishing new federal
tolerance levels for residues of sulfuryl fluoride in or on commodities
in food processing facilities (70 FR 40899). On July 15 EPA also issued
a Federal registration for these new uses of sulfuryl fluoride. The
Agency received comments confirming that as many as 48 of 50 states
subsequently issued state registrations allowing the use of sulfuryl
fluoride for these new uses. In addition, on May 18, 2005, the state of
California registered sulfuryl fluoride for use in mills, warehouses,
stationary transportation vehicles (railcars, trucks, etc.), temporary
and permanent fumigation chambers, and storage structures containing
commodities listed on the state-approved label (cereal and small
grains, dried fruit, and nuts). The state of California has not
approved the label issued by EPA on July 15, 2005. The Federal label
permits sulfuryl fluoride use for a wide range of food commodities,
such as dried fruits, tree nuts, cereals and small grains, and
processed food products. Prior to these registration actions, EPA did
not consider sulfuryl fluoride as a technically and economically
feasible alternative for these uses. In this action, EPA's
determination of critical amounts of methyl bromide for 2006 reflects
these changes in the circumstances of the use sectors for which
sulfuryl fluoride is a newly registered alternative.
In the Notice of Proposed Rulemaking, EPA estimated that
approximately 15% of the post-harvest sectors, for which sulfuryl
fluoride is a newly registered alternative, would transition to
sulfuryl fluoride during 2006. EPA proposed a 15% reduction in the
amount of critical use methyl bromide for the newly registered uses in
California, such as mills, dried fruit, and nuts, as well as a 15%
reduction in the amount of critical use methyl bromide for the sectors
in the U.S. nomination that include food processing facilities, such as
mills and processors. EPA's proposed uptake estimate was based on
information from a MBTOC report regarding projected uptake of sulfuryl
fluoride for previously-registered uses, as well as information in the
U.S. nomination for 2007 critical use exemptions. The uptake estimate
in the MBTOC report was 10% for the 2005 calendar year for uses for
which sulfuryl fluoride was registered in early 2004 (not including the
most recent registration in California or the new Federal registration
for food processing facilities). EPA also stated in the proposal that
the 2007 nomination contained a projection that the specific uses
associated with the new registrations and tolerances would uptake
sulfuryl fluoride at a rate of 25% per year. However, the 25% projected
uptake rate was projected over a longer period of time and referred to
those facilities that would be able to transition at a certain rate.
The 2007 Bromide Usage Numerical Index contained an adoption rate of
14% for two sub-sectors of the structures/food facilities sector, which
is more comparable to the 2008 Bromide Usage Newer Numerical Index
(BUNNI) range of 12%-18%. EPA recognizes that the proposed uptake rate
is not necessarily comparable to the MBTOC projection, because the
MBTOC's estimate was a reduction factor for all facilities included in
the Nomination. The rates in the current 2008 BUNNI analysis reflect
the percentage of each structural/food facilities and National Pest
Management Association (NPMA) sub-sector that is able to transition per
year.
EPA received 13 comments on the estimated uptake of sulfuryl
fluoride. Six commenters stated that EPA did not provide a sufficient
rationale to justify the 15% reduction in critical use methyl bromide
for the uses for which sulfuryl fluoride is now a registered
alternative. Three indicated their belief that there was no factual
basis for the 15% reduction. Some commenters pointed out that in the
2005 CUE rulemaking, EPA stated that it lacked data to determine market
uptake of sulfuryl fluoride. Other commenters noted that actual 2005
data would be available in early 2006, and that the Agency could then
propose adequate reductions, based on consumption patterns, when
allocating exemptions for 2007. Four commenters noted that the U.S.
nomination for 2007 was reviewed and approved by two panels of experts
(EPA and the MBTOC) and stated that therefore the uptake estimate
should not vary from the percentage identified in that nomination
without sufficient review. Another group of commenters expressed
concerns that the estimate did not take into account their inability to
use sulfuryl fluoride in situations where all finished products and the
majority of the facility's bagged ingredients could not be removed from
the premises. Two commenters indicated that the pace of transition to
an alternative should not be left wholly up to the market to determine,
in view of the environmental benefits from the transition.
As explained below, for purposes of this final rule, EPA is relying
on the assessment performed for the U.S. nomination for 2008, rather
than arriving at an estimate based on the figures in the MBTOC Report
and U.S. nomination for 2007, since the U.S. nomination for 2008
reflects recent information. While EPA indicated in the December 23,
2004 Framework Rule that there was insufficient data at that time to
conduct an adequate analysis of the uptake of sulfuryl fluoride, EPA
now possesses additional data on sulfuryl fluoride, as reflected in the
assessment performed for the U.S. nomination for 2008. This assessment
also takes into account the concern raised by the commenter regarding
inability to use sulfuryl fluoride in situations where all
[[Page 5997]]
specified items cannot be removed from the premises.
In the final rule, EPA is reducing post-harvest critical use
allowances from the amount that was proposed by 13.66 kilograms to
account for an uptake of sulfuryl fluoride for certain post-harvest
sectors, including food processing and structures and sub-sectors of
the National Pest Management Association (NPMA), of 12-18%. This
reduction is equal to less than 0.5% of the 1991 baseline. These
sectors are those for which sulfuryl fluoride is registered, and where
there are data demonstrating that key pests are controlled by sulfuryl
fluoride. Although sulfuryl fluoride is registered for certain
commodities, EPA is not making a reduction based on transitions in the
commodity sector at this time due to the lack of sulfuryl fluoride food
tolerances in countries where the commodities are exported, such as the
European Union and Canada. Because of the complications associated with
separating quantities of commodities designated for export markets for
which sulfuryl fluoride is not a registered alternative, there is no
way to determine at harvest which portion of the commodity will be
exported. This issue is further discussed in the ``Methyl Bromide CUN
for Post-Harvest Use for Commodites'' chapter of the 2008 U.S.
nomination, available on Docket ID OAR-2005-0122.
Based on the assessment performed for the BUNNI of the 2008 CUN,
which is available on Docket ID OAR-2005-0122, a transition rate of
between 12%-18% reflects the best available data on the feasible uptake
of sulfuryl fluoride in the affected portions of the industry. The 2008
assessment was conducted in January 2006 and reflects current market
conditions. The 12%-18% range is based on available data and on
professional judgment about the uptake of a new chemical in the market.
EPA believes that the projected uptake in 2008 under a business-as-
usual scenario can be achieved in 2006 by removing the corresponding
amount of methyl bromide from the approved critical use level, for the
affected sectors. This is consistent with the environmental goals of
EPA's stratospheric ozone program and the definition of ``critical
uses'' in Section 82.3 as uses for which there are no technically and
economically feasible alternatives. In the proposed rule, EPA noted
that uptake can be relatively slow in the initial period following new
registrations. The Agency is only applying this projected uptake factor
to the structures-food facilities use areas, as well as sub-sectors of
NPMA, as the Agency has determined that regulatory and/or technical and
economic barriers exist to the adoption of sulfuryl fluoride in other
post-harvest critical use areas. (For an additional discussion of
economic barriers, please see the 2008 CUN, available on Docket ID OAR-
2005-0122). Some technical and/or economic conditions may exist,
preventing the full adoption of sulfuryl fluoride in the structures-
food facilities sector. For instance, no transition was projected for
cheese processing plants because there is no information to show that
sulfuryl fluoride is effective on mites. The Agency will continue to
review data to better evaluate the potential for sulfuryl fluoride to
more broadly penetrate the post-harvest market in the future. Such data
would include studies that encompass multiple years and multiple
locations, and compare sulfuryl fluoride with methyl bromide. Several
studies, with similar pests (at high pest pressures), different
locations, with similar collection data (trap catch/bioassays) would be
needed in order to conduct such an analysis. Therefore, the best
available information for the 2006 rule would suggest a rate of
adoption of between 12% and 18%, depending on the sector.
During a notice-and-comment rulemaking, EPA responds, in part, to
evolving market conditions between the time of the nomination and the
applicable control period. The Agency is taking new registrations of
sulfuryl fluoride into account in determining the amount of methyl
bromide needed for critical uses in 2006. In the notice of proposed
rulemaking, the Agency also recognized that the status of other
alternatives to methyl bromide could have changed since the
finalization of the May 2005 MBTOC report and there could be updated
comparative information regarding alternatives and methyl bromide, as
well as new data on emission minimization techniques that would allow a
user to obtain the same results with smaller quantities of methyl
bromide. The Agency invited the public to submit any such updated
information.
EPA received three comments on the issue of post-hoc review. One
commenter stated concern over the length of the three-year CUE process,
during which time many technical and regulatory changes may change the
capacity of methyl bromide alternatives. The commenter requested that
EPA provide a post-hoc evaluation of alternatives for the pre-plant
sector, as well as the post-harvest sector. EPA is not providing a
post-hoc assessment of pre-plant alternatives in this rulemaking but
may do so in future critical use exemption rulemakings, should the
situation in pre-plant sectors warrant a post-hoc assessment. In this
rulemaking, EPA did not receive adequate data to support such an
assessment. One commenter provided additional information for the post-
harvest sector. An additional commenter suggested that EPA wait until
all information about methyl bromide use and inventories is available
in early 2006 before deciding to reduce methyl bromide beyond the 30%
of baseline. EPA believes sufficient information is available at this
time to project the uptake of sulfuryl fluoride during 2006. Comments
regarding the amount to come from inventory are addressed in a separate
section of this preamble.
EPA received eight comments concerning the barriers to adopting
other alternatives to methyl bromide. Two commenters discussed the
mandated cap on 1,3-Dichloropropene in township caps in California. EPA
is aware of this situation and accounted for township cap barriers when
developing the 2006 nomination. Five commenters noted several barriers
to the adoption of alternatives, such as narrow ranges of climate
conditions, plant-back delay, and lack of comprehensive pest control.
EPA considered all of these factors when developing the nomination, and
also discussed barriers to adoption in the nomination for 2006. In
addition, EPA's Office of Pesticide Programs is currently evaluating
all soil fumigants together. More detailed responses to each individual
comment are available in the Response to Comments document for this
rule, on Docket ID OAR-2005-0122.
EPA received one comment expressing concern that EPA is promoting
various alternatives to methyl bromide which are widely known to have
severe negative health and environmental impacts. The commenter
expressed concern about several alternatives and noted that the
environmental risks must be examined before EPA further promotes their
use. EPA's Office of Pesticide Programs has a comprehensive
registration program in place in order to carefully evaluate the safety
of all chemicals, including alternatives to methyl bromide, prior to
registration. The Office of Pesticide Programs is currently assessing
risks and developing risk management decisions for several soil
fumigants, including methyl bromide, to ensure that human health risk
assessment approaches are consistent and that the relative risks and
benefits of each chemical are considered.
[[Page 5998]]
F. What Are the Sources of Critical Use Methyl Bromide?
As discussed above and in the December 23, 2004 Framework Rule, an
approved critical user may obtain access to exempted production/import
of methyl bromide and to limited inventories of pre-phaseout methyl
bromide, the combination of which constitute the supply of ``critical
use methyl bromide'' intended to meet the needs of agreed critical
uses. In Decision XVI/2, Decision Ex.II/1, and Decision XVII/9, the
Parties to the Protocol authorized agreed critical-use levels for 2006
of 8,081,753 kilograms, which is equivalent to 32% of the U.S. 1991
methyl bromide consumption baseline and includes the supplemental
amount. As noted above, paragraph 2 of Decision Ex.II/1 states, ``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 available from existing stocks.'' The permitted level of
production and consumption of critical use methyl bromide in Decision
XVI/2 and Decision Ex.II/1 is 7,658,265 kilograms, or 30% of the U.S.
1991 consumption baseline, leaving approximately 2% to come from
inventory.
In developing this action, the Agency notes that Decision XVI/2
(para. 4) states that: ``each Party which has an agreed critical use
should ensure that the criteria in paragraph 1 of Decision IX/6 are
applied when licensing, permitting or authorizing critical use of
methyl bromide and that such procedures take into account available
stocks of banked or recycled methyl bromide,'' and Decision Ex.II/1
(para. 5) states that: ``each Party which has an agreed critical use
renews its commitment to ensure that the criteria in paragraph 1 of
Decision IX/6 are applied when licensing, permitting or authorizing
critical use of methyl bromide and that such procedures take into
account quantities of methyl bromide available from existing stocks.''
The language in these Decisions is similar to language in Decision
Ex I/3, paragraph 5. In the December 23, 2004 Framework Rule, EPA
interpreted paragraph 5 of Decision Ex I/3 ``as meaning that the U.S.
should not authorize critical use exemptions without including
provisions addressing drawdown from stocks for critical uses'' (69 FR
76987). The December 23, 2004 rule established provisions governing the
sale of pre-phaseout inventories for critical uses, including the
concept of critical stock allowances (CSAs) and a prohibition on sale
of pre-phaseout inventories in excess of the amount of CSAs held by the
seller for critical uses. In addition, EPA noted that inventory was
further taken into account through the trading provisions that allow
critical use allowances to be converted into critical stock allowances.
Under today's final action, no significant changes have been made to
those provisions, which remain part of the framework for the critical
use exemption and which continue to be in accordance with Decisions of
the Parties. Bearing in mind the United States' ``renewed commitment''
as stated in Decision Ex II/1, and its experience with the 2005
critical use nomination, EPA is, however, exercising its discretion to
adjust the portion of critical use methyl bromide to come from exempted
production or import as compared to the portion to come from inventory.
This action authorizes 6,821,487 kilograms of methyl bromide (27% of
baseline) to come from exempted new production or import and 1,136,008
kilograms (5% of baseline) to be made available from pre-phaseout
methyl bromide inventories. The percentage of baseline to be taken from
pre-phaseout inventories (5%) is the same as that authorized in the
Framework Rule for 2005.
EPA received 12 comments on the proportion of critical use methyl
bromide coming from pre-phaseout inventories and from new production or
import. Eight commenters were concerned with taking only 27% from
exempt new production, when the Decisions allow for up to 30%. The
commenters said EPA's assumptions about users' ability to obtain methyl
bromide from inventory during 2005 were incorrect and indicated that
the increased depletion of inventory will increase the cost of the
material. Additional comments are detailed below.
With regard to authorizing new production, EPA agrees that Decision
Ex II/1 allows up to 30% of the 1991 baseline to come from new
production. EPA disagrees, however, that the effect of Decisions XVI/2
and Ex. II/1 is that ``7658.28 MT must be allowed to be produced and
imported.'' The Parties agreed to ``permit'' this level of production
and consumption; they did not--and could not--mandate that the U.S.
authorize this level of production and consumption domestically. Nor
does the CAA require EPA to exempt the full amount permitted by the
Parties. Section 604(d)(6) of the CAA does not require EPA to exempt
any amount of production and consumption for critical uses (``the
Administrator * * * may exempt * * *'').
As explained above, EPA is continuing to take inventory into
account in the same manner as set forth in the Framework Rule. However,
EPA has discretion to take additional actions; such actions would be in
line with the United States' ``renewed commitment.'' In response to the
Notice of Proposed Rulemaking, the commenters did not provide a reason
why the amount of critical use methyl bromide to be taken from
inventory in 2006 should be less than the amount authorized to be taken
from inventory during the bulk of the prior control period. The
commenters believe that Decision Ex II/1 suggests a continuation of the
commitment previously made, not a new commitment to reduce levels of
production and consumption. While we agree, EPA views continued
drawdown of inventory for critical uses at the level authorized in the
Framework Rule for 2005 as an appropriate means this year of continuing
the commitment previously made, in light of our understanding of
current inventory and our analysis of the current needs of users. EPA
understands that some commenters object to any regulation of pre-
phaseout inventory. The reasons for EPA's limited regulation of such
inventory are explained in the Framework Rule and the accompanying
Response to Comments document, on Docket ID OAR-2005-0122. That
Response to Comments document also responds to the commenters'
conclusion that the Parties have implicitly accepted the environmental
effects of the full 30%. As explained in the preamble to the Framework
Rule, EPA recognizes that certain users elected not to apply for a
critical use exemption because they reasonably believed they could meet
their limited transitional needs for methyl bromide from inventory.
However, during 2005, EPA was not made aware of any evidence that such
users encountered problems as a result of EPA's allocating CSAs equal
to 7.5% of baseline. Nor have the commenters provided any compelling
evidence that such users would be unable to meet their limited
transitional needs during 2006 due to a continuation of the same
policy. One commenter stated that it did not have enough CUE pounds of
methyl bromide to supply customers, so that users had to access
existing inventory previously purchased. However, the commenter did not
state that it would not be able to meet their customers' needs during
2006. Other commenters did state that EPA had no basis to assume that
critical users have had no difficultly obtaining methyl bromide because
most users would have
[[Page 5999]]
experienced difficulty during the last quarter of the year, after the
publication of the proposed rule. Again, EPA is not aware of users
having difficulty obtaining methyl bromide from inventory through
December, 2005.
Nine commenters stated that it is important to preserve sufficient
existing inventory for use in the event of catastrophic loss or an
unexpected pest outbreak. EPA agrees with this statement. EPA does
recognize that natural disasters may cause disruptions in inventory
supply and distribution, and may address this issue in future
rulemakings.
Two commenters noted that the accelerated use of inventory will
result in inventory being concentrated in the hands of a few large
entities and may cause market disruption. EPA recognizes that inventory
may not be uniformly distributed and that at some locations, inventory
have already been depleted. However, if a particular distributor holds
CSAs but no longer holds pre-phaseout inventories, that distributor can
sell the CSAs to another entity that does hold such inventories.
Depletion of inventory in a particular geographic area does not mean
that approved critical users in that geographic area will necessarily
lack access to methyl bromide, as they may be able to obtain methyl
bromide produced through the expenditure of CUAs.
Two commenters stated that there may be errors in the amount of
methyl bromide that was nominated for each sector, and that as a
result, shifting the source of 3% of baseline from new production and
import to pre-phaseout inventory may result in insufficient supplies.
EPA notes that allocating on a universal basis, with a split between
the pre-plant and post-harvest sectors, allows the market to correct
for any errors in the amount of methyl bromide estimated to be needed
in each sector.
Nine commenters stated a belief that no downward adjustment should
be made until EPA has fully evaluated actual data for 2005. These
commenters stated that EPA must have a rational basis for its actions.
EPA's action is based on its experience with inventory drawdown in 2005
and on data regarding inventory holdings that has been claimed as
confidential.
One commenter stated that increased depletion of inventory will
increase the cost of methyl bromide. EPA notes that rising costs help
encourage the transition to non-ozone-depleting substitutes. In the
Response to Comments document for the December 23, 2004 Framework Rule,
EPA also stated that economic theory would suggest that an increase in
the price of critical use methyl bromide would occur should demand for
critical use methyl bromide exceed supply. However, EPA believes
critical use demand is not likely to exceed the 32% of baseline
authorized by the Parties.
One commenter stated that no CUAs should be permitted if sufficient
inventory is available for critical uses. Another commenter stated that
EPA's proposal does not comply with the CAA or the Protocol,
specifically Decisions XVI/2, Ex II/1, and IX/6, with regard to
accounting for inventory. The commenter stated that in promulgating the
Framework Rule, EPA undertook no analysis of how much critical need
could be met with existing inventory and refused to disclose the total
amount. As a result, according to the commenter, EPA cannot rely in the
2006 rule on its assessment of inventory in the 2005 rules. In
addition, the commenter states that the phrase ``renews its commitment
to ensure'' in Decision Ex. II/1 clarifies that the language regarding
accounting for inventory in that Decision constitutes a commitment and
that similar language in earlier Decisions also constituted a
commitment.
To the extent the commenter questions the determinations made as
part of the Framework Rule, EPA refers the commenter to the preamble to
that rule and the accompanying Response to Comments document. The
briefs filed in the litigation concerning the Framework Rule have also
been placed in Docket ID OAR-2005-0122. Although EPA disagrees with the
commenter's suggestion that the commitment reflected in Decision Ex.
II/1 has the legal consequences the commenter suggests, EPA's actions
in today's rule are an expression of this U.S. ``renewed commitment.''
In addition, EPA disagrees with the commenter's assumption that the
phrase ``take into account quantities of methyl bromide available from
existing stocks'' is susceptible to only one interpretation. EPA has
taken available inventory into account both by including stock-related
provisions in the Framework Rule and by continuing the allocation of
CSAs at a level equal to 5% of baseline in the CUE allocation for 2006.
Finally, EPA notes that the earlier Decisions provide some context for
understanding this ``renewed commitment'; contrary to the commenter's
suggestion, the more recent Decision does not affect the meaning of the
earlier ones.
EPA received one comment stating that reporting requirements are
being evaded through transfer of legal title to the end users. EPA did
not specifically solicit comment on this point but may consider the
issue in future rulemakings. In addition, EPA is now requiring that
inventory drawdown be reported on an annual basis. This amendment to
the regulatory text was made in the 2005 supplemental rule.
Ten commenters stated that EPA has no basis to assume that critical
users have had no difficulty obtaining methyl bromide from inventory
during 2005 because most users would only be in need of additional
methyl bromide after the proposal was issued. However, it does not
appear that critical users have had difficulty in obtaining methyl
bromide from inventory during the 2005 control period. While the
commenters stated that any such difficulty would arise after the
issuance of the proposed rule, this final rule is based on a full
calendar year's experience. Up until December 9th approved critical
users were authorized to obtain up to 30% of baseline from new
production and import and up to 5% from inventory. As of December 9th,
approved critical users were authorized to obtain an additional 2.5% of
baseline from inventory. We recognize that some users might not have
had time to purchase the material prior to the end of the 2005 control
period. Therefore, we are relying on the full year's experience with
the stock amount authorized for approved critical uses in the Framework
Rule. Drawing on this experience, EPA is granting CSAs equivalent to 5%
of baseline for the 2006 control period, on the basis that users will
continue to be able to access this level of inventory during 2006. In
the proposed rule, we indicated that there was some uncertainty in this
determination because the 2005 control period had not yet ended.
However, the 2005 control period has now ended. In the proposed rule,
we also stated that we anticipated that inventory levels would be lower
in 2006. While we continue to anticipate a decline in inventory levels,
we do not anticipate that critical users will be unable to obtain
needed quantities. We have placed data on inventory holdings in the
confidential portion of the docket.
On December 23, 2005, EPA received a letter concerning the impact
of the Decision of the Parties taken at their 17th Meeting, concerning
critical uses for 2007 and the impact of this Decision on critical uses
for the 2006 control period. While this letter did not arrive during
the comment period, EPA is addressing it in this final rule because of
the subject matter. The letter stated that in light of the Decisions
taken at the 17th Meeting, EPA should grant the full 30% of baseline in
the form of CUAs for the 2006 control period. The industry group that
wrote the letter observed that
[[Page 6000]]
at the 17th Meeting of the Parties, the Parties authorized up to
approximately 20% from new production and 6.25% from inventory for
2007. The letter expressed concerns that taking 5% of baseline from
inventory in 2006 and 6.25% in 2007 would result in shortages. EPA has
re-examined the available inventory data and has projected multiple
scenarios concerning levels of consumption of existing inventory. Based
on these efforts, EPA believes that critical users will continue to be
able to meet their needs throughout 2006 and 2007 through the
anticipated combination of new production and import and inventory
drawdown. EPA's analysis is based on data that has been claimed as
confidential and therefore has not been included in the public portion
of the docket for this rule. While EPA previously determined that
aggregate inventory information for a prior year was not confidential
business information, EPA has not made that information public due to
the filing of complaints by affected businesses. EPA will continue to
monitor CUA and CSA data very closely. If an inventory shortage occurs,
EPA may consider various options, including but not limited to
promulgating a final version of the proposed petition process, taking
into account comments received; proposing a different administrative
mechanism to serve the same purpose; or authorizing conversion of a
limited number of CSAs to CUAs through rulemaking, bearing in mind the
upper limit on U.S. production for critical uses. EPA may also address
consideration of inventory to satisfy critical uses for the 2007
control period in a future rulemaking.
In the proposed rule, EPA requested comment on a petition process
that would allow an approved critical user to demonstrate inability to
acquire sufficient methyl bromide from inventory. Upon receipt of a
petition that met the specified criteria, EPA would review the petition
and consider converting a limited number of CSAs to CUAs (up to the 30%
limit agreed by the Parties).
EPA received 11 on-time comments opposed to the proposed petition
process, and one on-time comment in favor. The comments in opposition
stated that the petition process was cumbersome and would cause
significant additional burden to end-users. Other commenters stated
that the October 1 deadline proposed for submittal of a petition would
be too early in the calendar year, as most potential CSA shortages are
expected to occur during the latest months of the year. One commenter
was opposed to the petition process in general but suggested revisions,
such as reducing EPA's review period from 30 days to 7 days. One
additional commenter objected to the proposed petition process and
stated that EPA had no justification for a process that would lead to
increased production, and that a much greater reduction in production
and import would be required to comply with Decisions IX/6, XVI/2 and
Ex. II/1. The one comment in favor of the petitions noted that the
proposed process would prevent unneeded methyl bromide from entering
the market, but also stated that the situation would be unlikely to
occur. Having considered the comments, EPA concludes that approved
critical users do not view the petition process as providing a
significant benefit. The petition process was designed to assist
approved critical users in the unlikely event that they were unable to
obtain a quantity from inventory equal to the number of CSAs allocated
in this rulemaking. EPA has received no indication that such a shortage
will occur during 2006. Therefore, EPA is not finalizing the proposed
petition process and is withdrawing the information collection request
(ICR) for this provision that it submitted to OMB under the Paperwork
Reduction Act.
G. What Are the Critical Use Allowance Allocations?
For 2006, EPA is authorizing production and import of 6,821,487
kilograms of critical use methyl bromide, as shown in Table II below.
With this action, EPA is allocating critical use allowances (CUAs) to
producers and importers on a pro-rata basis based on their 1991
consumption baseline levels. Each CUA is equivalent to 1 kilogram of
critical use methyl bromide. These allowances expire at the end of the
control period and, as stated in the Framework Rule, are not bankable
from one year to the next. This action allocates the following number
of pre-plant and post-harvest critical use allowances (CUAs) to the
entities listed below. They will be subject to the trading provisions
at 40 CFR 82.12, which are discussed in section V.(G) of the preamble
to the Framework Rule (69 FR 76982).
As discussed in section V.(E) of the preamble to the Framework Rule
(69 FR 76990), EPA issues CUEs once a year except in the instance where
the Parties authorize supplemental amounts or uses for CUEs.
EPA has modified the CUAs and CSAs that were listed in the October
27, 2005 Notice of Proposed Rulemaking due to the revised adjustment
for uptake of sulfuryl fluoride, as well as EPA's determination to
allow 27% of baseline for new production and 5% of baseline for CSAs.
These adjustments result in a total of 6,315,237 kilograms for pre-
plant CUAs and 506,250 kilograms for post-harvest CUAs.
Table II.--Allocation of Critical Use Allowances
------------------------------------------------------------------------
2006 Critical use
2006 Critical use allowances for
Company allowances for post-harvest
pre-plant uses* uses*
(kilograms) (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp......... 3,838,070 307,673
Albemarle Corp.................... 1,578,274 126,520
Ameribrom, Inc.................... 871,872 69,892
TriCal, Inc....................... 27,020 2,166
--------------------
Total......................... 6,315,237 506,250
------------------------------------------------------------------------
* For production or import of class I, Group VI controlled substance
exclusively for the Pre-Plant or Post-Harvest uses specified in
Appendix L to 40 CFR Part 82.
EPA received eight comments identifying a duplication error in the
proposed critical use allocations for 2006 (70 FR 62030). EPA
unintentionally duplicated the amount of post-harvest CUAs as ``129,934
kilograms'' for both Albemarle and Ameribrom. However, the revised
post-harvest calculations in this final rule
[[Page 6001]]
authorize 126,520 post-harvest CUAs for Albemarle and 69,892 for
Ameribrom. The revised overall total of post-harvest CUAs is 506,250
kilograms.
Paragraph four of Decision Ex. I/3, taken at the 1st Extraordinary
Meeting of the Parties, stated ``that Parties should endeavor to
allocate the quantities of methyl bromide recommended by the Technology
and Economic Assessment Panel as listed in annex II A to the report of
the First Extraordinary Meeting of the Parties.'' Similarly, paragraph
four of Decision Ex. II/1 states, ``that Parties that have an agreed
critical use shall endeavor to license, permit, authorize or allocate
the quantities of methyl bromide recommended by the Technology and
Economic Assessment Panel to the specific categories of use shown in
table A of the annex to the present Decision.'' In accordance with
Decision Ex.I/3, paragraph four, and consistent with the more recent
Decision, the Agency endeavored to allocate directly on a sector-by-
sector basis by analyzing this option, among others, in August 2004. In
the final Framework Rule, the Agency made a reasoned decision as to the
economic, environmental and practical effects of implementing the
various proposed approaches, after considering public comment. In the
August 25, 2004 proposed rulemaking for the allocation framework (69 FR
52366), EPA solicited comment on both universal and sector-based
allocation of critical use allowances, as well as more flexible methods
for determining allocations. EPA determined in the final Framework Rule
(69 FR 76989) that a lump-sum, or universal, allocation, modified to
include distinct caps for pre-plant and post-harvest uses, was the most
efficient and least burdensome approach that would achieve the desired
environmental results, and that there would be significant
administrative and practical difficulties associated with a sector-
specific approach.
EPA received two on-time comments concerning use-specific
allocations. One commenter stated that CSAs and CUAs should be
allocated specifically to each of the sectors as authorized by the
Parties, and that the current ``lump sum'' allocation system delays the
transition to alternatives. However, the commenter also stated that if
EPA does not implement a use-specific allocation system, the Agency
should maintain the current system that differentiates ``pre-plant''
and ``post-harvest'' uses. EPA intends to continue differentiating
between ``pre-plant'' and ``post-harvest'' uses as defined in the
Framework Rule (69 FR 76982) for the 2006 control period. EPA's
consideration of a use-specific allocation system is summarized below.
In developing the Framework Rule and allocating CUAs for 2005, EPA
examined the economic, environmental and administrative effects of
various allocation options over the projected life of the CUE exemption
program. The Agency found that a universal approach would offer equal
environmental protection, at less cost and with easier implementation,
than other options such as sector-specific allocation. The Agency
adopted a modified universal approach, separating pre-plant from post-
harvest uses in order to address concerns raised by smaller, less
frequent, and end-of-year uses.
In addition, although the approach adopted in the Framework Rule
does not directly allocate allowances to each category of use, the
Agency anticipates that reliance on market mechanisms will achieve
similar results indirectly. As described in the August 25, 2004
proposed rulemaking and accompanying regulatory impact analysis (E-
Docket OAR-2003-0230), the Agency believes that under the universal
approach, as divided into pre-plant and post-harvest sectors, the
actual critical use will closely follow the sector breakout listed by
the TEAP and incorporated into the Parties' Decision. EPA will continue
to monitor use sector by sector. A market-based lump sum system will
likely operate to mirror a sector-specific allocation over time, and
should not therefore delay the transition to alternatives. For the
reasons stated above, and consistent with our current analysis of this
issue as it relates to 2006, EPA is not changing the approach
previously adopted in the Framework Rule for the allocation of CUAs.
EPA notes that the U.S. Government has spent over $150 million on
alternatives research, and continues to develop research priorities. In
addition, all critical use exemption applicants are required to have a
research plan in order for their requests to be included in the annual
nomination.
The other commenter supported the allocation of CUAs to the same
pre-plant and post-harvest groupings because critical users require
consistency from year to year. EPA is continuing to implement this
allocation mechanism.
H. What Are the Critical Stock Allowance Allocations?
EPA is allocating 1,136,008 kilograms of critical stock allowances
(CSAs) to the entities listed below in Table III for the 2006 control
period. The amounts are apportioned to each entity in proportion to
inventory held.
EPA addressed the issue of access to inventory for approved
critical uses in the October 27, 2005 Notice of Proposed Rulemaking for
2006 allocations (70 FR 62044) and in the December 23, 2004 Framework
Rule. EPA is not changing this aspect of the critical use exemption
framework through this action.
EPA currently possesses information on existing inventory of methyl
bromide that has been claimed as confidential. With regard to data for
2003, EPA has determined that the aggregate inventory information is
not confidential business information and may be disclosed but is
currently withholding that information due to the filing of complaints
by affected businesses seeking to enjoin the Agency from its release
(40 CFR 2.205). EPA will continue to follow its own regulations with
respect to the treatment of this information. EPA received one comment
requesting that it disclose the amount of inventory held by private
sector entities on the grounds that the information is relevant to the
outcome of the rule and should therefore be available for public
comment under Section 307(d) of the CAA. The commenter refers to
arguments made in comments on the framework rule and in legal briefs.
EPA's position on these issues is explained in the preamble to the
Framework Rule and the responses to comments received on that rule. The
comment responses, and legal briefs in the case to which the commenter
refers, are available in Docket ID OAR-2005-0122.
Table III.--Allocation of Critical Stock Allowances
------------------------------------------------------------------------
Company
-------------------------------------------------------------------------
Albemarle
Ameribrom, Inc.
Bill Clark Pest Control, Inc.
Blair Soil Fumigation
Burnside Services, Inc.
Cardinal Professional Products
Carolina Eastern, Inc.
Degesch America, Inc.
Dodson Bros.
Great Lakes Chemical Corp.
Harvey Fertilizer & Gas
Helena Chemical Co.
Hendrix & Dail
Hy Yield Bromine
Industrial Fumigation Company
J.C. Ehrlich Co.
Pacific Ag
Pest Fog Sales Corp.
Prosource One
Reddick Fumigants
Royster-Clark, Inc.
Southern State Cooperative, Inc.
Trical Inc.
Trident Agricultural Products
UAP Southeast (NC)
UAP Southeast (SC)
[[Page 6002]]
Univar
Vanguard Fumigation Co.
Western Fumigation
TOTAL--1,136,008 kilograms
------------------------------------------------------------------------
I. Clarifications to the Framework Rule
EPA is clarifying the Framework Rule regarding consecutive use of
non-critical use methyl bromide and critical use methyl bromide. Under
40 CFR 82.13(dd), an approved critical user who purchases a quantity of
critical use methyl bromide is required to certify, in part: ``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'' unless
certain exceptions apply. This certification, by itself, would not
preclude the user from using the critical-use methyl bromide for a
treatment chamber, facility, or field that he or she had fumigated
earlier that year with non-critical use methyl bromide purchased during
an earlier control period. However, the prohibition at Sec.
82.4(p)(2)(vi) states: ``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'' unless certain exceptions
apply. That prohibition does not distinguish between non-critical use
methyl bromide purchased during the current control period and
carryover amounts purchased during earlier control periods.
In deciding how to reconcile these two provisions, EPA considered
the effect of an amendment contained in the December 13, 2005 Federal
Register notice concerning the supplemental allocation for 2005. There,
EPA amended Sec. 82.4(p)(2)(vi) and the certification language in
Sec. 82.13(dd) so that end users who had been using non-critical use
methyl bromide during the first part of 2005 would not be prevented
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
that supplemental rulemaking (70 FR 73604). That change would also
prevent adverse consequences for end users if the main allocation rule
for a particular calendar year were delayed. EPA is reconciling the
language in Sec. 82.4(p)(2)(vi) and Sec. 82.13(dd) by changing the
language of the certification to omit the word ``purchased'' from the
sentence that begins ``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 * * * ''. This approach puts the focus on actions taken during
the current control period and provides greater clarity and simplicity
by eliminating the date of purchase of non-critical use methyl bromide
as an issue.
EPA received eight comments on how to reconcile these two
provisions. One commenter was confused about how the proposed change
related to the change included in the supplemental rule for 2005. The
change included in the supplemental rule addressed situations in which
EPA authorizes critical uses during a control period. That change was
made because the general prohibition on changing from non-critical-use
methyl bromide to critical-use methyl bromide during a control period
would otherwise have prevented access to critical-use methyl bromide
for the newly authorized uses. The October 27, 2005 proposed rule for
2006 critical uses focused on a separate issue: Whether critical users
were barred from using critical-use methyl bromide on a field or
structure previously fumigated, during the same control period, with
any non-critical-use methyl bromide, or only a field or structure
previously fumigated, during the same control period, with non-
critical-use methyl bromide purchased during that same control period.
The commenter states that EPA did not explain why the change was
necessary. EPA is making the change to make the prohibition in section
Sec. 82.4(p) consistent with the certification language in Sec.
82.13(dd). The change made in the supplemental rule ensures that users
who have uses that will be designated as critical uses upon the
effective date of this rule will not be prevented from using critical-
use methyl bromide as a result of having used non-critical-use-
inventory of methyl bromide prior to the critical use designation.
This commenter stated that the proposed rule did not include
relevant regulatory text on this issue. Because the change described in
the supplemental rule was pending at the time of the proposed rule for
this action, EPA chose not to include relevant regulatory text in the
proposal, as doing so could have caused additional confusion. The
change was adequately described in the preamble. This final rule
includes the text of Sec. 82.13(dd) as amended through the
supplemental rule and through this action.
One commenter states that the Framework Rule allows users to
``double-dip'' by dividing fields or structures under common ownership
into two parts, in order to apply critical-use methyl bromide to the
first part and non-critical-use methyl bromide to the second part.
However, EPA is not aware of such double-dipping taking place. In this
rulemaking for the 2006 control period, we are not revisiting all
aspects of the Framework Rule. We proposed a small change to reconcile
language in two different sections of that rule. We welcome specific
suggestions for improvements to the critical use regulations for
consideration in future rulemakings. In this action, however, we are
addressing only the aspects of this comment that relate to the specific
change proposed. The commenter appears to believe that removing the
word ``purchased'' from Sec. 82.13(dd) would allow greater overall
usage of methyl bromide. This is not the case. This change simply
conforms the language of the end-user certification with the language
of the prohibition in Sec. 82.4(p)(2)(vi). It clarifies that, except
in the instances noted in the rule, end-users may not use non-critical-
use methyl bromide on a particular field or structure and then switch
to critical-use methyl bromide for that same field or structure,
regardless of when the non-critical-use methyl bromide was purchased.
EPA received two comments stating that methyl bromide in pre-
phaseout inventory should not be accessed by those without critical
needs. While EPA has previously discussed this issue in the Framework
Rule, in summary, Decision Ex. II/1 does not require that individual
Parties prohibit use of inventory by users whose uses fall outside the
categories of agreed critical uses. Nothing in the Protocol or CAA
mandates that EPA limit drawdown from existing inventory for such uses.
Further details are available in the Response to Comments document for
the Framework Rule.
J. Supplemental Critical Use Exemptions for 2006
On January 31, 2005, the U.S. Government submitted a supplemental
nomination for 2006 critical use exemptions equivalent to 0.03% of the
1991 U.S. baseline. The supplemental nomination for 7,070 kilograms for
California dried beans was considered ``unable to assess'' by the MBTOC
in its May 2005 report because of a need for clarification about the
label for phosphine and the principal pest, the
[[Page 6003]]
cowpea weevil. The U.S. submitted additional information in August 2005
to the MBTOC, responding to various questions on critical use
nominations, including a clarification of the status of the phosphine
label with regard to its use for dried beans. In December 2005, the
Parties approved the supplemental nomination for 2006 at their 17th
Meeting in Dakar, Senegal. In light of the Parties' approval of the
supplemental 2006 nomination, EPA is including this quantity in the
critical use levels for 2006.
EPA received one on-time comment concerning the supplemental
request for 2006. The commenter objected to granting domestic approval
to a critical use category not yet fully reviewed or authorized by the
Parties, and was concerned that the public would not have a second
opportunity to comment on the supplemental request. EPA was as specific
as possible in the October 27, 2005 proposed rule regarding the size
and nature of the supplemental request in order to provide the public a
full opportunity to comment. There is no significant new information to
put before the public at this time. Therefore, a second comment period
is unnecessary. The commenter suggests that EPA take a second look at
the supplemental amount on the basis of the most up-to-date
information. However, in this instance the information that formed the
basis of the Parties' Decision is the most up-to-date information
available. That information included the U.S. responses to questions
from MBTOC in August of 2005. The supplemental request is being
authorized through the allocation of additional CSAs.
VI. Statutory and Executive Order Reviews
A. Executive Order No. 12866: Regulatory Planning and Review
Under Executive Order No. 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may: (1) Have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order.
Pursuant to the terms of Executive Order 12866, OMB has notified
EPA that it considers this a ``significant regulatory action'' within
the meaning of the Executive Order. EPA has submitted this action to
OMB for review. Changes made in response to OMB suggestions or
recommendations will be documented in the public record.
B. Paperwork Reduction Act
EPA submitted an information collection request (control number
2179.04) for OMB approval that pertains to the petitioning requirements
described in Section E, under the provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. However, as described in that section, EPA
is not finalizing the petitioning requirements in this action and has
withdrawn 2179.04 from OMB consideration. The information collection
under this final rule is authorized under Sections 603(b), 603(d) and
614(b) of the Clean Air Act (CAA).
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this final rule. For purposes
of assessing the impacts of today's rule on small entities, small
entity is defined as: (1) A small business that is identified by the
North American Industry Classification System (NAICS) Code in the Table
below; (2) a small governmental jurisdiction that is a government of a
city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
----------------------------------------------------------------------------------------------------------------
NAICS small
business
size
standard
Category NAICS code SIC code (in 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 Floriculture and Nursery
Production. products.
Storage Uses............................ 115114--Post-harvest 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.
----------------------------------------------------------------------------------------------------------------
[[Page 6004]]
Agricultural producers of minor crops and entities that store
agricultural commodities are categories of affected entities that
contain small entities. This rule only affects entities that applied to
EPA for a de-regulatory exemption. In most cases, EPA received
aggregated requests for exemptions from industry consortia. On the
exemption application, EPA asked consortia to describe the number and
size distribution of entities their application covered. Based on the
data provided, EPA estimates that 3,218 entities petitioned EPA for an
exemption. Since many applicants did not provide information on the
distribution of sizes of entities covered in their applications, EPA
estimated that between one-fourth and one-third of the entities may be
small businesses based on the definition given above. In addition,
other categories of affected entities do not contain small businesses
based on the above description.
After considering the economic impacts of today's rule on small
entities, EPA has concluded that this action will not have a
significant economic impact on a substantial number of small entities.
The small entities directly regulated by this rule are primarily
agricultural entities, producers, importers, and distributors of methyl
bromide, as well as any entities holding inventory of methyl bromide.
In determining whether a rule has a significant economic impact on
a substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities.'' (5 U.S.C. 603-604).
Thus, an Agency may conclude that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves a regulatory burden, or otherwise has a positive economic
effect on all of the small entities subject to the rule. Since this
rule will make additional methyl bromide available for approved
critical uses after the phaseout date of January 1, 2005, this is a de-
regulatory action which will confer a benefit to users of methyl
bromide. EPA believes the estimated de-regulatory value for users of
methyl bromide is between $20 million to $30 million annually, as a
result of the entire critical use exemption program over its projected
duration. We have therefore concluded that today's final rule will
relieve regulatory burden for all small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this final rule does not contain a Federal
mandate that may result in expenditures of $100 million or more by
State, local and tribal governments, in the aggregate, or by the
private sector in any one year. The recordkeeping and reporting burden
on the private sector associated with this rule is estimated to be
under $200,000 on an annual basis. Thus, this rule is not subject to
the requirements of Sections 202 and 205 of the UMRA. Further, EPA has
determined that this rule contains no regulatory requirements that
might significantly or uniquely affect small governments because it
does not create any requirements on any State, local, or tribal
government.
E. Executive Order No. 13132: Federalism
Executive Order No. 13132, entitled ``Federalism'' (64 FR 43255,
August 10, 1999), requires EPA to develop an accountable process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have federalism
implications.'' ``Policies that have federalism implications'' is
defined in the Executive Order to include regulations that have
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.''
This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order No. 13132. This final 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.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicited comment on this rule from State
and local officials. EPA did not receive comment on this rule from
State or local officials.
F. Executive Order No. 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order No. 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order No. 13175. This
rule does not significantly or uniquely affect the communities of
Indian tribal governments, nor does it impose any enforceable duties on
communities of Indian tribal governments. Thus, Executive Order No.
13175 does not apply to this rule.
G. Executive Order No. 13045: Protection of Children From Environmental
Health & Safety Risks
Executive Order No. 13045: ``Protection of Children From
[[Page 6005]]
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997) applies to any rule that: (1) Is determined to be ``economically
significant'' as defined under Executive Order 12866, and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children, and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under Section 5-501 of the Order has the
potential to influence the regulation. This final rule is not subject
to Executive Order 13045 because it does not establish an environmental
standard intended to mitigate health or safety risks.
H. Executive Order No. 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This final rule is not a ``significant energy action'' as defined
in Executive Order No. 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. This rule does
not pertain to any segment of the energy production economy nor does it
regulate any manner of energy use. Therefore, we have concluded that
this rule is not likely to have any adverse energy effects.
I. National Technology Transfer 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 did not
consider the use of any voluntary consensus standards.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective on February 1, 2006.
List of Subjects in 40 CFR Part 82
Environmental protection; Environmental treaty; Montreal Protocol
on Substances that Deplete the Ozone Layer; Ozone depletion; Methyl
bromide; Chemicals; Exports, Imports, Production, Reporting and
recordkeeping requirements.
Dated: January 30, 2006.
Stephen L. Johnson,
Administrator.
0
For the reasons set out in the preamble, 40 CFR part 82 is amended as
follows:
PART 82--PROTECTION OF STRATOSPHERIC OZONE
0
1. The authority citation for part 82 continues to read as follows:
Authority: 42 U.S.C. 7414, 7601, 7671-7671q.
0
2. Section 82.8 is amended by revising paragraphs (c)(1) and (c)(2) to
read as follows:
Sec. 82.8 Grant of essential use allowances and critical use
allowances.
* * * * *
(c) * * *
(1) Allocated critical use allowances granted for specified control
period.
------------------------------------------------------------------------
2006 Critical use 2006 Critical use
allowances for allowances for
Company pre-plant uses* post-harvest
(kilograms) uses* (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp......... 3,838,070 307,673
Albemarle Corp.................... 1,578,274 126,520
Ameribrom, Inc.................... 871,872 69,892
TriCal, Inc....................... 27,020 2,166
--------------------
Total......................... 6,315,237 506,250
------------------------------------------------------------------------
* For production or import of class I, Group VI controlled substance
exclusively for the Pre-Plant or Post-Harvest uses specified in
Appendix L to this subpart.
(2) Allocated critical stock allowances granted for specified
control period. The following companies are allocated critical stock
allowances for 2006 on a pro-rata basis in relation to the inventory
held by each.
------------------------------------------------------------------------
Company
-------------------------------------------------------------------------
Albemarle
Ameribrom, Inc.
Bill Clark Pest Control, Inc.
Blair Soil Fumigation
Burnside Services, Inc.
Cardinal Professional Products
Carolina Eastern, Inc.
Degesch America, Inc.
Dodson Bros. Trical Inc.
Great Lakes Chemical Corp.
Harvey Fertilizer & Gas
Helena Chemical Co.
Hendrix & Dail
Hy Yield Bromine
Industrial Fumigation Company
J.C. Ehrlich Co.
Pacific Ag
Pest Fog Sales Corp.
Prosource One
Reddick Fumigants
[[Page 6006]]
Royster-Clark, Inc.
Southern State Cooperative, Inc.
Trident Agricultural Products
UAP Southeast (NC)
UAP Southeast (SC)
Univar
Vanguard Fumigation Co.
Western Fumigation
TOTAL--1,136,008 kilograms
------------------------------------------------------------------------
0
3. Section 82.13 is amended by revising paragraph (dd) to read as
follows:
Sec. 82.13 Recordkeeping and Reporting Requirements for Class I
Controlled Substances.
* * * * *
(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 cannot subsequently or concurrently be fumigated with
non-critical use methyl bromide during the same control period,
excepting a QPS treatment or a treatment for a different use (e.g., a
different crop or commodity). I will not use this quantity of methyl
bromide for a treatment chamber, facility, or field that I previously
fumigated with non-critical use methyl bromide 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 identify the type of critical use methyl
bromide purchased, the location of the treatment, the crop or commodity
treated, the quantity of critical use methyl bromide purchased, and the
acreage/square footage treated, and will be signed and dated by the
approved critical user.
0
4. Appendix L to Subpart A is revised to read as follows:
Appendix L to Part 82 Subpart A--Approved Critical Uses, and Limiting
Critical Conditions for Those Uses for the 2006 Control Period
------------------------------------------------------------------------
Column B Approved
Column A Approved critical critical user and Column C Limiting
uses location of use critical conditions
------------------------------------------------------------------------
Pre-Plant Uses:
Cucurbits................. (a) Michigan with a reasonable
growers. expectation that
moderate to severe
soilborne fungal
disease infestation,
or moderate to
severe disease
infestation could
occur without methyl
bromide fumigation;
or with a need for
methyl bromide for
research purposes.
(b) Southeastern with a reasonable
U.S. except expectation that one
Georgia limited or more of the
to growing following limiting
locations in critical conditions
Alabama, either already exist
Arkansas, or could occur
Kentucky, without methyl
Louisiana, North bromide fumigation:
Carolina, South moderate to severe
Carolina, yellow or purple
Tennessee, and nutsedge
Virginia. infestation, or to a
lesser extent:
fungal disease
infestation and root
knot nematodes; or
with a need for
methyl bromide for
research purposes.
(c) Georgia 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,
moderate to severe
fungal disease
infestation, or to a
lesser extent: root
knot nematodes; or
with a need for
methyl bromide for
research purposes.
Eggplant.................. (a) 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
moderate to severe
nematodes, or
moderate to severe
disease infestation,
or restrictions on
alternatives due to
karst geology; or
with a need for
methyl bromide for
research purposes.
(b) Georgia 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
moderate to severe
nematodes, or
moderate to severe
pythium root and
collar rots, or
moderate to severe
southern blight
infestation, and to
a lesser extent:
crown and root rot;
or with a need for
methyl bromide for
research purposes.
(c) Michigan with a reasonable
growers. expectation that
moderate to severe
soilborne fungal
disease infestation
could occur without
methyl bromide
fumigation; or with
a need for methyl
bromide for research
purposes.
Forest Nursery 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.
[[Page 6007]]
(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
Alabama, or could occur
Arkansas, without methyl
Georgia, South bromide fumigation:
Carolina and moderate to severe
Texas. yellow or purple
nutsedge
infestation, or
moderate to severe
disease infestation.
(c) Public with a reasonable
(government expectation that one
owned) seedling or more of the
nurseries in the following limiting
states of critical conditions
Illinois, either already exist
Indiana, or could occur
Kentucky, without methyl
Maryland, bromide fumigation:
Missouri, New moderate to severe
Jersey, Ohio, weed infestation
Pennsylvania, including purple and
West Virginia yellow nutsedge
and Wisconsin. infestation, or
moderate to severe
Canada thistle
infestation, or
moderate to severe
nematodes, and to a
lesser extent:
fungal disease
infestation.
(d) 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 and bromide fumigation:
South Carolina. moderate to severe
yellow or purple
nutsedge
infestation,
moderate to severe
disease infestation,
and to a lesser
extent: nematodes
and worms.
(e) 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
Washington and or could occur
Oregon. without methyl
bromide fumigation:
moderate to severe
yellow nutsedge
infestation, or
moderate to severe
fungal disease
infestation.
(f) Michigan with a reasonable
growers. expectation that one
or more of the
following limiting
critical conditions
already either exist
or could occur
without methyl
bromide fumigation:
moderate to severe
disease infestation,
moderate to severe
Canada thistle
infestation,
moderate to severe
nutsedge
infestation, and to
a lesser extent:
nematodes.
(g) Michigan with a reasonable
herbaceous expectation that one
perennials or more of the
growers. following limiting
critical conditions
already exist or
could occur without
methyl bromide
fumigation: moderate
to severe nematodes,
moderate to severe
fungal disease
infestation, and to
a lesser extent:
yellow nutsedge and
other weeds
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 on
California and the use of 1,3-
Washington). dichloropropene
products due to
reaching local
township limits on
the use of this
alternative, or with
a need for methyl
bromide for research
purposes.
(b) Members of with a reasonable
the California expectation that one
Association of or more of the
Nurserymen- following limiting
Deciduous Fruit critical conditions
and Nut Tree already either
Growers. exists or could
occur without methyl
bromide fumigation:
moderate to severe
nematodes, medium to
heavy clay soils, or
a prohibition on the
use of 1,3-
dichloropropene
products due to
reaching local
township limits on
the use of this
alternative, or with
a need for methyl
bromide for research
purposes.
(c) California with a reasonable
rose nurseries. expectation that one
or more of the
following limiting
critical conditions
already either
exists or could
occur without methyl
bromide fumigation:
moderate to severe
nematodes, or user
may be prohibited
from using 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached, or
with a need for
methyl bromide for
research purposes.
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
disease infestation,
or moderate to
severe yellow or
purple nutsedge
infestation, or
moderate to severe
nematodes; or with a
need for methyl
bromide for research
purposes.
(b) North with a reasonable
Carolina, expectation that one
Tennessee and or more of the
Maryland growers. following limiting
critical conditions
already either
exists or could
occur without methyl
bromide fumigation:
moderate to severe
black root rot, or
moderate to severe
root-knot nematodes,
or moderate to
severe yellow and
purple nutsedge
infestation, and to
a lesser extent:
crown rot; or with a
need for methyl
bromide for research
purposes.
[[Page 6008]]
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:
moderate to severe
nematodes, or
moderate to severe
fungal disease
infestation, or
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; or
with a need for
methyl bromide for
research purposes.
(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:
moderate to severe
nematodes, or
moderate to severe
fungal disease
infestation, or
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; or
with a need for
methyl bromide for
research purposes.
(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:
moderate to severe
nematodes, or
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; or
with a need for
methyl bromide for
research purposes.
(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:
moderate to severe
nematodes, or
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; or
with a need for
methyl bromide for
research purposes.
Ornamentals............... (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 nematodes, or
a prohibition on the
use of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached; or
with a need for
methyl bromide for
research purposes.
(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
weed infestation, or
moderate to severe
disease infestation,
or moderate to
severe nematodes, or
karst topography; or
with a need for
methyl bromide for
research purposes.
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 nematodes, or
a prohibition on the
use of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached; or
with a need for
methyl bromide for
research purposes.
(b) Alabama, with a reasonable
Arkansas, expectation that one
Kentucky, or more of the
Louisiana, North following limiting
Carolina, South critical conditions
Carolina, already either
Tennessee and exists or could
Virginia growers. occur without methyl
bromide fumigation:
moderate to severe
yellow or purple
nutsedge
infestation, or
moderate to severe
nematodes, or
moderate to severe
pythium root,
collar, crown and
root rots, or the
presence of an
occupied structure
within 100 feet of a
grower's field the
size of 100 acres or
less; or with a need
for methyl bromide
for research
purposes.
(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
moderate to severe
disease infestation,
or moderate to
severe nematodes, or
karst topography; or
with a need for
methyl bromide for
research purposes.
[[Page 6009]]
(d) Georgia 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
moderate to severe
nematodes, or
moderate to severe
pythium root and
collar rots, or
moderate to severe
southern blight
infestation, and to
a lesser extent:
crown and root rot;
or with a need for
methyl bromide for
research purposes.
(e) Michigan with a reasonable
growers. expectation that
moderate to severe
fungal disease
infestation would
occur without methyl
bromide fumigation;
or with a need for
methyl bromide for
research purposes.
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, or
moderate to severe
yellow or purple
nutsedge
infestation, or
moderate to severe
nematodes, or 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; or with
a need for methyl
bromide for research
purposes.
(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
moderate to severe
nematodes, or
moderate to severe
disease infestation,
or karst topography
and to a lesser
extent: carolina
geranium or cut-leaf
evening primrose
infestation; or with
a need for methyl
bromide for research
purposes.
(c) Alabama, with a reasonable
Arkansas, expectation that one
Georgia, or more of the
Illinois, following limiting
Kentucky, critical conditions
Louisiana, already either
Maryland, New exists or could
Jersey, North occur without methyl
Carolina, Ohio, bromide fumigation:
South Carolina, moderate to severe
Tennessee and yellow or purple
Virginia growers. nutsedge, or
moderate to severe
nematodes, or
moderate to severe
black root and crown
rot, or the presence
of an occupied
structure within 100
feet of a grower's
field the size of
100 acres or less;
or with a need for
methyl bromide for
research purposes.
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,
or moderate to
severe fungal
pathogen
infestation; or with
a need for methyl
bromide for research
purposes.
(b) Alabama, with a reasonable
Arkansas, expectation that one
Florida, or more of the
Georgia, following limiting
Kentucky, critical conditions
Louisiana, North already either
Carolina, South exists or could
Carolina, and occur without methyl
Tennessee. growers bromide
fumigation: moderate
to severe yellow or
purple nutsedge
infestation, or
moderate to severe
disease infestation,
or moderate to
severe nematodes, or
the presence of an
occupied structure
within 100 feet of a
grower's field the
size of 100 acres or
less, or karst
topography; or with
a need for methyl
bromide for research
purposes.
(c) 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 nematodes; or
with a need for
methyl bromide for
research purposes.
Turfgrass................. (a) U.S. for the production of
turfgrass sod industry certified
nursery pure sod; with a
producers who reasonable
are members of expectation that one
Turfgrass or more of the
Producers following limiting
International critical conditions
(TPI). already either
exists or could
occur without methyl
bromide fumigation:
moderate to severe
bermudagrass,
nutsedge and off-
type perennial grass
infestation, or
moderate to severe
white grub
infestation; or with
a need for methyl
bromide for research
purposes.
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: moderate to
Association. severe infestation
of beetles, weevils
or moths, or 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.
(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: moderate to
Institute. (For severe infestation
this rule, ``pet or beetles, moths,
food'' refers to or cockroaches, or
domestic dog and older structures
cat food). 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.
[[Page 6010]]
(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: moderate
to severe beetle
infestation, or
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 a reasonable
the National expectation that one
Pest Management or more of the
Association following limiting
treating cocoa critical conditions
beans in storage already exists or
and associated could occur without
spaces and methyl bromide
equipment in fumigation: moderate
processed food, to severe pest
cheese, dried infestation, or
milk, herbs and older structures
spices and that can not be
spaces and properly sealed to
equipment in use an alternative
associated to methyl spaces and
processing bromide, or the
facilities. presence of
sensitive equipment
in electronic
equipment subject to
corrosivity, time to
transition to an
alternative.
Commodity Storage......... (a) California with a reasonable
entities storing expectation that one
walnuts, beans, or more of the
dried plums, following limiting
figs, raisins, critical conditions
dates and exists: rapid
pistachios in fumigation is
California. required to meet a
critical market
window, such as
during the holiday
season, rapid
fumigation is
required when a
buyer provides short
(2 working 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; or
with a need for
methyl bromide for
research purposes.
Dry Cured Pork Products... (a) Members of with a reasonable
the National expectation that one
Country Ham or more of the
Association. following limiting
critical conditions
already exists or
could occur without
methyl bromide
fumigation: moderate
to severe red legged
ham beetle, cheese/
ham skipper,
dermestid beetle or
ham mite
infestation.
(b) Members of with a reasonable
the American expectation that one
Association of or more of the
Meat Processors. following limiting
critical conditions
already exists or
could occur without
methyl bromide
fumigation: moderate
to severe red legged
ham beetle, cheese/
ham skipper,
dermestid beetle or
ham mite
infestation.
(c) Nahunta Pork with a reasonable
Center (North expectation that one
Carolina). or more of the
following limiting
critical conditions
already exists or
could occur without
methyl bromide
fumigation: moderate
to severe red legged
ham beetle, cheese/
ham skipper,
dermestid beetle or
ham mite
infestation.
------------------------------------------------------------------------
[FR Doc. 06-1019 Filed 2-3-06; 8:45 am]
BILLING CODE 6560-50-P