51270 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 

corrected several referencing and 

drafting errors. We stated in the 

preamble to the direct final rule and 

parallel proposal that if we received 

adverse comment by August 1, 2005, (or 

if a public hearing was requested by July 

11, 2005) on one or more distinct 

provisions of the direct final rule, we 

would publish a timely notice in the 

Federal Register specifying which 

provisions will become effective and 

which provisions will be withdrawn 

due to adverse comment. We 

subsequently received adverse comment 

from several commenters regarding 

requirements for effluent from control 

devices. Commenters also pointed out 

erroneous changes made to Table 1 of 

subpart FFFF of part 63. 

Accordingly, we are withdrawing the 

amendments to 40 CFR 63.2485(c)(4) 

and Table 1 of subpart FFFF of part 63. 

The amendments are withdrawn as of 

August 30, 2005. We will take final 

action on the proposed rule after 

considering the comments received. We 

will not institute a second comment 

period on this action. The provisions for 

which we did not receive adverse 

comment will become effective on 

August 30, 2005, as provided in the 

preamble to the direct final rule. 

List of Subjects in 40 CFR Part 63 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Hazardous 

substances, Intergovernmental relations, 

Reporting and recordkeeping 

requirements. 

Dated: August 24, 2005. 

William L. Wehrum, 

Acting Assistant Administrator for Air and 

Radiation. 

[FR Doc. 05–17194 Filed 8–29–05; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 82 

[FRL–7962–4] 

RIN 2060–AN13 

Protection of Stratospheric Ozone: 

Process for Exempting Critical Uses of 

Methyl Bromide for the 2005 

Supplemental Request 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct Final Rule. 

SUMMARY: With this action EPA is taking 

direct final action to authorize use of 

610,665 kilograms of methyl bromide 

for supplemental critical uses in 2005 

through the allocation of additional 

critical stock allowances (CSAs). This 

allocation supplements the critical use 

allowances (CUAs) and CSAs previously 

allocated for 2005, as published in the 

Federal Register on December 23, 2004 

(69 FR 76982). Further, EPA is 

amending the list of exempted critical 

uses. With today’s action EPA is 

exempting methyl bromide for critical 

uses beyond the phaseout under the 

authority of the Clean Air Act (CAA or 

the Act) and in accordance with the 

Montreal Protocol on Substances that 

Deplete the Ozone Layer (Protocol). 

DATES: This rule is effective on October 

31, 2005 without further notice, unless 

EPA receives adverse comment by 

September 29, 2005, or by October 14, 

2005 if a hearing is requested. If adverse 

comments are received, we will publish 

a timely withdrawal in the Federal 

Register informing the public that this 

rule will not take effect. If anyone 

contacts EPA requesting to speak at a 

public hearing by September 9, 2005, a 

public hearing will be held on 

September 14, 2005. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. OAR–2004–

0506, by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Agency Website: http:// 

www.epa.gov/edocket. EDOCKET, EPA’s 

electronic public docket and comment 

system, is EPA’s preferred method for 

receiving comments. Follow the on-line 

instructions for submitting comments. 

• E-mail: mebr.allocation@epa.gov. 

• Fax: 202–343–2337 attn: Marta 

Montoro. 

• Mail: Air Docket, Environmental 

Protection Agency, Mailcode: 6102T, 

1200 Pennsylvania Ave., NW., 

Washington, DC 20460. In addition, 

please mail a copy of your comments on 

the information collection provisions to 

the Office of Information and Regulatory 

Affairs, Office of Management and 

Budget (OMB), Attn: Desk Officer for 

EPA, 725 17th St., NW., Washington, DC 

20503. 

• Hand Delivery: EPA Air Docket, 

EPA West 1301 Constitution Avenue, 

NW., Room B108, Mail Code 6102T, 

Washington, DC 20460. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. OAR–2004–0506. EPA’s 

policy is that all comments received 

will be included in the public docket 

without change and may be made 

available online at http://www.epa.gov/ 

edocket, including any personal 

information provided, unless the 

comment includes information claimed 

to be Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. Do 

not submit information that you 

consider to be CBI or otherwise 

protected through EDOCKET, 

regulations.gov, or e-mail. The EPA 

EDOCKET and the federal 

regulations.gov websites are 

‘‘anonymous access’’ systems, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

EDOCKET or regulations.gov, your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket visit 

EDOCKET on-line or see the Federal 

Register of May 31, 2002 (67 FR 38102). 

Docket: All documents in the docket 

are listed in the EDOCKET index at 

http://www.epa.gov/edocket. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in EDOCKET or in hard 

copy at the Air Docket, EPA/DC, EPA 

West, Room B102, 1301 Constitution 

Ave., NW., Washington, DC 20460. This 

Docket Facility is open from 8:30 a.m. 

to 4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air Docket is (202) 566–

1742. 

FOR FURTHER INFORMATION CONTACT: For 

further information about this direct 

final rule, contact Marta Montoro by 

telephone at (202) 343–9321, or by email at mebr.allocation@epa.gov, or by 

mail at Marta Montoro, U.S. 

Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 51271 

Environmental Protection Agency, 

Stratospheric Protection Division, 

(6205J), 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460. Overnight 

or courier deliveries should be sent to 

1310 L St., NW., Washington, DC 20005, 

attn: Marta Montoro. You may also visit 

the Ozone Depletion web site of EPA’s 

Stratospheric Protection Division at 

http://www.epa.gov/ozone/index.html 

for further information about EPA’s 

Stratospheric Ozone Protection 

regulations, the science of ozone layer 

depletion, and other topics. 

SUPPLEMENTARY INFORMATION: EPA is 

publishing this rule without prior 

proposal because we view this as a 

noncontroversial amendment and 

anticipate no adverse comment since 

EPA is not authorizing any additional 

new production or import of methyl 

bromide. The additional authorized 

amounts must come from inventories 

produced or imported prior to January 

1, 2005. However, in the ‘‘Proposed 

Rules’’ section of today’s Federal 

Register publication, we are publishing 

a separate document that will serve as 

the proposal to authorize 610,665 

kilograms of methyl bromide for critical 

uses if adverse comments are filed. If 

EPA receives adverse comment, we will 

publish a timely withdrawal in the 

Federal Register informing the public 

that the rule will not take effect. We will 

address all public comments in a 

subsequent final rule based on the 

proposed rule. We will not institute a 

second comment period on this action. 

Any parties interested in commenting 

must do so at this time. 

This action concerns regulation of 

methyl bromide pursuant to the CAA as 

a class I, Group VI ozone-depleting 

substance. Under the CAA, methyl 

bromide production and consumption 

(defined as production plus imports 

minus exports) were phased out on 

January 1, 2005, apart from certain 

exemptions, including the critical use 

exemption, which is the subject of 

today’s rule. In a final rule published 

December 23, 2004 (69 FR 76982), EPA 

established the framework for the 

critical use exemption; set forth a list of 

approved critical uses for 2005; and 

specified the amount of methyl bromide 

that could be supplied in 2005 from 

stocks and new production or import to 

meet approved critical uses. As part of 

that rule, EPA issued critical use 

allowances (CUAs) for new production 

and import and critical stock allowances 

(CSAs) for sale of methyl bromide 

stocks. In today’s action, EPA is 

amending the list of approved critical 

uses of methyl bromide and issuing 

additional CSAs for the 2005 control 

period. These actions are in accordance 

with Decision XVI/2 of the countries 

that have ratified the Montreal Protocol 

(the ‘‘Parties’’), taken at their November 

2004 meeting. 

Table of Contents 

I. General Information 

A. Regulated entities 

B. How Can I Get Copies of This Document 

and Other Related Information? 

C. How and To Whom Do I Submit 

Comments? 

D. How Should I Submit Confidential 

Business Information (CBI) To the 

Agency? 

II. What Is the Background of the Phaseout 

Regulations for Ozone-Depleting 

Substances? 

III. What Is Methyl Bromide? 

IV. Legal Basis for This Action 

V. What Is the Critical Use Exemption 

Process? 

A. Background on Critical Use Exemption 

Process 

B. 2005 Supplemental Request 

C. International Review of Critical Use 

Exemption Nominations 

VI. Distribution of Critical Stock Allowances 

(CSAs). 

VII. Supplemental Additional Critical Uses 

for Calendar Year 2005 

A. Baseline for Critical Stock Allowance 

Distribution 

B. Distribution of Critical Stock 

Allowances 

C. Type of Critical Stock Allowances: 

Universal 

VIII. What Are the Statutory and Executive 

Order Reviews? 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Analysis 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health & 

Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 

J. Congressional Review Act 

I. General Information 

A. Regulated Entities 

Entities potentially regulated by this 

action are those associated with the 

production, import, export, sale, 

application and authorized use of 

methyl bromide. Potentially regulated 

categories and entities include: 

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 fruit and vegetable crops, owners of stored food commodity facilities and structures. 

The above table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. This table lists 

the types of entities that EPA is now 

aware could potentially be regulated by 

this action. To determine whether your 

facility, company, business, or 

organization is regulated by this action, 

you should carefully examine the 

regulations promulgated at 40 CFR Part 

82, Subpart A. If you have questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

B. How Can I Get Copies of This 

Document and Other Related 

Information? 

1. Docket. EPA has established an 

official public docket for this action 

under the Office of Air and Radiation 

Docket & Information Center, Electronic 

Air Docket ID No. OAR–2004–0506. The 

official public docket consists of the 

documents specifically referenced in 

this action, any public comments 

received, and other information related 

to this action. Although a part of the 

official docket, the public docket does 

not include Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

The official public docket is the 

collection of materials that is available 

for public viewing at EPA West, 1301 

Constitution Ave., NW., Room B108, 

Mail Code 6102T, Washington, DC 

20460, Phone: (202) 566–1742, Fax: 

(202) 566–1741. The materials may be 

inspected from 8:30 am until 4:30 pm 

Monday through Friday, excluding legal 

holidays. A reasonable fee may be 

charged for copying docket materials. 

Additional supporting documents 

related to this action may be found in 

EPA’s electronic docket system, docket 

numbers OAR–2002–0018, OAR–2003–

0017, OAR–2003–0230, and in EPA’s 

51272 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 

paper docket, Air Docket ID No. A–

2000–24. 

2. Electronic Access. You may access 

this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

http://www.epa.gov/fedrgstr/. An 

electronic version of the public docket 

is available through EPA’s electronic 

public docket and comment system, 

EPA Dockets. You may use EPA Dockets 

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

submit or view public comments, access 

the index listing of the contents of the 

official public docket, and to access 

those documents in the public docket 

that are available electronically. Once in 

the system, select ‘‘search,’’ then key in 

the appropriate docket identification 

number, OAR–2004–0506. 

Certain types of information will not 

be placed in the EPA Dockets. 

Information claimed as CBI and other 

information whose disclosure is 

restricted by statute, which is not 

included in the official public docket, 

will not be available for public viewing 

in EPA’s electronic public docket. EPA’s 

policy is that copyrighted material will 

not be placed in EPA’s electronic public 

docket but will be available only in 

printed, paper form in the official public 

docket. Although not all docket 

materials may be available 

electronically, you may still access any 

of the publicly available docket 

materials through the docket facility 

identified in the ADDRESSES section of 

this document. 

For public commenters, it is 

important to note that EPA’s policy is 

that public comments, whether 

submitted electronically or in paper, 

will be made available for public 

viewing in EPA’s electronic public 

docket as EPA receives them and 

without change, unless the comment 

contains copyrighted material, CBI, or 

other information whose disclosure is 

restricted by statute. When EPA 

identifies a comment containing 

copyrighted material, EPA will provide 

a reference to that material in the 

version of the comment that is placed in 

EPA’s electronic public docket. The 

entire printed comment, including the 

copyrighted material, will be available 

in the public docket. 

Public comments submitted on 

computer disks that are mailed or 

delivered to the docket will be 

transferred to EPA’s electronic public 

docket. Public comments that are 

mailed or delivered to the Docket will 

be scanned and placed in EPA’s 

electronic public docket. Where 

practical, physical objects will be 

photographed, and the photograph will 

be placed in EPA’s electronic public 

docket along with a brief description 

written by the docket staff. 

C. How and To Whom Do I Submit 

Comments? 

You may submit comments 

electronically, by mail, by fax, or 

through hand delivery/courier. To 

ensure proper receipt by EPA, identify 

the appropriate docket identification 

number in the subject line on the first 

page of your comment, in this instance 

OAR–2004–0506. Please ensure that 

your comments are submitted within 

the specified comment period. 

Comments received after the close of 

comment period will be marked late. 

EPA is not required to consider these 

late comments. If you plan to submit 

comments, please also notify Marta 

Montoro, U.S. Environmental Protection 

Agency, Stratospheric Protection 

Division (6205J), 1200 Pennsylvania 

Ave., NW., Washington, DC 20460, (202) 

343–9321. 

Information designated as 

Confidential Business Information (CBI) 

under 40 CFR, Part 2, Subpart 2, must 

be sent directly to the contact person for 

this notice. However, the Agency is 

requesting that all respondents submit a 

non-confidential version of their 

comments to the docket as well. 

Electronically. If you submit an 

electronic comment as prescribed 

below, EPA recommends that you 

include your name, mailing address, 

and an e-mail address or other contact 

information in the body of your 

comment. Also include this contact 

information on the outside of any disk 

or CD–ROM you submit, and in any 

cover letter accompanying the disk or 

CD–ROM. This ensures that you can be 

identified as the submitter of the 

comment and allows EPA to contact you 

in case EPA cannot read your comment 

due to technical difficulties or needs 

further information on the substance of 

your comment. EPA’s policy is that EPA 

will not edit your comment, and any 

identifying or contact information 

provided in the body of a comment will 

be included as part of the comment that 

is placed in the official public docket, 

and made available in EPA’s electronic 

public docket. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. 

i. EPA Dockets. Your use of EPA’s 

electronic public docket to submit 

comments to EPA electronically is 

EPA’s preferred method for receiving 

comments. Go directly to EPA dockets 

at http://www.epa.gov/edocket, and 

follow the online instructions for 

submitting comments to docket OAR–

2004–0506. 

ii. By Mail. Send one copy of your 

comments to each of the following two 

offices: U.S. Environmental Protection 

Agency, Air and Radiation Docket 

(6102), Electronic Air Docket ID No. 

OAR–2003–0230. Washington, DC 

20460 and to U.S. Environmental 

Protection Agency, (6205J) 1200 

Pennsylvania Ave., N.W., Washington, 

DC 20460, attn: Marta Montoro, docket 

no. OAR–2004–0506. 

iii. By Hand Delivery or Courier. 

Deliver your comments to: Marta 

Montoro, 1310 L Street NW., 

Washington, DC 20005, Attention 

Electronic Air Docket ID No. OAR–

2004–0506. Such deliveries are only 

accepted during the normal hours of 

operation 9 a.m to 5 p.m. 

iv. By Facsimile. Fax your comments 

to both: (202) 566–1741, Attention 

Electronic Air Docket ID No. OAR–

2003–0230, and to (202) 343–2337 or 

(202) 343–2338, Attention Marta 

Montoro, Electronic Air Docket No. 

OAR–2004–0506. 

D. How Should I Submit Confidential 

Business Information (CBI) to the 

Agency? 

Do not submit information that you 

consider to be CBI electronically 

through EPA’s electronic public docket 

or by e-mail. Send or deliver 

information identified as CBI only to the 

mail or courier addresses listed in the 

FOR FURTHER INFORMATION CONTACT

Section, Electronic Air Docket ID No. 

OAR–2004–0506. You may claim 

information that you submit to EPA as 

CBI by marking any part or all of that 

information as CBI (if you submit CBI 

on disk or CD–ROM, mark the outside 

of the disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is CBI). Information so marked will not 

be disclosed except in accordance with 

procedures set forth in 40 CFR Part 2. 

In addition to one complete version of 

the comment that includes any 

information claimed as CBI, a copy of 

the comment that does not contain the 

information claimed as CBI must be 

submitted for inclusion in the public 

docket and EPA’s electronic public 

docket. If you submit the copy that does 

not contain CBI on disk or CD–ROM, 

mark the outside of the disk or CD–ROM 

clearly that it does not contain CBI. 

Information not marked as CBI will be 

included in the public docket and EPA’s 

electronic public docket without prior 

notice. If you have any questions about 

CBI or the procedures for claiming CBI, 

please consult the person identified in 

Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 51273 

the FOR FURTHER INFORMATION CONTACT

Section. 

II. What Is the Background to the 

Phaseout Regulations for OzoneDepleting Substances? 

The current regulatory requirements 

of the Stratospheric Ozone Protection 

Program that limit production and 

consumption of ozone depleting 

substances can be found at 40 CFR Part 

82 Subpart A. The regulatory program 

was originally published in the Federal 

Register on August 12, 1988 (53 FR 

30566), in response to the 1987 signing 

and subsequent ratification of the 

Montreal Protocol on Substances that 

Deplete the Ozone Layer (Protocol). The 

U.S. was one of the original signatories 

to the 1987 Montreal Protocol and the 

U.S. ratified the Protocol on April 21, 

1988. Congress then enacted, and 

President Bush signed into law, the 

Clean Air Act Amendments of 1990 

(CAAA of 1990) which included Title VI 

on Stratospheric Ozone Protection, 

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

Subchapter VI, to ensure that the United 

States could satisfy its obligations under 

the Protocol. EPA issued new 

regulations to implement this legislation 

and has made several amendments to 

the regulations since that time. 

III. What Is Methyl Bromide? 

Methyl bromide is an odorless, 

colorless, toxic gas which is used as a 

broad-spectrum pesticide and is 

controlled under the CAA as a Class I 

ozone depleting substance (ODS). 

Methyl bromide is used in the U.S. and 

throughout the world as a fumigant to 

control a wide variety of pests such as 

insects, weeds, rodents, pathogens, and 

nematodes. Additional characteristics 

and details about the uses of methyl 

bromide can be found in the proposed 

rule on the phaseout schedule for 

methyl bromide published in the 

Federal Register on March 18, 1993 (58 

FR 15014) and the final rule published 

in the Federal Register on December 10, 

1993 (58 FR 65018). 

The phaseout schedule for methyl 

bromide production and consumption 

was revised in a direct final rulemaking 

on November 28, 2000 (65 FR 70795), 

which allowed for the phased reduction 

in methyl bromide consumption and 

extended the phaseout to 2005. The 

revised phaseout schedule was again 

amended to allow for an exemption for 

quarantine and preshipment purposes 

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

interim final rule and with a final rule 

(68 FR 238) on January 2, 2003. 

Information on methyl bromide can be 

found at the following sites of the World 

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

mbr and http://www.unep.org/ozone or 

by contacting the Stratospheric Ozone 

Hotline at 1–800–296–1996. 

Because it is a pesticide, methyl 

bromide is also regulated by EPA under 

the Federal Insecticide, Fungicide, and 

Rodenticide Act (FIFRA) and other 

statutes and regulatory authority and by 

States under their own statutes and 

regulatory authority. Under FIFRA, 

methyl bromide is a restricted use 

pesticide. Because of this status, a 

restricted use pesticide is subject to 

certain Federal and State requirements 

governing its sale, distribution, and use. 

Nothing in this final rule implementing 

the Clean Air Act is intended to 

derogate from provisions in any other 

Federal, State, or Local laws or 

regulations governing actions including, 

but not limited to, the sale, distribution, 

transfer, and use of methyl bromide. All 

entities that would be affected by 

provisions of this final rule must 

continue to comply with FIFRA and 

other pertinent statutory and regulatory 

requirements for pesticides (including, 

but not limited to, requirements 

pertaining to restricted use pesticides) 

when importing, exporting, acquiring, 

selling, distributing, transferring, or 

using methyl bromide for critical uses. 

The regulations in today’s action are 

intended only to implement the CAA 

restrictions on the production, 

consumption and use of methyl bromide 

for critical uses exempted from the 

phaseout of methyl bromide. 

IV. Legal Basis for This Action 

Methyl bromide was added to the 

Protocol as an ozone depleting 

substance in 1992 through the 

Copenhagen amendment to the Protocol. 

The Parties authorize critical use 

exemptions through their Decisions. 

The Parties agreed that each 

industrialized country’s level of methyl 

bromide production and consumption 

in 1991 should be the baseline for 

establishing a freeze in the level of 

methyl bromide production and 

consumption for industrialized 

countries. EPA published a final rule in 

the Federal Register on December 10, 

1993 (58 FR 65018), listing methyl 

bromide as a class I, Group VI 

controlled substance, freezing U.S. 

production and consumption at this 

1991 level, and, in Section 82.7 of the 

rule, setting forth the percentage of 

baseline allowances for methyl bromide 

granted to companies in each control 

period (each calendar year) until the 

year 2001, when the complete phaseout 

would occur (58 FR 65018). This 

phaseout date was established in 

response to a petition filed in 1991 

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

the Clean Air Act Amendments (CAAA) 

of 1990, requesting that EPA list methyl 

bromide as a class I substance and phase 

out its production and consumption. 

This date was consistent with section 

602 (d) of the CAAA of 1990, which for 

newly listed class I ozone-depleting 

substances provides that ‘‘no extension 

[of the phaseout schedule in section 

604] under this subsection may extend 

the date for termination of production of 

any class I substance to a date more than 

7 years after January 1 of the year after 

the year in which the substance is 

added to the list of class I substances.’’

EPA based its action on scientific 

assessments and actions by the Parties 

to the Montreal Protocol to freeze the 

level of methyl bromide production and 

consumption for industrialized 

countries at the 1992 Meeting of the 

Parties in Copenhagen. 

At their 1995 meeting, the Parties 

made adjustments to the methyl 

bromide control measures and agreed to 

reduction steps and a 2010 phaseout 

date for industrialized countries with 

exemptions permitted for critical uses. 

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

a 2001 phaseout date in accordance 

with the CAAA of 1990 language. At 

their 1997 meeting, the Parties agreed to 

further adjustments to the phaseout 

schedule for methyl bromide in 

industrialized countries, with reduction 

steps leading to a 2005 phaseout for 

industrialized countries. In October 

1998, the U.S. Congress amended the 

CAA to prohibit the termination of 

production of methyl bromide prior to 

January 1, 2005, to require EPA to bring 

the U.S. phaseout of methyl bromide in 

line with the schedule specified under 

the Protocol, and to authorize EPA to 

provide exemptions for critical uses. 

These amendments were contained in 

Section 764 of the 1999 Omnibus 

Consolidated and Emergency 

Supplemental Appropriations Act (Pub. 

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

codified in Section 604 of the CAA, 42 

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

EPA issued regulations to amend the 

phaseout schedule for methyl bromide 

and extend the complete phaseout of 

production and consumption to 2005 

(65 FR 70795). 

On December 23, 2004 (69 FR 76982), 

EPA published a final rule in the 

Federal Register that established the 

framework for the critical use 

exemption; set forth a list of approved 

critical uses for 2005; and specified the 

amount of methyl bromide that could be 

supplied in 2005 from available stocks 

and new production or import to meet 

approved critical uses. Today, EPA is 

authorizing sale of additional amounts 

of methyl bromide from inventory for 

51274 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 

critical uses in the 2005 control period. 

In addition, EPA is amending the 

existing list of approved critical uses. 

Today’s action reflects Decision XVI/ 

2, taken at the Parties’ Sixteenth 

Meeting in November 2004. In 

accordance with Article 2H(5), the 

Parties have issued several Decisions 

pertaining to the critical use exemption. 

These include Decision IX/6, which set 

forth criteria for review of proposed 

critical uses; Decision Ex. I/3, which 

addressed agreed critical uses, criticaluse exemption levels, and allowable 

levels of new production and 

consumption for critical uses in 2005; 

and Decision XVI/2, which, in part, 

supplemented the critical use categories 

and exemption levels discussed in 

Decision Ex. I/3. 

For a discussion of the relationship 

between the relevant provisions of the 

CAA and Article 2H of the Protocol, and 

the extent to which EPA takes into 

account Decisions of the Parties that 

interpret Article 2H, refer to the 

December 23, 2004 FR notice (69 FR 

76984–76985). Briefly, EPA regards 

Decisions IX/6, Ex I/3, and XVI/2 as 

subsequent consensus agreements of the 

Parties that address the interpretation 

and application of the critical use 

provision in Article 2H(5) of the 

Protocol. In today’s action, EPA is 

following the terms of these Decisions. 

This will ensure consistency with the 

Montreal Protocol, 42 U.S.C. 

7671c(d)(6). 

In Decision XVI/2, taken in November 

2004, the Parties to the Protocol agreed 

as follows: ‘‘ Section IA of the Annex to 

Decision XVI/2 lists the following 

supplemental critical use categories for 

the U.S.: Dried fruit and nuts; eggplant 

field; peppers field; tomato field; dry 

commodities structures (cocoa); dry 

commodities—processed foods, herbs, 

spices, dried milk; ornamentals; 

smokehouse ham; strawberry fruit’’. 

These are the uses for which the U.S. 

requested either initial authorization or 

a higher critical use level in its 

supplemental request for 2005. EPA is 

amending the following uses listed in 

Column A of Appendix L to 40 CFR Part 

82; Subpart A to reflect Decision XVI/ 

2: Eggplant; ornamentals; peppers; 

strawberry fruit; tomatoes; food 

processing; and commodity storage. 

Based on the applications underlying 

the U.S. supplemental request, EPA is 

modifying Columns B and C of 

Appendix L to 40 CFR Part 82, Subpart 

A to add new approved critical users, 

locations of use, and limiting critical 

conditions. 

Section IB of the Annex to Decision 

XVI/2 does not list a supplemental level 

of production or consumption for the 

U.S. EPA’s December 23, 2004 final rule 

already authorizes the full amount of 

production and consumption approved 

in the Parties’ prior Decision regarding 

critical uses in 2005, Decision Ex. I/3. 

Therefore, EPA is not authorizing any 

additional production or consumption 

beyond that already authorized in the 

December 23, 2004 final rule. Instead, 

EPA is authorizing sale of additional 

amounts of methyl bromide from 

inventory for critical uses in the 2005 

control period. This approach is in 

accordance with the Parties’ statement 

in Decision Ex I/3 that ‘‘a Party with a 

critical-use exemption level in excess of 

permitted levels of production and 

consumption for critical uses is to make 

up any such difference between those 

levels by using quantities of methyl 

bromide from stocks that the Party has 

recognized to be available.’’

The December 23, 2004 final rule 

authorized production of 7,659,000 

kilograms (30% of the 1991 

consumption baseline) and sale of 

1,283,214 kilograms (5% of the 1991 

baseline) from pre-phaseout inventories. 

In today’s action, EPA is authorizing the 

sale of an additional 610,665 kilograms 

(2.4% of the 1991 baseline) from prephaseout inventories for critical uses. 

Thus, the total critical use amount for 

2005 would be 9,552,879 kilograms, 

with 1,893,879 kilograms coming from 

pre-phaseout inventories. 

V. What Is the Critical Use Exemption 

Process? 

A. Background on Critical Use 

Exemption Process 

Starting in 2002, EPA began notifying 

applicants as to the availability of an 

application process for a critical use 

exemption to the methyl bromide 

phaseout. The Agency published a 

notice in the Federal Register (68 FR 

24737) announcing the deadline to 

apply, and directing applicants to 

announcements posted on EPA’s methyl 

bromide Web site at http:// 

www.epa.gov/ozone/mbr. Applicants 

were told they may apply as individuals 

or as part of a group of users (a 

‘‘consortium’’) who face the same 

limiting critical conditions (i.e. specific 

conditions which establish a critical 

need for methyl bromide). This process 

has been repeated on an annual basis 

since then. 

In response to the yearly requests for 

critical use exemption applications 

published in the Federal Register, 

applicants have provided information 

supporting their position that they have 

no technically and economically 

feasible alternatives to methyl bromide 

available to them. Applicants for the 

exemption have submitted information 

on their use of methyl bromide, on 

research into the use of alternatives to 

methyl bromide, on efforts to minimize 

use of methyl bromide and efforts to 

reduce emissions and on the specific 

technical and economic research results 

of testing alternatives to methyl 

bromide. 

The CAA allows the Agency to create 

an exemption for critical uses to the 

extent consistent with the Protocol. The 

critical use exemption process is 

designed to meet the needs of methyl 

bromide users who do not have 

technically and economically feasible 

alternatives available. In EPA’s recently 

published regulation describing the 

operational framework for the critical 

use exemption (69 FR 76982) the 

majority of critical uses for the 2005 

calendar year were established. This 

action authorizes additional uses that 

the U.S. government submitted to the 

Protocol’s Ozone Secretariat as a 

supplemental request in February 2004. 

In addition, EPA is adding to the 

number of CSAs previously allocated for 

the 2005 control period. 

For this action, the operational 

framework for authorizing CSAs is 

described in EPA’s recent regulation, 

published in the Federal Register on 

December 23, 2004 (69 FR 76982). All 

elements of the framework, such as the 

cap, trading provisions, and reporting 

and recordkeeping obligations, remain 

the same for this action. However, this 

rulemaking also allows additional 

quantities of methyl bromide to be made 

available from inventory and to augment 

the list of approved critical uses. 

For information on EPA’s calculation 

of CSAs, please see E–Docket OAR–

2004–0506. 

B. 2005 Supplemental Request 

A detailed explanation of the 

development of the nomination, 

including the criteria used by expert 

reviewers, is available in a memo titled 

‘‘2003 Nomination Process: 

Development of 2003 Nomination for a 

Critical Use Exemption for Methyl 

Bromide from the United States of 

America’’ on E–Docket OAR–2003–0230 

(document 104) and E–Docket OAR–

2004–0506. This memo applies equally 

to the 2004 Nomination, which 

included the supplemental request for 

2005. All critical use exemption 

applications, including those described 

in the supplemental request for 2005, 

underwent a rigorous review by highly 

qualified technical experts. The CUE 

applications (except to the extent 

claimed confidential) are available on 

E–Docket OAR–2004–0506. Data from 

the applications served as the basis for 

Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 51275 

the nomination and was augmented by 

multiple other sources, including but 

not limited to the National Agricultural 

Statistics Service of the U.S. Department 

of Agriculture, the State of California 

Department of Pesticide Regulation, 

peer-reviewed articles, and crop 

budgets. 

After submission of the first U.S. 

Nomination for a Critical Use 

Exemption for Methyl Bromide, 

(nomination) in February 2003, EPA and 

other U.S. government agencies decided 

to make supplemental requests in 

February 2004 for certain sectors that 

did not apply for an exemption in time 

for the 2003 nomination. For example, 

in some cases the sector consortia did 

not file an application during the first 

round of exemption applications in 

2002, but instead did so in 2003. In 

other cases, sector consortia filed 

additional materials in 2003. Lastly, 

some sectors were incorrectly 

characterized in the first nomination, so 

EPA amended the sector chapters and 

amount of requests in the form of the 

2005 supplemental request. The review 

process for the supplemental request 

was rigorous, with technical and 

economic criteria in place during the 

review process. 

With the second nomination 

submitted to the Ozone Secretariat in 

February 2004, most of which was 

intended for the 2006 control period, 

the U.S. government included the 

supplemental request for 2005 in 

Appendix B. Appendix B was attached 

to each of the nomination chapters, 

available on E–Docket OAR–2004–0506 

and http://www.epa.gov/mbr/ 

nomination_2006.html. All of the 

supplemental requests were 

characterized in the corresponding 

chapters in the nomination, including 

explanations of technically and 

economically infeasible alternatives for 

each sector. The U.S. originally 

nominated the following new applicants 

for the 2005 supplemental request: 

Applicant Name 

California Cut Flower Commission 

National Country Ham Association 

Wayco Ham Company 

California Date Commission 

National Pest Management Association 

Michigan Pepper Growers 

Michigan Eggplant Growers 

Burley & Dark Tobacco USA—transplant 

trays 

Burley & Dark Tobacco USA—field grown 

Virginia Tobacco Growers—transplant trays 

Michigan Herbaceous Perennials 

Ozark Country Hams 

Nahunta Pork Center 

American Association of Meat Processors 

This request was subsequently 

modified. In August 2004, all of the 

tobacco applicants withdrew their CUE 

requests for the 2005 control period and 

beyond. With regard to the strawberry 

fruit sector, MBTOC initially 

recommended a reduction to the U.S. 

request in this sector. After being 

provided with additional information, 

MBTOC revised this recommendation, 

and the United States was granted a 

supplemental allocation to make up the 

difference. The U.S. also requested an 

additional amount for tomatoes, having 

received new data regarding pest 

pressure in two California counties. 

More information on each of these 

sectors, including calculations of 

production losses and other technical 

data, can be found in the annual 

nomination on E–Docket OAR–2004–

0506. Memos explaining the technical 

contexts and corrections for both of 

these sectors are available on E–Docket 

OAR–2004–0506. 

Ornamentals (California Cut Flower 

Commission and Florida Growers) 

This request for a methyl bromide 

CUE was made on behalf of growers in 

Florida and members of the California 

Cut Flower Commission. The 

ornamentals industry is complex and 

growers produce multiple species and 

varieties in a single year. This diversity 

makes finding methyl bromide 

alternatives for each crop species very 

complicated. The nomination for the 

ornamental sector was for areas with 

moderate-severe pest pressure and for 

areas in California where critical users 

may be prohibited from using 1,3- 

dichloropropene products because local 

township caps for this alternative have 

been reached. 

Dry Cured Pork Products (National 

Country Ham Association, American 

Association of Meat Processors, 

Nahunta Pork Center) 

For this sector, EPA received several 

more CUE applications for the 2006 

control period that were also requesting 

methyl bromide for the 2005 control 

period. It should be noted that Ozark 

Country Ham and Wayco Ham in the 

above table were eventually nominated 

under the National Country Ham 

Association. The U.S. government 

nomination included only facilities 

where dry cured ham, dry cured country 

ham, hard salami, pepperoni, and 

sausage are produced. There are no 

registered alternatives for this sector. 

The nomination was for facilities owned 

by the companies that are members of 

these associations, and for the Nahunta 

Pork Center. 

Dried Fruit and Nuts (California Date 

Commission) 

California produces most of the 

domestic supply of dates. The 

nomination was for peak production 

periods, because high volumes of dates 

must be processed in order to enter the 

market quickly for the holiday season, 

or if there is limited silo availability for 

using alternatives. Substantial time and 

production losses would occur if 

processors were relying on alternatives 

alone, as there is a short period after 

harvest in which to fumigate. The 

nomination is limited to Riverside 

county. 

National Pest Management Association 

The U.S. government nominated 

commodities and food processing plants 

treated by members of this association. 

Commodities included are processed 

foods, spices and herbs, cocoa, and 

dried milk, and other commodities that 

were nominated but not authorized. The 

nomination for facilities that are older 

and cannot be properly sealed in order 

to use a methyl bromide alternative, or 

for facilities that contain sensitive 

electronic equipment that is subject to 

corrosivity as a result of fumigation with 

a methyl bromide alternative, or in 

instances where heat treatment would 

cause a commodity to go rancid. 

Michigan Pepper Growers/Michigan 

Eggplant Growers 

EPA is including these sectors 

separately in Appendix L. Initially the 

request for eggplant and pepper growers 

in Michigan was included with the 

request for tomato growers, but the 

sectors are distinct. The request is for 

areas where fungal pathogen infestation 

is moderate to severe. 

Michigan Herbaceous Perennials 

The U.S. government nominated this 

group because the currently registered 

alternatives do not provide adequate 

treatment for the numerous plant 

species grown. Research trials for 

efficacy are ongoing for alternatives not 

yet registered. The request was for areas 

where pest pressure is moderate to 

severe. These growers comprise part of 

the forest seedling sector but did not 

submit a CUE application to EPA in 

2002, during the first round. They are 

not currently listed in Column B of 

Appendix L. 

The report prepared by the technical 

advisory body, discussed further in 

section V.C., is silent with regard to the 

2005 request for Michigan Herbaceous 

Perennials. Decision XVI/2 did not 

authorize supplemental amounts for the 

seedling sector in 2005, nor did it list 

herbaceous perennials separately as an 

51276 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 

agreed critical use category. Thus, 

Decision XVI/2 did not affect the status 

of Michigan Herbaceous Perennials for 

2005. 

C. International Review of Critical Use 

Exemption Nominations 

The criteria for the exemption are 

delineated in Decision IX/6 of the 

Parties to the Protocol. In that Decision, 

the Parties agreed that ‘‘a use of methyl 

bromide should qualify as ‘‘critical’’

only if the nominating Party determines 

that: (I) The specific use is critical 

because the lack of availability of 

methyl bromide for that use would 

result in a significant market disruption; 

and (ii) there are no technically and 

economically feasible alternatives or 

substitutes available to the user that are 

acceptable from the standpoint of 

environment and public health and are 

suitable to the crops and circumstances 

of the nomination. The U.S. government 

reviews applications using these criteria 

and creates a package for submission to 

the Ozone Secretariat of the Protocol 

(the ‘‘critical use nomination’’ or CUN). 

The CUNs of various countries are then 

reviewed by the Methyl Bromide 

Technical Options Committee (MBTOC) 

and the Technical and Economic 

Assessment Panel (TEAP), which are 

independent advisory bodies to the 

Parties. These bodies make 

recommendations to the Parties 

regarding the nominations. 

On February 7, 2004, the U.S. 

government submitted the second U.S. 

Nomination for a Critical Use 

Exemption for Methyl Bromide to the 

Ozone Secretariat of the United Nations 

Environment Programme. The 2005 

supplemental request was submitted as 

Appendix B to this nomination. This 

supplemental request, like the 

remainder of the document, was based 

on a thorough analysis of the technical 

and economic feasibility of available 

alternatives specified by the MBTOC for 

each critical use and the potential for 

significant market disruption. The 

nomination can be found on E-docket 

on OAR–2004–0506. 

In June 2004, the MBTOC sent 

questions to the U.S. government 

concerning technical and economic 

issues in the nomination. These 

questions, as well as the U.S. 

government’s response, can be accessed 

on E-docket OAR–2004–0506. The U.S. 

government’s response was transmitted 

on August 13, 2005. When responding 

to these questions, the U.S. government 

explained that critical use exemptions 

were being sought only in areas with 

moderate-severe pest pressure, where 

the use of alternatives would result in 

substantial yield losses, or where 

regulatory restrictions or geophysical 

conditions prohibit the adoption of 

alternatives. There were questions on all 

of the sectors described in today’s 

action; however, many questions 

focused on alternatives in the overall 

sector instead of the specific 

supplemental requested amount. 

In October, 2004, the MBTOC and the 

Technical and Economic Assessment 

Panel (TEAP) issued a final report on 

critical use nominations for methyl 

bromide. This report, issued by the 

United Nations Environment 

Programme (UNEP) and TEAP, is titled 

‘‘Critical Use Nominations for Methyl 

Bromide: Final Report’’ and can be 

accessed at http://www.unep.ch/ozone/ 

teap/Reports/MBTOC/MBCUNoctober2004.pdf or on E-docket OAR–

2004–0506. In Annex I of the report, the 

advisory bodies recommended an 

additional 584,093 kilograms of methyl 

bromide for U.S. critical uses in 2005. 

The additional kilograms were 

recommended for the following sectors: 

Dried fruit and nuts (dates); dry 

commodities/structures (cocoa beans); 

dry commodities/structures (processed 

foods, herbs and spices, dried milk and 

cheese processing facilities); eggplant; 

ornamentals; peppers; smokehouse ham; 

strawberry fruit; and tomatoes. 

Based on the recommendations from 

the advisory bodies, the Parties 

authorized 610,655 kilograms of methyl 

bromide for 2005 supplemental uses in 

the U.S., in Decision XVI/2. The 

authorization adds 26,562 kilograms to 

the TEAP recommendation by restoring 

the full amount of the U.S. request for 

dry commodities/structures (cocoa 

beans). The Parties approved the abovementioned uses referenced in the 

MBTOC/TEAP report. 

In today’s action, EPA is adding the 

new uses to the list of approved critical 

uses, and allocating additional CSAs for 

the sale of methyl bromide from 

inventory for critical uses in 2005. 

EPA is also amending the Reporting 

and Recordkeeping Requirements in 40 

CFR part 82 to require that entities 

report the amount of pre-phaseout 

methyl bromide inventory, held for sale 

or transfer to another entity, to the 

Agency on an annual basis. Entities will 

be required to differentiate between the 

amounts owned by them and those 

owned by other entities. Pre-phaseout 

refers to inventories of methyl bromide 

produced or imported prior to January 

1, 2005. This additional requirement 

will allow EPA to track the drawdown 

of pre-phaseout inventories. 

VI. Distribution of Critical Stock 

Allowances (CSAs) 

A. Basis for Critical Stock Allowance 

Distribution 

With today’s action, EPA is allocating 

critical stock allowances (CSAs) to 

producers and importers of methyl 

bromide, and other entities that hold 

pre-phaseout quantities of methyl 

bromide for sale, on a pro-rated basis in 

relation to an average of their 2003 and 

2004 holdings of inventory. Each CSA is 

equivalent to one kilogram of methyl 

bromide. Thus, an allowance holder 

must expend one CSA for each kilogram 

of methyl bromide sold to an approved 

critical user for approved critical uses. 

The methodology for calculating the 

amount of CSAs for each entity is 

explained in a memorandum titled 

‘‘CSA Description Memo,’’ available on 

E-docket OAR–2004–0506. In summary, 

EPA has used its authority under 

Section 114 of the CAA to require that 

certain regulated entities provide EPA 

with information about their holdings of 

methyl bromide. 

EPA is allocating CSAs on a pro-rated 

basis, calculated as an average of the 

entities’ December 31, 2003 and August 

25, 2004 holdings of pre-phaseout 

methyl bromide as baseline. This same 

baseline was also used to calculate 

CSAs in the allocation framework rule 

(69 FR 76982). 

EPA also notes that due to a slight 

baseline reporting error, one entity was 

granted fewer CSAs in the December, 

2004 framework rule than they would 

have been had this reporting error not 

occurred. The entity has since clarified 

the data submitted to EPA. Therefore, 

EPA is granting this entity sufficient 

CSAs from the 610,665 supplemental 

amount to make up the difference and 

is calculating the distribution of the 

supplemental CSAs based on the 

revised baseline. The total amount for 

distribution using the revised baseline is 

610,665 kilograms minus the amount 

granted off the top to correct the earlier 

distribution. 

B. Distribution of Critical Stock 

Allowances 

Allocated CSAs are granted for a 

specified control period. EPA is 

allocating CSAs to the following 

companies for the 2005 supplemental 

authorized amounts of critical use 

methyl bromide. 

Company 

Albemarle 

Ameribrom, Inc. 

Bill Clark Pest Control, Inc. 

Blair Soil Fumigation 

Burnside Services, Inc. 

Cardinal Professional Products 

Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 51277 

Carolina Eastern, Inc. 

Degesch America, Inc. 

Dodson Bros. 

Great Lakes Chemical Corporation 

Harvey Fertilizer and Gas 

Helena Chemical Co. 

Hendrix and Dail 

Hy Yield Bromine 

Industrial Fumigation Company 

J.C. Ehrlich Co. 

Pacific Ag 

Pest Fog Sales Corporation 

ProSource One 

Reddick Fumigants 

Royster-Clark, Inc. 

Southern State Cooperative, Inc. 

Trical, Inc. 

Trident Agricultural Products 

UAP Southeast (NC) 

UAP Southeast (SC) 

Univar 

Vanguard Fumigation Co. 

Western Fumigation 

Total 610,665 Kilograms 

EPA has determined that the 

individual holdings of stocks of methyl 

bromide are confidential business 

information. The amount of CSAs 

allocated to each company could be 

used to calculate the individual stock 

holdings if information on aggregate 

stock holdings were released. EPA has 

determined that the aggregate stock 

information is not confidential business 

information but is currently 

withholding that information due to the 

filing of complaints seeking to enjoin 

the Agency from its release. Because 

release could occur depending on the 

outcome of that litigation, EPA is not 

listing the number of allowances 

proposed for distribution to each entity. 

EPA is placing a document listing the 

proposed allocations and distribution 

basis of CSAs for each entity in the 

confidential portion of the docket. 

With today’s action, EPA is 

determining that 610,665 kgs of methyl 

bromide are required to satisfy critical 

uses for the 2005 supplemental request. 

As discussed in Section VII, the amount 

of the U.S. supplemental request is 

based on applications received, public 

and private databases, and a rigorous 

technical review. EPA is authorizing 

those entities that hold inventories of 

methyl bromide to sell an additional 

610,665 kgs for approved supplemental 

critical uses during 2005. 

EPA is also clarifying 40 CFR 82.4 

(p)(2), which was added to § 82.4 by the 

final allocation framework rule 

published on December 23, 2004 (69 FR 

76982). Specifically, paragraph (p)(2)(vi) 

states that, with some exceptions: ‘‘No 

person who purchases critical use 

methyl bromide during the control 

period shall use that methyl bromide on 

a field or structure for which that person 

has used non-critical use methyl 

bromide for the same use (as defined in 

Columns A and B of Appendix L) in the 

same control period.’’ However, EPA 

did not intend this prohibition to 

prevent end users who have been using 

non-critical use methyl bromide during 

the first part of 2005 from using critical 

use methyl bromide on the same field or 

structure for the same use if they 

became approved critical users as a 

result of this supplemental rulemaking. 

Such a result would deprive those end 

users of the benefit of the exemption 

solely as a result of the timing of the 

rule. Thus, EPA is adding the following 

exception to paragraph (p)(2)(vi): ‘‘or 

unless, subsequent to that person’s use 

of the non-critical use methyl bromide, 

that person * * * (b) becomes an 

approved critical user as a result of 

rulemaking.’’ EPA is also proposing to 

make a corresponding change to § 82.13, 

paragraph (2)(dd), which describes the 

self-certification process for approved 

critical users: ‘‘ * * * I am aware that 

any agricultural commodity within a 

treatment chamber, facility, or field I 

fumigate with critical use methyl 

bromide cannot subsequently be 

fumigated with non-critical use methyl 

bromide during the same control period, 

excepting a QPS treatment or a 

treatment for a different use * * * 

unless a local township cap limit now 

prevents me from using methyl bromide 

alternatives, or I have now become an 

approved critical user as a result of 

rulemaking.’’

C. Type of Critical Stock Allowances: 

Universal 

During the proposal and finalization 

of EPA’s previous regulatory action 

concerning the operational framework 

for methyl bromide allocation (69 FR 

76982), EPA considered several options 

for authorizing CSAs and CUAs. For 

CUAs, EPA co-proposed two options for 

the cap on critical use methyl bromide: 

a universal cap where all approved 

critical uses would purchase critical use 

methyl bromide and a sector-specific 

cap where each of the 16 critical use 

sectors would have their own cap of 

reserved material. In addition, EPA 

raised the possibility of adopting 

various hybrid options. The universal 

cap was supported by most public 

commenters because of the ease of 

implementation and cost savings and 

efficiencies to the regulated community. 

In the final rulemaking, EPA established 

two types of CUAs: one for pre-plant 

soil uses and the other for post-harvest, 

structural uses. 

However, the portion of critical use 

methyl bromide to come from stocks 

was both proposed and finalized as a 

universal cap. EPA received no adverse 

comment to the proposal to make the 

quantities from stocks available in a 

universal fashion. 

Paragraph 3 of Decision XVI/2 states 

that ‘‘Parties should endeavour to 

ensure that the quantities of methyl 

bromide recommended by the 

Technology and Economic Assessment 

Panel are allocated as listed in Sections 

IA [2005 quantities] and IIA [2006 

quantities] to the annex to the present 

decision.’’ Similar language appeared in 

Decision Ex I/3. As described in the 

December 23, 2004 Federal Register 

notice (69 FR 76982), there would be 

significant administrative and practical 

difficulties associated with a sectorspecific cap. Therefore, EPA has arrived 

at an allocation system that relies at 

least partly on the market to allocate 

quantities on a sectoral basis. EPA 

anticipates, based on historical use 

patterns and the research undertaken 

pursuant to submitting the U.S. 

nomination, that usage patterns will 

generally reflect the sectoral quantities 

found in the relevant annexes to 

Decisions Ex I/3 and XVI/2. 

Therefore, in today’s action, EPA is 

allocating the additional CSAs totaling 

610,665 kilograms of critical use methyl 

bromide, for calendar year 2005, in a 

universal fashion. 

VII. Supplemental Additional Critical 

Uses for Calendar Year 2005 

Based on EPA’s assessment of the 

technical and economic feasibility of 

alternatives and the potential for a 

significant market disruption if methyl 

bromide were not available for the uses 

proposed for addition in Appendix L, 

and the lack of any new information 

received since the submission of the 

U.S. supplemental request that would 

change EPA’s assessment, EPA is adding 

new uses to Appendix L as reflected in 

the table below. EPA is authorizing the 

additional critical uses for the year 2005 

as well as conditions that make these 

uses ‘‘critical.’’ This proposal is based 

on the data submitted by critical use 

exemption applicants, as well as public 

and proprietary data sources. 

During the development of the 

nomination, EPA determined that the 

following additional uses with the 

limiting critical conditions specified 

below qualify to obtain and use critical 

use methyl bromide. EPA also does not 

believe that the technical and economic 

data have changed significantly since 

submitting the nomination. Therefore 

EPA believes that the amounts 

nominated in February 2004 and 

authorized by the Parties in November 

2004 reflect the best available data. 

However, EPA welcomes submissions of 

current information regarding 

51278 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 

substitutes and alternatives for these 

uses. 

In June 2004, MBTOC submitted 

questions to the U.S. government about 

the nomination. While these questions 

did not specifically concern the 

supplemental request for 2005, the 

questions concerned all of the sectors in 

the supplemental request except for 

dried fruit and nuts (dates). The 

questions predominately focused on 

alternatives to methyl bromide and 

requested further clarification on points 

made in the nomination. All of the 

MBTOC questions and the U.S. 

government responses, submitted on 

August 13, 2004, are available on Edocket OAR–2004–0506. 

Amendments to Appendix L of CFR 

Part 82 

The following table shows the 

additions to Appendix L of CFR Part 82. 

Column A 

Approved critical uses 

Column B 

Approved critical user and location 

of use 

Column C 

Limiting critical conditions 

PRE-PLANT USES 

Eggplant .......................................... Michigan growers .......................... With a reasonable expectation that moderate to severe fungal pathogen infestation either already exists or could occur without methyl 

bromide fumigation. 

Ornamentals (Cut flowers) .............. California Cut Flower Commission 

and Florida growers.

With a reasonable expectation that moderate to severe pest pressure 

either already exists or could occur without methyl bromide fumigation, or with reasonable expectation that the user may be prohibited from using 1,3-dichloropropene products because local township limits for this alternative have been reached. 

Peppers (field) ................................. Michigan growers .......................... With a reasonable expectation that moderate to severe fungal pathogen infestation either already exists or could occur without methyl 

bromide fumigation. 

Strawberry fruit ................................ California 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, hilly terrain that prevents the 

distribution of alternative. 

Tomatoes ........................................ California growers in San Diego 

and Ventura counties.

With a reasonable expectation that moderate to severe pest pressure 

either already exists or could occur or where alternatives are ineffective because of hilly terrain. 

POST-HARVEST USES 

Food processing .............................. Members of the National Pest 

Management Association associated with dry commodity structure fumigation (cocoa) and dry 

commodity fumigation (processed food, herbs, spices, and 

dried milk).

With reasonable expectation that one or more of the following limiting 

critical conditions exists: Older facilities that cannot be properly 

sealed to use an alternative to methyl bromide, or the presence of 

sensitive electronic equipment subject to corrosivity, or where heat 

treatment would cause rancidity to commodities, time to transition 

to an alternative. 

Dried Fruit and Nuts—(dates only) Growers and packers who are 

members of the California Date 

Commission, whose facilities are 

located only in Riverside County.

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. 

Dry Cured Pork Products ................ (A) Members of the National 

Country Ham Association.

Pork product facilities who are owned by companies that are members of the Association. 

(B) Members of the American Association of Meat Processors.Pork product facilities owned by companies that are members of the 

Association. 

(C) Nahunta Pork Center (North 

Carolina).

Summary of Supporting Analysis 

VIII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735 (October 4, 1993)), the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and therefore 

subject to OMB review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 51279 

President’s priorities, or the principles 

set forth in the Executive Order. 

Pursuant to the terms of Executive 

Order 12866, OMB has notified EPA 

that it considers this a ‘‘significant 

regulatory action’’ within the meaning 

of the Executive Order. EPA has 

submitted this action to OMB for 

review. Changes made in response to 

OMB suggestions will be documented in 

the public record. 

This action will likely have a minor 

cost savings associated with its 

implementation, but the Agency did not 

conduct a formal analysis of savings 

given that such an analysis would have 

resulted in negligible savings. This 

action represents the authorization only 

2.5% of 1991 consumption baseline of 

methyl bromide to be made available for 

critical uses. 

B. Paperwork Reduction Act 

The information collection 

requirements in this rule have been 

submitted for approval to the Office of 

Management and Budget (OMB) under 

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

3501 et seq. The Information Collection 

Request (ICR) document prepared by 

EPA has been assigned EPA ICR number 

2179.03. This rule supplements the rule 

published in the Federal Register on 

December 23, 2004 (69 FR 76982). The 

information collection under these rules 

is authorized under Sections 603(b), 

603(d) and 614(b) of the Clean Air Act 

(CAA). 

The mandatory reporting 

requirements included in these rules are 

intended to: 

(1) Satisfy U.S. obligations under the 

international treaty, The Montreal 

Protocol on Substances that Deplete the 

Ozone Layer (Protocol), to report data 

under Article 7; 

(2) Fulfill statutory obligations under 

Section 603(b) of Title VI of the Clean 

Air Act Amendments of 1990 (CAA) for 

reporting and monitoring; 

(3) Provide information to report to 

Congress on the production, use and 

consumption of class I controlled 

substances as statutorily required in 

Section 603(d) of Title VI of the CAA. 

In this rule, EPA is amending the 

Reporting and Recordkeeping 

Requirements in 40 CFR part 82 to 

require that entities report the amount 

of pre-phaseout methyl bromide 

inventory, held for sale or for transfer to 

another entity, to the Agency on an 

annual basis. Pre-phaseout refers to 

inventories of methyl bromide produced 

or imported prior to January 1, 2005. 

This additional requirement will allow 

EPA to track the drawdown of prephaseout inventories. 

Collection activity Number of 

respondents 

Total number 

of responses 

Hours per 

response Total hours 

Rule Familiarization ......................................................................................... 54 54 .5 27 

Data Compilation (annual basis) ..................................................................... 54 54 .5 27 

Data Reporting (annual basis) ......................................................................... 54 54 .5 27 

Total Burden Hours .................................................................................. ........................ 162 ........................ 81 

EPA informs respondents that they 

may assert claims of business 

confidentiality for any of the 

information they submit. Information 

claimed confidential will be treated in 

accordance with the procedures for 

handling information claimed as 

confidential under 40 CFR Part 2, 

Subpart B, and will be disclosed only to 

the extent, and by means of the 

procedures, set forth in that subpart. If 

no claim of confidentiality is asserted 

when the information is received by 

EPA, it may be made available to the 

public without further notice to the 

respondents (40 CFR 2.203). 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information; process and maintain 

information; disclose and provide 

information; adjust the existing ways to 

comply with any previously applicable 

instructions and requirements; train 

personnel to be able to respond to a 

collection of information; search data 

sources; complete and review the 

collection of information; and transmit 

or otherwise disclose the information. 

An Agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations are listed 

in 40 CFR part 9 and 48 CFR Chapter 

15. 

When this ICR is approved by OMB, 

the Agency will publish a technical 

amendment to 40 CFR part 9 in the 

Federal Register to display the OMB 

control number for the approved 

information collection requirements 

contained in these rules. 

To obtain comment on the Agency’s 

need for this information, the accuracy 

of the provided burden estimates, and 

any suggested methods for minimizing 

respondent burden, including the use of 

automated collection techniques, EPA 

has established a public docket for this 

rule, which includes this ICR, under 

Electronic Docket ID number OAR–

2004–0506. Submit any comments 

related to the rule ICR for this rule to 

EPA and OMB. See ADDRESSES Section 

at the beginning of this notice for where 

to submit comments to EPA. Send 

comments to OMB at the Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, 725 

17th Street NW., Washington DC 20503 

attn: Desk Officer for EPA. Include the 

EPA ICR number 2179.03 in 

correspondence related to this ICR. 

Since OMB is required to make a 

decision concerning the ICR between 30 

and 60 days after August 30, 2005, a 

comment to OMB is best assured of 

having its full effect if OMB receives it 

by September 29, 2005. The final rule 

will respond to any OMB or public 

concerns on the information collection 

requirements contained in this rule. 

C. Regulatory Flexibility Analysis 

EPA has determined that it is not 

necessary to prepare a regulatory 

flexibility analysis in connection with 

this final rule. For purposes of assessing 

the impacts of today’s rule on small 

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

small business that is identified by the 

North American Industry Classification 

System (NAICS) Code in the Table 

below; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

51280 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 

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 ..................

1114—Greenhouse, Nursery, and Floriculture 

Production.

0171—Berry .........................................................

0171—Berry Crops ..............................................

0181—Ornamental Floriculture and Nursery 

products.

0 .75 

Storage Uses ................. 115114—Postharvest crop activities (except 

Cotton Ginning).

493110—General Warehousing and Storage .....

493130—Farm product Warehousing Storage ...

4221—Farm Product Warehousing and Storage 

4225—General Warehousing and Storage .........

21 .5 

Agricultural producers of minor crops 

and entities that store agricultural 

commodities are categories of affected 

entities that contain small entities. This 

rule only affects entities that applied to 

EPA for a de-regulatory exemption. In 

most cases, EPA received aggregated 

requests for exemptions from industry 

consortia. On the exemption 

application, EPA asked consortia to 

describe the number and size 

distribution of entities their application 

covered. Based on the data provided, 

EPA estimates that there are 3,218 

entities that petitioned EPA for an 

exemption. Since many applicants did 

not provide information on the 

distribution of sizes of entities covered 

in their applications, EPA estimated that 

between 1⁄4 to 1⁄3 of the entities may be 

small businesses based on the definition 

given above. In addition, other 

categories of affected entities do not 

contain small businesses based on the 

above description. 

After considering the economic 

impacts of today’s rule on small entities, 

EPA has concluded that this action will 

not have a significant economic impact 

on a substantial number of small 

entities. The small entities directly 

regulated by this rule are primarily 

agricultural entities, producers, 

importers, and distributors of methyl 

bromide, as well as any entities holding 

inventory of methyl bromide. 

In determining whether a rule has a 

significant economic impact on a 

substantial number of small entities, the 

impact of concern is any significant 

adverse economic impact on small 

entities, since the primary purpose of 

the regulatory flexibility analyses is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the rule 

on small entities.’’ (5 U.S.C. 603–604). 

Thus, an Agency may conclude that a 

rule will not have a significant 

economic impact on a substantial 

number of small entities if the rule 

relieves a regulatory burden, or 

otherwise has a positive economic effect 

on all of the small entities subject to the 

rule. Since this rule will make 

additional methyl bromide available for 

approved critical uses after the phaseout 

date of January 1, 2005, this is a deregulatory action which will confer a 

benefit to users of methyl bromide. EPA 

believes the estimated de-regulatory 

value for users of methyl bromide is 

between $20 million to $30 million 

annually, as a result of the entire critical 

use exemption program over its 

projected duration. We have therefore 

concluded that today’s final rule will 

relieve regulatory burden for all small 

entities. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local 

and tribal governments and the private 

sector. Under Section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures by State, local 

and tribal governments, in the aggregate, 

or by the private sector, of $100 million 

or more in any one year. Before 

promulgating an EPA rule for which a 

written statement is needed, section 205 

of the UMRA generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most 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 of the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed 

under section 203 of UMRA a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

EPA has determined that this rule 

does not contain a Federal mandate that 

may result in expenditures of $100 

million or more for State, local, and 

tribal governments, in the aggregate, or 

by the private sector, in any one year. 

Today’s action contains only one new 

mandate, which is the reporting 

requirement for the drawdown of prephaseout inventories. Today’s 

amendment does not create a Federal 

mandate resulting in costs of $100 

million or more in any one year for 

State, local, and tribal governments, in 

the aggregate, or for the private sector. 

Thus, today’s rule is not subject to the 

requirements of Sections 202 and 205 of 

the UMRA. 

EPA has also determined that this rule 

contains no regulatory requirements that 

might significantly or uniquely affect 

small governments; therefore, EPA is 

not required to develop a plan with 

regard to small governments under 

Section 203. Finally, because this rule 

does not contain a significant 

intergovernmental mandate, the Agency 

is not required to develop a process to 

obtain input from elected State, local, 

and tribal officials under Section 204. 

E. Executive Order 13132: Federalism 

Executive Order 13132, entitled 

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

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 51281 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ ‘‘Policies that have 

federalism implications’’ is defined in 

the Executive Order to include 

regulations that have ‘‘substantial direct 

effects on the States, on the relationship 

between the national government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’

This rule does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. Today’s rule is 

expected to primarily affect producers, 

suppliers, importers and exporters and 

users of methyl bromide. Thus, 

Executive Order 13132 does not apply 

to this rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This rule does not have 

tribal implications, as specified in 

Executive Order 13175. The rule does 

not impose any enforceable duties on 

communities of Indian tribal 

governments. Thus, Executive Order 

13175 does not apply to this rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health & 

Safety Risks 

Executive Order 13045: ‘‘Protection of 

Children From Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant’’ as defined under E.O. 

12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

EPA interprets E.O. 13045 as applying 

only to those regulatory actions that are 

based on health or safety risks, such that 

the analysis required under Section 5–

501 of the Order has the potential to 

influence the regulation. This rule is not 

subject to E.O. 13045 because it does not 

establish an environmental standard 

intended to mitigate health or safety 

risks. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001) because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

This rule does not pertain to any 

segment of the energy production 

economy nor does it regulate any 

manner of energy use. Further, we have 

concluded that this rule is not likely to 

have any adverse energy effects. 

I. The National Technology Transfer 

and Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

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

note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. This 

rulemaking does not involve technical 

standards. Therefore, EPA is not 

considering the use of any voluntary 

consensus standards. 

J. Congressional Review Act 

The Congressional Review Act, 5, 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

will be effective October 31, 2005. 

List of Subjects in 40 CFR Part 82 

Environmental protection, Chemicals, 

Methyl Bromide, Ozone, Reporting and 

Recordkeeping requirements, Treaties. 

Dated: August 23, 2005. 

Stephen L. Johnson, 

Administrator. 

■ 40 CFR part 82 is to be amended as 

follows: 

PART 82—PROTECTION OF 

STRATOSPHERIC OZONE 

■ 1. The authority citation for part 82 

continues to read as follows: 

Authority: 42 U.S.C. 7414, 7601, 7671–

7671q. 

■ 2. Section 82.4 is amended by revising 

paragraph (p)(2)(vi) to read as follows: 

§ 82.4 Prohibitions for class I controlled 

substances. 

* * * * * 

(p) * * * 

(2) * * * 

(vi) No person who purchases critical 

use methyl bromide during the control 

period shall use that methyl bromide on 

a field or structure for which that person 

has used non-critical use methyl 

bromide for the same use (as defined in 

Columns A and B of Appendix L) in the 

same control period, excepting methyl 

bromide used under the quarantine and 

pre-shipment exemption, unless, 

subsequent to that person’s use of the 

non-critical use methyl bromide, that 

person (a) becomes subject to a 

prohibition on the use of methyl 

bromide alternatives due to the reaching 

of a local township limit described in 

Appendix L of this part, or (b) becomes 

an approved critical user as a result of 

rulemaking. 

* * * * * 

■ 3. Section 82.8 is amended by revising 

paragraph (c)(2) to read as follows: 

§ 82.8 Grant of essential use allowances 

and critical use allowances. 

* * * * * 

(c) * * * 

(2) Allocated critical stock allowances 

granted for specified control period. The 

following companies are allocated 

critical stock allowances for 2005 on a 

pro-rata basis in relation to the stocks 

held by each. 

Company 

Albemarle 

Ameribrom, Inc. 

51282 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 

Bill Clark Pest Control, Inc. 

Blair Soil Fumigation 

Burnside Services, Inc. 

Cardinal Professional Products 

Carolina Eastern, Inc. 

Degesch America, Inc. 

Dodson Bros. Products 

Great Lakes Chemical Corporation 

Harvey Fertilizer and Gas 

Helena Chemical Co. 

Hendrix and Dail 

Hy Yield Bromine 

Industrial Fumigation Company 

J.C. Ehrlich Co. 

Pacific Ag 

Pest Fog Sales Corporation 

ProSource One 

Reddick Fumigants 

Royster-Clark, Inc. 

Southern State Cooperative, Inc. 

Trical, Inc. 

Trident Agricultural Products 

UAP Southeast (NC) 

UAP Southeast (SC) 

Univar 

Vanguard Fumigation Co. 

Western Fumigation 

Total 1,893,879 Kilograms 

■ 4. Section 82.13 is amended by 

revising paragraph (g)(4) introductory 

text, paragraphs (bb)(2)(iv), (cc)(2)(iv), 

and (dd) and by adding paragraphs 

(f)(3)(xviii), (g)(4)(xix), (bb)(2)(v) and 

(cc)(2)(v) to read as follows: 

§ 82.13 Recordkeeping and Reporting 

Requirements for class I controlled 

substances. 

* * * * * 

(f) * * * 

(3) Reporting Requirements—

Producers. For each quarter, except as 

specified in this paragraph (f)(3), each 

producer of a class I controlled 

substance must provide the 

Administrator with a report containing 

the following information: 

* * * * * 

(xviii) Producers shall report annually 

the amount of methyl bromide produced 

or imported prior to the January 1, 2005 

phaseout date owned by the reporting 

entity, as well as quantities held by the 

reporting entity on behalf of another 

entity, specifying the name of the entity 

on whose behalf the material is held. 

(g) * * * 

(4) Reporting Requirements—

Importers. For each quarter, except as 

specified in this paragraph (g)(4), every 

importer of a class I controlled 

substance (including importers of used, 

recycled or reclaimed controlled 

substances) must submit to the 

Administrator a report containing the 

following information: 

* * * * * 

(xix) Importers shall report annually 

the amount of methyl bromide produced 

or imported prior to the January 1, 2005 

phaseout date owned by the reporting 

entity, as well as quantities held by the 

reporting entity on behalf of another 

entity, specifying the name of the entity 

on whose behalf the material is held. 

* * * * * 

(bb) * * * 

(2) * * * 

(iv) The number of unexpended and 

expended critical stock allowances; 

(v) The amount of methyl bromide 

produced or imported prior to the 

January 1, 2005 phaseout date owned by 

the reporting entity, as well as 

quantities held by the reporting entity 

on behalf of another entity, specifying 

the name of the entity on whose behalf 

the material is held. 

* * * * * 

(cc) * * * 

(2) * * * 

(iv) The number of unexpended and 

expended critical stock allowances; 

(v) The amount of methyl bromide 

produced or imported prior to the 

January 1, 2005 phaseout date owned by 

the reporting entity, as well as 

quantities held by the reporting entity 

on behalf of another entity, specifying 

the name of the entity on whose behalf 

the material is held. 

* * * * * 

(dd) Every approved critical user 

purchasing an amount of critical use 

methyl bromide or purchasing 

fumigation services with critical use 

methyl bromide must, for each request, 

identify the use as a critical use and 

certify being an approved critical user. 

The approved critical user certification 

will state, in part: I certify, under 

penalty of law, ‘‘I am an approved 

critical user and I will use this quantity 

of methyl bromide for an approved 

critical use. My action conforms to the 

requirements associated with the critical 

use exemption published in 40 CFR part 

82. I am aware that any agricultural 

commodity within a treatment chamber, 

facility, or field I fumigate with critical 

use methyl bromide can not 

subsequently or concurrently be 

fumigated with non-critical use methyl 

bromide during the same control period, 

excepting a QPS treatment or a 

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

different crop or commodity). I will not 

use this quantity of methyl bromide for 

a treatment chamber, facility, or field 

that I previously fumigated with 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 

or I have now become an approved 

critical user as a result of rulemaking.’’

The certification will also indicate the 

type of critical use methyl bromide 

purchased, the location of the treatment, 

the crop or commodity treated, the 

quantity of critical use methyl bromide 

purchased, the acreage/square footage 

treated and will be signed and dated by 

the approved critical user. 

Appendix L—[Amended] 

■ 5. Appendix L is revised to read as 

follows: 

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. 

Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 51283 

Column A 

Approved critical uses 

Column B 

Approved critical user and location 

of use 

Column C 

Limiting critical conditions 

(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. 

(c) Michigan Growers .................... With a reasonable expectation that moderate to severe fungal pathogen infestation already either exists or could occur without methyl 

bromide fumigation. 

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. 

(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 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 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 of 

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. 

51284 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 

Column A 

Approved critical uses 

Column B 

Approved critical user and location 

of use 

Column C 

Limiting critical conditions 

(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. 

(c) California Cut Flower Commission Growers and Florida 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. 

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. 

(d) Michigan growers ..................... With a reasonable expectation that moderate to severe fungal pathogen infestation already either exists or could occur without methyl 

bromide fumigation. 

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. 

Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 51285 

Column A 

Approved critical uses 

Column B 

Approved critical user and location 

of use 

Column C 

Limiting critical conditions 

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 Virginia growers.

With a reasonable expectation that one or more of the following limiting critical conditions and 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. 

(d) California growers in San 

Diego and Ventura.

With a reasonable expectation that moderate to severe pest counties 

pressure exists and where alternatives are ineffective because of 

hilly terrain. 

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. 

(e) Members of the National Pest 

Management Association (associated with dry commodity structure fumigation (cocoa) and dry 

commodity fumigation (processed food, herbs, spices, and 

dried milk).

With reasonable expectation that one or more of the following limiting 

critical conditions already exists or could occur without methyl bromide fumigation: older structures that cannot be properly sealed in 

order to use an alternative to methyl bromide, or the presence of 

electronic equipment that is subject to corrosivity, or where heat 

treatment would cause rancidity to a particular commodity, time to 

transition to an alternative. 

Commodity Storage ........................ (a) Gwaltney of Smithfield in the 

U.S..

For smokehouse ham curing facilities owned by the company. 

Dry cured pork products: (b) Members of the National Country 

Ham Association.

Pork product facilities who are members of the Association. 

Dry cured pork products: (c) Members of the American Association of Meat Processors.Pork product facilities who are members of the Association. 

Dry cured pork products: (d) 

Nahunta Pork Center.

For 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. 

51286 Federal Register / Vol. 70, No. 167 / Tuesday, August 30, 2005 / Rules and Regulations 

1 ‘‘A motorcycle with a motor that produces five 

brake horsepower or less’’ (49 CFR 571.3). 

Column A 

Approved critical uses 

Column B 

Approved critical user and location 

of use 

Column C 

Limiting critical conditions 

(c) Growers and packers who are 

members of the California Date 

Commission, whose facilities are 

located in Riverside County.

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, when a 

buyer provides short (2 days or less) notification for a purchase, or 

there is a short period after harvest in which to fumigate and there 

is limited silo availability for using alternatives. 

[FR Doc. 05–17191 Filed 8–29–05; 8:45 am] 

BILLING CODE 6560–50–U 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

[Docket No. NHTSA–03–15073] 

RIN 2127–AI67 

Federal Motor Vehicle Safety 

Standards; Motorcycle Controls and 

Displays 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), DOT. 

ACTION: Final rule. 

SUMMARY: In this document, we 

(NHTSA) amend the Federal motor 

vehicle safety standard on motorcycle 

controls and displays to require that the 

rear brake control on scooters without a 

clutch be located on the left handlebar. 

In doing so, we have selected the second 

of two alternative proposals that were 

set forth in a notice of proposed 

rulemaking published in November 

2003. This final rule also includes 

requirements for motorcycles with 

single-point (combined) braking for 

supplemental rear brake controls. 

This final rule also makes two 

additional minor changes to the 

standard. The first change removes a 

potentially confusing abbreviation, and 

the second change clarifies 

requirements for motorcycle 

speedometer labeling. 

DATES: This final rule takes effect 

August 30, 2006. Optional compliance 

is available as of August 30, 2005. 

Any petitions for reconsideration of 

today’s final rule must be received by 

NHTSA no later than October 14, 2005. 

ADDRESSES: Petitions for reconsideration 

of today’s final rule should refer to the 

docket number for this action and be 

submitted to: Administrator, National 

Highway Traffic Safety Administration, 

400 Seventh St., SW., Washington, DC 

20590. 

FOR FURTHER INFORMATION CONTACT: 

For non-legal issues, you may call Mr. 

Michael Pyne, Office of Crash 

Avoidance Standards at (202) 366–4171. 

His fax number is (202) 366–7002. 

For legal issues, you may call Ms. 

Dorothy Nakama, Office of the Chief 

Counsel at (202) 366–2992. Her fax 

number is (202) 366–3820. 

You may send mail to both of these 

officials at National Highway Traffic 

Safety Administration, 400 Seventh St., 

SW., Washington, DC, 20590. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What Does FMVSS No. 123 Require at 

Present? 

II. How This Rulemaking Began—Granting 

Vectrix’s Petition 

III. Notice of Proposed Rulemaking (NPRM)—

The Regulatory Alternatives for Rear 

Brake Control Location 

A. Alternative I 

B. Alternative II 

C. Supplemental Rear Brake Controls 

D. Motorcycles With Integrated Brake 

Controls 

1. The Honda Petition for Temporary 

Exemption 

2. Supplemental Controls on Integrated 

Braking Systems 

3. Request for Comments on New 

Developments in Motorcycle Integrated 

Braking Systems 

IV. Comments on the NPRM and NHTSA 

Response 

A. Comments on Alternative I 

1. Public Comments 

2. NHTSA’s Response to the Comments 

B. Comments on Alternative II 

1. Public Comments 

2. NHTSA’s Response to the Comments 

a. ECE Regulation No. 60 Definitions That 

NHTSA Reviewed 

b. Maximum Speed Characteristic 

c. Other Design Characteristics 

d. Need for an Enhanced Scooter Definition 

e. New Step-Through Architecture 

Criterion for Defining Scooters 

Criterion for Defining Scooters 

C. Other Issues 

1. Single-Point (Combined) Braking 

2. Supplemental Rear Brake Controls 

3. Minor Revision to Table 1 

4. Minor Revisions to Table 3 

V. Final Rule 

VI. Leadtime 

VII. Statutory Basis for the Final Rule 

VIII. Regulatory Analyses and Notices 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

B. Executive Order 13132 (Federalism) 

C. Executive Order 13045 (Economically 

Significant Rules Affecting Children) 

D. Executive Order 12988 (Civil Justice 

Reform) 

E. Regulatory Flexibility Act 

F. National Environmental Policy Act 

G. Paperwork Reduction Act 

H. National Technology Transfer and 

Advancement Act 

I. Unfunded Mandates Reform Act of 1995 

J. Plain Language 

K. Regulation Identifier Number (RIN) 

Regulatory Text 

I. What Does FMVSS No. 123 Require 

at Present? 

Federal Motor Vehicle Safety 

Standard (FMVSS) No. 123, Motorcycle 

Controls and Displays, specifies 

requirements for the location, operation, 

identification, and illumination of 

motorcycle controls and displays. The 

purpose of FMVSS No. 123 is to 

minimize accidents caused by operator 

error in responding to the motoring 

environment, by standardizing certain 

motorcycle controls and displays. 

Among other requirements, FMVSS 

No. 123 (at S5.2.1, Table 1) requires the 

control for a motorcycle’s rear brakes to 

be located on the right side of the 

motorcycle and be operable by the 

rider’s right foot. Section S5.2.1 at Table 

1 also requires the control for a 

motorcycle’s front brakes to be located 

on the right handlebar. 

Although the rear brake control is 

generally operated by the rider’s right 

foot, FMVSS No. 123 permits a ‘‘motordriven cycle’’ 1 to have its rear brake 

controlled by a lever on the left 

handlebar. FMVSS No. 123 also states 

that, if a motorcycle has an ‘‘automatic 

clutch’’ (i.e., a transmission which 

eliminates the need for a clutch lever) 

and a supplemental rear brake control 

(in addition to the right foot control), 

the supplemental control must be 

located on the left handlebar. If a 

motorcycle is equipped with a single 

control for both the front and rear 

brakes, that control must be located and 

operable in the same manner as a rear 

brake control.