76982 Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 82 

[FRL–7850–8] 

RIN 2060–AJ63 

Protection of Stratospheric Ozone: 

Process for Exempting Critical Uses 

From the Phaseout of Methyl Bromide

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is taking final action to 

exempt production and import of 

methyl bromide for critical uses from 

the accelerated phaseout regulations 

that govern the production, import, 

export, transformation and destruction 

of substances that deplete the ozone 

layer under the authority of the Clean 

Air Act (CAA). Today’s amendments 

establish the framework for an 

exemption permitted under the 

Montreal Protocol on Substances That 

Deplete the Ozone Layer (Protocol) and 

the CAA and specify the amount of 

methyl bromide that may be supplied in 

2005 from available stocks and new 

production and consumption to meet 

approved critical uses. In addition, this 

action establishes the list of critical uses 

approved by EPA for 2005.

DATES: Effective Date: This final rule is 

effective on January 1, 2005.

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. OAR–2003–0230. All documents in 

the docket are listed in the EDOCKET 

index at http://www.epa.gov/edocket.

Although listed in the index, some 

information is not publicly available, 

i.e., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in 

EDOCKET or in hard copy at the Air 

Docket, EPA/DC, EPA West, Room 

B102, 1301 Constitution Ave., NW., 

Washington, DC. This Docket Facility is 

open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding legal 

holidays. The Public Reading Room is 

open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Air 

Docket is (202) 566–1742.

FOR FURTHER INFORMATION CONTACT:

Hodayah Finman, U.S. Environmental 

Protection Agency, Office of Air and 

Radiation, Stratospheric Protection 

Division (6205J), 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460; 

telephone number: (202) 343–9246; fax 

numbers: (202) 343–2338; 

finman.hodayah@epa.gov. You may also 

visit the EPA’s Ozone Depletion Web 

site 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 final 

rule concerns CAA restrictions on the 

consumption, production and on the 

use of methyl bromide (class I, Group VI 

controlled substance) for critical uses 

after the phaseout date of January 1, 

2005. Under the CAA, methyl bromide 

consumption and production will be 

phased out on January 1, 2005 apart 

from allowable exemptions, namely the 

critical use exemption and the existing 

quarantine and pre-shipment 

exemption. With today’s action, EPA is 

establishing a framework for how the 

critical use exemption will operate as 

well as specific amounts of methyl 

bromide to be made available for 

approved critical uses in 2005. 

Section 553(d) of the Administrative 

Procedure Act (APA), 5 U.S.C., Chapter 

5, generally provides that rules may not 

take effect earlier than 30 days after they 

are published in the Federal Register. 

Today’s final rule is issued under 

section 307(d) of the CAA, which states: 

‘‘The provisions of section 553 through 

557 * * * of Title 5 shall not, except as 

expressly provided in this subsection, 

apply to actions to which this 

subsection applies.’’ CAA Section 

307(d)(1). Thus, section 553(d) of the 

APA does not apply to this rule. EPA 

nevertheless is acting consistently with 

the policies underlying APA section 

553(d) in making this rule effective 

January 1, 2005. APA section 553(d) 

provides an exception for any action 

that grants or recognizes an exemption 

or relieves a restriction. Today’s final 

rule grants an exemption from the 

phaseout of production and import of 

methyl bromide for critical uses. 

Because the complete phaseout takes 

effect January 1, 2005, EPA is making 

this exemption effective on the same 

date to ensure the availability of methyl 

bromide for critical uses.

Table of Contents 

I. General Information 

A. Does This Action Apply to Me? 

II. What Is the Background of the Phaseout 

Regulations for Ozone Depleting 

Substances? 

III. What Is Methyl Bromide? 

IV. What Is the Background for Today’s 

Action? 

V. What Are the Details of Today’s Action? 

A. Critical Need 

1. Should EPA Establish a Critical Use 

Exemption 

2. Should EPA Further Adjust the Amount 

of Methyl Bromide Under the Critical 

Use Exemption 

B. Amount From Stocks 

C. Access to Stocks 

D. Cap on Critical Use Methyl Bromide 

E. Critical Use Allowance Allocations 

1. Allocation of Critical Use Allowances 

2. Baseline for Critical Use Allowance 

Distribution 

3. Frequency of Critical Use Allowance 

Distribution 

F. Critical Stock Allowance Allocations 

G. Trading Allowances 

H. Acquiring Critical Use Methyl Bromide 

I. Who Is an Approved Critical User 

1. Users and Uses 

2. New Market Entrants 

J. Reporting and Recordkeeping 

Requirements 

1. Reporting 

2. Recordkeeping 

3. Treatment of Unused Critical Use 

Methyl Bromide 

K. Enforcement Provisions 

L. Export Provisions 

VI. What Are the Other Considerations and 

Situations on Which EPA Received 

Comments? 

A. Distribution of Permits to Approved 

Critical Users 

B. Comments on the Burden Associated 

With This Regulatory System 

VII. Statutory and Executive Order Reviews 

A. Executive Order No. 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order No. 13132: Federalism 

F. Executive Order No. 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order No. 13045: Protection 

of Children From Environmental Health 

& Safety Risks 

H. Executive Order No. 13211: Actions 

That Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 

J. Congressional Review Act

I. General Information 

A. Does This Action Apply to Me? 

Entities potentially regulated by this 

proposed action are those associated 

with the production, import, export, 

sale, application and use of methyl 

bromide. Potentially regulated 

categories and entities include:

Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 76983

Category Examples of regulated entities 

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; and owners of stored 

food commodities and structures such as grain mills and 

processors, Government and 

non-government researchers. 

The above table is not intended to be 

exhaustive, but rather provides 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 FOR FURTHER

INFORMATION CONTACT Section. 

II. What Is the Background of the 

Phaseout Regulations for Ozone 

Depleting Substances? 

The current regulatory requirements 

of the Stratospheric Ozone Protection 

Program that limit production and 

consumption of ozone depleting 

substances can be found at 40 CFR Part 

82 Subpart A. The regulatory program 

was originally published in the Federal 

Register on August 12, 1988 (53 FR 

30566), in response to the 1987 signing 

and subsequent ratification of the 

Montreal Protocol on Substances that 

Deplete the Ozone Layer (Protocol). The 

U.S. was one of the original signatories 

to the 1987 Montreal Protocol and the 

U.S. ratified the Protocol on April 21, 

1988. Congress then enacted, and 

President Bush signed into law, the 

Clean Air Act Amendments of 1990 

(CAAA of 1990) which included Title VI 

on Stratospheric Ozone Protection, 

codified as 42 U.S.C. Chapter 85, 

Subchapter VI, to ensure that the United 

States could satisfy its obligations under 

the Protocol. EPA issued new 

regulations to implement this legislation 

and has made several amendments to 

the regulations since that time. 

III. What Is Methyl Bromide? 

Methyl bromide is an odorless, 

colorless, toxic gas, which is used as a 

broad-spectrum pesticide and is 

controlled under the CAA as a Class I 

ozone depleting substance (ODS). 

Methyl bromide is used in the U.S. and 

throughout the world as a fumigant to 

control a wide variety of pests such as 

insects, weeds, rodents, pathogens, and 

nematodes. Additional characteristics 

and details about the uses of methyl 

bromide can be found in the proposed 

rule on the phaseout schedule for 

methyl bromide published in the 

Federal Register on March 18, 1993 (58 

FR 15014) and the final rule published 

in the Federal Register on December 10, 

1993 (58 FR 65018). The phaseout 

schedule for methyl bromide was 

revised in a direct final rulemaking on 

November 28, 2000 (65 FR 70795) 

which allowed for the phased reduction 

in methyl bromide consumption and 

extended the phaseout to 2005. The 

revised phaseout schedule was again 

amended to allow for an exemption for 

quarantine and preshipment purposes 

on July 19, 2001 (66 FR 37751) with an 

interim final rule and with a final rule 

(68 FR 238) on January 2, 2003. 

Information on methyl bromide can be 

found at the following sites of the World 

Wide Web: http://www.epa.gov/ozone/

mbr and www.unep.org/ozone or by 

contacting the Stratospheric Ozone 

Hotline at 1–800–296–1996. 

Because it is a pesticide, methyl 

bromide is also regulated by EPA under 

the Federal Insecticide, Fungicide, and 

Rodenticide Act (FIFRA) and other 

statutes and regulatory authority and by 

States under their own statutes and 

regulatory authority. Under FIFRA, 

methyl bromide is a restricted use 

pesticide. Because of this status, a 

restricted use pesticide is subject to 

certain Federal and State requirements 

governing its sale, distribution, and use. 

Nothing in this final rule implementing 

the Clear Air Act is intended to derogate 

from provisions in any other Federal, 

State, or Local laws or regulations 

governing actions including, but not 

limited to, the sale, distribution, 

transfer, and use of methyl bromide. All 

entities that would be affected by 

provisions of this final rule must 

continue to comply with FIFRA and 

other pertinent statutory and regulatory 

requirements for pesticides (including, 

but not limited to, requirements 

pertaining to restricted use pesticides) 

when importing, exporting, acquiring, 

selling, distributing, transferring, or 

using methyl bromide for critical uses. 

The regulations in today’s action are 

intended only to implement CAA 

restrictions on the production, 

consumption and use of methyl bromide 

for critical uses exempted from the 

phaseout of methyl bromide. 

IV. What Is the Background for Today’s 

Action? 

EPA published a proposed rule in the 

Federal Register on August 25, 2004 (69 

FR 52366) proposing an exemption to 

the phaseout of methyl bromide for 

critical uses, an allowance allocation 

system for critical use methyl bromide, 

and a list of approved critical uses. EPA 

received 15,231 on-time comments 

related to Air Docket OAR–2003–0230 

and 6 people spoke at a hearing EPA 

held on September 20, 2004 in 

Washington D.C. that was attended by 

20 individuals. 

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, and, in Section 82.7 of the 

rule, setting forth the percentage of 

baseline allowances for methyl bromide 

granted to companies in each control 

period (each calendar year) until the 

year 2001, when the complete phaseout 

would occur (58 FR 65018). This 

phaseout date was established in 

response to a petition filed in 1991 

under sections 602(c)(3) and 606(b) of 

the 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 

76984 Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 

exemptions permitted for critical uses. 

At this time, the U.S. continued to have 

a 2001 phaseout date in accordance 

with the CAAA of 1990 language. At 

their 1997 meeting, the Parties agreed to 

further adjustments to the phaseout 

schedule for methyl bromide in 

industrialized countries, with reduction 

steps leading to a 2005 phaseout for 

industrialized countries. In October 

1998, the U.S. Congress amended the 

CAA to prohibit the termination of 

production of methyl bromide prior to 

January 1, 2005, to require EPA to bring 

the U.S. phaseout of methyl bromide in 

line with the schedule specified under 

the Protocol, and to authorize EPA to 

provide exemptions for critical uses. 

These amendments were contained in 

Section 764 of the 1999 Omnibus 

Consolidated and Emergency 

Supplemental Appropriations Act (Pub. 

L. 105–277, October 21, 1998) and were 

codified in Section 604 of the CAA, 42 

U.S.C. 7671c. On November 28, 2000, 

EPA issued regulations to amend the 

phaseout schedule for methyl bromide 

and extend the complete phaseout of 

production and consumption to 2005 

(65 FR 70795).

Today, in accordance with the 1998 

amendments to the CAA, EPA is further 

amending 40 CFR Part 82 to implement 

an exemption to the 2005 phaseout of 

methyl bromide that allows continued 

production and consumption of methyl 

bromide for critical uses. Section 

604(d)(6) of the CAA provides that ‘‘[t]o 

the extent consistent with the Montreal 

Protocol, the Administrator, after notice 

and the opportunity for public 

comment, and after consultation with 

other departments or instrumentalities 

of the Federal Government having 

regulatory authority related to methyl 

bromide, including the Secretary of 

Agriculture, may exempt the 

production, importation, and 

consumption of methyl bromide for 

critical uses.’’ 42 U.S.C. 7671c(d)(6). 

Article 2H(5) of the Montreal Protocol 

provides that the 2005 methyl bromide 

phaseout shall not apply ‘‘to the extent 

the Parties decide to permit the level of 

production or consumption that is 

necessary to satisfy uses agreed by them 

to be critical uses.’’

Both Section 604(d)(6) and Section 

614(b) of the CAA address the 

relationship between the Montreal 

Protocol and actions taken under the 

CAA’s stratospheric ozone provisions. 

Section 604(d)(6) addresses critical uses 

specifically, while Section 614(b) is 

more general in scope. Section 604(d)(6) 

states that ‘‘to the extent consistent with 

the Montreal Protocol,’’ the 

Administrator may exempt methyl 

bromide for critical uses. Section 614(b) 

states: ‘‘This title as added by the Clean 

Air Act Amendments of 1990 shall be 

construed, interpreted, and applied as a 

supplement to the terms and conditions 

of the Montreal Protocol, as provided in 

Article 2, paragraph 11 thereof, and 

shall not be construed, interpreted, or 

applied to abrogate the responsibilities 

or obligations of the United States to 

implement fully the provisions of the 

Montreal Protocol. In the case of conflict 

between any provision of this title and 

any provision of the Montreal Protocol, 

the more stringent provision shall 

govern.’’

EPA must take into account not only 

the text of Article 2H but also the 

related Decisions of the Protocol Parties 

that interpret that text. Under customary 

international law, as codified in the 

1969 Vienna Convention on the Law of 

Treaties (8 International Legal Materials 

679 (1969)) both the treaty text and the 

practice of the parties in interpreting 

that text form the basis for its 

interpretation. Although the United 

States is not a party to the 1969 

Convention, the United States has 

regarded it since 1971 as ‘‘the 

authoritative guide to current treaty law 

and practice.’’ See Secretary of State 

William D. Rodgers to President Richard 

Nixon, October 18, 1971, 92d Cong., 1st 

Sess., Exec. L (Nov. 22, 1971). 

Specifically, Article 31(1) of the Vienna 

Convention provides that ‘‘[a] treaty 

shall be interpreted in good faith in 

accordance with the ordinary meaning 

to be given to the terms of the treaty in 

their context and in light of its object 

and purpose.’’

Article 31(3) goes on to provide that 

‘‘[t]here shall be taken into account, 

together with the context: (a) Any 

subsequent agreement between the 

parties regarding the interpretation of 

the treaty or the application of its 

provisions.’’ In the current 

circumstances, Decisions of the Parties 

can be construed as subsequent 

consensus agreements among the Parties 

to the Montreal Protocol, including the 

United States, regarding the 

interpretation and application of the 

Protocol. 

In accordance with Article 2H(5), the 

Parties have issued several Decisions 

pertaining to the critical use exemption. 

At their Ninth Meeting in 1997, the 

Parties issued Decision IX/6 which 

established criteria applicable to the 

critical use exemption. In paragraph 1 of 

Decision IX/6, the Parties agreed as 

follows: 

(a) 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 health and are suitable 

to the crops and circumstances of the 

nomination; 

(b) That production and consumption, 

if any, of methyl bromide for critical 

uses should be permitted only if:

(i) All technically and economically 

feasible steps have been taken to minimize 

the critical use and any associated emission 

of methyl bromide; 

(ii) Methyl bromide is not available in 

sufficient quantity and quality from existing 

stocks of banked or recycled methyl bromide, 

also bearing in mind the developing 

countries’ need for methyl bromide; 

(iii) It is demonstrated that an appropriate 

effort is being made to evaluate, 

commercialize and secure national regulatory 

approval of alternatives and substitutes, 

taking into account the circumstances of the 

nomination * * * Non-Article V [Developed 

country] parties must demonstrate that 

research programmes are in place to develop 

and deploy alternatives and substitutes 

* * *.

The Parties also agreed in Decision 

IX/6 that the technical panel (discussed 

below) that reviews nominations and 

makes recommendations to the Parties 

regarding approval of critical use 

exemptions, would base its review and 

recommendations on the criteria in 

paragraphs (a)(ii) and (b). The criterion 

in paragraph (a)(i) was not subject to 

review by this technical panel. 

At the First Extraordinary Meeting of 

the Parties in March of 2004, the Parties 

issued several decisions that address the 

agreed critical uses, the allowable levels 

of new production and consumption for 

critical uses, the conditions for granting 

critical use exemptions, and reporting 

obligations. Decision Ex. I/3 covers the 

agreed critical uses and allowable levels 

of new production and consumption for 

the year 2005. This Decision includes 

the following terms: 

1. For the agreed critical uses set forth 

in annex II A to the report of the First 

Extraordinary Meeting of the Parties to 

the Montreal Protocol for each Party, to 

permit, subject to the conditions set 

forth in decision Ex. I/4, the levels of 

production and consumption set forth 

in annex II B to the present report which 

are necessary to satisfy critical uses, 

with the understanding that additional 

levels and categories of uses may be 

approved by the Sixteenth Meeting of 

the Parties in accordance with decision 

IX/6; 

2. That a Party with a critical-use 

exemption level in excess of permitted 

levels of production and consumption 

Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 76985

for critical uses is to make up any such 

difference between those levels by using 

quantities of methyl bromide from 

stocks that the Party has recognized to 

be available; 

3. That a Party using stocks under 

paragraph 2 above shall prohibit the use 

of stocks in the categories set forth in 

annex II A to the report of the First 

Extraordinary Meeting of the Parties to 

the Montreal Protocol when amounts 

from stocks combined with allowable 

production and consumption for critical 

uses exceed the total level for that Party 

set forth in annex II A to the present 

report; 

4. That Parties should endeavor to 

allocate the quantities of methyl 

bromide recommended by the 

Technology and Economic Assessment 

Panel as listed in annex II A to the 

report of the First Extraordinary Meeting 

of the Parties; 

5. That each Party which has an 

agreed critical use should ensure that 

the criteria in paragraph 1 of decision 

IX/6 are applied when licensing, 

permitting or authorizing the use of 

methyl bromide and that such 

procedures take into account available 

stocks. Each Party is requested to report 

on the implementation of the present 

paragraph to the Ozone Secretariat. 

The agreed critical uses and allowable 

levels of production and consumption 

are set forth in annexes to the Parties’

report. Decision Ex I/4 addresses the 

conditions for granting and reporting 

critical-use exemption for methyl 

bromide. 

Decisions IX/6, Ex. I/3, and Ex. I/4 are 

subsequent consensus agreements of the 

Parties that address the interpretation 

and application of the critical use 

provision in Article 2H(5) of the 

Protocol. For example, Decision Ex. I/3 

reflects a decision called for by the text 

of Article 2H(5) where the parties are 

directed to ‘‘decide to permit the level 

of production or consumption that is 

necessary to satisfy uses agreed by them 

to be critical uses.’’ EPA intends to 

follow the terms of Decisions IX/6, Ex. 

I/3, and Ex. I/4. This will ensure 

consistency with the Montreal Protocol 

and satisfy the requirements of Section 

604(d)(6) and Section 614(b) of the 

CAA. 

V. What Are the Details of Today’s 

Action? 

A. Critical Need 

1. Should EPA Establish a Critical Use 

Exemption?

With today’s final action, EPA is 

establishing the critical use exemption 

(CUE) by amending 40 CFR Part 82 to 

exempt production and import of 

methyl bromide from the January 1, 

2005 phaseout to meet the needs of 

users who do not have technically and 

economically feasible alternatives 

available to them. In today’s 

rulemaking, EPA is describing the 

framework for the critical use 

exemption, assigning allowances for 

critical use methyl bromide, and 

determining the quantities of exempted 

methyl bromide allowable under the 

Clean Air Act (CAA) and the Montreal 

Protocol. 

EPA received 15,176 on time 

comments requesting the Agency not to 

exempt any methyl bromide for critical 

uses. The CAA allows the Agency to 

create an exemption for critical uses to 

the extent consistent with the Protocol. 

The Protocol authorizes an exemption to 

the extent decided by the Parties. In 

Decision Ex. I/3, the Parties decided to 

permit a limited exemption for specified 

uses nominated by the United States. 

EPA, in conjunction with other U.S. 

government entities, spent substantial 

time reviewing applications for critical 

use exemptions and preparing a 

nomination based on the lack of 

technically and economically feasible 

alternatives for the nominated uses. As 

discussed below, EPA does not have 

new information that would change the 

basis for the nomination. Although the 

Act does not require EPA to establish an 

exemption, EPA believes that the lack of 

suitable alternatives for the uses listed 

as approved critical uses in today’s 

rulemaking warrants the establishment 

of an exemption. 

The history of the ozone protection 

programs has been the transition of 

industries away from production, 

import, and use of ozone depleting 

chemicals to alternatives. In some 

instances a successful transition was 

possible within the allotted time. In 

other instances, additional time has 

been required to allow for the 

development and market penetration of 

alternatives. In fact, more than ten years 

after the phaseout of chloroflurocarbons 

(CFCs), the U.S. government is still 

exempting the production of CFCs for 

essential uses in metered dose inhalers. 

In the instance of critical uses where 

suitable alternatives are not yet 

available for all uses, EPA believes it 

would be inconsistent with the history 

and the goals of the ozone protection 

program to not allow for a safety valve 

in accordance with the provisions of 

both international and domestic law. 

2. Should EPA Further Adjust the 

Amount of Methyl Bromide Available 

Under the Critical Use Exemption? 

Similar to CFCs which were used in 

varied applications, methyl bromide is a 

highly effective general biocide and is 

used in a wide variety of distinctly 

different pest control operations. Some 

of the effective treatments which are 

available as alternatives to methyl 

bromide work in certain niche 

applications or under specific 

conditions. There is no ‘‘drop in’’

replacement for all of the current uses 

of methyl bromide. The registration of 

alternatives continues to be a priority 

for the Agency. 

EPA conducted a thorough analysis 

on the technical and economic 

feasibility of available alternatives 

specified by the Methyl Bromide 

Technical Options Committee (MBTOC) 

for each critical use and the potential for 

significant market disruption in the 

event that methyl bromide were not 

available for a particular use. The 

analysis, in the form of the U.S. 

nomination of critical uses and answers 

to clarifying questions on those 

documents, is available in the docket 

OAR–2003–0230. A memorandum 

describing the review process, titled 

‘‘Memorandum: 2003 Nomination 

Process’’ is also available in the docket. 

In the notice of proposed rulemaking, 

EPA solicited comments on the 

technical and economic assessment 

conducted on the alternatives to methyl 

bromide. 

EPA received 14 comments on the 

technical and economic assessment of 

alternatives to methyl bromide. These 

comments did not provide the Agency 

with any new information for EPA’s 

consideration on the efficacy and cost of 

alternatives. Therefore, EPA is not 

further adjusting the amount of methyl 

bromide available under the critical use 

exemption. 

One commenter stated that their 

products, 1,3-dichloropropene (1,3–D) 

and sulfuryl flouride (SF), can displace 

a significant portion of the critical use 

market, 40% of the authorized amount, 

but they recognize that from a practical 

transition perspective, such reductions 

will not easily happen in the next year. 

The commenter provided a table 

indicating that these two products could 

be technical and economical substitutes 

in every critical use category for which 

their products are registered. 

In the U.S. nomination, the EPA took 

great pains to describe the specific 

circumstances that make 1,3–D, which 

may be otherwise technically and 

economically feasible, not feasible for a 

certain portion of total domestic use. 

The EPA determined that 1,3–D 

products can be used in a variety of 

circumstances but there are some 

factors, such as regulatory limits on the 

use of 1,3–D or the presence of heavy 

nutsedge weed populations that would 

76986 Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 

make the 1,3–D products not technically 

and economically feasible. EPA, in 

consultation with the U.S. Department 

of Agriculture (USDA), has determined 

that over the portion of the crop there 

may be technical limitations to the use 

of 1,3–D treatments or economic losses 

associated with the use of this fumigant. 

The commenter specifically pointed 

to comments made in the 2004 Methyl 

Bromide Technical Options Committee 

(MBTOC) report where the committee 

indicated that there are technically 

feasible herbicides available to control 

nutsedge, specifically halosulfuron for 

peppers and halosulfuron and 

triflxysulfuron for tomatoes, that can be 

used in combination with 1,3–D 

products to provide complete spectrum 

pest control. As described in the 

nomination, both of these herbicides 

have been recently registered and can 

provide effective control of nutsedge 

populations, however certain regulatory 

restrictions exist on the use of these 

products causing them to be not 

technically available within current 

cropping systems for the exempted 

portion of production. For example, 

both products have plant back 

restrictions which limit the ability of 

growers to plant a second crop. Almost 

without exception, U.S. pepper and 

tomato farmers plant more than one 

crop on the same acreage. The U.S. 

nominations additionally analyzed the 

feasibility of using 1,3–D products 

without the herbicides and finds that 

the treatment is not economically 

feasible. For example, a typical tomato 

farm in the southeastern U.S. would 

experience approximately $5,700 in 

losses per acre using 1,3–D products 

compared to using methyl bromide due 

to losses in product yield and quality. 

The commenter indicated the use of 

alternatives, specifically an emulsified 

formulation of chloropicrin (Pic EC) and 

metham sodium in combination with 

chloropicrin, is technically feasible for 

strawberry production in California 

according to the 2004 MBTOC report. 

Again, the U.S. nomination describes 

the limitations of these alternatives for 

the specific circumstance of the 

nominated acreage. For example, 15% 

of the nominated area is located on hilly 

terrain that makes the use of drip 

applied fumigants a technically 

infeasible alternative. Furthermore, 

chloropicrin is not a full spectrum 

fumigant. Chloropicrin provides good 

control of disease but the nomination 

clearly states that the nominated area 

additionally has nematode and weed 

pressures as well. The commenter did 

not provide a copy of a study 

documenting comparable pest control 

and yields using Pic EC for areas with 

nematode, weed, and disease pressures. 

Further, metham sodium used with 

chloropicrin is not economically 

feasible according to the nomination. 

EPA, in consultation with USDA, has 

determined that yield differences could 

result in 24% decline in gross revenues 

on average compared to methyl 

bromide.

Six of the 14 comments indicted 

above that the Agency should reduce 

the amounts the methyl bromide 

exempted from the phaseout to allow for 

the uptake of a newly registered 

alternative, sulfuryl fluoride, for mills 

and grains. Sulfuryl fluoride (SF) was 

registered by EPA for use on grains and 

flour mills on January 23, 2004 under 

the trade name Profume. The SF 

fumigant has been available in the U.S. 

since 1961 under the trade name Vikane 

for non food uses such as structural 

termite fumigation. The registrant, Dow 

Agrochemicals, is pursuing registration 

of Profume for use on dried fruit and 

tree nuts and non-specific food handling 

and storage. 

The U.S. originally nominated 

536,328 kilograms (kg) of methyl 

bromide for critical uses in mills and 

processors for the year 2005. As 

described in the notice of proposed 

rulemaking, this nomination was 

reduced by the Parties to 483,000 kgs to 

account for the market uptake of 

alternatives including sulfuryl fluoride 

and to account for more efficient methyl 

bromide fumigation practices. This 

reduction is a 10% reduction from the 

originally nominated amount. The 2004 

MBTOC report on recommended 

exemptions for next year (2006) states 

that a further 10% reduction for flour 

mills could be warranted to allow for 

the adoption of a number of alternatives, 

of which sulfuryl fluoride is one, and 

more efficient methyl bromide 

fumigation techniques. Since the 2005 

exemption had already been reduced by 

10% for sulfuryl fluoride and that 10% 

seems to be a reasonable technical 

adoption rate according to the MBTOC 

as quoted by the commenter. EPA does 

not believe further reductions for 2005 

can be justified at this time given the 

lack of specific technical and economic 

feasibility data provided to the Agency 

on Profume and given the lack of 

specific market penetration data 

provided by the commenter to 

substantiate assertions for a larger 

market penetration. 

EPA understands that Profume can be 

effective in controlling insects, although 

higher rates of the chemical are required 

to control insect eggs. As this is a newly 

registered compound, EPA does not 

have sufficient data at this time to 

conduct a technical and economic 

analysis to determine if further 

reductions are warranted. One key 

uncertainty regarding the market 

penetration and economic feasibility of 

Profume is the cost of the product on a 

per pound basis and the cost of a typical 

fumigation. The Agency anticipates that 

as trial fumigations or commercial 

fumigations take place, that the 

registrant will be able to compile 

technical and economic data to EPA for 

use in the development of future critical 

use nominations. 

In addition to the technical and 

economic data required to conduct a 

critical use assessment, as noted by the 

Technology and Economic Assessment 

Panel (TEAP), a scientific panel that 

advises the Parties to the Montreal 

Protocol, a specific alternative may take 

up to 5 fumigation cycles of use before 

efficacy can be determined in the 

specific circumstances of the user. This 

would mean that several repeat 

fumigations would be needed before 

determining the technical feasibility of 

an alternative. An additional limitation 

to SF uptake at this time is that many 

mills in the U.S. produce partial recipe 

products that contain ingredients such 

as sugar or baking soda. The registration 

of SF does not include tolerances for 

these ingredients thus limiting the use 

of this alternative for a certain portion 

of the sector. Finally SF is not registered 

in California and therefore can not be 

used by mills in that state. 

B. Amount From Stocks 

EPA is allowing up to 1,283,214 

kilograms of methyl bromide from 

inventories stockpiled before the 

phaseout date of January 1, 2005 to be 

sold for approved critical uses. In 

evaluating the issue of the amount of the 

critical use level for 2005 that should be 

met from stocks, EPA considered 

comments received and the following 

statements in Decision Ex. I/3. Decision 

Ex I/3(1) permits a level of production 

and consumption equal to 30% of the 

1991 baseline and establishes an agreed 

critical use level equal to 35% of the 

1991 baseline. With regard to drawdown 

from existing inventory, Decision Ex. I/

3(2) states: ‘‘That a Party with a criticaluse exemption level in excess of 

permitted levels of production and 

consumption for critical uses is to make 

up any such difference between those 

levels by using quantities of methyl 

bromide from stocks that the Party has 

recognized to be available.’’ The 

availability of stocks is also addressed 

in Decision Ex. I/3(5), which states: 

‘‘That each Party which has an agreed 

critical use should ensure that the 

criteria in paragraph 1 of decision IX/6 

are applied when licensing, permitting 

Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 76987

or authorizing the use of methyl 

bromide and that such procedures take 

into account available stocks. 

In acting in accordance with Decision 

Ex. I/3, EPA looks to Paragraph (3) of 

that Decision, which states that a Party 

‘‘shall prohibit’’ the use of stocks when 

the usage of stocks combined with 

production and consumption exceeds 

the total level of critical uses agreed to 

by the Parties, and to Paragraph (2) of 

that Decision, which states that a Party 

with a use exemption exceeding 

allowable production and consumption 

‘‘is to make up’’ any such difference by 

using stocks recognized to be available. 

Additionally, Paragraph (5) of Decision 

Ex. I/3 states that Parties should ensure 

that Decision IX/6’s criteria are applied, 

and Decision IX/6 states that production 

and consumption should not be 

permitted where stocks are recognized 

to be available. 

Taking into account the language of 

Decision Ex. I/3’s first three Paragraphs, 

and the fact that the fifth Paragraph is 

hortatory, EPA concludes that the 

appropriate level of stocks utilization is 

set forth in Decision Ex. I/3(1), which 

establishes a critical use level of 35% 

but permits production and 

consumption of 30%. Paragraph (1) of 

Decision Ex. I/3, read in conjunction 

with paragraph (2) of the same Decision, 

specifies the amount of the critical use 

level for 2005 that should be met from 

stocks. Paragraph (1) establishes a 

critical use level of 35% of baseline but 

permits production and consumption of 

30%. Paragraph (2) explains that the 

difference is to made up by using 

available stocks. Therefore, the amount 

of the United States’ 2005 critical use 

level that should be met from stocks is 

1,283,214 kilograms, i.e., an amount 

equivalent to 5% of baseline. 

EPA’s conclusion is consistent with 

Paragraph (5) of Decision Ex. I/3. That 

Paragraph requests each Party with an 

agreed critical use to take into account 

available stocks when authorizing the 

use of methyl bromide. Given the 

language in Paragraphs (1) and (2) of 

Decision Ex. I/3, EPA interprets 

Paragraph (5)’s language as meaning that 

the U.S. should not authorize critical 

use exemptions without including 

provisions addressing drawdown from 

stocks for critical uses. EPA is acting 

consistently with Paragraph (5) by 

establishing requirements governing the 

sale of pre-phaseout inventories for 

approved critical uses. In section V.F of 

today’s rulemaking, EPA describes the 

mechanism by which the Agency is 

allowing stocks of methyl bromide to be 

sold for approved critical uses. In 

addition, EPA is taking into account 

stocks through the trading provisions 

outlined in section V. G of today’s 

rulemaking, which allow critical use 

allowances to be converted into critical 

stock allowances. 

EPA had proposed to undertake an 

independent analysis of the amount to 

come from stocks and to adjust the 

authorized level of new production and 

consumption for critical uses by the 

amount of ‘‘available’’ stocks 

determined through this analysis. The 

methodology proposed for this analysis 

was elaborated in the NPRM and also in 

a Technical Support Document that can 

be obtained from the rulemaking docket. 

EPA also sought comment on an 

alternative approach: ‘‘For the 2005 

calendar year, the Agency could make a 

determination that the amount of 

methyl bromide available from existing 

stocks is simply based on the difference 

between the limit on methyl bromide for 

critical uses (8,942 metric tons) and the 

limit on new production and import 

(7,659 metric tons) in the Decision Ex. 

I/3.’’ 69 FR 52375. This is essentially the 

approach adopted in today’s final rule. 

EPA is clarifying, however, that the 

appropriate level of stock drawdown for 

critical uses in 2005 is set out in 

Decision Ex. I/3. 

EPA received 10 comments on the 

independent assessment approach 

proposed in the NPRM for determining 

available stocks: five comments in favor 

of this approach and nine comments 

suggesting further refinements to the 

methodology. However, since EPA is 

not using the methodology to determine 

available stocks for the 2005 control 

period, the Agency is not responding to 

the details of the comments in today’s 

rulemaking. 

One commenter stated that EPA 

should use a ‘‘mathematical’’ approach, 

under which the amount from stocks 

would equal the difference between the 

limit on methyl bromide for critical uses 

and the limit on new production and 

import. EPA believes that the approach 

adopted in this final rule is consistent 

with this commenter’s recommendation.

Two commenters stated that all stocks 

must be used before any new 

production is permitted and that all 

stocks other than those for export to 

developing countries should be 

considered ‘‘available’’ for critical uses. 

One commenter refers to Decision IX/6, 

paragraph (1)(b), in which the Parties 

agreed: ‘‘That production and 

consumption, if any, of methyl bromide 

for critical uses should be permitted 

only if: * * * (ii) Methyl bromide is not 

available in sufficient quantity and 

quality from existing stocks of banked or 

recycled methyl bromide, also bearing 

in mind the developing countries’ need 

for methyl bromide.’’ EPA does not 

believe that this is an accurate 

characterization of Decision IX/6 as it 

relates to Decision Ex. I/3. Paragraph 2 

of Decision Ex. I/3 states that a Party ‘‘is 

to make up’’ the difference between an 

agreed use level and production and 

consumption ‘‘from stocks that the Party 

has recognized to be available.’’

Moreover, Decision IX/6 asks Parties to 

permit production and consumption 

where ‘‘methyl bromide is not available 

in sufficient quantity and quality from 

existing stocks of banked and recycled 

methyl bromide, also bearing in mind 

the developing countries’ need for 

methyl bromide.’’ Both of these 

statements contemplate the possibility 

that available stocks could be less than 

existing stocks. Moreover, the United 

States and other countries have 

interpreted identical decisional 

language in the essential use exemption 

context not to require the use of all 

existing stocks, and Decision Ex. I/3’s 

consideration of stocks is consistent 

with this interpretation. In addition, 

EPA disagrees with the commenter’s 

assumption that all stocks that are not 

specifically designated for export to 

developing countries are available for 

critical uses. For example, there may be 

stocks in the U.S. produced specifically 

for quarantine and pre-shipment uses or 

stocks held on behalf of another entity 

for a non-critical use during their 

transition to alternatives. In addition, 

the U.S. is a global supplier of methyl 

bromide and existing inventories may 

be tagged for critical uses in other 

developed countries. 

C. Access to Stocks 

In the proposed rule, EPA described 

several different approaches to 

controlling access to stocks of methyl 

bromide produced or imported before 

the phaseout date of January 1, 2005. 

EPA proposed a limit on the sale of 

stocks to approved critical users. In 

addition, EPA proposed to prohibit sale 

of stocks to end users in nominated 

sectors who lacked the limiting critical 

conditions that make methyl bromide 

use critical for the categories listed in 

Decision Ex. I/3. EPA sought comment 

on whether to apply use restrictions to 

other groups. The Agency recognizes 

that a person who qualifies as an 

approved critical user may have both 

approved critical uses and other uses. 

Further, the Agency also recognizes the 

possibility that an approved critical user 

could grow two distinct crops or 

fumigate two distinct commodities in 

the same field or structure during a 

single control period. In today’s rule, 

EPA is restricting access to stocks for 

approved critical uses. Approved 

76988 Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 

critical uses are listed in Appendix L to 

40 CFR Part 82, Subpart A. 

The total amount of pre-phaseout 

inventory that may be sold as critical 

use methyl bromide is equivalent to 5% 

of the 1991 baseline. As discussed 

below, this rule creates critical stock 

allowances (CSAs) in this amount. For 

each kilogram of methyl bromide sold 

from pre-phaseout inventories as critical 

use methyl bromide, a CSA holder must 

expend one CSA. 

In finalizing the provisions on access 

to stocks, EPA considered comments 

received and the language of Decision 

Ex I/3(3), which states: ‘‘That a Party 

using stocks under paragraph 2 above 

shall prohibit the use of stocks in the 

categories set forth in annex II A to the 

report of the First Extraordinary Meeting 

of the Parties to the Montreal Protocol 

when amounts from stocks combined 

with allowable production and 

consumption for critical uses exceed the 

total level for that Party set forth in 

annex II A to the present report.’’

EPA received four comments 

supporting unlimited access to stocks 

for approved critical uses and 24 

additional comments supporting 

unlimited access to stocks for all uses. 

EPA also received 1 comment stating 

that there is no legal basis for allowing 

use of stocks by users that did not apply 

for or did not qualify for critical use 

status, and no basis for the Agency’s 

supposition that some users did not 

apply for CUE status because they were 

counting on use of stocks. 

EPA reads Decision Ex I/3(3) as 

requiring limitations on the use of 

stocks only with respect to uses agreed 

by the Parties to be critical. Annex II A 

to the report of the First Extraordinary 

Meeting is titled ‘‘Agreed critical-use 

categories.’’ Paragraph (1) of Decision 

Ex. I/3 permits limited production and 

consumption ‘‘[f]or the agreed critical 

uses set forth in annex II A.’’ Because 

paragraph (3) of Decision Ex I/3 also 

refers to Annex II A, EPA concludes that 

the burden of the stock restriction is 

coextensive with the benefit of the new 

production and import. EPA does not 

believe that Decision Ex I/3(3) can be 

read to allow unlimited access to stocks 

for approved critical uses because the 

prohibition is directly linked to ‘‘the 

categories set forth in annex II A,’’

which are the categories of critical uses 

agreed to by the Parties. Nor can the 

Decision be read to allow unlimited 

access to stocks for all uses: that would 

fail to give any effect to the phrase 

‘‘shall prohibit the use of stocks.’’ EPA 

disagrees with the comment that there is 

no legal basis for allowing use of stocks 

by users that did not apply for or did 

not qualify for critical use status. 

Decision Ex I/3(3) does not require that 

individual Parties prohibit use of stocks 

by users whose uses fall outside the 

categories of agreed critical uses. 

Nothing in the Protocol or the CAA 

mandates that EPA limit drawdown 

from stocks for such uses. In 

anticipating that some users did not 

apply for CUE status because they were 

counting on use of stocks, the Agency 

did not assume that any user had 

special knowledge of the total amount of 

stocks available but rather that an 

individual user might have confirmed 

with its supplier that enough methyl 

bromide would be available from that 

supplier’s inventory to meet the 

individual user’s limited transitional 

needs. For example, some onion 

growers in the southeastern U.S. 

informed EPA in their comments on the 

rulemaking they did not apply for an 

exemption because they intend to avail 

themselves of existing stocks. 

Nine commenters stated that EPA 

does not have legal authority to restrict 

the use of methyl bromide stocks. These 

commenters argue that no provision of 

the CAA authorizes EPA to impose such 

restrictions. Specifically, they state that 

section 604(d)(6) refers only to 

production, importation, and 

consumption, and that by addressing 

use in other sections of the CAA, 

Congress demonstrated its intent to 

deny EPA authority to regulate stocks 

under 604(d)(6). However, section 

604(d)(6) directly relates to use: the 

exempted production, importation and 

consumption is for critical ‘‘uses.’’

While Congress, in the CAA, generally 

mandated that production and 

consumption of ozone-depleting 

substances be phased out across the 

board, regardless of use, the Act does 

contain certain provisions, including 

section 604(d)(6), that authorize EPA to 

provide exceptions on the basis of use. 

Thus, section 604(d)(6) is one of the 

provisions of the CAA where use is 

clearly at issue. 

In today’s final rule, EPA is imposing 

narrowly tailored use restrictions as a 

condition of obtaining new production 

and import. EPA believes that section 

604(d)(6) mandates this result. In 

section 604(d)(6), Congress provided 

EPA authority to exempt production 

and import of methyl bromide for 

critical uses, but only ‘‘to the extent 

consistent with the Protocol.’’ The use 

restrictions in today’s final rule are 

necessary to ensure that total usage for 

critical uses does not exceed the limit 

agreed to by the Parties in implementing 

the critical use provision in Article 2H 

of the Protocol. The relationship 

between sections 604(d)(6) and 614(b) of 

the CAA and the Protocol and its 

Decisions is discussed in detail in the 

NPRM and in the background section of 

this preamble. 

The commenters further argue that 

EPA cannot rely on Decision Ex I/3 to 

justify restrictions on use of stocks. 

They state that while Decisions may be 

used to interpret existing requirements 

in the Protocol, they cannot be used to 

substantively change those 

requirements. However, EPA is not 

suggesting that Decision Ex I/3 

substantively changed the requirements 

of Article 2H. Article 2H establishes a 

prohibition on the production and 

consumption of methyl bromide, but 

states that the prohibition shall not 

apply ‘‘to the extent the Parties decide 

to permit the level of production and 

consumption that is necessary to satisfy 

uses agreed by them to be critical uses.’’

The Parties have not interpreted Article 

2H in the manner the commenters 

assert. Instead, they understood the 

language referring to ‘‘uses agreed by 

them to be critical uses’’ to allow the 

Parties to tie the determinations of 

production and consumption to use. 

Under international law, this 

interpretation and practice of the Parties 

may, in the current situation, be read to 

be an accurate interpretation of Article 

2H’s language. Although Decision Ex. I/

3 focuses on regulating production and 

consumption, the Parties could 

reasonably set related conditions on 

agreeing to production and 

consumption at a particular level. 

Therefore, the stock restrictions are an 

integral part of the Parties’ decision 

regarding the level of production and 

consumption necessary to satisfy critical 

uses.

The commenters further characterize 

the restrictions on access to stocks 

proposed in the NPRM as ‘‘an attempt 

by the Agency to bypass the Treaty 

Clause of the U.S. Constitution by 

unilaterally amending the Montreal 

Protocol through a rulemaking, without 

the advice and consent of the Senate.’’

EPA rejects this characterization. Article 

2H explicitly assigns to the Parties the 

task of deciding what level of 

production and consumption ‘‘is 

necessary to satisfy uses agreed by them 

to be critical uses * * *.’’ Therefore, 

EPA looks to the Parties’ Decisions to 

provide the details of the exemption 

authorized in Article 2H. In Decision Ex 

I/3, the Parties decided what level of 

production and consumption was 

necessary given certain assumptions 

about stocks. Accordingly, in 

compliance with Article 2H, this final 

rule addresses both production and 

consumption and the use of stocks. 

Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 76989

D. Cap on Critical Use Methyl Bromide 

Based on the EPA’s assessment of the 

technical and economic feasibility of 

alternatives and the potential for a 

significant market disruption if methyl 

bromide were not available for the uses 

listed in Appendix L, and the lack of 

any new information that would change 

EPA’s assessment, EPA is establishing 

the following amounts of methyl 

bromide as critical use methyl bromide 

available only for approved critical uses 

as described in section V.H of this 

preamble for the control period of the 

year of 2005. 

With today’s action, EPA is finalizing 

a determination that 8,942,214 kgs of 

methyl bromide are required to satisfy 

critical uses for 2005. EPA intends to 

address supplemental and new CUE 

allocations in a subsequent rulemaking 

following the 16th Meeting of the 

Parties to the Montreal Protocol. EPA is 

authorizing the full amount of new 

production/import allowable under 

Decision Ex I/3, a total of 7,659,000 kgs, 

and is authorizing those entities that 

hold inventories of methyl bromide to 

sell 1,283,214 kgs for approved critical 

uses during 2005. The details of 

allowance allocation for both critical 

production/import and critical stocks 

are described in sections V.E and V.F of 

this preamble. 

EPA co-proposed two options for the 

cap on critical use methyl bromide: A 

universal cap where all approved 

critical uses would purchase critical use 

methyl bromide under the same cap and 

a sector specific cap where each of the 

16 critical use sectors would have their 

own cap of reserved material. EPA also 

solicited comment on an applicantspecific cap and on several hybrid 

options. In preparing this final rule, 

EPA considered comments received and 

Decision Ex I/3(4), which states: ‘‘That 

Parties should endeavor to allocate the 

quantities of methyl bromide 

recommended by the Technology and 

Economic Assessment Panel as listed in 

annex II A to the report of the First 

Extraordinary Meeting of the Parties.’’

EPA received 28 comments 

supporting the fully flexible universal 

cap. Commenters supported this option 

for several reasons: ease of 

implementation, cost savings and 

efficiencies to the regulated community, 

and the inability of EPA to predict with 

precision the exact market demand for 

methyl bromide on a sector basis. EPA 

received four comments supporting a 

sector specific cap to ensure that smaller 

uses, less frequent uses, and uses that 

occur towards the end of the control 

period are guaranteed access to some 

minimum supply. EPA received one 

comment supporting an applicant 

specific approach so that the Agency 

can track use of methyl bromide at a 

more specific level. EPA also received 

one comment supporting a hybrid 

option that would separate pre-plant 

uses of methyl bromide from postharvest uses. Additional comments 

received by EPA on other hybrids are 

addressed in the response to comment 

(RTC) document available in the docket 

for today’s rule. 

In today’s rulemaking, EPA is 

establishing two types of critical use 

allowances (CUAs) for the production/

import of methyl bromide: CUAs for 

pre-plant soil uses and CUAs for postharvest and structural uses. The portion 

of the critical use methyl bromide 

supplies obtained from available stocks, 

however, will be allocated as a universal 

cap as proposed. EPA did not receive 

any adverse comment on the proposal to 

make the quantities from stocks 

available in a universal fashion. 

EPA agrees with the comments made 

by entities supporting the universal 

option and believes that such a system 

would in fact lead to the most 

economically efficient outcome and 

impose the least burden on industry. 

However, to address concerns raised by 

smaller, less frequent and end of year 

uses, EPA is separating out the postharvest uses of methyl bromide, which 

occur regularly throughout the year, 

from pre-plant uses which tend to be 

clustered around a particular time in the 

growing season. Noting that Decision Ex 

I/3 (4) states that Parties ‘‘should 

endeavor’’ to allocate ‘‘as listed in annex 

II A,’’ EPA examined our ability to 

implement a sector specific system. 

However, there are several practical 

impediments to implementing such a 

system. EPA does not have precise data 

on use of methyl bromide because the 

current regulations on methyl bromide 

require reporting of production, 

imports, and exports of methyl bromide, 

not use. The more specific the categories 

for which EPA is estimating use, the less 

precise the estimate becomes. Therefore, 

EPA is reluctant to create sector or 

applicant specific limits because of the 

inherent uncertainty of the data at that 

detailed level. With the establishment of 

the critical use exemption, EPA will 

begin to track sector level use data and 

therefore the concern about data 

viability should diminish over time. 

Another limitation to the sector or 

applicant specific approach is the 

upstream allowance allocation system 

itself where EPA issues allowances to 

producers and importers and not end 

users. Using an upstream allowance 

allocation system as proposed, EPA 

would be unable to adjust amounts of 

methyl bromide from one sector to 

another after the allowance was 

expended. This artifact of the allocation 

framework would deny the marketplace 

any flexibility to meet unforseen 

demand in a particular use. For 

example, under a sector specific system, 

if a pest outbreak were to occur in the 

peppers sector no additional material 

could be made available to peppers even 

if there were an unanticipated surplus 

in a different sector. For these reasons, 

EPA believes it is not practicable to 

implement a sector specific system at 

this time. 

The Agency believes, and has 

received comment to that effect, that the 

pre-plant and post-harvest markets 

operate as separate markets under the 

phaseout, as evidenced by the different 

prices for methyl bromide in the two 

markets, for several reasons. The timing 

and cycles of fumigations for the two 

sectors are different as well. Pre-plant 

fumigations typically occur once a year 

about a month before planting the first 

crop whereas fumigations for postharvest uses occur routinely throughout 

the year to control ongoing insect 

pressures. The standard product 

formulations for pre-plant and post 

harvest uses substantially differ. In the 

pre-plant uses the formulations of 

methyl bromide contain substantially 

more chloropicrin, as much as 50%. 

Lastly, the post harvest sector has more 

purchasing power than the pre-plant 

sector and is therefore willing to pay 

more for methyl bromide. Post-harvest 

uses rely on nearly pure methyl 

bromide. For all of these reasons, EPA 

believes that these two use categories 

already function as separate markets 

and therefore the hybrid option would 

not result in substantial regulatory 

burden but would achieve a careful 

balance between flexibility and greater 

assurance. 

EPA believes that establishing distinct 

caps for pre-plant and post-harvest uses 

is consistent with the Parties’ statement 

in Decision Ex I/3(4) that each Party 

‘‘should endeavor’’ to allocate ‘‘as listed 

in annex II A.’’ By virtue of this 

rulemaking process, EPA has made the 

endeavor to allocate quantities of 

methyl bromide in a manner consistent 

with Annex IIA of the Report to the First 

Extraordinary Meeting of the Parties. 

Because of the practical and 

administrative difficulties described 

above, however, EPA has arrived at an 

allocation system that relies at least 

partly on the market to allocate 

quantities on a sectoral basis. EPA 

anticipates, based on historical use 

patterns and the research undertaken 

pursuant to submitting the U.S. 

nomination, that usage patterns will 

76990 Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 

generally reflect the sectoral quantities 

found in Annex IIA. 

E. Critical Use Allowance Allocations 

1. Allocation of Critical Use Allowances 

EPA is allocating the following 

number of pre-plant and post-harvest 

critical use allowances (CUAs) to the 

entities listed below subject to the 

trading provisions discussed in section 

V.G of the preamble. Through this 

rulemaking, EPA is notifying entities in 

Table I that they have an allocation of 

the number of critical use allowances 

specified in the table for 2005. 

Depending on the agreement of the 

Parties to the Protocol, EPA may engage 

in a subsequent rulemaking to allocate 

supplemental methyl bromide for 2005. 

Each allowance is equivalent to 1 kg of 

critical use methyl bromide. These 

allowances expire at the end of the 

control period and, consistent with the 

proposed rule and comments received, 

are not bankable from one year to the 

next.

TABLE I.—ALLOCATION OF CRITICAL USE ALLOWANCES

Company 

2005 Critical 

use allowances 

for pre-plant 

uses *

(kilograms) 

2005 Critical 

use allowances 

for post-harvest 

uses *

(kilograms) 

Great Lakes Chemical Corp ................................................................................................................................ 4,357,690 297,049 

Albemarle Corp .................................................................................................................................................... 1,791,950 122,151 

Ameribrom, Inc .................................................................................................................................................... 989,911 67,479 

TriCal, Inc ............................................................................................................................................................ 30,679 2,091 

Total .......................................................................................................................................................... 7,170,230 488,770 

* 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. 

2. Baseline for Critical Use Allowance 

Distribution 

EPA is using the 1991 methyl bromide 

consumption baseline for distribution of 

critical use allowances because this is 

the best data available to the Agency at 

the current time. EPA used the 1991 

baseline to distribute allowances to the 

companies listed above during the 

phaseout of methyl bromide. The 1991 

baseline is therefore familiar to the 

regulated community and poses the 

least steep learning curve on industry of 

all the options discussed in the 

proposed rule. 

EPA received four comments 

supporting use of the 1991 baseline for 

distribution of allowances and two 

comments favoring a baseline that uses 

the volume of methyl bromide marketed 

over the past three years. EPA does not 

have the necessary data to implement a 

marketed volume baseline representing 

the past three years and the time 

required to gather, verify, and make 

publically available such data would 

prohibit the Agency from implementing 

this exemption before the beginning of 

the control period. Such a baseline is 

therefore not practical to implement. 

3. Frequency of Critical Use Allowance 

Distribution 

EPA will issue critical use allowances 

once a year through an annual 

rulemaking as proposed, with one 

important exception noted below. EPA 

described scenarios where the Agency 

would distribute allowances more than 

once a year but did not receive any 

comments in favor of such options. 

The exception to the once a year 

allocation of allowances applies when 

the Parties authorize supplemental 

critical use exemptions for a given 

control period after EPA has already 

initiated the notice and comment 

rulemaking process for the original 

authorized exemptions. For example, 

the Parties authorized exemptions for 

2005 at their First Extraordinary 

Meeting of the Parties in March 2004. 

The Parties are considering additional 

exemptions for 2005 at the Sixteenth 

Meeting of the Parties to be held 

November 2004. EPA would propose 

additional exemptions as a result of 

additional authorizations made by the 

Parties. In this situation, EPA could in 

fact issue allowances twice for a single 

control period. 

F. Critical Stock Allowance Allocations 

EPA is allocating critical stock 

allowances (CSAs) to the entities listed 

below in Table 2 for the control period 

of 2005. CSAs are being issued on a prorata basis according to the amount of 

stocks owned by the entity based on an 

average of their December 31, 2003 and 

August 25, 2004 data because only that 

entity has the ability to sell the 

quantities of material associated with 

the CSAs on a kilogram basis, regardless 

of which company is physically holding 

the stocks. Similar to CUAs, CSAs can 

not be banked from one control period 

to the next. 

Critical stock allowances (CSAs) are 

not used to produce or import methyl 

bromide but are rights that enable the 

holder to sell pre-phaseout inventories 

of methyl bromide for use in approved 

critical uses. A CSA is expended when 

the entity selling methyl bromide sells 

the material, or fumigation services with 

the material, to an approved critical user 

who certifies that the material is for an 

approved critical use. Thus, the 

movement of pre-phaseout inventories 

of methyl bromide along the supply 

chain does not require expenditure of a 

CSA. 

EPA has determined that the 

individual holdings of stocks of methyl 

bromide are confidential business 

information. The amount of CSAs 

allocated to each company could be 

used to calculate the individual stock 

holdings if information on aggregate 

stock holdings were released. EPA has 

determined that the aggregate stock 

information is not confidential business 

information but is currently 

withholding that information due to the 

filing of complaints seeking to enjoin 

the Agency from its release. Because 

release could occur depending on the 

outcome of that litigation, EPA is not 

listing the number of allowances 

distributed to each entity. Concurrent 

with today’s rule, EPA is sending letters 

to each entity to inform them of the 

number of critical stock allowances EPA 

has issued them. In addition, EPA is 

placing a document listing the 

allocations and distribution basis of 

critical stock allowances for each entity 

in the confidential portion of the docket.

Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 76991

TABLE 2.—ALLOCATION OF CRITICAL

STOCK ALLOWANCES

Company 

Albemarle 

Ameribrom, Inc. 

Bill Clark Pest Control, Inc. 

Blair Soil Fumigation 

Burnside Services, Inc. 

Cardinal Professional Products 

Carolina Eastern, Inc. 

Degesch America, Inc. 

Dodson Bros. 

Great Lakes Chemical Corp. 

Harvey Fertilizer & Gas 

Helena Chemical Co. 

Hendrix & Dail 

Hy Yield Bromine 

Industrial Fumigation Company 

J.C. Ehrlich Co. 

Pacific Ag 

Pest Fog Sales Corp. 

Pro Source 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 1,283,214 kilograms 

G. Trading Allowances 

In accordance with Section 607 of the 

CAA of 1990, EPA is allowing producers 

and importers of methyl bromide to 

trade or transfer critical use allowances 

subject to the provisions of 40 CFR part 

82. In accordance with paragraph (c) of 

Section 607, EPA is establishing an 

offset of one tenth of one percent of the 

amount of the CUAs transferred 

consistent with proposed rule. The Act 

requires that transfers of allowances 

result in lower production than if the 

trade had not occurred. 

The offset will be deducted from the 

transferor’s allowance balance at the 

time of a trade. A one tenth of one 

percent offset is consistent with the 

offset required for the transfer of 

essential use allowances under the 

phaseout program for class I controlled 

ozone-depleting substances (ODS), 

which, like critical use allowances 

permit the exempted production or 

import of ODS beyond a phaseout date. 

Because, CSAs govern the amount of 

existing material that can be sold, EPA 

is not implementing an offset for the 

transfer of CSAs. If the holder of a CSA 

does not wish to sell his inventories of 

methyl bromide to the critical use 

market, he (the transferor) may sell his 

allowances to another methyl bromide 

producer, importer, distributer, or 

applicator (the transferee). 

EPA received seven comments 

supporting the ability of allowance 

holders to trade allowances. EPA did 

not receive any adverse comments on 

the one tenth of one percent offset that 

is similarly applied to the essential use 

exemption and is implementing this 

offset in today’s rule. 

EPA received one comment 

suggesting that the Agency should 

modify its proposed CSA trading 

framework to allow anyone who wishes 

to sell inventories of critical use methyl 

bromide to buy CSAs, not just initial 

CSA recipients. EPA modified its 

proposal to allow for any entity in the 

methyl bromide supply chain to acquire 

CSAs even if they did not receive an 

initial CSA allocation from EPA. EPA 

agrees that the Agency should not 

restrict the normal flow of commerce.

Lastly, the Agency is allowing for 

trades of CUAs into CSAs and is not 

requiring an offset to accompany such 

transactions. A CUA holder would retire 

a number of allowances to EPA and EPA 

would then issue additional CSAs to the 

allowance holder. EPA is allowing this 

type of allowance trade to accommodate 

an entity who wishes to forgo exempted 

production or import of new methyl 

bromide to make more of pre-phaseout 

inventories available for approved 

critical uses. EPA believes that an 

environmental benefit would be derived 

in this type of exchange since the result 

is less new production or import. As 

described in the proposed rule, EPA is 

not allowing the reverse transaction, 

exchange of CSAs for CUAs, because 

Decision Ex I/3 imposes a cap of no 

more than 30% production and import 

for critical uses in 2005. If the Agency 

were to allow CSAs to become 

additional rights to production or 

import, the U.S. would potentially run 

into non-compliance with the 30% 

production cap. 

For consistency with the requirements 

governing other types of allowance 

transfers in the ozone protection 

program, EPA is requiring that an entity 

who sells allowances must file an 

allowance transfer form with EPA. 

Existing regulations require EPA to 

process these forms within 3 business 

days of receipt. 

The Agency believes that trading 

critical use allowances and critical stock 

allowances will allow entities to make 

rational business decisions as to the 

amount of critical use methyl bromide 

to produce or import in a given control 

period and thus supports flexible 

trading provisions with appropriate 

environmental offsets as described in 

this section of today’s rule. 

H. Acquiring Critical Use Methyl 

Bromide 

Approved critical users who have an 

approved critical use may acquire 

methyl bromide, as described in the 

proposal, in a similar manner to which 

they acquire methyl bromide exempted 

for quarantine and pre-shipment uses 

(68 FR 237, January 2, 2003). EPA 

received eight comments supporting the 

‘‘QPS-like’’ approach because it is 

familiar to the regulated community. 

Approved critical users who have an 

approved critical use may acquire 

critical use methyl bromide, or 

fumigation services with critical use 

methyl bromide, by certifying at the 

point of purchase that they are in fact 

approved critical users and that they 

will use the methyl bromide for an 

approved critical use. The certifications 

shall be retained by the supplier for a 

minimum of three years and are part of 

the reporting and recordkeeping 

requirements set forth in § 82.13 of this 

regulation. 

Specifically, the certification will 

state, in part: ‘‘I certify, under penalty 

of law, I am an approved critical user 

and I will use this quantity of methyl 

bromide for an approved critical use. 

My action conforms to the requirements 

associated with the critical use 

exemption published in 40 CFR part 82. 

I am aware that any agricultural 

commodity within a treatment chamber, 

facility, or field I fumigate with critical 

use methyl bromide can not 

subsequently or concurrently be 

fumigated with non-critical use methyl 

bromide during the same control period, 

excepting a QPS treatment or a 

treatment for a different use (e.g., a 

different crop or commodity). I will not 

use this quantity of methyl bromide for 

a treatment chamber, facility, or field 

that I previously fumigated with noncritical use methyl bromide purchased 

during the same control period, 

excepting a QPS treatment or a 

treatment for a different use (e.g., a 

different crop or commodity), unless a 

local township limit now prevents me 

from using methyl bromide 

alternatives.’’ The form will further 

require users to provide information on 

the type of critical use methyl bromide 

purchased, the location of the treatment, 

the crop or commodity treated, the 

quantity of critical use methyl bromide 

purchased and the acreage/cubic footage 

treated. This information is required so 

that distributers and applicators are able 

to meet their annual reporting 

obligations to EPA. Providing false 

information on this form constitutes a 

violation. 

76992 Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 

EPA is prohibiting suppliers from 

selling critical use methyl bromide 

without first obtaining a signed and 

dated certification form. 

I. Who Is an Approved Critical User 

1. Users and Uses 

An approved critical user may obtain 

access to exempted production/import 

and reserved inventories of prephaseout methyl bromide stocks, the 

combination of which constitute the 

supply of ‘‘critical use methyl bromide’’

intended to meet the needs of agreed 

critical uses. However, a condition for 

obtaining access to critical use methyl 

bromide is a limit on the amount of 

stocks that can be purchased in the 

control period, as described under 

section V.D of this rule. 

An approved critical user is a self 

identified entity who meets the 

following requirements: 

(1) For the applicable control period, 

applied to EPA for a critical use 

exemption or is a member of a 

consortium that applied for a critical 

use exemption for a use and location of 

use that was included in the U.S. 

nomination, authorized by a Decision of 

the Parties to the Montreal Protocol, and 

notice and comment rulemaking to be a 

critical use in that location, and 

(2) Has an area in the applicable 

location of use that requires methyl 

bromide fumigation because the person 

reasonably expects that the area will be 

subject to a limiting critical condition 

(LCC) during the applicable control 

period, if an LCC is given in Appendix 

L. 

Using these criteria, an approved 

critical user could be a tomato farmer in 

Florida whose farm is over karst 

topography but would not include a 

tomato farmer in Oklahoma even if he 

too has a farm over karst topography 

because no exemption application was 

filed on behalf of Oklahoma tomato 

farmers. Similarly, a Florida tomato 

farmer who did not have a field with 

karst topography, or one of the other 

limiting critical conditions specified in 

this rule, would not be an approved 

critical user because the circumstance of 

the use is not an approved critical use. 

Approved critical uses are those uses 

of methyl bromide listed in Appendix L 

to 40 CFR Part 82 for the use listed in 

column A and the location of use in 

Column B, reproduced from the 

regulatory text in the table below.

TABLE 3.—APPROVED CRITICAL USES

Column A—approved critical 

uses Column B—approved critical user and location of use Column C—limiting critical conditions 

PRE-PLANT USES 

Cucurbits .............................. (a) Michigan growers ...................................................... With a reasonable expectation that moderate to severe 

fungal pathogen infestation already either exists or 

could occur without methyl bromide fumigation. 

(b) Alabama, Arkansas, Georgia, North Carolina, South 

Carolina, Tennessee, and Virginia growers.

With a reasonable expectation that moderate to severe 

yellow or purple nutsedge infestation already either 

exists or could occur without methyl bromide fumigation. 

Eggplant ............................... (a) Georgia growers ........................................................ With a reasonable expectation that moderate to severe 

yellow or purple nutsedge infestation either already 

exists or could occur without methyl bromide fumigation. 

(b) Florida growers .......................................................... With a reasonable expectation that one or more of the 

following limiting critical conditions either already exists or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or karst topography. 

Forest Seedlings .................. (a) Members of the Southern Forest Nursery Management Cooperative limited to growing locations in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, 

Tennessee, Texas, and Virginia.

With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or moderate to severe disease infestation. 

(b) International Paper and its subsidiaries limited to 

growing locations in Arkansas, Alabama, Georgia, 

South Carolina and, Texas.

With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or moderate to severe disease infestation. 

(c) Weyerhaeuser Company and its subsidiaries limited 

to growing locations in Alabama, Arkansas, North 

Carolina, South Carolina, Oregon, and Washington.

With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or moderate to severe disease infestation. 

(d) Public (government owned) seedling nurseries in 

the states of California, Idaho, Illinois, Indiana, Kansas, Kentucky, Maryland, Missouri, Nebraska, New 

Jersey, Ohio, Oregon, Pennsylvania, Utah, Washington, West Virginia, and Wisconsin.

With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or moderate to severe disease infestation. 

(e) Members of the Nursery Technology Cooperative 

limited to growing locations in Oregon and Washington.

With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or moderate to severe disease infestation. 

Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 76993

TABLE 3.—APPROVED CRITICAL USES—Continued

Column A—approved critical 

uses Column B—approved critical user and location of use Column C—limiting critical conditions 

(f) Michigan seedling nurseries ....................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already exists or 

could occur without methyl bromide fumigation: moderate to severe yellow or purple nutsedge infestation, 

or moderate to severe disease infestation. 

Ginger .................................. Hawaii growers ................................................................ With a reasonable expectation that the limiting critical 

condition already either exists or could occur without 

methyl bromide fumigation, or moderate to severe 

bacterial wilt infestation. 

Orchard Nursery Seedlings (a) Members of the Western Raspberry Nursery Consortium limited to growing locations in California and 

Washington (Driscoll’s raspberries and their contract 

growers in California and Washington).

With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe nematode infestation, medium to heavy clay soils, or a prohibition of on the 

use of 1,3- dichloropropene products due to reaching 

local township limits on the use of this alternative. 

(b) Members of the California Association of Nurserymen-Deciduous Fruit and Nut Tree Growers.With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe nematode infestation, medium to heavy clay soils, or a prohibition of on the 

use of 1,3- dichloropropene products due to reaching 

local township limits on the use of this alternative. 

(c) Members of the California Association of Nurserymen-Citrus and Avocado Growers.With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe nematode infestation, medium to heavy clay soils, or a prohibition of on the 

use of 1,3-dichloropropene products due to reaching 

local township limits on the use of this alternative. 

Orchard Replant ................... (a) California stone fruit growers .................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Replanted (non- virgin) orchard soils to prevent 

orchard replant disease, or medium to heavy soils, or 

a prohibition on the use of 1,3-dichloropropene products because local township limits for this alternative 

have been reached. 

(b) California table and raisin grape growers ................. With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Replanted (non-virgin) orchard soils to prevent 

orchard replant disease, or medium to heavy soils, or 

a prohibition on the use of 1,3-dichloropropene products because local township limits for this alternative 

have been reached. 

(c) California walnut growers .......................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Replanted (non-virgin) orchard soils to prevent 

orchard replant disease, or medium to heavy soils, or 

a prohibition on the use of 1,3-dichloropropene products because local township limits for this alternative 

have been reached. 

(d) California almond growers ......................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Replanted (non-virgin) orchard soils to prevent 

orchard replant disease, or medium to heavy soils, or 

a prohibition on the use of 1,3-dichloropropene products because local township limits for this alternative 

have been reached. 

Ornamentals ......................... (a) Yoder Brothers Inc. in Florida ................................... For use in all chrysanthemum production. 

(b) California rose nurseries ........................................... With a reasonable expectation that the user may be 

prohibited from using 1,3-dichloropropene products 

because local township limits for this alternative have 

been reached. 

76994 Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 

TABLE 3.—APPROVED CRITICAL USES—Continued

Column A—approved critical 

uses Column B—approved critical user and location of use Column C—limiting critical conditions 

Peppers ................................ (a) California growers ...................................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe disease infestation, or moderate to severe yellow or purple nutsedge infestation, 

or a prohibition on the use of 1,3-dichloropropene 

products because local township limits for this alternative have been reached. 

(b) Alabama, Arkansas, Georgia, North Carolina, South 

Carolina, Tennessee and Virginia growers.

With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or the presence of an occupied structure 

within 100 feet of a grower’s field the size of 100 

acres or less. 

(c) Florida growers .......................................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or karst topography. 

Strawberry Nurseries ........... (a) California growers ...................................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe black root rot or crown rot, 

or moderate to severe yellow or purple nutsedge infestation. 

(b) North Carolina and Tennessee growers ................... With a reasonable expectation that the use will occur in 

the presence of an occupied structure within 100 feet 

of a grower’s field the size of 100 acres or less. 

Strawberry Fruit ................... (a) California growers ...................................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe black root rot or crown rot, 

moderate to severe yellow or purple nutsedge infestation, a prohibition of the use of 1,3-dichloropropene 

products because local township limits for this alternative have been reached, time to transition to an alternative. 

(b) Florida growers .......................................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge, 

or karst topography. 

(c) Alabama, Arkansas, Georgia, North Carolina, South 

Carolina, Tennessee, Virginia, Ohio, and New Jersey 

growers.

With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge, 

or the presence of an occupied structure within 100 

feet of a grower’s field the size of 100 acres or less. 

Sweet Potatoes .................... California growers ........................................................... With a reasonable expectation that the user may be 

prohibited from using 1,3-dichloropropene products 

because local township limits for this alternative have 

been reached. 

Tomatoes ............................. (a) Michigan growers ...................................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe disease infestation, fungal 

pathogens infestation. 

(b) Alabama, Arkansas, Georgia, North Carolina, South 

Carolina, Tennessee and Virginia growers.

With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or the presence of an occupied structure 

within 100 feet of a grower’s field the size of 100 

acres or less. 

(c) Florida growers .......................................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or karst topography. 

Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 76995

TABLE 3.—APPROVED CRITICAL USES—Continued

Column A—approved critical 

uses Column B—approved critical user and location of use Column C—limiting critical conditions 

Turfgrass .............................. (a) U.S. turfgrass sod nursery producers who are members of Turfgrass Producers International (TPI).For the production of industry certified pure sod. 

(b) U.S. golf courses ....................................................... For establishing sod in the construction of new golf 

courses or the renovation of putting greens, tees, 

and fairways. 

POST-HARVEST USES 

Food Processing .................. (a) Rice millers in all locations in the U.S. who are 

members of the USA Rice Millers Association..

With a reasonable expectation that one or more of the 

following limiting critical conditions exists: older structures that can not be properly sealed to use an alternative to methyl bromide, or the presence of sensitive electronic equipment subject to corrosivity, time 

to transition to an alternative. 

(b) Pet food manufacturing facilities in the U.S. who are 

active members of the Pet Food Institute. (For today’s rule, ‘‘pet food’’ refers to domestic dog and cat 

food).

With a reasonable expectation that one or more of the 

following limiting critical conditions exists: older structures that can not be properly sealed to use an alternative to methyl bromide, or the presence of sensitive electronic equipment subject to corrosivity, time 

to transition to an alternative. 

(c) Kraft Foods in the U.S. .............................................. With a reasonable expectation that one or more of the 

following limiting critical conditions exists: older structures that can not be properly sealed to use an alternative to methyl bromide, or the presence of sensitive electronic equipment subject to corrosivity, time 

to transition to an alternative. 

(d) Members of the North American Millers’ Association 

in the U.S.

With a reasonable expectation that one or more of the 

following limiting critical conditions already exists or 

could occur without methyl bromide fumigation: older 

structures that can not be properly sealed to use an 

alternative to methyl bromide, or the presence of 

sensitive electronic equipment subject to corrosivity, 

time to transition to an alternative. 

Commodity Storage ............. (a) Gwaltney of Smithfield in the U.S ............................. For smokehouse ham curing facilities owned by the 

company. 

(b) California entities storing walnuts, beans, dried 

plums, figs, raisins, and pistachios in California.

With a reasonable expectation that one or more of the 

following limiting critical conditions exists: rapid fumigation is required to meet a critical market window, 

such as during the holiday season, rapid fumigation 

is required when a buyer provides short (2 days or 

less) notification for a purchase, or there is a short 

period after harvest in which to fumigate and there is 

limited silo availability for using alternatives. 

The approved critical uses and 

limiting critical conditions listed in the 

above table have been modified from the 

original proposal to reflect comments 

provided to EPA. EPA received 

clarifying comments from four 

commenters that EPA mischaracterized 

the scope of their application or 

misidentified some limiting critical 

conditions. For example, one 

commenter indicated to EPA that their 

application only covered dog and cat 

pet food facilities whereas EPA 

inadvertently listed all pet food 

facilities as part of the consortium. 

The most significant change to this 

section involves the limiting critical 

conditions (LCC). EPA received four 

comments with concerns about the 

LCCs and two in favor of the LCCs. The 

concerns raised in the comments is that 

these conditions are difficult to 

understand and identify. For example, 

one commenter asked how many 

nutsedges over what area constitute 

‘‘moderate to severe’’ infestation. The 

same commenter also indicated that at 

the time of fumigation, nutsedges would 

not be visible. EPA recognizes that a 

user may not be able to certify that 

certain limiting critical conditions will 

definitely occur. For example, a grower 

may not know with one hundred 

percent certainty that moderate to 

severe nutsedge infestation would occur 

in a given field in the absence of methyl 

bromide fumigation. However, the 

grower should be able to form a 

reasonable expectation in this regard, 

based on past experience and the 

information included in the application. 

EPA has modified the definition of 

approved critical user to reflect the 

‘‘reasonable expectation’’ standard. 

Therefore, if a reasonable person 

expects that he would have high levels 

of nutsedge, perhaps because of a 

problem in a neighboring field or the 

field in question had problems the 

previous year, that would be a sufficient 

basis to meet the LCC. This renders it 

unnecessary for the grower to wait for 

a nutsedge problem to develop during 

the growing season when it is no longer 

possible to remedy the problem. 

EPA received two sets of comments 

requesting specific modifications to the 

LCCs. Based on those comments, EPA is 

making the following changes in today’s 

rule: (a) Eliminating the LCC of 

‘‘moderate to severe nematode pressure’’

in all uses except Michigan tomatoes 

because the commenter correctly states 

that there are effective alternatives to 

control this condition when it occurs 

alone; (b) eliminating ‘‘moderate to 

76996 Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 

severe pathogens’’ in all uses except 

Michigan tomatoes because there are 

effective alternatives to control this 

condition when it occurs alone and; (c) 

modifying the buffer zone LCC to reflect 

recent label changes that reduce the 

buffer to 100 feet from an occupied 

structure. The last LCC would apply, as 

the commenter pointed out, only in 

situations where methyl bromide has a 

less restrictive buffer zone. EPA is 

eliminating the first two LCCs on 

nematode and pathogen infestation 

because there are effective alternatives 

to control these pests when they happen 

to be the only key pest. EPA had 

incorrectly characterized these 

conditions as stand alone circumstances 

that would allow for the use of methyl 

bromide in the proposal although the 

nomination describes these situations as 

requiring methyl bromide when in 

conjunction with another circumstance. 

EPA did not eliminate the first two LCC 

for Michigan tomatoes because severe 

neamatode or pathogen pressures alone 

make the alternatives not feasible. This 

is because Michigan is a cold climate 

and the alternatives which would 

otherwise be effective can not properly 

diffuse in the cool soils. 

2. New Market Entrants 

EPA received two favorable comments 

on the proposed method for regulating 

access to critical use methyl bromide by 

new market entrants. For example, a 

new market entrant may be a new 

farmer, a farmer who is expanding 

production of a crop that is an approved 

critical use or, a farmer that is moving 

production from one location to a new 

location that has the limiting critical 

condition. EPA is finalizing a 

framework in today’s rule that allows a 

new market entrant who is a member of 

a consortium that applied for an 

exemption to be an approved critical 

user so long as the use is for a use listed 

in column A and a location listed in 

column B of Appendix L to 40 CFR 82. 

Therefore, an approved critical user 

includes those users who are members 

of a consortium that applied for an 

exemption, even if the user was not a 

member of the consortium at the time 

the application was filed. As described 

in the proposal, EPA will not increase 

the amount of methyl bromide 

exempted to accommodate new market 

entrants without first seeking 

authorization from the Parties through 

the nomination and then engaging in a 

notice and comment rulemaking 

process. Therefore any increase in 

demand for methyl bromide due to new 

market entrants must be met under the 

cap set forth in today’s rule. 

For example, the Southern Forest 

Nursery Management Cooperative 

consists of a certain number of forest 

seedling nursery operators. The 

Cooperative made an application to EPA 

for an exemption solely on behalf of 

their membership. If a company that is 

a member of the Cooperative otherwise 

meets the definition of approved critical 

user, the company can access critical 

use methyl bromide even if it did not 

join the Cooperative until 2004. 

The Agency wishes to accommodate 

the ever shifting marketplace to allow 

growers to increase or move production 

as needed provided that critical use 

methyl bromide only goes to those uses 

and locations listed in Appendix L of 40 

CFR part 82.

EPA received three comments against 

EPA’s definition because it allows for 

users to join a consortium in 2005 and 

use methyl bromide that should be 

reserved only for those who were part 

of the consortium at the time of 

application in the opinion of the 

commenters. One commenter provided 

an alternative approach that would have 

EPA disallow all new market entrants 

for the first year they enter the market. 

EPA considered this approach but EPA 

does not have information on every 

company that is part of a given 

consortium. Therefore, it would be 

difficult if not impossible for EPA to 

‘‘pre-qualify’’ some companies as 

critical uses and disqualify others. 

Instead, EPA is finalizing an approach 

that leaves it up to each consortium to 

define their membership at the time of 

application for an exemption as broadly 

or narrowly as they choose. 

J. Reporting and Recordkeeping 

Requirements 

1. Reporting 

With today’s action, producers and 

importers are required to report the 

number of expended and unexpended 

pre-plant CUAs and post-harvest CUAs 

on a quarterly basis to EPA. On an 

annual basis, producers, importers, 

distributers, and third-party applicators 

are required to report to EPA the 

following information: the number of 

expended and unexpended CSAs; a list 

of the total amount of pre-plant methyl 

bromide bought and the amount sold to 

approved critical users for each sector; 

a list of the total amount of post-harvest 

methyl bromide bought and the amount 

sold to approved critical users for each 

sector; the amount of critical use methyl 

bromide that has not been sold to an 

approved critical user as of the end of 

the control period that the reporting 

entity owns; the amount of critical use 

methyl bromide that has not been sold 

to an approved critical user that 

reporting entity is holding on behalf of 

another entity along with the name of 

the entity who owns the material. 

This information is required so that 

EPA can track compliance with the 

critical use allowance and critical stock 

allowance caps, determine how much 

methyl bromide is used on a sector 

(crop or use) basis, and determine how 

much critical use methyl bromide 

remains unused at the end of the 

compliance period. The information 

collected for this exemption is 

authorized under Sections 603(b), 

603(d) and 614(b) of the CAAA of 1990. 

EPA believes these reporting 

requirements are necessary to meet U.S. 

reporting obligations under Article 7 of 

the Protocol, CAA reporting 

requirements to Congress under Section 

603(d), and implementation of the 

exemption from one control period to 

the next. 

The reporting framework that EPA is 

implementing with today’s action is 

consistent with the information 

requirements described in the proposal 

and section 114 request for information 

on inventories (69 FR 52366 and 69 FR 

52403). EPA did not receive any adverse 

comment on the information 

requirements although one entity 

indicated that EPA underestimated the 

time various compliance activities 

would take. EPA believes that today’s 

recordkeeping and reporting 

requirements create the least burden 

while still ensuring compliance with 

Protocol requirements. See section VI.C 

of this preamble for EPA’s response to 

those comments. 

EPA also received comment that the 

Agency should use a real time database 

system to track the use of methyl 

bromide. A system similar to this is 

used in California to allow regulators to 

prohibit the use of 1,3-D products when 

the local township cap is close to its 

maximum allowable level. EPA is 

primarily concerned with 

understanding how much methyl 

bromide is used for each critical use 

sector on an annual basis. Therefore, a 

real time tracking system is not 

warranted. The reporting requirements 

described in today’s action are sufficient 

to meet the information requirements 

under the Protocol and the CAAA of 

1990 and to ensure that EPA can 

implement the exemption from one 

control period to the next. However, 

there is nothing in this rule to prohibit 

the private development of such a 

system and EPA understands that one 

such database company has had 

conversations with methyl bromide 

registrants about developing a database

Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 76997

similar to the one described in the 

proposal. 

EPA received one comment that the 

Agency should develop a better 

understanding on use of methyl 

bromide and to facilitate that 

understanding, EPA should require 

direct reporting on methyl bromide use 

by all large users, defined as those who 

use more than 10,000 kgs of methyl 

bromide a year. While EPA understands 

that at some point during the exemption 

program it may be helpful to understand 

use trends for major individual users, 

the Agency does not believe that it will 

derive any additional benefit from 

requiring annual reporting of the data. 

In addition this would impose 

additional burden on users and 

potentially on producers, importers, and 

distributers. In the event that EPA does 

need this data at some point, the Agency 

could use section 114 of the CAA to 

require distributers and third-party 

applicators to provide individual user 

data to EPA based on the recordkeeping 

requirements laid out in today’s rule. 

2. Recordkeeping 

Producers, importers, distributers, 

and third-party applicators are required 

to maintain self certification records for 

three years along with other 

transactional records such as invoices 

and order forms. EPA did not receive 

any adverse comments on the 

recordkeeping requirements described 

in the proposal and is implementing the 

recordkeeping requirements without 

modification. 

3. Treatment of Unused Critical Use 

Methyl Bromide 

EPA will use the information 

collected through the annual reporting 

requirement to determine how much 

unused critical use methyl bromide is 

available, or not already sold to an 

approved critical user, at the end of the 

calendar year. EPA proposed deducting 

the corresponding amount from the total 

number of critical use allowances the 

Agency would make available for the 

following control period. A number of 

commenters correctly indicated that 

EPA would not have the data on the 

amount of critical use methyl bromide 

unused at the end of the year until the 

March of the following year when the 

last report is due. EPA is only issuing 

allowances once a year and such 

allowance allocations are likely to take 

place well before EPA has the required 

data on unused methyl bromide. 

Therefore, with today’s action, EPA is 

creating a system for deducting the 

amount of unused methyl bromide from 

the total number of allowances issued 

for the control period following the 

control period immediately after the 

control period when the methyl 

bromide was unused for critical uses. 

The 2007 CUAs will reflect any unused 

critical use methyl bromide from 2005 

and so forth. For the year 2006, this will 

result in no reductions made; however 

all years after 2006 will experience a 

reduction should there be any unused 

critical use methyl bromide. 

All pre-plant critical use methyl 

bromide from 2005 would remain preplant critical use methyl bromide in 

2006 available for all 2006 pre-plant 

approved critical uses, subject to any 

adjustments that may be described in 

the 2006 or 2007 allocation notice and 

comment rulemaking. 

EPA received comment that the 

Agency should account for the time lag 

between reporting and issuing of 

allowances for the following control 

period using an estimated approach. In 

other words, the Agency would estimate 

how much critical use methyl bromide 

would be unused and then deduct that 

amount from the number of allowances 

issued for the following year. EPA is 

requiring reporting of the required data 

once a year and so the Agency would 

have little basis for making realistic 

estimates of this nature. Although EPA 

could require more frequent data 

reports, EPA would still have to 

estimate year end data because of the 

large number of fumigations that occur 

late in the control period. EPA prefers 

to use actual data even if there is a time 

lag to ensure that those who need 

critical use methyl bromide have access 

to it and that future production can be 

adjusted to reflect the actual carryover. 

K. Enforcement Provisions 

Unauthorized production, import, or 

sale of critical use methyl bromide will 

incur a violation on a per kilogram basis 

identical to nearly all other aspects of 

the ozone protection program. Section 

113 of the CAA governs enforcement 

activities for violations of requirements 

under Title VI. One commenter 

supported the size of violations EPA 

proposed for allowance holders. There 

were no dissenting comments on this 

point. 

EPA proposed adjusting the 

maximum potential fine applied to end 

users of methyl bromide because users 

typically operate on a smaller scale and 

have less ability to pay than chemical 

companies. EPA proposed defining a 

violation for improper use of critical use 

methyl bromide as one violation for 

every 200 kilograms of misuse. EPA 

received several comments that the 

Agency should further lower the 

penalties to be identical to those applied 

under the Federal Insecticide, 

Fungicide, and Rodenticide Act 

(FIFRA), the statute that usually governs 

use of fumigants. Today those penalties 

are $1,200 per violation, and a violation 

is the occurrence of misuse. EPA also 

received two comments supporting a 

maximum penalty of $25,000 per 

violation, and a violation is the 

occurrence of misuse and nine 

comments that end user penalties 

should be identical to those under 

FIFRA or should be handled exclusively 

under FIFRA authorities. 

With today’s rule, EPA is defining a 

violation with respect to improper use 

by a user as one violation for every 200 

kilograms noting that EPA typically uses 

discretion in assessing penalties and 

takes into account such things as the 

size of the operation and ability to pay 

as well as the circumstances—such as 

whether the misuse was self-reported. 

Today’s rule lowers the basis for 

calculating a maximum penalty and the 

Agency notes there is discretion to 

apply less than the maximum fine per 

each violation. Today’s rule is providing 

assurances to the end users that they 

will not face the same level of fines as 

a chemical producer and codifies 

flexibility for the Agency to apply less 

than the maximum penalty for this type 

of violation. In assessing penalties, the 

Agency takes into consideration the size 

of the violator, the economic benefit or 

advantage achieved from the violation 

and the ability of the violator to pay a 

penalty. Thus, the concerns raised by 

commenters regarding the ability of 

methyl bromide users to pay the 

maximum allowable fine proposed by 

the Agency are addressed through the 

flexibility EPA provides to enforcement 

officers in assessing penalties.

Because it is a pesticide, methyl 

bromide is also regulated by EPA under 

FIFRA and under other statutes and 

regulatory authority and by states under 

their own statutes and regulatory 

authority. Nothing in today’s rule 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. 

L. Exporting Provisions 

We received two comments that noted 

the need for regulatory provisions that 

would permit U.S. producers of methyl 

bromide to manufacture material for 

other countries with critical uses 

authorized by the Parties. In today’s 

action, the regulatory text includes 

provisions that permit methyl bromide 

production explicitly and solely to meet 

the needs of other countries that have 

been authorized critical use exemptions 

for the specific control period. The 

76998 Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 

producers will be required to report 

quarterly on quantities produced solely 

for export to meet orders placed by 

other countries with authorized critical 

needs. The proposal noted that the U.S. 

is the largest world manufacturer of 

methyl bromide and that U.S. 

manufacturers will likely produce to 

meet the needs of other non-Article 5(1) 

countries that have critical uses 

authorized by the Parties, such as 

Canada, Australia or Italy. In creating 

the regulatory provisions in today’s rule 

to permit production beyond the 

phaseout explicitly for export to other 

countries with critical uses authorized 

by the Parties, we are also correcting an 

oversight that was discussed in the final 

rule published in the Federal Register

on January 2, 2003, (68 FR 238) 

regarding production beyond the 

phaseout for quarantine and 

preshipment applications. In that prior 

final rule (68 FR 238) as well as in the 

proposal, we discuss that exempt 

production for quarantine and 

preshipment applications is above and 

beyond the reduction steps prior to the 

phaseout, and continues after the 

phaseout. The addition of provisions 

regarding the quarantine and 

preshipment exemption is to correct the 

absence of the intended exemption 

beyond the phaseout. 

VI. What Are the Other Considerations 

and Situations on Which EPA Received 

Comments? 

A. Distribution of Permits to Approved 

Critical Users 

In today’s rule, EPA is creating an 

exemption program that emphasizes 

direct regulation of the supply chain of 

methyl bromide through an allowance 

allocation system that distributes 

allowances to producers, importers, 

distributers, and third-party applicators 

of methyl bromide as described in 

section V of this preamble. EPA did 

receive two comments supporting a 

system that emphasizes direct 

regulation of the user community 

whereby EPA would issue critical use 

permits to end users of methyl bromide 

in order to direct critical use methyl 

bromide to the appropriate uses. 

One commenter supported the user 

oriented approach because the 

administrative burden of such a system 

would act as a deterrent to the use of 

methyl bromide and would lead to 

greater efficiencies. As EPA described in 

the proposal, the critical use permit 

(CUP) system would impose additional 

costs and burden on industry compared 

to the proposed option. Although these 

costs could be a deterrent to the use of 

methyl bromide and thus achieve an 

environmental objective of reducing 

methyl bromide use, EPA is committed 

to a regulatory approach that relies on 

existing market mechanisms. Certain 

critical uses were agreed to and 

determined through an extensive 

domestic and international review based 

on the technical and economic 

feasibility of alternatives. EPA does not 

want to impose a regulatory framework 

with the goal of establishing high 

administrative costs to force growers 

who do not have any alternative 

available to them out of the market. 

Doing so would obviate the purpose of 

an exemption altogether. 

EPA believes the timing of the 

domestic and international 

authorization process would not allow 

for the creation of a end user allocation 

scheme on a yearly basis. In addition 

the learning and transaction costs of 

changing the whole market structure in 

the face of the phaseout could adversely 

impact in U.S. agricultural sectors. For 

a more detailed description of the 

economic consideration of the user 

based system, please refer to the 

Regulatory Impact Assessment 

conducted for the proposed rulemaking 

available at EPA’s e-docket number 

OAR–2003–0230. 

EPA received two comments on using 

an auction to distribute permits to users 

of methyl bromide, one in favor and one 

opposed. The commenter in favor of the 

auction indicated that the revenues 

derived from an auction could be used 

to fund transition activities. The other 

commenter indicated that the auction 

approach would take a significant 

amount of time to develop and methyl 

bromide would be directed to the 

highest value uses disadvantaging other 

important uses of methyl bromide. This 

commenter disputes EPA’s assertion 

that an auction would serve to 

redistribute windfall profits. EPA did 

not propose and is not finalizing this 

option due to the lack of clear statutory 

guidance on some of the details of this 

approach, the time it would take to 

develop this program, and the relatively 

small size of the market compared to the 

burden associated with this approach. 

B. Comments on the Burden Associated 

With This Regulatory System 

EPA received one comment on the 

estimated burden hours associated with 

this regulatory system. One commenter 

indicated that EPA grossly 

underestimated the time required for 

data compilation and reporting and 

suggested that it is at least two times 

greater than what EPA estimated in the 

Paperwork Reduction Analysis. This 

commenter did not provide additional 

comment to explain specifically how or 

why the EPA estimate was incorrect nor 

did they indicate which particular 

activities should be adjusted. Therefore, 

EPA has not adjusted the estimated 

burden hours. 

VII. Statutory and Executive Order 

Reviews 

A. Executive Order No. 12866: 

Regulatory Planning and Review 

Under Executive Order No. 12866, (58 

FR 51735, October 4, 1993) the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and therefore 

subject to OMB review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: 

(1) have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; 

(2) create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency;

(3) materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order.

OMB has notified EPA that it considers 

this a ‘‘significant regulatory action’’

under Executive Order No. 12866 and 

EPA has submitted it to OMB for 

review. We will document changes 

made in response to OMB suggestions or 

recommendations in the public record. 

EPA conducted an economic impact 

analysis that attempts to assess the 

likely effect of allowing critical use 

exemptions on the regulated entities 

using three illustrative alternatives. The 

estimated cost savings are 

approximately $19 million to $31 

million on an annual basis. The two 

factors that affect these estimates are the 

size of the cap and how freely critical 

use methyl bromide is allocated. Since 

the assumed cap in the analysis is 39% 

of the 1991 baseline consumption, and 

the allocation system chosen for the 

final rule is not a full universal cap 

system, the likely cost savings that 

should result from this rule is lower 

than the estimates presented in the 

analysis. 

B. Paperwork Reduction Act 

The information collection 

requirements in this rule will be 

Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 76999

submitted for approval to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. The information collection 

requirements are not enforceable until 

OMB approves them. 

The information collection under this 

rule is authorized under Sections 

603(b), 603(d) and 614(b) of the CAAA 

of 1990. 

The mandatory reporting 

requirements included in this rule are 

intended to: 

(1) Satisfy U.S. obligations under the 

international treaty, The Montreal 

Protocol on Substances that Deplete the 

Ozone Layer (Protocol), to report data 

under Article 7; 

(2) Fulfill statutory obligations under 

Section 603(b) of the CAAA of 1990 for 

reporting and monitoring; 

(3) Provide information to report to 

Congress on the production, use and 

consumption of class I controlled 

substances as statutorily required in 

Section 603(d) of the CAAA of 1990. 

Information will be collected through 

quarterly reporting by producers and 

importers and annual reporting by 

distributors and third party applicators 

of methyl bromide. EPA estimates the 

total burden associated with today’s 

action to be 1,505 hours annually. EPA 

does not estimate any start-up or capital 

costs associated with today’s action.

Collection activity No. of

respondents 

Total No. of 

responses 

Hours per

response Total hours 

Rule Familiarization ......................................................................................................................... 54 54 4 216 

Report Inventory Data (one time) ................................................................................................... 54 54 2.5 135 

Data Compilation (quarterly basis) ................................................................................................. 4 16 4 64 

Data Compilation (annual basis) ..................................................................................................... 50 50 8 400 

Data Reporting (quarterly basis) ..................................................................................................... 4 16 .5 8 

Data Reporting (annual basis) ........................................................................................................ 50 50 .5 25 

Reporting on Allowance Trading Activities ..................................................................................... 4 16 .5 8 

Self Certification Activities by Producers, Importers, and Distributors ........................................... 54 100 .25 25

Self Certification Activities by End Users ....................................................................................... 2,000 2,500 .25 625

Total Burden Hours .................................................................................................................. ........................ ........................ 18 1,505 

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. When 

this ICR is approved by OMB, the 

Agency will publish a technical 

amendment to 40 CFR part 9 in the 

Federal Register to display the OMB 

control number for the approved 

information collection requirements 

contained in this final rule. 

C. Regulatory Flexibility Act 

EPA has determined that it is not 

necessary to prepare a regulatory 

flexibility analysis in connection with 

this final rule. For purposes of assessing 

the impacts of today’s rule on small 

entities, small entity is defined as: (1) A 

small business that is identified by the 

North American Industry Classification 

System (NAICS) Code in the Table 

below; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field.

Category NAICS code SIC code 

NAICS Small business

size standard

(in number of employees

or millions of dollars) 

Agricultural production ........................... 1112—Vegetable and Melon farming; 

1113—Fruit and Nut Tree farming; 

1114—Greenhouse, Nursery, and Floriculture production. 

0171—Berry Crops; 

0172—Grapes; 

0173—Tree Nuts; 

0175—Deciduous Tree Fruits (except 

apple orchards and farms); 

0179—Fruit and Tree Nuts, NEC; 

0181—Ornamental Floriculture and 

Nursery products; 

0831—Forest Nurseries and Gathering 

of Forest products. 

$0.75 million. 

Storage Uses ......................................... 115114—Postharvest Crop activities 

(except Cotton Ginning); 

311211—Flour Milling; 

311212—Rice Milling. 

2041—Flour and Other Grain; Mill 

Products; 

2044—Rice Milling. 

$6 million. 

493110—General Warehousing and 

Storage; 493130—Farm Product 

Warehousing and Storage. 

4221—Farm Product Warehousing and 

Storage; 

4225—General Warehousing and Storage. 

$21.5 million. 

77000 Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 

After considering the economic 

impacts of today’s final rule on small 

entities, EPA has concluded 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 and 604. Thus, an agency 

may conclude that a rule will not have 

a significant economic impact on a 

substantial number of small entities if 

the rule relieves regulatory burden, or 

otherwise has a positive economic effect 

on all of the small entities subject to the 

rule. 

Since this rule will make methyl 

bromide available for approved critical 

uses after the phaseout date of January 

1, 2005, this is a de-regulatory action 

which will confer a benefit to users of 

methyl bromide. EPA believes the 

estimated de-regulatory value for users 

of methyl bromide is between $20 

million to $30 million annually. We 

have therefore concluded that today’s 

final rule will relieve regulatory burden 

for all small entities. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, 

and tribal governments, in the aggregate, 

or to the private sector, of $100 million 

or more in any one year. Before 

promulgating an EPA rule for which a 

written statement is needed, section 205 

of the UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective or least burdensome alternative 

that achieves the objectives of the rule. 

The provisions of section 205 do not 

apply when they are inconsistent with 

applicable law. Moreover, section 205 

allows EPA to adopt an alternative other 

than the least costly, most cost-effective 

or least burdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed 

under section 203 of the UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

EPA has determined that this rule 

does not contain a Federal mandate that 

may result in expenditures of $100 

million or more for State, local, and 

tribal governments, in the aggregate, or 

the private sector in any one year. 

Today’s rule creates a recordkeeping 

and reporting burden on the private 

sector that is estimated to be under 

$200,000 on an annual basis. Thus, 

today’s rule is not subject to the 

requirements of sections 202 and 205 of 

the UMRA. Further, EPA has 

determined that this rule contains no 

regulatory requirements that might 

significantly or uniquely affect small 

governments because it does not create 

any requirements on any State, local, or 

tribal government. 

E. Executive Order No. 13132: 

Federalism 

Executive Order 13132, entitled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This final rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. Today’s rule is 

expected to primarily affect producers, 

suppliers, importers and exporters and 

users of methyl bromide. Thus, 

Executive Order 13132 does not apply 

to this rule. 

F. Executive Order No. 13175: 

Consultation and Coordination With 

Indian Tribal Governments 

Executive Order No. 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This final rule does not 

have tribal implications, as specified in 

Executive Order No. 13175. Today’s 

final rule does not significantly or 

uniquely affect the communities of 

Indian tribal governments. The final 

rule does not impose any enforceable 

duties on communities of Indian tribal 

governments. Thus, Executive Order No. 

13175 does not apply to this final rule. 

G. Executive Order No. 13045: 

Protection of Children From 

Environmental Health & Safety Risks 

Executive Order No. 13045: 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

Risks’’ (62 FR 19885, April 23, 1997) 

applies to any rule that: (1) Is 

determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

EPA interprets Executive Order 13045 

as applying only to those regulatory 

actions that are based on health or safety 

risks, such that the analysis required 

under Section 5–501 of the Order has 

the potential to influence the regulation. 

This final rule is not subject to 

Executive Order 13045 because it does 

not establish an environmental standard 

intended to mitigate health or safety 

risks.

H. Executive Order No. 13211: Actions 

That Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

No. 13211, ‘‘Actions Concerning 

Regulations That Significantly Affect 

Energy Supply, Distribution, or Use’’ (66 

FR 28355 (May 22, 2001)) because it is 

not likely to have a significant adverse 

Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 77001

effect on the supply, distribution, or use 

of energy. This rule does not pertain to 

any segment of the energy production 

economy nor does it regulate any 

manner of energy use. Therefore, we 

have concluded that this rule is not 

likely to have any adverse energy 

effects. 

I. National Technology Transfer 

Advancement Act 

As noted in the proposed rule, 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, Section 12(d) (15 U.S.C. 272 

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. This 

action does not involved technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A Major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective on January 1, 2005.

List of Subjects in 40 CFR Part 82 

Environmental protection, Chemicals, 

Exports, Imports, Methyl bromide, 

Ozone, Production, Reporting and 

recordkeeping requirements, Treaties.

Dated: December 15, 2004. 

Michael O. Leavitt, 

Administrator.

■ For the reasons stated in the preamble, 

40 CFR part 82 is 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.

Subpart A—Production and 

Consumption Controls

■ 2. Section 82.3 is amended as follows:

■ a. By adding definitions in 

alphabetical order for the terms, 

‘‘Approved critical use(s),’’ ‘‘Approved 

critical user(s),’’ ‘‘Consortium,’’ ‘‘Critical 

stock allowance (CSA),’’ ‘‘Critical stock 

allowance (CSA) holder,’’ ‘‘Critical use,’’

‘‘Critical use allowance (CUA),’’

‘‘Critical use allowance (CUA) for preplant use,’’ ‘‘Critical use allowance 

(CUA) for post-harvest use,’’ ‘‘Critical 

use allowance (CUA) holder,’’ ‘‘Critical 

use methyl bromide,’’ ‘‘Limiting critical 

condition,’’ ‘‘Location of use,’’ ‘‘Third 

party applicator,’’ ‘‘Unexpended critical 

stock allowance (CUA),’’ and 

‘‘Unexpended critical use allowances 

(CUA);’’

■ b. By revising definition of ‘‘Confer.’’

§ 82.3 Definitions for class I and class II 

controlled substances.

* * * * *

Approved critical use(s) means those 

uses of methyl bromide listed in 

Column A of appendix L to this subpart 

as further clarified in Columns B and C 

of that appendix. 

Approved critical user(s) means a 

person who:

(1) For the applicable control period, 

applied to EPA for a critical use 

exemption or is a member of a 

consortium that applied to EPA for a 

critical use exemption for a use and 

location of use that was included in the 

U.S. nomination, authorized by a 

Decision of the Parties to the Montreal 

Protocol, and then finally determined by 

EPA in a notice-and-comment 

rulemaking to be an approved critical 

use; and 

(2) Has an area in the applicable 

location of use that requires methyl 

bromide fumigation because the person 

reasonably expects that the area will be 

subject to a limiting critical condition 

during the applicable control period.

* * * * *

Confer means to shift the essential-use 

allowances obtained under § 82.8 from 

the holder of the unexpended essentialuse allowances to a person for the 

production of a specified controlled 

substance, or to shift the HCFC–141b 

exemption allowances granted under 

§ 82.16(h) from the holder of the 

unexpended HCFC–141b exemption 

allowances to a person for the 

production or import of the controlled 

substance. 

Consortium means an organization 

representing a group of methyl bromide 

users that has collectively submitted an 

application for a critical use exemption 

on behalf of all members of the group. 

The members of a consortium shall be 

determined on the basis of the rules 

established by the organization. 

Members may either be required to 

formally join the consortium (e.g., by 

submitting an application or paying 

dues) or may automatically become 

members upon meeting particular 

criteria (e.g., a grower of a specific crop 

in a particular region).

* * * * *

Critical stock allowance (CSA) means 

the right granted by this subpart to sell 

one (1) kilogram of class I, Group VI 

controlled substances from inventory 

produced or imported prior to the 

January 1, 2005 phaseout date for an 

approved critical use during the 

specified control period to the extent 

permitted by federal and state pesticide 

statutes and regulations other than the 

Clean Air Act and regulations in this 

part. A person’s critical stock 

allowances are the total of the 

allowances obtained under § 82.8(c) as 

may be modified under § 82.12 (transfer 

of allowances). 

Critical stock allowance (CSA) holder

means an entity to which EPA allocates 

a quantity of critical stock allowances as 

reflected under § 82.8(c), or who 

receives a quantity of critical stock 

allowances through a transfer under 

§ 82.12. 

Critical use means a circumstance in 

which the following two conditions are 

satisfied: 

(1) There are no technically and 

economically feasible alternatives or 

substitutes for methyl bromide available 

that are acceptable from the standpoint 

of environment and health and are 

suitable to the crops and circumstances 

involved, and 

(2) The lack of availability of methyl 

bromide for a particular use would 

result in significant market disruption. 

Critical use allowance (CUA) means 

the privilege granted by this subpart to 

produce or import one (1) kilogram of 

methyl bromide for an approved critical 

use during the specified control period. 

A person’s critical use allowances are 

the total of the allowances obtained 

77002 Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 

under § 82.8(c) as may be modified 

under § 82.12 (transfer of allowances). 

Critical use allowance for pre-plant 

uses means the privilege granted by this 

subpart to produce or import one (1) 

kilogram of methyl bromide solely for 

an approved critical use in pre-plant 

categories specified in Appendix L to 

this subpart during the specified control 

period. A person’s critical use 

allowances for pre-plant uses are the 

total of the allowances obtained under 

§ 82.8(c) as may be modified under 

§ 82.12 (transfer of allowances). 

Critical use allowance for post-harvest 

uses means the privilege granted by this 

subpart to produce or import one (1) 

kilogram of methyl bromide solely for 

an approved critical use in post-harvest 

categories specified in appendix L to 

this subpart during the specified control 

period. A person’s critical use 

allowances for post-harvest uses are the 

total of the allowances obtained under 

§ 82.8(c) as may be modified under 

§ 82.12 (transfer of allowances). 

Critical use allowance (CUA) holder

means an entity to which EPA allocates 

a quantity of critical use allowances as 

reflected in § 82.8(c) or who receives a 

quantity of critical use allowances 

through a transfer under § 82.12. 

Critical use methyl bromide means 

the class I, Group VI controlled 

substance produced or imported 

through expending a critical use 

allowance or that portion of inventory 

produced or imported prior to the 

January 1, 2005 phaseout date that is 

sold only for approved critical uses 

through expending a critical stock 

allowance.

* * * * *

Limiting critical condition means the 

regulatory, technical, and economic 

circumstances listed in Column C of 

Appendix L to this subpart that 

establish conditions of critical use for 

methyl bromide in a fumigation area. 

Location of use means the geographic 

area (such as a state, region, or the entire 

United States) covered by an application 

for a critical use exemption in which the 

limiting critical condition may occur.

* * * * *

Third party applicator means an 

applicator of critical use methyl 

bromide who fumigates or treats 

commodities, structures, crops, or land 

on behalf of an approved critical user.

* * * * *

Unexpended critical stock allowance 

(CSA) means critical stock allowances 

against which methyl bromide has not 

yet been sold for an approved critical 

use. 

Unexpended critical use allowances 

(CUA) means critical use allowances 

against which methyl bromide has not 

yet been produced or imported. At any 

time in any control period a person’s 

unexpended critical use allowances are 

the total of the level of critical use 

allowances the person holds at that time 

for that control period, minus the level 

of class I, Group VI controlled 

substances that the person has produced 

or has imported solely for approved 

critical uses in that control period.

* * * * *

■ 3. Section 82.4 is amended by revising 

paragraphs (b), (d) and (n), and by adding 

paragraph (p) as follows:

§ 82.4 Prohibitions for class I controlled 

substances.

* * * * *

(b) (1) Effective January 1, 1996, for 

any class I, Group I, Group II, Group III, 

Group IV, Group V, or Group VII 

controlled substances, and effective 

January 1, 2005, for any class I, Group 

VI controlled substance, and effective 

August 18, 2003, for any class I, Group 

VIII controlled substance, no person 

may produce, at any time in any control 

period, (except that are transformed or 

destroyed domestically or by a person of 

another Party) in excess of the amount 

of conferred unexpended essential use 

allowances or exemptions, or in excess 

of the amount of unexpended critical 

use allowances, or in excess of the 

amount of unexpended Article 5 

allowances as allocated under § 82.9 as 

may be modified under § 82.12 (transfer 

of allowances), for that substance held 

by that person under the authority of 

this subpart at that time for that control 

period. Every kilogram of excess 

production constitutes a separate 

violation of this subpart. 

(2) Effective January 1, 2005, 

production of class I, Group VI 

controlled substances is not subject to 

the prohibitions in paragraph (b)(1) of 

this section if it is solely for quarantine 

or preshipment applications as defined 

in this subpart, or it is solely for export 

to satisfy critical uses authorized by the 

Parties for that control period.

* * * * *

(d) Effective January 1, 1996, for any 

class I, Group I, Group II, Group III, 

Group IV, Group V, or Group VII 

controlled substances, and effective 

January 1, 2005, for any class I, Group 

VI controlled substance, and effective 

August 18, 2003, for any class I, Group 

VIII controlled substance, no person 

may import (except for transhipments or 

heels), at any time in any control period, 

(except for controlled substances that 

are transformed or destroyed) in excess 

of the amount of unexpended essential 

use allowances or exemptions, or in 

excess of unexpended critical use 

allowances, for that substance held by 

that person under the authority of this 

subpart at that time for that control 

period. Every kilogram of excess 

importation (other than transhipments 

or heels) constitutes a separate violation 

of this subpart. It is a violation of this 

subpart to obtain unused class I 

controlled substances under the general 

laboratory exemption in excess of actual 

need and to recycle that material for sale 

into other markets.

* * * * *

(n) No person may use class I 

controlled substances produced or 

imported under the essential use 

exemption for any purpose other than 

those set forth in this paragraph. 

Effective January 1, 1996, essential-use 

allowances are apportioned to a person 

under § 82.8(a) and (b) for the exempted 

production or importation of specified 

class I controlled substances solely for 

the purposes listed in paragraphs 

(n)(1)(i) through (iii) of this section. 

(1) Essential-uses for the production 

or importation of controlled substances 

as agreed to by the Parties to the 

Protocol and subject to the periodic 

revision of the Parties are: 

(i) Metered dose inhalers (MDIs) for 

the treatment of asthma and chronic 

obstructive pulmonary disease that were 

approved by the Food and Drug 

Administration before December 31, 

2000. 

(ii) Space Shuttle—solvents.

(iii) Essential laboratory and 

analytical uses (defined in Appendix G 

of this subpart). 

(2) Any person acquiring unused class 

I controlled substances produced or 

imported under the authority of 

essential-use allowances or the 

essential-use exemption granted in 

§ 82.8 to this subpart for use in anything 

other than an essential-use (i.e., for uses 

other than those specifically listed in 

paragraph (n)(1) of this section) is in 

violation of this subpart. Each kilogram 

of unused class I controlled substance 

produced or imported under the 

authority of essential-use allowances or 

the essential-use exemption and used 

for a non-essential use is a separate 

violation of this subpart. Any person 

selling unused class I controlled 

substances produced or imported under 

authority of essential-use allowances or 

the essential-use exemption for uses 

other than an essential-use is in 

violation of this subpart. Each kilogram 

of unused class I controlled substances 

produced or imported under authority 

of essential-use allowances or the 

essential-use exemption and sold for a 

use other than an essential-use is a 

Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 77003

separate violation of this subpart. It is a 

violation of this subpart to obtain 

unused class I controlled substances 

under the exemption for laboratory and 

analytical uses in excess of actual need 

and to recycle that material for sale into 

other markets.

* * * * *

(p) Critical Use Exemption: With 

respect to class I, Group VI substances 

(methyl bromide): 

(1) For critical use allowance holders 

and critical stock allowance holders: 

(i) No person shall sell critical use 

methyl bromide without first receiving 

a certification from the purchaser that 

the quantity purchased will be sold or 

used solely for an approved critical use. 

Every kilogram of critical use methyl 

bromide sold without first obtaining 

such certification constitutes a separate 

violation of this subpart. 

(ii) No person shall sell a portion of 

inventory produced or imported prior to 

the January 1, 2005 phaseout date as 

critical use methyl bromide in excess of 

the number of unexpended critical stock 

allowances held by that person. 

(iii) A person who sells methyl 

bromide produced or imported before 

the phaseout date of January 1, 2005 for 

a use identified by the user as a critical 

use must hold sufficient critical stock 

allowances (CSA) for the transaction 

and shall expend one allowance for 

each kilogram of methyl bromide sold. 

Every kilogram of critical use methyl 

bromide produced or imported before 

the phaseout date of January 1, 2005 

that is sold without expending an 

allowance constitutes a separate 

violation of this subpart. 

(2) For approved critical users, each 

action associated with each 200 

kilograms of critical use methyl bromide 

for the following subparagraphs 

constitutes a separate violation of this 

subpart. 

(i) No person shall take possession of 

quantities of critical use methyl bromide 

or acquire fumigation services using 

quantities of critical use methyl bromide 

without first completing the appropriate 

certification in accordance with the 

requirements in § 82.13. 

(ii) No person who purchases critical 

use methyl bromide may use such 

quantities for a use other than the 

specified critical use listed in Column A 

and the specified location of use in 

Column B of Appendix L to this 

subpart. 

(iii) No person who purchases critical 

use methyl bromide produced or 

imported with expended critical use 

allowances for pre-plant uses, may use 

such quantities for other than the preplant uses as specified in Column A and 

Column B of appendix L to this subpart. 

(iv) No person who purchases critical 

use methyl bromide produced or 

imported with expended critical use 

allowances for post-harvest uses, may 

use such quantities for other than the 

post-harvest uses as specified in 

Column A and Column B of appendix 

L to this subpart. 

(v) No person who uses critical use 

methyl bromide on a specific field or 

structure may concurrently or 

subsequently use non-critical use 

methyl bromide on the same field or 

structure for the same use (as defined in 

Column A and Column B of appendix 

L) in the same control period, excepting 

methyl bromide used under the 

quarantine and pre-shipment 

exemption. 

(vi) No person who purchases critical 

use methyl bromide during the control 

period shall use that methyl bromide on 

a field or structure for which that person 

has used non-critical use methyl 

bromide for the same use (as defined in 

Columns A and B of appendix L) in the 

same control period, excepting methyl 

bromide used under the quarantine and 

pre-shipment exemption, unless, 

subsequent to that person’s use of the 

non-critical use methyl bromide, that 

person becomes subject to a prohibition 

on the use of methyl bromide 

alternatives due to the reaching of a 

local township limit described in 

appendix L of this part.

* * * * *

■ 4. Section 82.8 is added to read as 

follows:

§ 82.8 Grant of essential use allowances 

and critical use allowances. 

(a) Effective January 1, 1996, persons 

in the following list are allocated 

essential-use allowances or exemptions 

for quantities of a specific class I 

controlled substance for a specific 

essential-use (the Administrator 

reserves the right to revise the 

allocations based on future decisions of 

the Parties).

TABLE 1.—ESSENTIAL USE ALLOWANCES FOR CALENDAR YEAR 2004 

Company Chemical Quantity

(metric tons) 

(1) Metered Dose Inhalers (for Oral Inhalation) for Treatment of Asthma and Chronic Obstructive Pulmonary Disease 

Armstrong Pharmaceuticals ....................................................... CFC–11 or CFC–12 or CFC–114 ............................................. 390.60 

Aventis Pharmaceutical Products .............................................. CFC–11 or CFC–12 or CFC–114 ............................................. 48.40 

Boehringer Ingelheim Pharmaceuticals ..................................... CFC–11 or CFC–12 or CFC–114 ............................................. 500.20 

PLIVA Inc. .................................................................................. CFC–11 or CFC–12 or CFC–114 ............................................. 136.00 

Schering-Plough Corporation ..................................................... CFC–11 or CFC–12 or CFC–114 ............................................. 918.00 

3M Pharmaceuticals .................................................................. CFC–11 or CFC–12 or CFC–114 ............................................. 84.71 

(2) Cleaning, Bonding and Surface Activation Applications for the Space Shuttle Rockets and Titan Rockets 

National Aeronautics and Space Administration (NASA)/

Thiokol Rocket.

Methyl Chloroform ..................................................................... 141.877 

(b) A global exemption for class I 

controlled substances for essential 

laboratory and analytical uses shall be 

in effect through December 31, 2005 

subject to the restrictions in Appendix 

G of this subpart, and subject to the 

record-keeping and reporting 

requirements at § 82.13(u) through (x). 

There is no amount specified for this 

exemption.

(c) Effective January 1, 2005, critical 

use allowances are apportioned as set 

forth in paragraph (c)(1) of this section 

for the exempted production and import 

of class I, Group VI controlled 

substances specifically for those 

approved critical uses listed in 

Appendix L to this subpart for the 

applicable control period. Every 

kilogram of production and import in 

excess of the total number and type of 

unexpended critical use allowances 

held for a particular type of use 

constitutes a separate violation of this 

subpart. Effective January 1, 2005, 

77004 Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 

critical stock allowances are issued as 

set forth in paragraph (c)(2) of this 

section for the sale of class I, Group VI 

controlled substances from inventory 

produced or imported before the 

January 1, 2005 phaseout date 

specifically for those approved critical 

uses listed in Appendix L to this 

subpart for the applicable control 

period. 

(1) Allocated critical use allowances 

granted for specified control period.

Company 

2005 Critical 

use allowances for preplant uses* 

(kilograms) 

2005 Critical 

use allowances for postharvest uses* 

(kilograms) 

Albemarle Corp ........................................................................................................................................................ 1,791,950 122,151 

Ameribrom, Inc ........................................................................................................................................................ 989,911 67,479 

Great Lakes Chemical Corp .................................................................................................................................... 4,357,690 297,049 

TriCal, Inc ................................................................................................................................................................ 30,679 2,091 

*For production or import of class I, 

Group VI controlled substance 

exclusively for the Pre-Plant or PostHarvest uses specified in appendix L to 

this subpart. 

(2) Allocated critical stock allowances 

granted for specified control period. The 

following companies are allocated 

critical stock allowances for 2005 on 

pro-rata basis in relation to the stocks 

held by each.

Company 

Albemarle 

Ameribrom, Inc. 

Bill Clark Pest Control, Inc. 

Blair Soil Fumigation 

Burnside Services, Inc. 

Cardinal Professional Products 

Carolina Eastern, Inc. 

Degesch America, Inc. 

Dodson Bros. 

Great Lakes Chemical 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. 

Pro Source 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—1,283,214 kilograms. 

■ 5. Section 82.12 is amended by 

revising paragraph (a)(1) introductory 

text, (a)(1)(i)(H), (a)(1)(ii) introductory 

text, and (a)(1)(iii) and by adding 

paragraph (e) to read as follows:

§ 82.12 Transfers of allowances for class I 

controlled substances. 

(a) Inter-company transfers. (1) Until 

January 1, 1996, for all class I controlled 

substances, except for Group VI, and 

until January 1, 2005, for Group VI, any 

person (‘‘transferor’’) may transfer to 

any other person (‘‘transferee’’) any 

amount of the transferor’s consumption 

allowances or production allowances, 

and effective January 1, 1995, for all 

class I controlled substances any person 

(‘‘transferor’’) may transfer to any other 

person (‘‘transferee’’) any amount of the 

transferor’s Article 5 allowances. After 

January 1, 2002, any essential-use 

allowance holder (including those 

persons that hold essential-use 

allowances issued by a Party other than 

the United States) (‘‘transferor’’) may 

transfer essential-use allowances for 

CFCs to a metered dose inhaler 

company solely for the manufacture of 

essential MDIs. After January 1, 2005, 

any critical use allowance holder 

(‘‘transferor’’) may transfer critical use 

allowances to any other person 

(‘‘transferee’’). After January 1, 2005, 

any critical stock allowance holder 

(‘‘transferor’’) may transfer critical stock 

allowances to any critical stock 

allowance holder or any methyl 

bromide producer, importer, distributer 

or third party applicator (‘‘transferee’’). 

(i) * * * 

(H) The one percent offset applied to 

the unweighted amount traded will be 

deducted from the transferor’s 

production or consumption allowance 

balance (except for trades from 

transformers and destroyers to 

producers or importers for the purpose 

of allowance reimbursement). In the 

case of transferring essential use 

allowances, the amount of one tenth of 

one percent of the amount traded will 

be deducted from the transferor’s 

allowance balance. In the case of 

transferring critical use allowances, the 

amount of one tenth of one percent of 

the amount traded will be deducted 

from the transferor’s critical use 

allowance balance.

* * * * *

(ii) The Administrator will determine 

whether the records maintained by EPA, 

taking into account any previous 

transfers and any production, allowable 

imports and exports of controlled 

substances reported by the transferor, 

indicate that the transferor possesses, as 

of the date the transfer claim is 

processed, unexpended allowances 

sufficient to cover the transfer claim 

(i.e., the amount to be transferred plus, 

in the case of transferors of essential use 

allowances and critical use allowances, 

one tenth of one percent of the 

transferred amount). Within three 

working days of receiving a complete 

transfer claim, the Administrator will 

take action to notify the transferor and 

transferee as follows:

* * * * *

(iii) In the event that the 

Administrator does not respond to a 

transfer claim within the three working 

days specified in paragraph (a)(1)(ii) of 

this section the transferor and transferee 

may proceed with the transfer. EPA will 

reduce the transferor’s balance of 

unexpended allowances by the amount 

to be transferred plus, in the case of 

transfers of production or consumption 

allowances, one percent of that amount, 

and in the case of essential use 

allowances and critical use allowances, 

one tenth of one percent of that amount. 

However if EPA ultimately finds that 

the transferor did not have sufficient 

unexpended allowances to cover the 

claim, the transferor and transferee will 

be held liable for any violations of the 

regulations of this subpart that occur as 

a result of, or in conjunction with, the 

improper transfer.

* * * * *

(e) Exchange of Critical Use 

Allowances for Critical Stock 

Allowances. (1) Critical use allowance 

holders may petition the Administrator 

to exchange a quantity of their 

unexpended critical use allowances for 

an equivalent amount of critical stock 

allowances. A person allocated critical 

stock allowances may not petition to 

exchange unexpended critical stock 

allowances for critical use allowances. 

(2) [Reserved]

Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 77005

■ 6. Section 82.13 is amended as follows:

■ a. Revising paragraph (a).

■ b. Adding paragraphs (f)(2)(xx) 

through (f)(2)(xxii).

■ c. Revising paragraph (f)(3)(iv).

■ d. Adding paragraphs (f)(3)(xvi), and 

(f)(3)(xvii).

■ e. Adding paragraphs (g)(1)(xx) and 

(xxi).

■ f. Revising paragraph (g)(4)(vii).

■ h. Adding paragraphs (g)(4)(xviii) and 

(bb) through (dd).

§ 82.13 Recordkeeping and reporting 

requirements for class I controlled 

substances. 

(a) Unless otherwise specified, the 

recordkeeping and reporting 

requirements set forth in this section 

take effect on January 1, 1995. For class 

I, Group VIII controlled substances, the 

recordkeeping and reporting 

requirements set forth in this section 

take effect on August 18, 2003. For class 

I, Group VI critical use methyl bromide, 

the recordkeeping and reporting 

requirements set forth in this section 

take effect January 1, 2005.

* * * * *

(f) * * * 

(2) * * * 

(xx) For class I, Group VI controlled 

substances, dated records such as 

invoices and order forms, and a log of 

the quantity of controlled substances 

produced for critical use, specifying 

quantities dedicated for pre-plant use 

and quantities dedicated for postharvest use, and the quantity sold for 

critical use, specifying quantities 

dedicated for pre-plant use and 

quantities dedicated for post-harvest 

use; 

(xxi) Written certifications that 

quantities of class I, Group VI controlled 

substances produced for critical use 

were purchased by distributors, 

applicators, or approved critical users to 

be used or sold only for critical use in 

accordance with the definitions and 

prohibitions in this subpart. 

Certifications must be maintained by the 

producer for a minimum of three years 

and; 

(xxii) For class I, Group VI controlled 

substances, dated records such as 

invoices and order forms, and a log of 

the quantity of controlled substances 

produced solely for export to satisfy 

critical uses authorized by the Parties 

for that control period, and the quantity 

sold solely for export to satisfy critical 

uses authorized by the Parties for that 

control period. 

(3) * * * 

(iv) The producer’s total of expended 

and unexpended production 

allowances, consumption allowances, 

Article 5 allowances, critical use 

allowances (pre-plant), critical use 

allowances (post-harvest), critical stock 

allowances, and amount of essential-use 

allowances and destruction and 

transformation credits conferred at the 

end of that quarter;

* * * * *

(xvi) For critical uses of class I, Group 

VI controlled substances, producers 

shall report annually the amount of 

critical use methyl bromide owned by 

the reporting entity, specifying 

quantities dedicated for pre-plant use 

and quantities dedicated for postharvest use, as well as quantities held 

by the reporting entity on behalf of 

another entity, specifying quantities 

dedicated for pre-plant use and 

quantities dedicated for post-harvest use 

along with the name of the entity on 

whose behalf the material is held; and 

(xvii) A list of the quantities of class 

I, Group VI controlled substances 

produced by the producer and exported 

by the producer and/or by other U.S. 

companies in that control period, solely 

to satisfy the critical uses authorized by 

the Parties for that control period. 

(g) * * * 

(1) * * * 

(xx) For class I, Group VI controlled 

substances, dated records such as 

invoices and order forms, of the 

quantity of controlled substances 

imported for critical use, specifying 

quantities dedicated for pre-plant use 

and quantities dedicated for postharvest use, and the quantity sold for 

critical use, specifying quantities 

dedicated for pre-plant use and 

quantities dedicated for post-harvest 

use, and; 

(xxi) Written certifications that 

quantities of class I, Group VI controlled 

substances imported for critical use 

were purchased by distributors, 

applicators, or approved critical users to 

be used or sold only for critical use in 

accordance with the definitions and 

prohibitions in this subpart. 

Certifications must be maintained by an 

importer for a minimum of three years. 

(4) * * * 

(vii) The importer’s total sum of 

expended and unexpended 

consumption allowances by chemical as 

of the end of that quarter and the total 

sum of expended and unexpended 

critical use allowances (pre-plant) and 

unexpended critical use allowances 

(post-harvest) and critical stock 

allowances;

* * * * *

(xviii) For critical uses of class I, 

Group VI controlled substances, 

importers shall report annually the 

amount of critical use methyl bromide 

owned by the reporting entity, 

specifying quantities dedicated for preplant use and quantities dedicated for 

post-harvest use, as well as quantities 

held by the reporting entity on behalf of 

another entity, specifying quantities 

dedicated for pre-plant use and 

quantities dedicated for post-harvest use 

along with the name of the entity on 

whose behalf the material is held.

* * * * *

(bb) Every distributor of methyl 

bromide (class I, Group VI controlled 

substances) who purchases or receives a 

quantity of critical use methyl bromide 

must comply with recordkeeping and 

reporting requirements specified in this 

paragraph (bb). 

(1) Recordkeeping—Every distributor 

of critical use methyl bromide must 

certify to the producer or importer or 

other entity from which they are 

acquiring quantities of critical use 

methyl bromide that such quantities 

received will be sold or used only for 

approved critical use(s) in accordance 

with the definitions and prohibitions in 

this subpart. 

(i) Every distributor of a quantity of 

critical use methyl bromide must 

receive from an applicator, or any other 

entity to whom they sell critical use 

methyl bromide, a certification of the 

quantity of critical use methyl bromide 

ordered, prior to delivery of the 

quantity, stating that the quantity will 

be sold or used only for approved 

critical uses in accordance with 

definitions and prohibitions in this 

subpart. 

(ii) Every distributor of methyl 

bromide who receives a certification 

from an applicator or any other entity to 

which they sell critical use methyl 

bromide must maintain the 

certifications as records for 3 years. 

(iii) Every distributor of a quantity of 

critical use methyl bromide must 

maintain invoice and order records 

related to the sale of such material for 

3 years.

(2) Reporting—Every distributor of 

critical use methyl bromide must report 

to the Administrator annually, the 

following items: 

(i) For critical uses of class I, Group 

VI controlled substances, an annual list 

of the amount of critical use methyl 

bromide bought; 

(ii) For critical uses of class I, Group 

VI controlled substances, an annual list 

of the amount of critical use methyl 

bromide sold for each specified critical 

use in Appendix L of this subpart; 

(iii) For critical uses of class I, Group 

VI controlled substances, report the 

amount of critical use methyl bromide 

owned by the reporting entity, 

specifying quantities dedicated for preVerDate jul<14>2003 17:18 Dec 22, 2004 Jkt 205001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\23DER2.SGM 23DER2
77006 Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 

plant use and quantities dedicated for 

post-harvest use, as well as quantities 

held by the reporting entity on behalf of 

another entity, specifying quantities 

dedicated for pre-plant use and 

quantities dedicated for post-harvest 

use, along with the name of the entity 

on whose behalf the material is held; 

(iv) The number of unexpended 

critical stock allowances. 

(cc) Every third party applicator of 

methyl bromide (class I, Group VI 

controlled substances) that purchases or 

receives critical use methyl bromide 

must comply with recordkeeping and 

reporting requirements specified in this 

paragraph (cc). 

(1) Recordkeeping—Every third party 

applicator of critical use methyl 

bromide must certify to the producer or 

importer or other entity from which 

they are acquiring quantities of critical 

use methyl bromide that such quantities 

received will be sold or used only for 

approved critical use(s) in accordance 

with the definitions and prohibitions in 

this subpart. 

(i) Every third party applicator of a 

quantity of critical use methyl bromide 

must receive from any entity to whom 

they sell critical use methyl bromide, a 

certification of the quantity of critical 

use methyl bromide ordered, prior to 

delivery of the quantity, stating that the 

quantity will be sold or used only for 

approved critical uses in accordance 

with definitions and prohibitions in this 

subpart. 

(ii) Every third party applicator of 

methyl bromide who receives a 

certification from an entity to which 

they sell critical use methyl bromide 

must maintain the certifications as 

records for 3 years. 

(iii) Every third party applicator of a 

quantity of critical use methyl bromide 

must maintain invoice and order 

records related to the sale of such 

material for 3 years. 

(2) Reporting—Every third party 

applicator of critical use methyl 

bromide must report to the 

Administrator annually, the following 

items: 

(i) For critical uses of class I, Group 

VI controlled substances, an annual list 

of the amount of critical use methyl 

bromide bought; 

(ii) For critical uses of class I, Group 

VI controlled substances, an annual list 

of the amount of critical use methyl 

bromide sold for each specified critical 

use in Appendix L of this subpart; 

(iii) For critical uses of class I, Group 

VI controlled substances, report 

annually the amount of critical use 

methyl bromide owned by the reporting 

entity, specifying quantities dedicated 

for pre-plant use and quantities 

dedicated for post-harvest use, as well 

as quantities held by the reporting entity 

on behalf of another entity, specifying 

quantities dedicated for pre-plant use 

and quantities dedicated for postharvest use, along with the name of the 

entity on whose behalf the material is 

held; 

(iv) The number of unexpended 

critical stock allowances. 

(dd) Every approved critical user 

purchasing an amount of critical use 

methyl bromide or purchasing 

fumigation services with critical use 

methyl bromide must, for each request, 

identify the use as a critical use and 

certify being an approved critical user. 

The approved critical user certification 

will state, in part: ‘‘I certify, under 

penalty of law, I am an approved critical 

user and I will use this quantity of 

methyl bromide for an approved critical 

use. My action conforms to the 

requirements associated with the critical 

use exemption published in 40 CFR part 

82. I am aware that any agricultural 

commodity within a treatment chamber, 

facility, or field I fumigate with critical 

use methyl bromide can not 

subsequently or concurrently be 

fumigated with non-critical use methyl 

bromide during the same control period, 

excepting a QPS treatment or a 

treatment for a different use (e.g., a 

different crop or commodity). I will not 

use this quantity of methyl bromide for 

a treatment chamber, facility, or field 

that I previously fumigated with noncritical use methyl bromide purchased 

during the same control period, 

excepting a QPS treatment or a 

treatment for a different use (e.g., a 

different crop or commodity), unless a 

local township limit now prevents me 

from using methyl bromide 

alternatives.’’ The certification will also 

indicate the type of critical use methyl 

bromide purchased, the location of the 

treatment, the crop or commodity 

treated, the quantity of critical use 

methyl bromide purchased, the acreage/

square footage treated and will be 

signed and dated by the approved 

critical user.

■ 7. Add Appendix L to subpart A to 

read as follows: 

Appendix L to Subpart A Of Part 82—

Approved Critical Uses, and Limiting 

Critical Conditions for Those Uses for 

the 2005 Control Period

Column A—Approved

critical uses Column B—Approved critical user and location of use Column C—Limiting critical conditions 

PRE-PLANT USES 

Cucurbits .............................. (a) Michigan growers ...................................................... With a reasonable expectation that moderate to severe 

fungal pathogen infestation already either exists or 

could occur without methyl bromide fumigation. 

(b) Alabama, Arkansas, Georgia, North Carolina, South 

Carolina, Tennessee, and Virginia growers.

With a reasonable expectation that moderate to severe 

yellow or purple nutsedge infestation already either 

exists or could occur without methyl bromide fumigation. 

Eggplant ............................... (a) Georgia growers ........................................................ With a reasonable expectation that moderate to severe 

yellow or purple nutsedge infestation either already 

exist or could occur without methyl bromide fumigation. 

(b) Florida growers .......................................................... With a reasonable expectation that one or more of the 

following limiting critical conditions either already 

exist or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or karst topography. 

Forest Seedlings .................. (a) Members of the Southern Forest Nursery Management Cooperative limited to growing locations in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, Oklahoma, South Carolina, 

Tennessee, Texas, and Virginia.

With a reasonable expectation that one or more of the 

following limiting critical conditions already either 

exist or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or moderate to severe disease infestation. 

Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 77007

Column A—Approved

critical uses Column B—Approved critical user and location of use Column C—Limiting critical conditions 

(b) International Paper and its subsidiaries limited to 

growing locations in Arkansas, Alabama, Georgia, 

South Carolina and, Texas.

With a reasonable expectation that one or more of the 

following limiting critical conditions already either 

exist or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or moderate to severe disease infestation. 

(c) Weyerhaeuser Company and its subsidiaries limiting 

to growing locations in Alabama, Arkansas, North 

Carolina, South Carolina, Oregon, and Washington.

With a reasonable expectation that one or more of the 

following limited critical conditions already either exist 

or could occur without methyl bromide fumigation: 

Moderate to severe yellow or purple nutsedge infestation, or moderate to severe disease infestation. 

(d) Public (government owned) seedling nurseries in 

the states of California, Idaho, Illinois, Indiana, Kansas, Kentucky, Maryland, Missouri, Nebraska, New 

Jersey, Ohio, Oregon, Pennsylvania, Utah, Washington, West Virginia and, Wisconsin.

With a reasonable expectation that one or more of the 

following limiting critical conditions already either 

exist or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or moderate to severe disease infestation. 

(e) Members of the Nursery Technology Cooperative 

limited to growing locations in Oregon and Washington.

With a reasonable expectation that one or more of the 

following limiting critical conditions already either 

exist or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or moderate to severe disease infestation. 

(f) Michigan seedling nurseries ....................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already exist or 

could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge infestation, 

or moderate to severe disease infestation. 

Ginger .................................. Hawaii growers ................................................................ With a reasonable expectation that the limiting critical 

condition already either exists or could occur without 

methyl bromide fumigation, or moderate to severe 

bacterial wilt infestation. 

Orchard Nursery Seedlings (a) Members of the Western Raspberry Nursery Consortium limited to growing locations in California and 

Washington (Driscoll’s raspberries and their contract 

growers in California and Washington).

With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe nematode infestation, medium to heavy clay soils, or a prohibition of on the 

use of 1,3-dichloropropene products due to reaching 

local township limits on the use of this alternative. 

(b) Members of the California Association of Nurserymen-Deciduous Fruit and Nut Tree Growers.With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe nematode infestation, medium to heavy clay soils, or a prohibition of on the 

use of 1,3-dichloropropene products due to reaching 

local township limits on the use of this alternative. 

(c) Members of the California Association of Nurserymen-Citrus and Avocado Growers.With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe nematode infestation, medium to heavy clay soils, or a prohibition of on the 

use of 1,3-dichloropropene products due to reaching 

local township limits on the use of this alternative. 

Orchard Replant ................... (a) California stone fruit growers .................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Replanted (non-virgin) orchard soils to prevent 

orchard replant disease, or medium to heavy soils, or 

a prohibition on the use of 1,3-dichloropropene products because local township limits for this alternative 

have been reached. 

(b) California table and raisin grape growers ................. With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Replanted (non-virgin) orchard soils to prevent 

orchard replant disease, or medium to heavy soils, or 

a prohibition on the use of 1,3- dichloropropene products because local township limits for this alternative 

have been reached. 

77008 Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 

Column A—Approved

critical uses Column B—Approved critical user and location of use Column C—Limiting critical conditions 

(c) California walnut growers .......................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Replanted (non-virgin) orchard soils to prevent 

orchard replant disease, or medium to heavy soils, or 

a prohibition on the use of 1,3-dichloropropene products because local township limits for this alternative 

have been reached. 

(d) California almond growers ......................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Replanted (non-virgin) orchard soils to prevent 

orchard replant disease, or medium to heavy soils, or 

a prohibition on the use of 1,3-dichloropropene products because local township limits for this alternative 

have been reached. 

Ornamentals ......................... (a) Yoder Brothers Inc. in Florida ................................... For use in all chrysanthemum production. 

(b) California rose nurseries ........................................... With a reasonable expectation that the user may be 

prohibited from using 1,3-dichloropropene products 

because local township limits for this alternative have 

been reached. 

Peppers ................................ (a) California growers ...................................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe disease infestation, or moderate to severe yellow or purple nutsedge infestation, 

or a prohibition on the use of 1,3-dichloropropene 

products because local township limits for this alternative have been reached. 

(b) Alabama, Arkansas, Georgia, North Carolina, South 

Carolina, Tennessee and Virginia growers.

With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or the presence of an occupied structure 

within 100 feet of a grower’s field the size of 100 

acres or less. 

(c) Florida growers .......................................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or karst topography. 

Strawberry Nurseries ........... (a) California growers ...................................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe black root rot or crown rote, 

or moderate to severe yellow or purple nutsedge infestation. 

(b) North Carolina and Tennessee growers ................... With a reasonable expectation that the use will occur in 

the presence of an occupied structure within 100 feet 

of a grower’s field the size of 100 acres or less. 

Strawberry Fruit ................... (a) California growers ...................................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe black root rot or crown rot, 

moderate to severe yellow or purple nutsedge infestation, a prohibition of the use of 1,3-dichloropropene 

products because local township limits for this alternative have been reached, time to transition to an alternative. 

(b) Florida growers .......................................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge, 

or karst topography. 

(c) Alabama, Arkansas, Georgia, North Carolina, South 

Carolina, Tennessee, Virginia, Ohio and, New Jersey 

growers.

With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge, 

or the presence of an occupied structure within 100 

feet of a grower’s field the size of 100 acres or less. 

Federal Register / Vol. 69, No. 246 / Thursday, December 23, 2004 / Rules and Regulations 77009

Column A—Approved

critical uses Column B—Approved critical user and location of use Column C—Limiting critical conditions 

Sweet Potatoes .................... California growers ........................................................... With a reasonable expectation that the user may be 

prohibited from using 1,3-dichloropropene products 

because local township limits for this alternative have 

been reached. 

Tomatoes ............................. (a) Michigan growers ...................................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: moderate to severe disease infestation, fungal 

pathogens infestation. 

(b) Alabama, Arkansas, Georgia, North Carolina, South 

Carolina, Tennessee and Virginia growers.

With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or the presence of an occupied structure 

within 100 feet of a grower’s field the size of 100 

acres or less. 

(c) Florida growers .......................................................... With a reasonable expectation that one or more of the 

following limiting critical conditions already either exists or could occur without methyl bromide fumigation: Moderate to severe yellow or purple nutsedge 

infestation, or karst topography. 

Turfgrass .............................. (a) U.S. turfgrass sod nursery producers who are members of Turfgrass Producers International (TPI).For the production of industry certified pure sod. 

(b) U.S. golf courses ....................................................... For establishing sod in the construction of new golf 

courses or the renovation of putting greens, tees, 

and fairways. 

POST–HARVEST USES 

Food Processing .................. (a) Rice millers in all locations in the U.S. who are 

members of the USA Rice Millers Association.

With a reasonable expectation that one or more of the 

following limiting critical conditions exists: Older 

structures that can not be properly sealed to use an 

alternative to methyl bromide, or the presence of 

sensitive electronic equipment subject to corrosivity, 

time to transition to an alternative. 

(b) Pet food manufacturing facilities in the U.S. who are 

active members of the Pet Food Institute. (For today’s rule, ‘‘pet food’’ refers to domestic dog and cat 

food).

With a reasonable expectation that one or more of the 

following limiting critical conditions exists: Older 

structures that can not be properly sealed to use an 

alternative to methyl bromide, or the presence of 

sensitive electronic equipment subject to corrosivity, 

time to transition to an alternative. 

(c) Kraft Foods in the U.S ............................................... With a reasonable expectation that one or more of the 

following limiting critical conditions exists: Older 

structures that can not be properly sealed to use an 

alternative to methyl bromide, or the presence of 

sensitive electronic equipment subject to corrosivity, 

time to transition to an alternative. 

(d) Members of the North American Millers’ Association 

in the U.S.

With a reasonable expectation that one or more of the 

following limiting critical conditions already exists or 

could occur without methyl bromide fumigation: Older 

structures that can not be properly sealed to use an 

alternative to methyl bromide, or the presence of 

sensitive electronic equipment subject to corrosivity, 

time to transition to an alternative. 

Commodity Storage ............. (a) Gwaltney of Smithfield in the U.S. ............................ For smokehouse ham curing facilities owned by the 

company. 

(b) California entities storing walnuts, beans, dried 

plums, figs, raisins, and pistachios in California.

With a reasonable expectation that one or more of the 

following limiting critical conditions exists: Rapid fumigation is required to meet a critical market window, 

such as during the holiday season, rapid fumigation 

is required when a buyer provides short (2 days or 

less) notification for a purchase, or there is a short 

period after harvest in which to fumigate and there is 

limited silo availability for using alternatives. 

[FR Doc. 04–27905 Filed 12–22–04; 8:45 am] 

BILLING CODE 6560–50–P