[Federal Register Volume 72, Number 165 (Monday, August 27, 2007)]
[Proposed Rules]
[Pages 48956-48981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-16896]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[EPA-HQ-OAR-2006-1016; FRL-8461-2]
RIN 2060-A030
Protection of Stratospheric Ozone: The 2008 Critical Use
Exemption From the Phaseout of Methyl Bromide
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing an exemption to the phaseout of methyl
bromide to meet the needs of 2008 critical uses. Specifically, EPA is
proposing uses that qualify for the 2008 critical use exemption and the
amount of methyl bromide that may be produced, imported, or supplied
from existing stocks for those uses in 2008. EPA is taking action under
the authority of the Clean Air Act to reflect recent consensus
decisions taken by the Parties to the Montreal Protocol on Substances
that Deplete the Ozone Layer (Protocol) at the 18th Meeting of the
Parties (MOP). EPA is seeking comment on the list of critical uses and
on EPA's determination of the amounts of methyl bromide needed to
satisfy those uses.
DATES: Comments must be submitted by September 26, 2007. Any party
requesting a public hearing must notify the contact person listed below
by 5 p.m. Eastern Standard Time on September 4, 2007. If a hearing is
requested it will be held on September 11, 2007 and comments will be
due to the Agency October 11, 2007. EPA will post information regarding
a hearing, if one is requested, on the Ozone Protection Web site http://www.epa.gov/ozone. Persons interested in attending a public hearing
should consult with the contact person below regarding the location and
time of the hearing.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2006-1016, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
E-mail: [email protected].
Fax: 202-566-1741.
Mail: Docket , Air and Radiation Docket and
Information Center, U.S. Environmental Protection Agency, Mail Code:
6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Hand Delivery: Docket EPA-HQ-OAR-2006-1016, Air
and Radiation Docket at EPA West, 1301 Constitution Avenue, NW., Room
B108, Mail Code 6102T, Washington, DC 20460. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2006-1016. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
FOR FURTHER INFORMATION CONTACT: For further information about this
proposed rule, contact Aaron Levy by telephone at (202) 343-9215, or by
e-mail at [email protected] or by mail at Aaron Levy, U.S.
Environmental Protection Agency, Stratospheric Protection Division,
Stratospheric Program Implementation Branch (6205J), 1200 Pennsylvania
Avenue, NW., Washington, DC 20460. You may also visit the Ozone
Depletion Web site of EPA's Stratospheric Protection Division at
www.epa.gov/ozone for further information about EPA's Stratospheric
Ozone Protection regulations, the science of ozone layer depletion, and
other related topics.
SUPPLEMENTARY INFORMATION: This proposed rule concerns Clean Air Act
[[Page 48957]]
(CAA) restrictions on the consumption, production, and use of methyl
bromide (a class I, Group VI controlled substance) for critical uses
during calendar year 2008. Under the Clean Air Act, methyl bromide
consumption (consumption is defined under the CAA as production plus
imports minus exports) and production was phased out on January 1, 2005
apart from allowable exemptions, namely the critical use exemption and
the quarantine and pre-shipment exemption. With this action, EPA is
proposing and seeking comment on the uses that will qualify for the
2008 critical use exemption as well as specific amounts of methyl
bromide that may be produced, imported, or sold from stocks for
proposed critical uses in 2008.
Table of Contents
I. General Information
A. Regulated Entities
B. What Should I Consider When Preparing My Comments?
II. What Is Methyl Bromide?
III. What Is the Background to the Phaseout Regulations for Ozone
Depleting Substances?
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 Proposed Rulemaking Relate to Previous Critical
Use Exemption Rulemakings?
C. Proposed Critical Uses
D. Proposed Critical Use Amounts
1. Background of Proposed Critical Use Amounts
2. Calculation of Available Stocks
3. Proposed Approach for Determining Critical Use Amounts
4. Treatment of Carry-Over Material
5. Amounts for Research Purposes
6. Methyl Bromide Alternatives
E. The Criteria in Decisions IX/6 and Ex. I/4
F. Emissions Minimization
G. Critical Use Allowance Allocations
H. Critical Stock Allowance Allocations and Total Volumes of
Critical Use Methyl Bromide
I. Stocks of Methyl Bromide
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. General Information
A. Regulated Entities
Entities potentially regulated by this proposed 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, e.g., farmers of
vegetable crops, fruits and
seedlings, owners of stored food
commodities and structures such
as grain mills and processors,
and agricultural 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 proposed action. This table lists the types of entities that
EPA is aware could potentially be regulated by this proposed action. To
determine whether your facility, company, business, or organization is
regulated by this proposed 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 section.
B. What Should I Consider When Preparing My Comments?
1. Confidential Business Information. Do not submit this
information to EPA through www.regulations.gov or e-mail. Clearly mark
the part or all of the information that you claim to be CBI. For CBI
information in a disk or CD-ROM that you mail to EPA, mark the outside
of the disk or CD-ROM as CBI and then identify electronically within
the disk or CD-ROM the specific information that is claimed as CBI. In
addition to one complete version of the comment that includes
information claimed as CBI, a copy of the comment that does not contain
the information claimed as CBI must be submitted for inclusion in the
public docket. Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR Part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
II. 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 variety of
pests such as insects, weeds, rodents, pathogens, and nematodes.
Additional characteristics and details about the uses of methyl bromide
can be found in the proposed rule on the phaseout schedule for methyl
bromide published in the Federal Register on March 18, 1993 (58 FR
15014) and the final rule published in the Federal Register on December
10, 1993 (58 FR 65018). Information on methyl bromide can be found at
http://www.epa.gov/ozone/mbr and http://www.unep.org/ozone or by
contacting the Stratospheric Ozone Hotline at 1-800-296-1996.
[[Page 48958]]
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. Restricted use pesticides are
subject to certain Federal and State requirements governing their sale,
distribution, and use. Nothing in this proposed 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 proposal 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 proposed 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.
III. 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 Protocol is the international
agreement aimed at reducing and eliminating the production and
consumption of stratospheric ozone-depleting substances. The U.S. 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 United States could satisfy its
obligations under the Protocol. EPA issued new regulations to implement
this legislation and has made several amendments to the regulations
since that time.
Methyl bromide was added to the Protocol as an ozone-depleting
substance in 1992 through the Copenhagen amendment to the Protocol. The
Parties agreed that each industrialized country's level of methyl
bromide production and consumption in 1991 should be the baseline for
establishing a freeze in the level of methyl bromide production and
consumption for industrialized countries. EPA published a final rule in
the Federal Register on December 10, 1993 (58 FR 65018), listing methyl
bromide as a class I, Group VI controlled substance, freezing U.S.
production and consumption at this 1991 level of 25,528,270 kilograms,
and, in 40 CFR 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 2001, when the complete
phaseout would occur. This phaseout date was established in response to
a petition filed in 1991 under sections 602(c)(3) and 606(b) of the
CAAA of 1990, requesting that EPA list methyl bromide as a class I
substance and phase out its production and consumption. This date was
consistent with section 602(d) of the CAAA of 1990, which for newly
listed class I ozone-depleting substances provides that ``no extension
[of the phaseout schedule in section 604] under this subsection may
extend the date for termination of production of any class I substance
to a date more than 7 years after January 1 of the year after the year
in which the substance is added to the list of class I substances.''
EPA based its action on scientific assessments and actions by the
Parties to the Montreal Protocol to freeze the level of methyl bromide
production and consumption for industrialized countries at the 1992
Meeting of the Parties in Copenhagen.
At their 1995 meeting, the Parties made adjustments to the methyl
bromide control measures and agreed to reduction steps and a 2010
phaseout date for industrialized countries with exemptions permitted
for critical uses. At that time, the U.S. continued to have a 2001
phaseout date in accordance with the CAAA of 1990 language. At their
1997 meeting, the Parties agreed to further adjustments to the phaseout
schedule for methyl bromide in industrialized countries, with reduction
steps leading to a 2005 phaseout for industrialized countries.
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?
In October 1998, the U.S. Congress amended the CAA to prohibit the
termination of production of methyl bromide prior to January 1, 2005,
to require EPA to bring the U.S. phaseout of methyl bromide in line
with the schedule specified under the Protocol, and to authorize EPA to
provide exemptions for critical uses. These amendments were contained
in Section 764 of the 1999 Omnibus Consolidated and Emergency
Supplemental Appropriations Act (Pub. L. 105-277, October 21, 1998) and
were codified in Section 604 of the CAA, 42 U.S.C. 7671c. The amendment
that specifically addresses the critical use exemption appears at
Section 604(d)(6), 42 U.S.C. 7671c(d)(6). EPA revised the phaseout
schedule for methyl bromide production and consumption 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. EPA again amended the revised phaseout to allow for
an exemption for quarantine and preshipment purposes on July 19, 2001
(66 FR 37751) with an interim final rule and with a final rule on
January 2, 2003 (68 FR 238).
On December 23, 2004 (69 FR 76982), EPA published a final rule
titled ``Protection of Stratospheric Ozone: Process for Exempting
Critical Uses From the Phaseout of Methyl Bromide'' (the ``Framework
Rule'') in the Federal Register that established the framework for the
critical use exemption; set forth a list of approved critical uses for
2005; and specified the amount of methyl bromide that could be supplied
in 2005 from stocks and new production or import to meet the needs of
approved critical uses. EPA then promulgated a second rule that added
additional uses to the exemption program for 2005 and allocated
additional stock allowances (70 FR 73604). EPA published a final rule
on February 6, 2006, to exempt production and import of methyl bromide
for 2006 critical uses and indicated which uses met the criteria for
the exemption program for that year (71 FR 5985). EPA published another
final rule on December 14, 2006, to exempt production and import of
methyl bromide for critical uses in 2007 and indicated which uses met
the criteria for critical uses for that year (71 FR 75386). Under
authority of section 604(d)(6) of the CAA, EPA is proposing in this
[[Page 48959]]
action the uses that will qualify as approved critical uses in 2008 and
the amount of methyl bromide required to satisfy those uses.
This proposed action reflects Decision XVIII/13, taken at the
Eighteenth Meeting of the Parties in October 2006. In accordance with
Article 2H(5), the Parties have issued several Decisions pertaining to
the critical use exemption. These include Decisions IX/6 and Ex. I/4,
which set forth criteria for review of proposed critical uses. The
status of Decisions is addressed in NRDC v. EPA, (464 F.3d 1, D.C. Cir.
2006) and in EPA's ``Supplemental Brief for the Respondent,'' filed in
NRDC v. EPA and available in the docket for this action. In this
proposed rule, EPA is honoring commitments made by the United States in
the Montreal Protocol context.
V. What Is the Critical Use Exemption Process?
A. Background of the Process
Starting in 2002, EPA began notifying applicants of the process for
obtaining a critical use exemption to the methyl bromide phaseout. On
May 8, 2003, the Agency published its first notice in the Federal
Register (68 FR 24737) announcing the availability of the application
for a critical use exemption and the deadline for submission of the
requisite data. Applicants were informed that they may apply as
individuals or as part of a group of users (a ``consortium'') who face
the same limiting critical conditions (i.e. specific conditions that
establish a critical need for methyl bromide). EPA has repeated this
process annually since then. The critical use exemption is designed to
permit production and import of methyl bromide for uses that do not
have technically and economically feasible alternatives.
The criteria for the exemption initially appeared 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 yearly requests for critical use exemption
applications published in the Federal Register, applicants have
provided data on the technical and economic feasibility of using
alternatives to methyl bromide. Applicants further submit data on their
use of methyl bromide, on research programs into the use of
alternatives to methyl bromide, and on efforts to minimize use and
emissions of methyl bromide.
EPA's Office of Pesticide Programs reviews the data submitted by
applicants, as well as data from governmental and academic sources, to
establish whether there are technically and economically feasible
alternatives available for a particular use of methyl bromide and
whether there would be significant market disruption if no exemption
were available. In addition, EPA reviews other parameters of the
exemption applications such as dosage and emissions minimization
techniques and applicants' research or transition plans. This
assessment process culminates with the development of a document
referred to as the ``Critical Use Nomination'' or CUN. The U.S.
Department of State submits the CUN annually to the United Nations
Environment Programme (UNEP) Ozone Secretariat. The CUNs of various
countries are subsequently reviewed by the Methyl Bromide Technical
Options Committee (MBTOC) and the Technical and Economic Assessment
Panel (TEAP), which are independent advisory bodies to Parties to the
Montreal Protocol. These bodies make recommendations to the Parties on
the nominations. The Parties then take a Decision to authorize a
critical use exemption for a particular country. The Decision also
identifies how much methyl bromide may be supplied for the exempted
critical uses. As required in Section 604(d)(6) of the Clean Air Act,
for each exemption period, EPA consults with the United States
Department of Agriculture and other departments and institutions of the
Federal government that have regulatory authority related to methyl
bromide, and provides an opportunity such as this for public comment on
the amounts of methyl bromide that the Agency has determined to be
necessary for critical uses and the uses that the Agency has determined
meet the criteria of the critical use exemption.
For more information on the domestic review process and methodology
employed by the Office of Pesticide Programs, please refer to a
detailed memo titled ``Development of 2003 Nomination for a Critical
Use Exemption for Methyl Bromide for the United States of America''
available on the docket for this rulemaking. While the particulars of
the data continue to evolve and clerical matters are further
streamlined, the technical review itself has remained the same since
the inception of the exemption program.
On January 24, 2006, the U.S. Government (USG) submitted the fourth
Nomination for a Critical Use Exemption for Methyl Bromide for the
United States of America to the Ozone Secretariat of the United Nations
Environment Programme. This fourth nomination contained the request for
2008 critical uses. In March 2006, MBTOC sent questions to the USG
concerning technical and economic issues in the nomination. In April
2006 the USG transmitted responses to MBTOC's requests for
clarification. The USG received MBTOC's second-round of questions in
June 2006, and sent responses to MBTOC in August 2006. These documents,
together with reports by the advisory bodies noted above, can be
accessed in the public docket for this rulemaking. The determination in
this proposed rule reflects the analysis contained in those documents.
B. How Does This Proposed Rulemaking Relate to Previous Critical Use
Exemption Rulemakings?
The December 23, 2004 Framework Rule (69 FR 76982) established the
operational framework for the critical use exemption program in the
U.S., including trading provisions and recordkeeping and reporting
obligations. The Framework Rule defined the terms ``critical use
allowances'' (CUAs) and ``critical stock allowances'' (CSAs) at 40 CFR
82.3. Today's action proposes the uses that will qualify as critical
uses for 2008 and the amounts of CUAs and CSAs to be allocated for
those uses. The uses that EPA is proposing to qualify as 2008 critical
uses are the uses which USG included in the fourth CUN, and which were
approved by the Parties in Decision XVIII/13. In this action, EPA is
also proposing to refine its approach for determining the amount of
CSAs to allocate in 2008 and each year thereafter. EPA discusses this
proposal in detail in Section V.D. of this preamble.
C. Proposed Critical Uses
In Decision XVIII/13, taken in October 2006, the Parties to the
Protocol agreed as follows: ``For the agreed critical-use categories
for 2008, set forth in table C of the annex to the present decision for
each Party to permit, subject to the conditions set forth in the
present decision and decision Ex. I/4, to the extent that those
conditions are applicable, the levels of production and consumption for
2008 set forth in table
[[Page 48960]]
D of the annex to the present decision which are necessary to satisfy
critical uses * * *.''
The following uses are those set forth in table C of the annex to
Decision XVIII/13: Commodities, Cocoa beans (NPMA \1\ subset), NPMA
food processing structures (cocoa beans removed), Mills and processors,
Smokehouse ham, Cucurbits--field, Eggplant--field, Forest nursery,
Nursery stock--fruit, nut, flower, Orchard replant, Ornamentals,
Peppers--field, Strawberry--field, Strawberry runners, Tomatoes--field,
Sweet potato slips. The agreed critical-use levels for 2008 total
5,355,946 kilograms (kg), which is equivalent to 21.0% of the U.S. 1991
methyl bromide consumption baseline of 25,528,270 kg. However, the
maximum amount of allowable new production and import as set forth in
table D of Decision XVIII/13 is 4,595,040 kg (18.0% of baseline). For
the reasons described in Section V.D. of this preamble, EPA is
proposing to allow limited amounts of new production or import of
methyl bromide for critical uses for 2008 up to the amount of 3,101,076
kg (12.2% of baseline), with 1,715,438 kg (6.7% of baseline) coming
from stocks. To clarify, while the Parties require only 760,906 kg of
stockpile consumption if the entire U.S. allotment is utilized, EPA is
proposing consumption of 1,715,438 kg of stockpiles for critical uses.
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\1\ NPMA stands for National Pest Management Association.
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In this proposed rule, EPA is proposing to modify Columns B and C
of Appendix L to 40 CFR Part 82, Subpart A to reflect the agreed
critical-use categories identified in Decision XVIII/13 for the 2008
control period (calendar year). The Agency is proposing to amend the
table of critical uses based, in part, on the technical analysis
contained in the 2008 U.S. nomination that assesses data submitted by
applicants to the critical use exemption program as well as public and
proprietary data on the use of methyl bromide and its alternatives. EPA
is seeking comment on the technical analysis (which is provided in the
docket) and seeks information regarding changes to the registration or
use of alternatives that may have transpired after the 2008 U.S.
nomination was written. Such information has the potential to alter the
technical or economic feasibility of an alternative and could thus
cause EPA to modify the analysis that underpins EPA's determination as
to which uses and what amounts of methyl bromide qualify for the
critical use exemption. EPA notes that while we may, in response to
comments, reduce the proposed quantities of critical use methyl
bromide, or decide not to approve uses authorized by the Parties, we do
not intend to increase the quantities or add new uses in the final rule
beyond those authorized by the Parties. Therefore, if there has been a
change in registration of an alternative that results in that
alternative no longer being available to a particular use, EPA does not
intend to add uses or amounts of methyl bromide to the critical use
exemption program beyond those identified here. Under such
circumstances, the user should apply to EPA, requesting that the U.S.
nominate its use for a critical use exemption in the future. Based on
the information described above, EPA is proposing that the uses in
Table I: Approved Critical Uses, with the limiting critical conditions
specified, qualify to obtain and use critical use methyl bromide in
2008.
Table I.--Approved Critical Uses
------------------------------------------------------------------------
Column A Column B Column C
------------------------------------------------------------------------
Limiting critical
conditions--that
either exist, or
Approved critical that the approved
Approved critical uses user and location of critical user
use reasonably expects
could arise without
methyl bromide
fumigation:
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Pre-Plant Uses:
Cucurbits............... (a) Michigan growers Moderate to severe
soilborne disease
infestation.
A need for methyl
bromide for
research purposes.
(b) Southeastern Moderate to severe
U.S. limited to yellow or purple
growing locations nutsedge
in Alabama, infestation.
Arkansas, Kentucky, Moderate to severe
Louisiana, soilborne disease
Mississippi, North infestation.
Carolina, South Moderate to severe
Carolina, root knot nematode
Tennessee, and infestation.
Virginia. A need for methyl
bromide for
research purposes.
(c) Georgia growers. Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
soilborne disease
infestation.
Moderate to severe
root knot nematode
infestation.
A need for methyl
bromide for
research purposes.
Eggplant................ (a) Florida growers. Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
soilborne disease
infestation.
Restrictions on
alternatives due to
karst topographical
features and soils
not supporting
seepage irrigation.
A need for methyl
bromide for
research purposes.
(b) Georgia growers. Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
nematode
infestation.
Moderate to severe
pythium collar,
crown and root rot.
Moderate to severe
southern blight
infestation.
Restrictions on
alternatives due to
karst topographical
features.
A need for methyl
bromide for
research purposes.
(c) Michigan growers Moderate to severe
soilborne disease
infestation.
A need for methyl
bromide for
research purposes.
[[Page 48961]]
Forest Nursery Seedlings (a) Growers in Moderate to severe
Alabama, Arkansas, yellow or purple
Georgia, Louisiana, nutsedge
Mississippi, North infestation.
Carolina, Oklahoma, Moderate to severe
South Carolina, soilborne disease
Tennessee, Texas, infestation.
and Virginia. Moderate to severe
nematode
infestation.
(b) International Moderate to severe
Paper and its yellow or purple
subsidiaries nutsedge
limited to growing infestation.
locations in Moderate to severe
Alabama, Arkansas, soilborne disease
Georgia, South infestation.
Carolina, and Texas.
(c) Public Moderate to severe
(government-owned) weed infestation
seedling nurseries including purple
in Illinois, and yellow nutsedge
Indiana, Kentucky, infestation.
Maryland, Missouri, Moderate to severe
New Jersey, Ohio, Canada thistle
Pennsylvania, West infestation.
Virginia, and Moderate to severe
Wisconsin. nematode
infestation.
Moderate to severe
soilborne disease
infestation.
(d) Weyerhaeuser Moderate to severe
Company and its yellow or purple
subsidiaries nutsedge
limited to growing infestation.
locations in Moderate to severe
Alabama, Arkansas, soilborne disease
North Carolina, and infestation.
South Carolina. Moderate to severe
nematode or worm
infestation.
(e) Weyerhaeuser Moderate to severe
Company and its yellow nutsedge
subsidiaries infestation.
limited to growing Moderate to severe
locations in Oregon soilborne disease
and Washington. infestation.
(f) Michigan growers Moderate to severe
soilborne disease
infestation.
Moderate to severe
Canada thistle
infestation.
Moderate to severe
nutsedge
infestation.
Moderate to severe
nematode
infestation.
(g) Michigan Moderate to severe
herbaceous nematode
perennials growers. infestation.
Moderate to severe
soilborne disease
infestation.
Moderate to severe
yellow nutsedge and
other weed
infestation.
Orchard Nursery (a) Members of the Moderate to severe
Seedlings. Western Raspberry nematode
Nursery Consortium infestation.
limited to growing Presence of medium
locations in to heavy clay
California and soils.
Washington. Prohibition on use
of 1,3-
dichloropropene
products because
local township
limits on use of
this alternative
have been reached.
A need for methyl
bromide for
research purposes.
(b) Members of the Moderate to severe
California nematode
Association of infestation.
Nursery and Garden Presence of medium
Centers to heavy clay
representing soils.
Deciduous Tree Prohibition on use
Fruit Growers. of 1,3-
dichloropropene
products because
local township
limits on use of
this alternative
have been reached.
A need for methyl
bromide for
research purposes.
(c) California rose Moderate to severe
nurseries. nematode
infestation.
Prohibition on use
of 1,3-
dichloropropene
products because
local township
limits on use of
this alternative
have been reached.
A need for methyl
bromide for
research purposes.
Strawberry Nurseries.... (a) California Moderate to severe
growers. soilborne disease
infestation.
Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
nematode
infestation.
A need for methyl
bromide for
research purposes.
(b) North Carolina Moderate to severe
and Tennessee black root rot.
growers. Moderate to severe
root-knot nematode
infestation.
Moderate to severe
yellow and purple
nutsedge
infestation.
A need for methyl
bromide for
research purposes.
Orchard Replant......... (a) California stone Moderate to severe
fruit growers. nematode
infestation.
Moderate to severe
soilborne disease
infestation.
Replanted (non-
virgin) orchard
soils to prevent
orchard replant
disease.
Presence of medium
to heavy soils.
Prohibition on use
of 1,3-
dichloropropene
products because
local township
limits on use of
this alternative
have been reached.
[[Page 48962]]
(b) California table Moderate to severe
and raisin grape nematode
growers. infestation.
Moderate to severe
soilborne disease
infestation.
Replanted (non-
virgin) orchard
soils to prevent
orchard replant
disease.
Medium to heavy
soils.
Prohibition on use
of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
(c) California wine Moderate to severe
grape growers. nematode
infestation.
Moderate to severe
soilborne disease
infestation.
Replanted (non-
virgin) orchard
soils to prevent
orchard replant
disease.
Medium to heavy
soils.
Prohibition on use
of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
(d) California Moderate to severe
walnut growers. nematode
infestation.
Moderate to severe
soilborne disease
infestation.
Replanted (non-
virgin) orchard
soils to prevent
orchard replant
disease.
Medium to heavy
soils.
Prohibition on use
of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
(e) California Moderate to severe
almond growers. nematode
infestation.
Moderate to severe
soilborne disease
infestation.
Replanted (non-
virgin) orchard
soils to prevent
orchard replant
disease.
Medium to heavy
soils.
Prohibition on use
of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
Ornamentals............. (a) California Moderate to severe
growers. soilborne disease
infestation.
Moderate to severe
nematode
infestation.
Prohibition on use
of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
A need for methyl
bromide for
research purposes.
(b) Florida growers. Moderate to severe
weed infestation.
Moderate to severe
soilborne disease
infestation.
Moderate to severe
nematode
infestation.
Restrictions on
alternatives due to
karst topographical
features and soils
not supporting
seepage irrigation.
A need for methyl
bromide for
research purposes.
Peppers................. (b) Alabama, Moderate to severe
Arkansas, Kentucky, yellow or purple
Louisiana, nutsedge
Mississippi, North infestation.
Carolina, South Moderate to severe
Carolina, nematode
Tennessee, and infestation.
Virginia growers. Moderate to severe
pythium root,
collar, crown and
root rots.
A need for methyl
bromide for
research purposes.
(c) Florida growers. Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
soilborne disease
infestation.
Moderate to severe
nematode
infestation.
Restrictions on
alternatives due to
karst topographical
features and soils
not supporting
seepage irrigation.
A need for methyl
bromide for
research purposes.
(d) Georgia growers. Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
nematode
infestation, or
moderate to severe
pythium root and
collar rots.
Moderate to severe
southern blight
infestation, crown
or root rot.
A need for methyl
bromide for
research purposes.
(e) Michigan growers Moderate to severe
soilborne disease
infestation.
A need for methyl
bromide for
research purposes.
[[Page 48963]]
Strawberry Fruit........ (a) California Moderate to severe
growers. black root rot or
crown rot.
Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
nematode
infestation.
Prohibition on use
of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
Time to transition
to an alternative.
A need for methyl
bromide for
research purposes.
(b) Florida growers. Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
nematode
infestation.
Moderate to severe
soilborne disease
infestation.
Carolina geranium or
cut-leaf evening
primrose
infestation.
Restrictions on
alternatives due to
karst topographical
features and soils
not supporting
seepage irrigation
a need for methyl
bromide for
research purposes.
(c) Alabama, Moderate to severe
Arkansas, Georgia, yellow or purple
Illinois, Kentucky, nutsedge
Louisiana, infestation.
Maryland, Moderate to severe
Mississippi, nematode
Missouri, New infestation.
Jersey, North Moderate to severe
Carolina, Ohio, black root and
South Carolina, crown rot.
Tennessee, and A need for methyl
Virginia growers. bromide for
research purposes.
Sweet Potato Slips...... (a) California Prohibition on use
growers. of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
Tomatoes................ (a) Michigan growers Moderate to severe
soilborne disease
infestation.
Moderate to severe
fungal pathogen
infestation.
A need for methyl
bromide for
research purposes.
(c) Alabama, Moderate to severe
Arkansas, Florida, yellow or purple
Georgia, Kentucky, nutsedge
Louisiana, infestation.
Mississippi, North Moderate to severe
Carolina, South soilborne disease
Carolina, infestation.
Tennessee, and Moderate to severe
Virginia growers. nematodes.
Restrictions on
alternatives due to
karst topographical
features, and in
Florida, soils not
supporting seepage
irrigation.
A need for methyl
bromide for
research purposes.
Post-Harvest Uses:
Food Processing......... (a) Rice millers in Moderate to severe
all locations in infestation of
the U.S. who are beetles, weevils or
members of the USA moths.
Rice Millers Older structures
Association. that can not be
properly sealed to
use an alternative
to methyl bromide.
Presence of
sensitive
electronic
equipment subject
to corrosion.
Time to transition
to an alternative.
(b) Pet food Moderate to severe
manufacturing infestation of
facilities in the beetles, moths, or
U.S. who are active cockroaches.
members of the Pet Older structures
Food Institute (For that can not be
this proposed rule, properly sealed to
``pet food'' refers use an alternative
to domestic dog and to methyl bromide.
cat food). Presence of
sensitive
electronic
equipment subject
to corrosion.
Time to transition
to an alternative.
(c) Bakeries in the Older structures
U.S. that can not be
properly sealed to
use an alternative
to methyl bromide.
Presence of
sensitive
electronic
equipment subject
to corrosion.
Time to transition
to an alternative.
(d) Members of the Moderate to severe
North American beetle infestation.
Millers' Older structures
Association in the that can not be
U.S. properly sealed to
use an alternative
to methyl bromide.
Presence of
sensitive
electronic
equipment subject
to corrosion.
Time to transition
to an alternative.
[[Page 48964]]
(e) Members of the Moderate to severe
National Pest beetle or moth
Management infestation.
Association Older structures
associated with dry that can not be
commodity structure properly sealed to
fumigation (cocoa) use an alternative
and dry commodity to methyl bromide.
fumigation Presence of
(processed food, sensitive
herbs and spices, electronic
dried milk and equipment subject
cheese processing to corrosion.
facilities). Time to transition
to an alternative.
Commodities............. (a) California Rapid fumigation is
entities storing required to meet a
walnuts, beans, critical market
dried plums, figs, window, such as
raisins, dates (in during the holiday
Riverside county season, rapid
only), and fumigation is
pistachios in required when a
California. 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.
A need for methyl
bromide for
research purposes.
Dry Cured Pork Products. (a) Members of the Red legged ham
National Country beetle infestation.
Ham Association. Cheese/ham skipper
infestation.
Dermested beetle
infestation.
Ham mite
infestation.
(b) Members of the Red legged ham
American beetle infestation.
Association of Meat Cheese/ham skipper
Processors. infestation.
Dermested beetle
infestation.
Ham mite
infestation.
(c) Nahunta Pork Red legged ham
Center (North beetle infestation.
Carolina). Cheese/ham skipper
infestation.
Dermested beetle
infestation.
Ham mite
infestation.
(d) Gwaltney and Red legged ham
Smithfield Inc. beetle infestation.
Cheese/ham skipper
infestation.
Dermested beetle
infestation.
Ham mite
infestation.
------------------------------------------------------------------------
EPA is proposing to amend the table in 40 CFR part 82, subpart A,
Appendix L, as reflected above. Specifically, EPA is adding six
references and deleting four references in column B. The changes are as
follows: Adding Mississippi to the approved locations for cucurbit
growers because that location was included in the approved Southeast
Cucurbit Consortium application for 2008; removing Florida from the
approved forest seedling locations because a 2008 application for that
location was not submitted to EPA; removing Maryland from the approved
strawberry nursery locations because a 2008 application for that
location was not submitted to EPA; removing California from the
approved locations for pepper growers because the United States
Government did not reflect this location in its 2008 Critical Use
Nomination; adding Mississippi to the approved locations for pepper
growers because that location was included in the approved Southeast
Pepper Consortium application for 2008; adding Mississippi and Missouri
to the approved locations for strawberry fruit growers because those
locations were included in the approved Southeastern Strawberry
Consortium application for 2008; adding California sweet potato slip
growers to reflect the authorization of that use in Decision XVIII/13;
adding Mississippi to the approved locations for tomato growers because
that location was included in the approved Southeastern Tomato
Consortium application for 2008; removing turfgrass because that use
was not agreed to by the Parties in Decision XVIII/13; adding Gwaltney
and Smithfield Inc. to the approved entities for dry cured pork
products because their application was approved for 2008.
The categories listed in Table I above have been designated
critical uses for 2008 in Decision XVIII/13 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 purposes'' is indicated as a limiting critical
condition in the table above. As explained in Section V.D.5., EPA is
allowing sale of 15,491 kg of methyl bromide from existing stocks for
research purposes.
In accordance with the recommendations in Table 9 of the TEAP's
September 2006 Final Report titled ``Evaluations of 2006 Critical Use
Nominations for Methyl Bromide and Related Matters,'' available on the
docket for this rulemaking, EPA is proposing that the following sectors
be allowed to use critical use methyl bromide for research purposes:
Commodities, cucurbits (field), eggplant (field), nursery stock (fruit,
nut, flower), ornamentals, peppers (field), strawberry (field),
strawberry runners, and tomatoes (field). In their applications to EPA,
these sectors identified research programs that require the use of
methyl bromide.
D. Proposed Critical Use Amounts
Section V.C. of this preamble explains that Table C of the annex to
Decision XVIII/13 lists critical uses and amounts agreed to by the
Parties to the Montreal Protocol. When added together, the authorized
critical use amounts for 2008 total 5,355,946 kilograms (kg), which is
equivalent to 21.0% of the U.S. 1991 methyl bromide consumption
baseline of 25,528,270 kg as defined at 40 CFR 82.3. However, the
maximum amount of authorized new production or import as set forth in
Table D of the annex to Decision XVIII/13 is 4,595,040 kg (18.0% of
baseline).
[[Page 48965]]
EPA is proposing to exempt limited amounts of new production and
import of methyl bromide for critical uses for 2008 up to the amount of
3,101,076 kg (12.2% of baseline) as shown in Table II. EPA is also
proposing to allow sale of 1,715,438 kg (6.7% of baseline) of existing
inventories for critical uses in 2008. EPA is seeking comment on the
proposed total levels of exempted new production and import for
critical uses and the amount of material that may be sold from stocks
for critical uses. The subsections below explain EPA's reasons and
refined approach for proposing the above critical use amounts for 2008.
1. Background of Proposed Critical Use Amounts
The Framework Rule and subsequent CUE rules each took note of
language regarding stocks of methyl bromide in relevant decisions of
the Parties. In developing this proposed action, the Agency notes that
paragraph six of Decision XVIII/13 contains the following language:
``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 available
stocks of banked or recycled methyl bromide, in particular, the
criterion laid down in paragraph 1(b)(ii) of decision IX/6.'' Language
calling on Parties to address stocks also appears in prior Decisions
related to the critical use exemption.
In the Framework Rule, which established the architecture of the
CUE program and set out the exempted levels of critical use for 2005,
EPA interpreted paragraph 5 of Decision Ex. I/3, which is similar to
Decision XVIII/13(6), ``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). Consistent with
that interpretation, The Framework Rule (69 FR 52366) established
provisions governing the sale of pre-phaseout inventories for critical
uses, including the concept of CSAs and a prohibition on the sale of
pre-phaseout inventories for critical uses in excess of the amount of
CSAs held by the seller. In addition, EPA noted that stocks were
further taken into account through the trading provisions that allow
CUAs to be converted into CSAs. EPA is not proposing changes to these
basic CSA provisions for calendar year 2008.
In the August 25, 2004 Proposed Framework Rule (69 FR 52366), EPA
proposed to adjust the authorized level of new production and
consumption for critical uses by the amount of ``available'' stocks.
The methodology for determining the amount of ``available'' stocks
considered exports, methyl bromide for feedstock uses, and the need for
a buffer in case of catastrophic events. However, EPA did not adopt the
proposed methodology for determining available stocks in the final
Framework Rule. Instead, EPA issued CSAs in an amount equal to the
difference between the total authorized CUE amount and the amount of
new production or import authorized by the Parties (Total Authorized
CUE Amount--Authorized New Production and Import).
In the 2006 CUE Rule, published February 6, 2006 (71 FR 5997), EPA
applied the approach described in the Framework Rule by allocating as
CSAs the difference between the total authorized CUE amount and the
amount of new production and import authorized by the Parties (2.0% of
baseline), as well as the small supplemental allocation in Decision
XVII/9 (0.4% of baseline). EPA also issued CSAs allowing additional
amounts of existing stocks to be sold for critical uses (roughly 3.0%
of baseline). In the 2006 CUE Rule EPA issued a total of 1,136,008
CSAs, equivalent to 5.0% of baseline. Similarly, in the 2007 CUE Rule,
EPA issued a number of CSAs that represented not only the difference
between the total authorized CUE amount and the amount of authorized
new production and import (6.2% of baseline), but also an additional
amount (1.3% of baseline) for a total of 1,915,600 CSAs (7.5% of
baseline). By allocating additional CSAs, EPA adjusted the portion of
CUE methyl bromide to come from new production and import as compared
to the proportion to come from stocks so that the total amount of
methyl bromide exempted for critical uses did not exceed the total
amount authorized by the Parties for that year.
EPA viewed the additional CSA amounts as an appropriate exercise of
its discretion. EPA reasoned that the Agency was not required to
allocate the full amount of authorized new production and consumption.
The Parties agreed to ``permit'' a particular 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 Clean Air Act (CAA) does not require
EPA to exempt any amount of production and consumption for critical
uses, but instead specifies that the Agency ``may'' exempt amounts for
production, importation, and consumption, thus providing EPA with
substantial discretion in creating critical use exemptions.
In the July 6, 2006 Proposed 2007 CUE Rule (71 FR 38325), EPA
sought comment on ``whether, in the critical use exemption context, it
would be appropriate to adjust the level of new production and import
with the goal of maintaining a stockpile of some specified duration * *
* and on how many months of methyl bromide inventory would be
appropriate, in order to maintain non-disruptive management of this
chemical in the supply chain'' (71 FR 38339). In the Final 2007 CUE
Rule, EPA noted that ``the Parties have not taken a decision on an
appropriate amount of inventory for reserve. Nor has EPA reached any
conclusion regarding what amount might be appropriate. Given this
uncertainty, and the continuing decline in inventory levels, EPA is
exercising caution in this year's CSA allocation. EPA will consider
various approaches to this issue in the future based on the data
received during this notice and comment rulemaking process and other
information obtained by the Agency'' (71 FR 75399).
Data on the aggregate amount of methyl bromide held in inventory at
the end of calendar years 2003, 2004, 2005, and 2006 is available in
the public docket for this rulemaking. Using this aggregated inventory
data, and other data gathered by EPA, the Agency estimates that on
January 1, 2008 the aggregate inventory will be less than one-year's
supply of critical use methyl bromide.
The benefits of pre-phaseout methyl bromide inventories for
critical uses were discussed at the 18th Meeting of the Parties (MOP).
The Parties did not take a decision at the 18th MOP on whether it would
be appropriate to allow some specific amount of pre-phaseout stocks to
remain in inventory, or what amount that might be. Instead, they left
the matter for future discussion, and left open the possibility that a
decision related to the issue might be taken at the 19th Meeting of the
Parties in September 2007. EPA notes, however, that in another
instance--namely the Essential Use Exemption process for CFC inhalers--
the Parties have allowed companies to maintain working stocks up to one
year's supply. As explained in the ``FDA determination letter''
available on the public docket for this rulemaking, FDA bases its
determination of the amount of CFC production that is necessary for
medical devices ``on an estimate of the
[[Page 48966]]
quantity of CFCs that would allow manufacturers to maintain as much as
a 12-month stockpile.'' However, neither FDA nor EPA maintains a CFC
reserve on behalf of any essential use manufacturer, or guarantees that
a certain amount of CFCs will always be held in inventory.
Similarly, in this action, EPA is not proposing to maintain a
reserve of methyl bromide for critical uses, or to guarantee that a
certain amount of methyl bromide would always be held in inventory. EPA
is, however, proposing to calculate the amount of existing methyl
bromide stocks that is available for critical uses in 2008, and to
consider this amount in the Agency's determination of how much sale of
existing stocks and how much production and importation to allow for
critical uses in 2008. Section V.D.2. describes EPA's proposed method
to calculate the amount of existing stocks that is available for
critical use in 2008. Section V.D.3. explains how EPA proposes to apply
the calculated amount of available stocks in the Agency's critical use
amount determinations.
The proposed methods for determining the critical use amounts,
described in Section V.D.2. and V.D.3. of this preamble, refine the
Agency's approach for determining how much critical use methyl bromide
may be produced and imported and how much may be sold to critical users
from existing inventories in a given year. EPA proposes to use these
refinements in 2008 and, as feasible and appropriate, each year
thereafter. Through data collection and experience, EPA has gained
information about the CUE program that the Agency did not have when the
program began. The pre-phaseout inventory has gradually declined to the
point where, for the first time, EPA estimates that at the start of
next year (2008) inventory will represent less than a one-year supply
of critical use methyl bromide. The proposed approach for determining
CUE production and import levels addresses the decline in methyl
bromide inventories by considering in a more transparent manner the
amount of existing stocks that is available for critical uses. As
described below, the proposed approach establishes a clear and
repeatable process for the Agency to make allocations that reflect a
reasonable estimate of the amount of inventory available in a future
control period based on data collected from earlier control periods.
Thus, while EPA does not view refinements to its approach as legally
required, EPA does view them as an appropriate discretionary action for
the reasons given here. EPA seeks comment on the refined approach for
determining critical use methyl bromide levels, which is described in
detail in Sections V.D.2. and V.D.3. of this preamble, and also in a
Technical Support Document available on the public docket for this
rulemaking (EPA-HQ-OAR-2006-1016).
2. Calculation of Available Stocks
In this action, EPA is proposing to adjust the authorized level of
new production and consumption for critical uses to account for the
amount of existing stocks that is ``available'' for critical uses. This
section explains how EPA proposes to calculate the amount of existing
stocks that is available for critical uses in 2008. As described in
more detail in Section V.D.3. of this preamble, EPA proposes to allow
sale of the amount of existing inventory that the Agency has determined
to be available for critical uses by issuing an equivalent number of
critical stock allowances (CSAs), on a one-CSA-per-one-kilogram-of-
methyl-bromide basis. EPA wants to be clear that in this action the
Agency is not proposing to create a methyl bromide reserve or strategic
inventory of any kind, or to guarantee that a certain amount of methyl
bromide would always be held in inventory. Furthermore, in this action
EPA is not proposing to add any new restrictions on sales of methyl
bromide inventories.
The Parties to the Protocol recognized in their Decisions that the
level of existing stocks may differ from the level of available stocks
as discussed in the Proposed Framework Rule. Most recently, Decision
XVIII/13(4) 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 differences between those levels
by using quantities of methyl bromide from stocks that the Party has
recognized to be available.'' Thus, in Decisions XVIII/13, XVII/9, Ex.
II/1, XVI/2, Ex. I/3 and IX/6 the Parties recognized that not all
existing stocks may be available to meet critical needs. Section
604(d)(6) of the Clean Air Act does not require that EPA adjust the
amount of new production and import to reflect the availability of
stocks: However, making such an adjustment is a reasonable exercise of
EPA's discretion under this provision. Section 604(d)(6) provides that,
``to the extent consistent with the Montreal Protocol'' EPA ``may''
exempt production, importation, and consumption of methyl bromide for
critical uses, thus providing the Agency substantial discretion to
determine whether, and to what extent, production and import is
appropriate for critical uses.
One commenter disagreed with EPA's interpretation in the Proposed
Framework Rule that the Agency has the authority, as recognized by the
Parties in Decision Ex. I/3 and similar Decisions, to ``assess how much
methyl bromide is available from existing inventories'' (69 FR 52373).
According to the commenter, EPA was making a ``false distinction''
between the terms ``available'' stocks and ``existing'' stocks of
methyl bromide. The commenter submitted that the only difference
between ``available'' and ``existing'' is the deduction to reflect
developing country needs. The commenter based this argument on the
language in Decision IX/6(1)(b)(ii), which states the condition that
methyl bromide ``is not available in sufficient quality and quantity
from existing stocks of banked or recycled methyl bromide, also bearing
in mind the developing countries' need for methyl bromide.'' Thus, the
commenter argued that Dec. Ex.I/3 does not create a new meaning for
``available'' that encompasses more deductions than for the developing
country needs.
EPA disagrees with the commenter's broad application of the
language in Decision IX/6(1)(b)(ii). EPA believes that in Dec. IX/
6(1)(b)(ii) the Parties were stressing the importance of developing
countries' needs, and not precluding the consideration of other factors
in each individual Party's determination of available stocks of methyl
bromide. Dec. IX/6(1)(b)(ii) says * * * ``also bearing in mind
developing countries'' need,'' it does not say ``only bearing in mind *
* *'' Furthermore, EPA underscores Dec. XVIII/13(4) and similar
decisions which use the phrasing, ``quantities of methyl bromide from
stocks that the Party has recognized to be available.'' EPA believes
that in that Decision, and in similar language in other decisions, the
Parties acknowledged that individual Parties have the discretion to
determine their level of available stocks. For these reasons, EPA
believes it is acting consistently with the relevant decisions. In
addition, given the substantial discretion afforded by Congress under
section 604(d)(6) of the Clean Air Act, EPA believes it has the
authority to determine, through a notice and comment rulemaking
process, what factors to include in the method for estimating the
amount of existing stocks that is available.
Today's proposed approach is a logical extension of the approach
used in EPA's 2006 and 2007 CUE allocation rules where EPA concluded
that it was reasonable to adjust the proportion of
[[Page 48967]]
CUE methyl bromide to come from new production and import as compared
to the proportion to come from stocks. Furthermore, it is appropriate
for EPA to refine its approach in light of new information.
EPA is considering new information it has gathered about the
availability of stocks for critical uses. That information is included
in a Technical Support Document available in the docket for this
rulemaking. EPA is proposing, and seeking comment on, the following
approach to calculate the amount of existing stocks that is available
for critical uses. EPA's proposed methodology for calculating the
amount of available stocks can be expressed as follows: AS = ES-D-SCF,
where AS = available stocks on January 1, 2008; ES = existing pre-
phaseout stocks of methyl bromide held in the United States by
producers, importers, and distributors on January 1, 2007; D =
estimated drawdown of existing stocks during calendar year 2007; and
SCF = a supply chain factor, the calculation of which is described
below and in more detail in the Technical Support Document. Using the
above method, EPA calculates that 1,715,438 kg (6.7% of baseline) of
existing pre-phaseout stocks of methyl bromide will be ``available''
for critical uses on January 1, 2008. EPA seeks comment on the amount
of the pre-phaseout stock that it estimates will be available for
critical uses on January 1, 2008.
In the above formula ``existing stocks'' refers to pre-phaseout
inventory--i.e., methyl bromide that was produced before January 1,
2005 that is still held by domestic producers, distributors and third-
party applicators. January 1, 2005 was the phaseout date for production
and import of methyl bromide in the United States. ES does not include
critical use methyl bromide that was produced after January 1, 2005 and
carried over into subsequent years. That ``carry-over'' amount is
treated separately as described in Section V.D.4. of this preamble. For
the reasons discussed in Section V.D.4., EPA deducts an amount
equivalent to the carry-over amount from the amount of allowable new
production for the control period in question. ES also does not include
methyl bromide produced under the exemption for quarantine and
preshipment (QPS), methyl bromide produced with Article 5 allowances to
meet the basic domestic needs of Article 5 countries, or methyl bromide
produced for feedstock or transformation purposes. Such amounts have
been removed from the calculation of the amount of ``available stocks''
for critical uses. Methyl bromide produced for QPS uses or for export
to Article 5 countries may not be sold to domestic entities for
critical uses. That methyl bromide, therefore, is separate from the CUE
program.
To estimate the drawdown of existing stocks during 2007, the ``D''
term in the above method, EPA proposes to project the size of the pre-
phaseout methyl bromide inventory on January 1, 2008 with a simple
linear fit estimation using EPA data about the size of that inventory
on January 1 of the years for which EPA has data: 2004, 2005, 2006, and
2007. Using a simple linear fit, EPA projects that the pre-phaseout
methyl bromide inventory, which was 7,671,091 kg on January 1, 2007,
will be drawn down by 3,224,351 kg during 2007. Therefore, EPA
estimates that the size of the pre-phaseout inventory will be 4,447,740
kg on January 1, 2008. EPA's methodology for estimating the inventory
drawdown is described in more detail in the Technical Support Document
available on the public docket for this rulemaking.
EPA's proposed method for determining the amount of existing stocks
that is available for critical uses includes a ``supply chain factor.''
The supply chain factor represents EPA's technical estimate of the
amount of methyl bromide inventory that would be adequate to meet a
need for critical use methyl bromide after an unforeseen domestic
production failure. For 2008, EPA proposes to use a supply chain factor
equal to 2,731,211 kg in the Agency's calculation of the amount of
available stocks. EPA wants to be very clear that in this action the
Agency is not proposing to create a ``reserve'' or ``strategic
inventory'' of any kind. The supply chain factor is merely a more
transparent analytical tool that will foster greater understanding of
the Agency's process in determining CSA amounts.
There is one active methyl bromide production facility in the
United States. EPA estimates that following an unforeseen shutdown of
that facility (e.g., due to an explosion, fire, hurricane), it would
take 6-12 months to restart production, but only 15 weeks for
significant imports of methyl bromide to reach the U.S. As discussed in
the Technical Support Document, EPA estimates that after 15 weeks, U.S.
demand for critical use methyl bromide could be adequately supplied
with imported material. In Decision XVIII/13, the Parties authorized
5,355,946 kg for U.S. critical uses in 2008. If supply is evenly
distributed across each 15-week period of 2008, then a supply
disruption would cause a 15-week shortfall of 1,544,984 kg (15 weeks/52
weeks * 5,355,946 kg). However, EPA data--collected pursuant to the
reporting requirements at 40 CFR 82.13--shows that a disproportionate
amount of critical use methyl bromide is produced in the first 15 weeks
of each year. EPA's analysis in the Technical Support Document suggests
that heavy production at the beginning of each year is related to peak
demand during the spring planting season. Therefore, EPA estimates that
a supply disruption at or near the beginning of 2008 would cause a
supply shortfall greater than 1,544,984 kg.
EPA proposes a conservative estimate of the supply chain factor
that considers a supply disruption during the estimated peak 15-week
period of critical use supply. As explained in more detail in the
Technical Support Document, EPA estimates that since the beginning of
the CUE program on January 1, 2005, critical use methyl bromide
production in the first 15 weeks of each year has accounted for 51.0%
of annual critical use methyl bromide production. EPA, therefore,
estimates that the peak 15-week shortfall in 2008 could be 2,731,211 kg
(51.0% * 5,355,946 kg). For the reasons discussed above, EPA proposes
to include a supply chain factor of 2,731,211 kg in its calculation of
the amount of available stocks in 2008. EPA's analysis considers many
factors including foreign production capacity, shipping container
capacity, shipping logistics and market dynamics. EPA seeks comment on
the proposed supply chain factor in its calculation of the amount of
available stocks in 2008, and on its methods and reasoning for this
proposal as described in the Technical Support Document.
This estimate of a 15 week supply disruption assumes that
registrants of methyl bromide products have equal access to all sources
of available methyl bromide. The Agency recognizes that not all
registrants are allowed to access alternative sources of methyl
bromide. Therefore, registrants may need to submit applications to
amend their existing registrations to legally allow alternative sources
of methyl bromide to be used in formulating methyl bromide end-use
products. Because such applications may require the submission of
product chemistry and acute toxicology data, registrants should plan
accordingly, bearing in mind the registration requirements under FIFRA
and the Pesticide Registration Improvement Act (PRIA). As it is
uncertain how the amendment process would affect the estimate of supply
disruption, EPA will use the 15 week
[[Page 48968]]
figure unless other information becomes available.
There are other limitations associated with EPA's 15 week supply
disruption estimate, which are discussed in the Technical Support
Document. One of these limitations is that under the reporting
requirements at 40 CFR 82.13, EPA collects information about the amount
of pre-phaseout inventory and which entities own it, but the Agency
does not collect information about the characteristics of that
inventory. These unknown characteristics, such as the purity of the
pre-phaseout inventory, could affect users' ability to use this
inventory to meet their critical needs. For example, inventory intended
for pre-plant uses may be pre-mixed with chloropicrin in compressed gas
cylinders and therefore could not be used for post-harvest fumigations
that require pure methyl bromide. EPA seeks information about the
characteristics of the pre-phaseout inventory, because that information
could help EPA refine its proposed CSA allocation amount. For example,
if EPA were to obtain verifiable information that none of the pre-
phaseout inventory was of the necessary composition for post-harvest
uses, the Agency might decide not to allocate CSAs for post-harvest
sectors and could instead allocate that amount of CSAs as post-harvest
CUAs.
EPA believes there is precedent for allowing a reasonable amount of
a chemical that has been phased out to remain in the supply chain to
meet the needs of exempted uses. For example, in the context of the
essential use exemption, as explained in the ``FDA determination
letter'' available on the public docket for this rulemaking, FDA bases
its determination of the amount of CFC production that is necessary for
medical devices ``on an estimate of the quantity of CFCs that would
allow manufacturers to maintain as much as a 12-month stockpile.'' That
action is consistent with Decision XVI/12(3), which specifies that
``Parties, when preparing essential use nominations for CFCs, should
give due consideration to existing stocks, whether owned or agreed to
be acquired from a metered-dose inhaler manufacturer, of banked or
recycled controlled substances as described in paragraph 1(b) of
decision IV/25, with the objective of maintaining no more than one
year's operational supply.'' As stated previously, however, neither EPA
nor FDA maintains a reserve on behalf of any essential use
manufacturer, or guarantees that a certain amount of CFCs will always
be held in inventory. Likewise, EPA is not proposing to maintain a
reserve of methyl bromide for critical uses, or to guarantee that a
certain amount of methyl bromide would always be held in inventory.
Given that today's proposal is to make methyl bromide available for
critical uses in 2008, the small number of methyl bromide production
facilities around the world, and the continued drawdown of existing
methyl bromide inventories make a major supply disruption an important
issue for Agency consideration. The fact that EPA is not aware of a
major methyl bromide supply disruption does not mean that such a
disruption is impossible or even improbable in the future.
The Technical Support Document discusses in detail the efficacy and
limitations of importing methyl bromide from abroad in the event of a
domestic production plant failure. In fact, EPA estimates that in the
event of a plant production failure, importing methyl bromide from
abroad is likely to be the fastest and most practical short-term way to
replace the lost production. Therefore, issues such as foreign excess
production capacity, shipping container capacity, shipping logistics,
and market dynamics are the primary focus of EPA's analysis.
As explained above, EPA is not proposing to set aside, or
physically separate, stocks as an inventory reserve. By including a
supply chain factor in its calculation of available stocks EPA is
considering the drawdown of stocks and allocating critical use amounts
that reflect the size of the existing stockpile of pre-phaseout
material. Under EPA's proposed approach, stocks of methyl bromide may
be used to ``fill the distribution chain'' and simultaneously provide
some buffer in case of a major supply disruption.
Exports were an important consideration in EPA's inclusion of the
supply chain factor. The U.S. faces different circumstances from many
other Parties because it is a methyl bromide producing country as well
as a user country. In fact, historically the U.S. has been the world's
largest supplier of methyl bromide. Since U.S. companies supply a
significant portion of the world demand for methyl bromide, a supply
disruption in the U.S. would not only affect U.S. users, but would
probably affect users with agreed critical uses in developed countries
as well as users in developing countries that have basic domestic needs
for methyl bromide. Therefore, depending on how domestic suppliers
manage their inventories, the supply chain factor could indirectly
reduce the risks for entities in other countries which need methyl
bromide.
As explained in the Technical Support Document, EPA did not
directly consider domestic demand for methyl bromide for QPS uses in
its estimation of the possible shortfall of methyl bromide supplies in
the event of a major supply disruption. Congress provided separate
grants of authority to EPA for the quarantine and preshipment exemption
and the critical use exemption in CAA sections 604(d)(5) and 604(d)(6),
respectively. Therefore, methyl bromide produced for QPS uses is
regulated under a completely separate exemption program from the CUE.
On January 2, 2003 EPA published the QPS Rule in the Federal Register
(68 FR 2138), which established the framework and guidelines for
regulating methyl bromide produced for uses that meet the definition of
QPS uses, as defined in that rule and at 40 CFR 82.3. The QPS exemption
program does not restrict the amount of methyl bromide that is newly
produced and imported for QPS purposes. In addition, existing
regulations allow manufacturers and distributors of QPS methyl bromide
to manage stockpiles of QPS methyl bromide.
EPA is acting consistently with the Montreal Protocol by not
including QPS methyl bromide in calculating consumption and inventory
levels related to the phase-out of methyl bromide and the CUE. Article
2H(6) of the Protocol states that the 1991 baseline level of
consumption and production ``shall not include the amounts used by the
Party for quarantine and pre-shipment purposes.''
Similarly, EPA did not consider domestic demand for methyl bromide
for feedstock and transformation purposes in its calculation of the
supply chain factor. As with the QPS exemption, methyl bromide
producers are allowed to responsibly manage inventories of feedstock
methyl bromide. Therefore, EPA does not find compelling reasons to
account for domestic demand for feedstock methyl bromide in the supply
chain factor. In this action, EPA is not proposing to change or add
restrictions on methyl bromide produced for feedstock and
transformation purposes.
In the past, stakeholders have raised concerns about their ability
to understand exactly how EPA derives CSA amounts. One of EPA's
motivations for introducing the refined methodology, described above in
this section, is to provide more clarity about how proposed amounts are
derived, and to make EPA's calculations more transparent. For these
reasons, EPA tried to make the terms in the proposed method for
calculating available stocks
[[Page 48969]]
proposed in this preamble as clear and definitive as possible. Since
the original proposed rule, EPA has gained significant experience and
information pertaining to the CUE program, and the methyl bromide
industry more generally. EPA is using its added knowledge to propose a
more transparent and definitive method for calculating the amount of
available stocks. Further detail about the factors in the method
proposed in this preamble is provided in the Technical Support Document
available on the public docket for this rulemaking.
3. Proposed Approach for Determining Critical Use Amounts
EPA estimates that, as of January 1, 2008, 1,715,438 kg of pre-
phaseout inventory will meet the definition of ``available stocks'' as
calculated using the approach described in Section V.D.2. of this
preamble. Based on these calculated figures and the allocation approach
described in this Section, and after making reductions for carry-over
amounts as explained in Section V.D.4. of this preamble, EPA proposes
to allocate critical use allowances (CUAs) permitting 3,101,076 kg of
new methyl bromide production and import for critical uses in 2008, and
to allow sale of 1,715,438 kg from existing stocks for critical uses by
allocating an equivalent number of critical stock allowances (CSAs).
EPA's proposed allocation amounts will result in CSAs that exceed the
difference between the total critical use amount and the new production
amount in the Parties' decision. As discussed above, this is similar to
the approach taken in EPA's rules for the previous two years. EPA seeks
comment on the amount of CUAs and CSAs that the Agency is proposing to
distribute in 2008. EPA also seeks comment on the more refined
allocation approach that the Agency is proposing to use in 2008 and
beyond, as described below in this Section.
In this action, EPA is proposing to refine its allocation approach
for 2008 and beyond. EPA proposes that in 2008 and in each year
thereafter, when appropriate and feasible, it will allocate CSAs in an
amount equal to the number of kilograms of available stocks on January
1 of the year in question, as estimated by EPA using the method
described in Section V.D.2. of this preamble. As in past years, EPA
intends to allocate a total number of CUAs such that the total number
of CUAs and CSAs is not greater than the total critical use amount
authorized by the Parties for the year in question. To account for
carry-over amounts of methyl bromide, amounts for research purposes, or
for other appropriate reasons, including updated information on
alternatives, EPA may allocate a total number of CUAs and CSAs that is
less than the total critical use amount authorized by the Parties for
the year in question. As in previous CUE rules, if EPA does allow less
than the total amount authorized by the Parties, the Agency will
propose and seek comment on the reasons for, and amounts of, each
reduction before finalizing any such reductions. In this action EPA is
not proposing to create a methyl bromide reserve or strategic inventory
of any kind, or to guarantee that a certain amount of methyl bromide
would always be held in inventory. Furthermore, EPA is not proposing to
add any restrictions on sales of methyl bromide inventories.
EPA recognizes that in a future CUE allocation rule proposal, the
Agency could estimate, using the method described in Section V.D.2.,
that the amount of available stocks at the beginning of a future year
is less than the difference between the total critical use amount
authorized by the Parties and the amount of new production and imports
authorized by the Parties for the year in question. This scenario can
be described with the following inequality: Available Stocks < (Total
CUE Amount Authorized--New Production and Imports Authorized). Under
the refined approach described above, in such a case EPA would propose
to allow the maximum amount of new production and imports authorized by
the Parties, minus any reductions as described below. EPA would also
allow critical users to access a limited amount of existing stocks by
allocating a number of CSAs equal to the difference between the total
CUE amount authorized by the Parties and the amount of new production
and imports authorized for the year in question (CSA = Total CUE Amount
Authorized--New Production and Imports Authorized), again minus any
reductions as discussed here. EPA will continue to collect inventory
data and make critical use allocations on an annual basis. Similarly,
unless the Parties approve multi-year critical use exemptions, EPA
proposes to calculate the amount of available stocks on an annual basis
and to explain those calculations in the annual CUE allocation
rulemaking process. To account for carry-over amounts of methyl
bromide, amounts for research purposes, or for other appropriate
reasons, including updated information on alternatives, EPA could
allocate a total number of CUAs and CSAs that is less than the total
critical use amount authorized by the Parties for the year in question.
As in previous CUE rules, if EPA does allow less than the total amount
authorized by the Parties, the Agency will propose and seek comment on
the reasons for, and amounts of, each reduction before finalizing any
such reductions.
Finally, for completeness, EPA recognizes that as a theoretical
matter it could estimate, using the method described in Section V.D.2.,
that the amount of available stocks at the beginning of a future year
is greater than the total critical use amount authorized by the Parties
for the year in question. This scenario can be described with the
following inequality: Available Stocks > Total CUE Amount Authorized.
In that theoretical scenario, EPA would propose to allocate a number of
CSAs that is equivalent to the total CUE amount authorized by the
Parties for the year in question. However, EPA could still make
reductions, such as for amounts of carry-over CUE material. Therefore,
in the situation described by the above inequality, EPA would not
allocate any CUAs for the year in question.
4. Treatment of Carry-Over Material
As described in the December 23, 2004 Framework Rule (69 FR 76997),
EPA is not permitting entities to build stocks of methyl bromide
produced or imported after January 1, 2005 under the critical use
exemption. Under the current regulations, quantities of methyl bromide
produced, imported, exported, or sold to end-users under the critical
use exemption in a calendar year must be reported to EPA the following
year. These reporting requirements appear at Sections 82.13(f)(3),
82.13(g)(4), 82.13(h)(1), 82.13(bb)(2), and 82.13(cc)(2). EPA uses the
reported information to calculate the amount of methyl bromide produced
or imported under the critical use exemption, but not exported or sold
to end-users in that year. An amount equivalent to this ``carry-over,''
whether pre-plant or post-harvest, is then deducted from the total
level of allowable new production and import in the year following the
year of the data report. For example, the amount of carry-over from
2005, which was reported in 2006, was deducted from the allowable
amount of production or import for critical uses in 2007. As discussed
in Section V.D.2., carry over material is not included in EPA's
definition of existing stocks (ES) as it applies to the proposed
formula for determining the amount of available stocks (AS). EPA is not
including carry-over amounts as part of ES, because doing so could lead
to a double-
[[Page 48970]]
counting of carry-over amounts, and thus a double reduction of critical
use allowances (CUAs).
In 2007, 53 entities reported information to EPA under the
reporting requirements at 40 CFR 82.13 about critical use methyl
bromide production, imports, exports, sales and/or inventory holdings
in 2006. 6,923,926 kg of critical use methyl bromide was acquired
through production or import in 2006. The information reported to EPA
indicates that 6,384,493 kg of critical use methyl bromide was exported
or sold to end-users in 2006. EPA calculates that the carry-over amount
at the end of 2006 was 539,433 kg, which is the difference between the
reported amount of critical use methyl bromide acquired in 2006 and the
reported amount of exports or sales of that material to end users in
2006 (6,923,926 kg - 6,384,493 kg = 539,433 kg). EPA's calculation of
the amount of carry-over at the end of 2006 is consistent with the
method used in the final 2007 CUE Rule, and with the method agreed to
by the Parties in Decision XVI/6, which established the Accounting
Framework for critical use methyl bromide, for calculating column L of
the U.S. the Accounting Framework. The 2006 U.S. Accounting Framework
is available in the public docket for this rulemaking. EPA seeks
comment on its method for calculating the amount of carry-over critical
use material at the end of each year. Commenters suggesting alternative
methods for calculating the amount of carry-over material at the end of
each year should be detailed and comprehensive; address what changes
would be needed to the reporting requirements; and the degree of
administrative burden that alternative practice might impose. EPA also
seeks comment on ways to improve the completeness of data reporting by
affected companies. It is important for stakeholders to recognize that
the process for calculating the amount of carry-over CUE material each
year relies on sales to end-user data reported to EPA by distributors
and applicators. EPA specifically requests comment on whether requiring
producers, importers, and distributors to report to the Agency the
names of distributors and third-party applicators to whom they have
sold critical-use methyl bromide would result in more complete
reporting of sales to end-user data, and whether this would justify the
additional burden of such requirements.
In previous CUE rules, EPA has used the approach described in the
Framework Rule for implementing carry-over reductions. Consistent with
that approach, EPA is proposing to reduce the total level of new
production and import for critical uses by 539,432 kg to reflect the
total level of carry-over material available at the end of 2006. After
applying this reduction to the total volumes of allowable new
production or import, EPA pro-rated CUAs to each company based on their
1991 baseline market share.
Chemtura Corporation has submitted a petition available on the
public docket for this rulemaking that recommends alternative methods
for apportioning carry-over reductions among CUA holders. Some of
Chemtura's proposals would require increases to existing reporting
requirements for producers, distributors or third-party applicators.
EPA encourages interested parties to consult Chemtura's petition. EPA
seeks comment on the recommendations in that petition, as well as any
additional suggestions regarding the apportionment of carry-over among
companies. Comments suggesting alternative methods for implementing
carry-over reductions should be detailed and comprehensive; address
what changes, if any, would be needed to the reporting requirements;
and the degree of burden the alternative practice might impose.
5. Amounts for Research Purposes
Decision XVII/9(7) ``request[ed] Parties to endeavor to use stocks,
where available, to meet any demand for methyl bromide for the purposes
of research and development.'' Consistent with that Decision, in the
2007 CUE Rule, EPA reduced the amount of new production and import by
21,702 kilograms, which was the amount needed for research. Consistent
with Decision XVII/9, EPA continued to encourage methyl bromide
suppliers to sell inventory to researchers and encouraged researchers
to purchase inventory.
Decision XVIII/15(1) authorizes ``the production and consumption of
[methyl bromide] necessary to satisfy laboratory and analytical
critical uses.'' Paragraph 2 of that decision states that methyl
bromide produced under the exemption for laboratory and analytical uses
may be used as a reference or standard; in laboratory toxicology
studies; to compare the efficacy of methyl bromide and its alternatives
inside a laboratory; and as a laboratory agent which is destroyed in a
chemical reaction in the manner of feedstock. In a separate notice-and-
comment rulemaking titled the ``Global Essential Laboratory and
Analytical Use Exemption,'' EPA is proposing to implement the exemption
authorized in Decision XVIII/15. More information about that rulemaking
process is available on the docket for that rule (EPA-HQ-OAR-2007-
0384).
There continues to be a need for methyl bromide for research
purposes that do not meet the criteria for laboratory and analytical
uses, as defined in Decision XVIII/15. A common example is an outdoor
field experiment that requires methyl bromide as a standard control
treatment with which to compare the trial alternatives' results. The
critical use sectors that were approved by the Parties to use methyl
bromide for research purposes in 2008 are listed in Section V.C. and
have ``research purposes'' listed in their limiting critical conditions
in Table I of this preamble.
In this action, EPA is proposing to allow sale of 15,491 kg of
existing stocks for research purposes in 2008 to account for the amount
authorized for those purposes. EPA proposes to allow methyl bromide
sale from stocks for exempted research purposes by expending CSAs. An
explanation of what amounts of methyl bromide and of what sectors
qualify for research purposes can be found in Section V.C. of this
preamble. If EPA adopts this proposal it will continue to encourage
methyl bromide suppliers to sell inventory to researchers and to
encourage researchers to purchase inventory for research purposes. EPA
seeks comment on its proposal to issue CSAs for sale of methyl bromide
stocks for exempted research purposes.
6. Methyl Bromide Alternatives
In the 2006 CUE Rule (71 FR 5985) EPA allocated less methyl bromide
for critical uses than was authorized by the Parties in order to
account for the recent registration of sulfuryl fluoride. The
allocation reductions in that rule reflected transition rates that were
included for the first time in the 2007 U.S. Critical Use Nomination
(CUN). In the 2007 CUE Rule, EPA explained why a similar reduction was
made in that rule: ``The report of the Methyl Bromide Technical Options
Committee (MBTOC) indicated that the MBTOC did not make any reductions
in these [post-harvest] use categories for the uptake of sulfuryl
fluoride in 2007 because the United States Government indicated that it
would do so in its domestic allocation procedures. Therefore, EPA is
reducing the total volume of critical use methyl bromide by 53,703
kilograms to reflect the continuing transition to sulfuryl fluoride''
(75 FR 75390).
The United States continues to make progress transitioning to
alternatives to methyl bromide fumigation. Preliminary results of a
study (forthcoming) indicate
[[Page 48971]]
that the cost of post-harvest cocoa fumigation with sulfuryl fluoride
is not substantially greater than the cost of using methyl bromide for
that fumigation. As a result the National Pest Management Association
(NPMA) decided to withdraw its nomination request for critical use
methyl bromide for cocoa for calendar year 2009 and not to seek
critical use methyl bromide for cocoa at all in calendar year 2010.
NPMA, however, has expressed the need for some critical use methyl
bromide for cocoa in 2008 as the sector transitions to sulfuryl
fluoride. NPMA explained to EPA that some larger companies have already
begun integrating sulfuryl fluoride into their operations. However,
there are other companies that have not begun that transition. NPMA
believes that those companies would be unprepared if EPA does not allow
a portion of the 50,188 kg of critical use methyl bromide for cocoa
approved by the Parties for 2008. Given the circumstances discussed
above, EPA seeks comment on how much of the 50,188 kg of critical use
methyl bromide approved by the Parties for cocoa for 2008 should be
allowed by the Agency. Commenters on this topic should recommend
specific amounts of critical use methyl bromide for cocoa in 2008, and
provide detailed justifications for their recommendations.
Besides the issues regarding post-harvest cocoa fumigation
discussed above, EPA is not proposing to make any other reductions in
post-harvest or pre-plant critical use allowances to account for the
uptake of sulfuryl fluoride, or any other pre-plant or post-harvest
alternatives. In the 2008 CUN the Agency applied transition rates for
all critical use sectors. The MBTOC report of September 2006 included
reductions in its recommendations for critical use categories based on
the transition rates in the 2008 CUN. MBTOC's recommendations were then
considered in the Parties' 2008 authorization amounts, as listed in
Decision XVIII/13. Therefore, transition rates, which account for the
uptake of alternatives, have already been applied for authorized 2008
critical use amounts. Furthermore, the 2009 CUN, which represents the
most recent analysis and the best available data for methyl bromide
alternatives, does not conclude that transition rates should be
increased for 2008.
As the 2009 CUN reflects, besides the post-harvest cocoa issue
discussed above in this section, the United States Government has not
found new information that supports changing the 2008 transition rates
included in the 2008 CUN and applied by MBTOC. EPA continues to gather
information about methyl bromide alternatives through the CUE
application process, and by other means. For example, in August 2006,
under the authority of Section 114 of the Clean Air Act, EPA collected
information from a group of millers and fumigators about their
experiences with sulfuryl fluoride and methyl bromide.
EPA seeks comment on its proposal not to make further reductions in
2008 to account for the uptake of methyl bromide alternatives, because
the Agency has already accounted for alternatives' transition rates.
EPA continues to support research and adoption of methyl bromide
alternatives, and to request information about the economic and
technical feasibility of all existing and potential alternatives.
E. The Criteria in Decisions IX/6 and Ex. I/4
Paragraphs 2 and 6 of Decision XVIII/13 request parties to ensure
that the conditions or criteria listed in Decisions Ex. I/4 and IX/6,
paragraph 1, are applied to exempted critical uses for the 2008 control
period. A discussion of the Agency's application of the criteria in
paragraph 1 of Decision IX/6 appears in sections V.A., V.C., V.D., and
V.H. of this preamble. In section V.C. the Agency is soliciting
comments from the public on the technical and economic basis for
determining that the uses listed in this proposed rule meet the
criteria of the critical use exemption (CUE). The critical use
nominations (CUNs) detail how each proposed critical use meets the
criteria listed in paragraph 1 of Decision IX/6, apart from the
criterion located at (b)(ii), as well as the criteria in paragraphs 5
and 6 of Decision Ex. I/4.
The criterion in Decision IX/6(1)(b)(ii), which refers to the use
of available stocks of methyl bromide, is addressed in sections V.D.,
V.G., and V.H. of this preamble. The Agency has previously provided its
interpretation of the criterion in Decision IX/6(1)(a)(i) regarding the
presence of significant market disruption in the absence of an
exemption, and EPA refers readers to the 2006 CUE final rule (71 FR
5989) as well as to the memo on the docket titled ``Development of 2003
Nomination for a Critical Use Exemption for Methyl Bromide for the
United States of America'' for further elaboration.
The remaining considerations, including the lack of available
technically and economically feasible alternatives under the
circumstance of the nomination; efforts to minimize use and emissions
of methyl bromide where technically and economically feasible; the
development of research and transition plans; and the requests in
Decision Ex. I/4(5) that Parties consider and implement MBTOC
recommendations, where feasible, on reductions in the critical use of
methyl bromide and in paragraph 6 for Parties that submit critical use
nominations to include information on the methodology they use to
determine economic feasibility, are all addressed in the nomination
documents.
Some of these criteria are evaluated in other documents as well.
For example, the U.S. has further considered matters regarding the
adoption of alternatives and research into methyl bromide alternatives,
criterion (1)(b)(iii) in Decision IX/6, in the development of the
National Management Strategy (NMS) submitted to the Ozone Secretariat
in December 2005 and in on-going consultations with industry. The NMS
addresses all of the aims specified in Decision Ex.I/4(3) to the extent
feasible and is available in the docket for this rulemaking.
F. Emissions Minimization
EPA notes for the regulated community the reference to emission
minimization techniques in paragraph 8 of Decision XVIII/13, which
states that Parties shall request critical users to employ ``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.'' In addition, EPA understands that research is being
conducted on the potential to reduce rates and emissions using newly
available high-barrier films and that these studies show promising
results. Users of methyl bromide should make every effort to minimize
overall emissions of methyl bromide by implementing measures such as
the ones listed above, to the extent consistent with state and local
laws and regulations. The Agency encourages researchers and users who
are successfully utilizing such techniques to inform EPA of their
experiences as part of their comments on this proposed rule and to
provide such information with their critical use applications. In
addition, the Agency welcomes comments on the implementation of
emission minimization techniques and whether and how further emission
minimization could be achieved.
F. Critical Use Allowance Allocations
EPA is proposing to allow limited amounts of new production or
import of methyl bromide for critical uses for
[[Page 48972]]
2008 up to the amount of 3,101,076 kg (12.2% of baseline) as shown in
Table II below. EPA is seeking comment on the total levels of exempted
new production or import for pre-plant and post-harvest critical uses
in 2008. Each critical use allowance (CUA) is equivalent to 1 kg of
critical use methyl bromide. These allowances expire at the end of the
control period and, as explained in the Framework Rule, are not
bankable from one year to the next. This proposal for allocating the
following number of pre-plant and post-harvest CUAs to the entities
listed below is 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).
Table II.--Proposed Allocation of Critical Use Allowances
------------------------------------------------------------------------
2008 Critical 2008 Critical
use allowances use allowances
Company for pre-plant for post-
uses * harvest uses *
(kilograms) (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp.--A Chemtura 1,691,276 193,248
Company................................
Albemarle Corp.......................... 695,491 79,468
Ameribrom, Inc.......................... 384,343 43,916
TriCal, Inc............................. 11,967 1,367
-------------------------------
Total............................... ** 2,783,078 ** 317,998
------------------------------------------------------------------------
* 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.
** Due to rounding, numbers do not add exactly.
Paragraph five of Decision XVIII/13 states ``that Parties shall
endeavor to license, permit, authorize, or allocate quantities of
critical use methyl bromide as listed in tables A and C of the annex to
the present decision.'' This is similar to language in Decisions Ex. I/
3(4), Ex. II/1(4) and VII/9(4) regarding 2005, 2006 and 2007 critical
uses, respectively. The language from these Decisions calls on Parties
to endeavor to allocate critical use methyl bromide on a sector basis.
In establishing the critical use exemption program, the Agency
endeavored to allocate directly on a sector-by-sector basis by
analyzing and proposing this option among others in the August 2004
Framework Rule notice (69 FR 52366). EPA solicited comment on both
universal and sector-based allocation of critical use allowances. The
Agency evaluated the various options based on their economic,
environmental, and practical effects. After receiving comments, 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 a sector-specific approach would pose significant
administrative and practical difficulties. 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. The TEAP
recommendations are based on data submitted by the U.S. which in turn
are based on recent historic use data in the current methyl bromide
market. In other words, the TEAP recommendations agreed to by the
Parties are based on current use and the current use patterns take
place in a market where all pre-plant and post-harvest methyl bromide
uses compete for a lump sum supply of critical use material. Therefore,
the Agency believes that under a system of universal allocations,
divided into pre-plant and post-harvest sectors, the actual critical
use will closely follow the sector breakout listed by the TEAP. These
issues were addressed in the previous rule and EPA is not aware of any
factors that would alter the analysis performed during the development
of the Framework Rule. A summary of the options analysis conducted by
EPA is available in the docket for this rulemaking.
EPA is not proposing to change the approach adopted in the
Framework Rule for the allocation of CUAs but, in an endeavor to
address Decision XVIII/13(5), EPA will consider additional comment on
the Agency's allocation of CUAs in the two groupings (pre-plant and
post-harvest) that the Agency has employed in the past.
H. Critical Stock Allowance Allocations and Total Volumes of Critical
Use Methyl Bromide
For the reasons described in Section V.D., EPA is proposing to
allocate critical stock allowances (CSAs) to the entities listed below
in Table III for the 2008 control period in the amount of 1,715,438
kilograms (kg) (6.7% of U.S. 1991 baseline). This proposed amount of
CSA allowances is consistent with the proposed approach described in
Section V.D.4. and in a Technical Support Document available on the
public docket for this rulemaking (Docket ID: EPA-HQ-OAR-2006-
1016).
In 2006 the United States District Court for the District of
Columbia upheld EPA's treatment of company-specific methyl bromide
inventory information as confidential. NRDC v. Leavitt, 2006 WL 667327
(D.D.C. March 14, 2006). EPA's allocation of CSAs is based on each
company's proportionate share of the aggregate inventory. Therefore,
the documentation regarding company-specific allocation of CSAs is in
the confidential portion of the rulemaking docket and the individual
CSA allocations are not listed in the table below. EPA will inform the
listed companies of their CSA allocations in a letter following
publication of the final rule.
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
[[Page 48973]]
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)
Univar
Vanguard Fumigation Co.
Western Fumigation
Total--1,715,438 kilograms.
------------------------------------------------------------------------
Several companies that receive very small amounts of CSAs from EPA
have contacted the Agency and requested that they be permitted to
permanently retire their allowances. Some companies receive as few as 3
allowances which allow the holder to sell up to 3 kilograms of methyl
bromide to critical uses. Due to the small allocation and because they
typically do not sell critical use methyl bromide, they find the
allocation of CSAs, and associated record-keeping and reporting
requirements, to be unduly burdensome. In response to this concern, in
the Proposed 2007 CUE rule EPA proposed to allow CSA holders, on a
voluntary basis, to permanently relinquish their allowances through
written notification to the Agency. EPA received no adverse comments.
However, no CSA holders contacted EPA to take advantage of that
voluntary opportunity.
For purposes of the 2008 CUE rule and beyond, EPA is again allowing
CSA holders, on a voluntary basis, to permanently relinquish their
allowances through written notification to the person indicated in the
``addresses'' section of this preamble during the comment period for
this rulemaking. Such companies would not receive CSA allocations and
would be excluded from future allocations. All allowances forfeited by
companies through the written notification process will be reallocated
to the remaining companies on a pro-rata basis. EPA strongly encourages
CSA holders to take advantage of this voluntary opportunity to retire
their CSA allocations in order to reduce their administrative burden.
I. Stocks of Methyl Bromide
As discussed above and in the December 23, 2004 Framework Rule, an
approved critical user may obtain access to exempted production and
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. The Framework Rule established provisions governing the
sale of pre-phaseout inventories for critical uses, including the
concept of CSAs and a prohibition on the sale of pre-phaseout
inventories for critical uses in excess of the amount of CSAs held by
the seller. In the Framework Rule EPA also established trading
provisions that allow critical use allowances (CUAs) to be converted
into CSAs. Under this proposed action, no significant changes would be
made to those provisions.
EPA believes that the refined approach proposed in Section V.D. of
this preamble includes important measures that could reduce the risks
of methyl bromide shortages for critical uses. For example, this
transparent approach allows improved stakeholder comment regarding the
amount of available stocks and resulting adjustments to the CUA
amounts. However, as in prior years, the Agency will continue to
closely monitor CUA and CSA data. Further, as stated in the final 2006
CUE rule, safety valves continue to exist. If an inventory shortage
occurs, EPA may consider various options including, but not limited to,
promulgating a final version of the petition process proposed on
October 27, 2005 (70 FR 62030), taking into account comments received
on that proposal; proposing a different administrative mechanism to
serve the same purpose; or authorizing conversion of a limited number
of CSAs to CUAs through a rulemaking, bearing in mind the upper limit
on U.S. production/import for critical uses. In sections V.D. and V.G.
of this preamble, EPA seeks comment on the amount of critical use
methyl bromide to come from stocks compared to new production and
import.
With regard to information about stocks of methyl bromide, EPA has
requested such information since late 2003. On December 11, 2003, EPA
initially requested information on the amount of methyl bromide held in
inventory from a group of five methyl bromide producers, importers, and
distributors. The information submitted in response to that Section 114
request was subsequently requested under the Freedom of Information Act
(``FOIA''). On August 26, 2004, EPA issued a final determination
concerning the confidentiality of that information. In the
determination, EPA found that aggregated data on the amount of methyl
bromide that had been stockpiled and maintained in inventory in 2002
and 2003 by the group of five businesses (``5-business aggregate'')
could not be withheld pursuant to any FOIA exemption. Part of the basis
for EPA's determination was that entities' individual information could
not be deduced from aggregate stockpile data, and therefore, the 5-
business aggregate was not confidential.
Subsequent to the August 26, 2004 determination, two of the
businesses whose information was included in the five-business
aggregate filed suit to prevent EPA from releasing this information.
Ameribrom v. Leavitt et al., 2:04-cv-04393 (D.N.J.), was filed
September 9, 2004 and Hendrix and Dail v. Leavitt, et al., 04-CV-134
(E.D.N.C.), was filed September 14, 2004. However, both companies
subsequently filed for voluntary dismissal.
In addition to 2002 and 2003 methyl bromide inventory data for the
group of five entities, EPA has collected similar information for a
broader group of entities for the years 2003, 2004, 2005 and now 2006.
2003 stockpile data for all entities that held stocks of methyl bromide
for sale or for transfer was collected in accordance with a notice
published on August 25, 2004 (69 FR 52403) titled ``Request for
Information on Existing and Available Stocks of Methyl Bromide.'' 2004
stockpile data for all methyl bromide producers, importers, exporters,
distributors, and applicators was collected pursuant to a Section 114
request dated April 15, 2005. 2005 and 2006 stockpile data for all
methyl bromide producers, importers, distributors, and applicators was
collected pursuant to a rule published on December 13, 2005 (70 FR
73604) that amended methyl bromide reporting requirements at 40 CFR
82.13 in a manner that enables EPA to calculate the aggregate stockpile
for each calendar year. On September 7, 2006 the Agency released data
on the aggregate amount of methyl bromide held in inventory at the end
of calendar years 2003, 2004 and 2005.
On April 23, 2007 EPA sent letters to all entities which had
reported holding methyl bromide inventory at the end of 2003, 2004,
2005, or 2006. The letters confirmed EPA's intention to treat the
aggregate of the methyl bromide stockpile information reported to the
Agency for calendar year 2006 in the same manner as similar aggregates
calculated from information for the years 2003, 2004, and 2005. The
letters explained that under EPA regulations at 40 CFR 2.204(d)(2), the
aggregate of the methyl bromide stockpile information
[[Page 48974]]
for calendar year 2006 reported to the Agency under the requirements at
40 CFR 82.13 is clearly not eligible for confidential treatment. This
determination was based in part on the great difficulty (due to the
number of submitters) of ascertaining the size of any individual
entity's methyl bromide stockpile from the information submitted under
the reporting requirements at 40 CFR 82.13, as aggregated by the
Agency. EPA did not receive any objections to releasing the aggregate
information for 2006 and proceeded to release that information on May
14, 2007. The aggregate information for 2003, 2004, 2005, and 2006 is
available in the docket for this rulemaking.
In this action, EPA is proposing to release the aggregate of methyl
bromide stockpile information reported to the Agency under the
reporting requirements at 40 CFR 82.13 for the end of 2007, and each
year thereafter. For the reasons given in the April 23, 2007 letters,
which are available in the docket, this aggregate information is
clearly not entitled to confidential treatment. EPA proposes to release
the aggregate of this stockpile data in future years without first
notifying entities by letter, as EPA has done in the past two years.
EPA seeks comment on this proposal. If the Agency does not receive any
comments opposing this proposal, the aggregate of methyl bromide
stockpile data collected under the reporting requirements at 40 CFR
82.13 will not be treated as confidential information and may be
released in future without further notice.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action proposes a ``significant regulatory action.'' This action
is likely to result in a rule that may raise novel legal or policy
issues. Accordingly, EPA submitted this action to the Office of
Management and Budget (OMB) for review under EO 12866 and any changes
made in response to OMB recommendations have been documented in the
docket for this action.
B. Paperwork Reduction Act
This proposed action does not impose any new information collection
burden. The Office of Management and Budget (OMB) has previously
approved the information collection requirements contained in the
existing regulations at 40 CFR Part 82 under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB
control number 2060-0564, and EPA ICR number 2179.03. A copy of the OMB
approved Information Collection Request (ICR) may be obtained from
Susan Auby, Collection Strategies Division; U.S. Environmental
Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC
20460 or by calling (202) 566-1672.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice-and-comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions. For purposes of assessing the impacts of
this proposed 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 that
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
----------------------------------------------------------------------------------------------------------------
NAICS Small business
size standard (in
Category NAICS code SIC code number of employees or
millions of dollars)
----------------------------------------------------------------------------------------------------------------
Agricultural production.............. 1112--Vegetable and 0171--Berry Crops, $0.75 million.
Melon farming, 1113-- 0172--Grapes, 0173--
Fruit and Nut Tree Tree Nuts, 0175--
Farming, 1114-- Deciduous Tree Fruits
Greenhouse, Nursery, (except apple orchards
and Floriculture and farms), 0179--
Production. Fruit and Tree Nuts,
NEC, 0181--Ornamental
Floriculture and
Nursery Products,
0831--Forest Nurseries
and Gathering of
Forest Products.
Storage Uses......................... 115114--Postharvest 2041--Flour and Other $6.5 million.
Crop activities Grain Mill Products, 500 employees.
(except Cotton 2044--Rice Milling, $23.5 million.
Ginning), 311211-- 4221--Farm Product
Flour Milling, 311212-- Warehousing and
Rice Milling, 493110-- Storage, 4225--General
General Warehousing Warehousing and
and Storage, 493130-- Storage.
Farm Product
Warehousing and
Storage.
[[Page 48975]]
Distributors and Applicators......... 115112--Soil 0721--Crop Planting, $6.5 million.
Preparation, Planting Cultivation, and
and Cultivating. Protection.
Producers and Importers.............. 325320--Pesticide and 2879--Pesticides and 500 employees.
Other Agricultural Agricultural
Chemical Manufacturing. Chemicals, NEC.
----------------------------------------------------------------------------------------------------------------
Agricultural producers of minor crops and entities that store
agricultural commodities are categories of affected entities that
contain small entities. This proposed rule will only affect 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. EPA
estimated that 3,218 entities petitioned EPA for an exemption for the
2005 control period. EPA received requests from a comparable number of
entities for the 2006 and 2007 control periods. Since many applicants
did not provide information on the distribution of sizes of entities
covered in their applications, EPA estimated that, based on the above
definition, between one-fourth and one-third of the entities may be
small businesses. In addition, other categories of affected entities do
not contain small businesses based on the above description.
After considering the economic impacts of this proposed rule on
small entities, EPA certifies that this action will not have a
significant economic impact on a substantial number of small entities.
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 proposed rule on small entities.'' (5 U.S.C.
603-604). Thus, an Agency may certify 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 exempts methyl bromide 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 and $30 million annually. We have therefore concluded that
this proposed 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.
This proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local, or
tribal governments or the private sector. This action is deregulatory
and does not impose any new requirements on any entities. Thus, this
proposed 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.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
The phrase ``policies that have federalism implications'' is defined in
the Executive Order to include regulations that have ``substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This proposed 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 proposed rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by
[[Page 48976]]
tribal officials in the development of regulatory policies that have
tribal implications.'' This proposed rule does not have tribal
implications, as specified in Executive Order 13175. This proposed rule
does not significantly or uniquely affect the communities of Indian
tribal governments. The proposed rule does not impose any enforceable
duties on communities of Indian tribal governments. Thus, Executive
Order 13175 does not apply to this proposed rule.
G. Executive Order No. 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045: ''Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ''economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
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 proposed 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 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not a ``significant energy action'' as
defined in Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. This proposed
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 proposed 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 No. 104-113, Section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
rulemaking does not involve technical standards. Therefore, EPA is not
considering the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations, because it effects the
level of environmental protection equally for all affected populations
without having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. Any ozone depletion that results from this proposed
rule will impact all affected populations equally because ozone
depletion is a global environmental problem with environmental and
human effects that are, in general, equally distributed across
geographical regions.
List of Subjects in 40 CFR Part 82
Environmental protection, Ozone depletion, Chemicals, Exports,
Imports.
Dated: August 17, 2007.
Stephen L. Johnson,
Administrator.
For the reasons stated in the preamble, 40 CFR part 82 is proposed
to be amended as follows:
PART 82--PROTECTION OF STRATOSPHERIC OZONE
1. The authority citation for part 82 continues to read as follows:
Authority: 42 U.S.C. 7414, 7601, 7671-7671q.
2. Section 82.8 is amended by revising the table in paragraph
(c)(1) and paragraph (c)(2) to read as follows:
Sec. 82.8 Grant of essential use allowances and critical use
allowances.
* * * * *
(c) * * *
(1) * * *
------------------------------------------------------------------------
2008 Critical 2008 Critical
use allowances use allowances
Company for pre-plant for post-
uses* harvest uses*
(kilograms) (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp.--A Chemtura 1,691,276 193,248
Company................................
Albemarle Corp.......................... 695,491 79,468
Ameribrom, Inc.......................... 384,343 43,916
TriCal, Inc............................. 11,967 1,367
-------------------------------
Total............................... 2,783,078 317,998
------------------------------------------------------------------------
* 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.
[[Page 48977]]
(2) Allocated critical stock allowances granted for specified
control period. The following companies are allocated critical stock
allowances for 2008 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.
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)
Univar
Vanguard Fumigation Co.
Western Fumigation
Total--1,715,438 kilograms.
------------------------------------------------------------------------
3. Appendix L to Subpart A is revised to read as follows:
Appendix L to Subpart A of Part 82--Approved Critical Uses and Limiting
Critical Conditions for Those Uses for the 2008 Control Period
------------------------------------------------------------------------
Column A Column B Column C
------------------------------------------------------------------------
Limiting critical
conditions--that
either exist, or
Approved critical that the approved
Approved critical uses user and location of critical user
use reasonably expects
could arise without
methyl bromide
fumigation:
------------------------------------------------------------------------
Pre-Plant Uses:
Cucurbits............... (a) Michigan growers Moderate to severe
soilborne disease
infestation.
A need for methyl
bromide for
research purposes.
(b) Southeastern Moderate to severe
U.S. limited to yellow or purple
growing locations nutsedge
in Alabama, infestation.
Arkansas, Kentucky, Moderate to severe
Louisiana, soilborne disease
Mississippi, North infestation.
Carolina, South Moderate to severe
Carolina, root knot nematode
Tennessee, and infestation.
Virginia. A need for methyl
bromide for
research purposes.
(c) Georgia growers. Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
soilborne disease
infestation.
Moderate to severe
root knot nematode
infestation.
A need for methyl
bromide for
research purposes.
Eggplant................ (a) Florida growers. Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
soilborne disease
infestation.
Restrictions on
alternatives due to
karst topographical
features and soils
not supporting
seepage irrigation.
A need for methyl
bromide for
research purposes.
(b) Georgia growers. Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
nematode
infestation.
Moderate to severe
pythium collar,
crown and root rot.
Moderate to severe
southern blight
infestation.
Restrictions on
alternatives due to
karst topographical
features.
A need for methyl
bromide for
research purposes.
(c) Michigan growers Moderate to severe
soilborne disease
infestation.
A need for methyl
bromide for
research purposes.
Forest Nursery Seedlings (a) Growers in Moderate to severe
Alabama, Arkansas, yellow or purple
Georgia, Louisiana, nutsedge
Mississippi, North infestation.
Carolina, Oklahoma, Moderate to severe
South Carolina, soilborne disease
Tennessee, Texas, infestation.
and Virginia. Moderate to severe
nematode
infestation.
(b) International Moderate to severe
Paper and its yellow or purple
subsidiaries nutsedge
limited to growing infestation.
locations in Moderate to severe
Alabama, Arkansas, soilborne disease
Georgia, South infestation.
Carolina, and Texas.
(c) Public Moderate to severe
(government-owned) weed infestation
seedling nurseries including purple
in Illinois, and yellow nutsedge
Indiana, Kentucky, infestation.
Maryland, Missouri, Moderate to severe
New Jersey, Ohio, Canada thistle
Pennsylvania, West infestation.
Virginia, and Moderate to severe
Wisconsin. nematode
infestation.
Moderate to severe
soilborne disease
infestation.
(d) Weyerhaeuser Moderate to severe
Company and its yellow or purple
subsidiaries nutsedge
limited to growing infestation.
locations in Moderate to severe
Alabama, Arkansas, soilborne disease
North Carolina, and infestation.
South Carolina. Moderate to severe
nematode or worm
infestation.
(e) Weyerhaeuser Moderate to severe
Company and its yellow nutsedge
subsidiaries infestation.
limited to growing Moderate to severe
locations in Oregon soilborne disease
and Washington. infestation.
(f) Michigan growers Moderate to severe
soilborne disease
infestation.
Moderate to severe
Canada thistle
infestation.
Moderate to severe
nutsedge
infestation.
Moderate to severe
nematode
infestation.
[[Page 48978]]
(g) Michigan Moderate to severe
herbaceous nematode
perennials growers. infestation.
Moderate to severe
soilborne disease
infestation.
Moderate to severe
yellow nutsedge and
other weed
infestation.
Orchard Nursery (a) Members of the Moderate to severe
Seedlings. Western Raspberry nematode
Nursery Consortium infestation.
limited to growing Presence of medium
locations in to heavy clay
California and soils.
Washington. Prohibition on use
of 1,3-
dichloropropene
products because
local township
limits on use of
this alternative
have been reached.
A need for methyl
bromide for
research purposes.
(b) Members of the Moderate to severe
California nematode
Association of infestation.
Nursery and Garden Presence of medium
Centers to heavy clay
representing soils.
Deciduous Tree Prohibition on use
Fruit Growers. of 1,3-
dichloropropene
products because
local township
limits on use of
this alternative
have been reached.
A need for methyl
bromide for
research purposes.
(c) California rose Moderate to severe
nurseries. nematode
infestation.
Prohibition on use
of 1,3-
dichloropropene
products because
local township
limits on use of
this alternative
have been reached.
A need for methyl
bromide for
research purposes.
Strawberry Nurseries.... (a) California Moderate to severe
growers. soilborne disease
infestation.
Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
nematode
infestation.
A need for methyl
bromide for
research purposes.
(b) North Carolina Moderate to severe
and Tennessee black root rot.
growers. Moderate to severe
root-knot nematode
infestation.
Moderate to severe
yellow and purple
nutsedge
infestation.
A need for methyl
bromide for
research purposes.
Orchard Replant......... (a) California stone Moderate to severe
fruit growers. nematode
infestation.
Moderate to severe
soilborne disease
infestation.
Replanted (non-
virgin) orchard
soils to prevent
orchard replant
disease.
Presence of medium
to heavy soils.
Prohibition on use
of 1,3-
dichloropropene
products because
local township
limits on use of
this alternative
have been reached.
(b) California table Moderate to severe
and raisin grape nematode
growers. infestation.
Moderate to severe
soilborne disease
infestation.
Replanted (non-
virgin) orchard
soils to prevent
orchard replant
disease.
Medium to heavy
soils.
Prohibition on use
of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
(c) California wine Moderate to severe
grape growers. nematode
infestation.
Moderate to severe
soilborne disease
infestation.
Replanted (non-
virgin) orchard
soils to prevent
orchard replant
disease.
Medium to heavy
soils.
Prohibition on use
of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
(d) California Moderate to severe
walnut growers. nematode
infestation.
Moderate to severe
soilborne disease
infestation.
Replanted (non-
virgin) orchard
soils to prevent
orchard replant
disease.
Medium to heavy
soils.
Prohibition on use
of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
[[Page 48979]]
(e) California Moderate to severe
almond growers. nematode
infestation.
Moderate to severe
soilborne disease
infestation.
Replanted (non-
virgin) orchard
soils to prevent
orchard replant
disease.
Medium to heavy
soils.
Prohibition on use
of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
Ornamentals............. (a) California Moderate to severe
growers. soilborne disease
infestation.
Moderate to severe
nematode
infestation.
Prohibition on use
of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
A need for methyl
bromide for
research purposes.
(b) Florida growers. Moderate to severe
weed infestation.
Moderate to severe
soilborne disease
infestation.
Moderate to severe
nematode
infestation.
Restrictions on
alternatives due to
karst topographical
features and soils
not supporting
seepage irrigation.
A need for methyl
bromide for
research purposes.
Peppers................. (b) Alabama, Moderate to severe
Arkansas, Kentucky, yellow or purple
Louisiana, nutsedge
Mississippi, North infestation.
Carolina, South Moderate to severe
Carolina, nematode
Tennessee, and infestation.
Virginia growers. Moderate to severe
pythium root,
collar, crown and
root rots.
A need for methyl
bromide for
research purposes.
(c) Florida growers. Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
soilborne disease
infestation.
Moderate to severe
nematode
infestation.
Restrictions on
alternatives due to
karst topographical
features and soils
not supporting
seepage irrigation.
A need for methyl
bromide for
research purposes.
(d) Georgia growers. Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
nematode
infestation, or
moderate to severe
pythium root and
collar rots.
Moderate to severe
southern blight
infestation, crown
or root rot.
A need for methyl
bromide for
research purposes.
(e) Michigan growers Moderate to severe
soilborne disease
infestation.
A need for methyl
bromide for
research purposes.
Strawberry Fruit........ (a) California Moderate to severe
growers. black root rot or
crown rot.
Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
nematode
infestation.
Prohibition on use
of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
Time to transition
to an alternative.
A need for methyl
bromide for
research purposes.
(b) Florida growers. Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
nematode
infestation.
Moderate to severe
soilborne disease
infestation.
Carolina geranium or
cut-leaf evening
primrose
infestation.
Restrictions on
alternatives due to
karst topographical
features and soils
not supporting
seepage irrigation
a need for methyl
bromide for
research purposes.
(c) Alabama, Moderate to severe
Arkansas, Georgia, yellow or purple
Illinois, Kentucky, nutsedge
Louisiana, infestation.
Maryland, Moderate to severe
Mississippi, nematode
Missouri, New infestation.
Jersey, North Moderate to severe
Carolina, Ohio, black root and
South Carolina, crown rot.
Tennessee, and A need for methyl
Virginia growers. bromide for
research purposes.
Sweet Potato Slips...... (a) California Prohibition on use
growers. of 1,3-
dichloropropene
products because
local township
limits for this
alternative have
been reached.
[[Page 48980]]
Tomatoes................ (a) Michigan growers Moderate to severe
soilborne disease
infestation.
Moderate to severe
fungal pathogen
infestation.
A need for methyl
bromide for
research purposes.
(c) Alabama, Moderate to severe
Arkansas, Florida, yellow or purple
Georgia, Kentucky, nutsedge
Louisiana, infestation.
Mississippi, North Moderate to severe
Carolina, South soilborne disease
Carolina, infestation.
Tennessee, and Moderate to severe
Virginia growers. nematodes.
Restrictions on
alternatives due to
karst topographical
features, and in
Florida, soils not
supporting seepage
irrigation.
A need for methyl
bromide for
research purposes.
Post-Harvest Uses:
Food Processing......... (a) Rice millers in Moderate to severe
all locations in infestation of
the U.S. who are beetles, weevils or
members of the USA moths.
Rice Millers Older structures
Association. that can not be
properly sealed to
use an alternative
to methyl bromide.
Presence of
sensitive
electronic
equipment subject
to corrosion.
Time to transition
to an alternative.
(b) Pet food Moderate to severe
manufacturing infestation of
facilities in the beetles, moths, or
U.S. who are active cockroaches.
members of the Pet Older structures
Food Institute (For that can not be
this proposed rule, properly sealed to
``pet food'' refers use an alternative
to domestic dog and to methyl bromide.
cat food). Presence of
sensitive
electronic
equipment subject
to corrosion.
Time to transition
to an alternative.
(c) Bakeries in the Older structures
U.S. that can not be
properly sealed to
use an alternative
to methyl bromide.
Presence of
sensitive
electronic
equipment subject
to corrosion.
Time to transition
to an alternative.
(d) Members of the Moderate to severe
North American beetle infestation.
Millers' Older structures
Association in the that can not be
U.S. properly sealed to
use an alternative
to methyl bromide.
Presence of
sensitive
electronic
equipment subject
to corrosion.
Time to transition
to an alternative.
(e) Members of the Moderate to severe
National Pest beetle or moth
Management infestation.
Association Older structures
associated with dry that can not be
commodity structure properly sealed to
fumigation (cocoa) use an alternative
and dry commodity to methyl bromide.
fumigation Presence of
(processed food, sensitive
herbs and spices, electronic
dried milk and equipment subject
cheese processing to corrosion.
facilities). Time to transition
to an alternative.
Commodities............. (a) California Rapid fumigation is
entities storing required to meet a
walnuts, beans, critical market
dried plums, figs, window, such as
raisins, dates (in during the holiday
Riverside county season, rapid
only), and fumigation is
pistachios in required when a
California. 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.
A need for methyl
bromide for
research purposes.
Dry Cured Pork Products. (a) Members of the Red legged ham
National Country beetle infestation.
Ham Association. Cheese/ham skipper
infestation.
Dermested beetle
infestation.
Ham mite
infestation.
(b) Members of the Red legged ham
American beetle infestation.
Association of Meat Cheese/ham skipper
Processors. infestation.
Dermested beetle
infestation.
Ham mite
infestation.
(c) Nahunta Pork Red legged ham
Center (North beetle infestation.
Carolina). Cheese/ham skipper
infestation.
Dermested beetle
infestation.
Ham mite
infestation.
(d) Gwaltney and Red legged ham
Smithfield Inc. beetle infestation.
Cheese/ham skipper
infestation.
Dermested beetle
infestation.
Ham mite
infestation.
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[[Page 48981]]
[FR Doc. E7-16896 Filed 8-24-07; 8:45 am]
BILLING CODE 6560-50-P