[Federal Register Volume 70, Number 167 (Tuesday, August 30, 2005)]
[Rules and Regulations]
[Pages 51270-51286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17191]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-7962-4]
RIN 2060-AN13


Protection of Stratospheric Ozone: Process for Exempting Critical 
Uses of Methyl Bromide for the 2005 Supplemental Request

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct Final Rule.

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SUMMARY: With this action EPA is taking direct final action to 
authorize use of 610,665 kilograms of methyl bromide for supplemental 
critical uses in 2005 through the allocation of additional critical 
stock allowances (CSAs). This allocation supplements the critical use 
allowances (CUAs) and CSAs previously allocated for 2005, as published 
in the Federal Register on December 23, 2004 (69 FR 76982). Further, 
EPA is amending the list of exempted critical uses. With today's action 
EPA is exempting methyl bromide for critical uses beyond the phaseout 
under the authority of the Clean Air Act (CAA or the Act) and in 
accordance with the Montreal Protocol on Substances that Deplete the 
Ozone Layer (Protocol).

DATES: This rule is effective on October 31, 2005 without further 
notice, unless EPA receives adverse comment by September 29, 2005, or 
by October 14, 2005 if a hearing is requested. If adverse comments are 
received, we will publish a timely withdrawal in the Federal Register 
informing the public that this rule will not take effect. If anyone 
contacts EPA requesting to speak at a public hearing by September 9, 
2005, a public hearing will be held on September 14, 2005.

ADDRESSES: Submit your comments, identified by Docket ID No. OAR-2004-
0506, by one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
    <bullet> 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.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#620f0700104c030e0e0d0103160b0d0c220712034c050d14"><span class="__cf_email__" data-cfemail="2d40484f5f034c4141424e4c594442436d485d4c034a425b">[email protected]</span></a>.
    <bullet> Fax: 202-343-2337 attn: Marta Montoro.
    <bullet> 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.
    <bullet> Hand Delivery: EPA Air Docket, EPA West 1301 Constitution 
Avenue, NW., Room B108, Mail Code 6102T, Washington, DC 20460. Such 
deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. OAR-2004-0506. 
EPA's policy is that all comments received will be included in the 
public docket without change and may be made available online at http://www.epa.gov/edocket, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the federal regulations.gov websites are 
``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through EDOCKET or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit EDOCKET on-line or see the Federal Register of May 31, 
2002 (67 FR 38102).
    Docket: All documents in the docket are listed in the EDOCKET index 
at http://www.epa.gov/edocket. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in EDOCKET or in hard 
copy at the Air Docket, EPA/DC, EPA West, Room B102, 1301 Constitution 
Ave., NW., Washington, DC 20460. This Docket Facility is open from 8:30 
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the Air Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: For further information about this 
direct final rule, contact Marta Montoro by telephone at (202) 343-
9321, or by e-mail at <a href="/cdn-cgi/l/email-protection#513c3433237f303d3d3e323025383e3f113421307f363e27"><span class="__cf_email__" data-cfemail="b6dbd3d4c498d7dadad9d5d7c2dfd9d8f6d3c6d798d1d9c0">[email protected]</span></a>, or by mail at Marta 
Montoro, U.S.

[[Page 51271]]

Environmental Protection Agency, Stratospheric Protection Division, 
(6205J), 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Overnight 
or courier deliveries should be sent to 1310 L St., NW., Washington, DC 
20005, attn: Marta Montoro. You may also visit the Ozone Depletion web 
site of EPA's Stratospheric Protection Division at http://www.epa.gov/ozone/index.html for further information about EPA's Stratospheric 
Ozone Protection regulations, the science of ozone layer depletion, and 
other topics.

SUPPLEMENTARY INFORMATION: EPA is publishing this rule without prior 
proposal because we view this as a noncontroversial amendment and 
anticipate no adverse comment since EPA is not authorizing any 
additional new production or import of methyl bromide. The additional 
authorized amounts must come from inventories produced or imported 
prior to January 1, 2005. However, in the ``Proposed Rules'' section of 
today's Federal Register publication, we are publishing a separate 
document that will serve as the proposal to authorize 610,665 kilograms 
of methyl bromide for critical uses if adverse comments are filed. If 
EPA receives adverse comment, we will publish a timely withdrawal in 
the Federal Register informing the public that the rule will not take 
effect. We will address all public comments in a subsequent final rule 
based on the proposed rule. We will not institute a second comment 
period on this action. Any parties interested in commenting must do so 
at this time.
    This action concerns regulation of methyl bromide pursuant to the 
CAA as a class I, Group VI ozone-depleting substance. Under the CAA, 
methyl bromide production and consumption (defined as production plus 
imports minus exports) were phased out on January 1, 2005, apart from 
certain exemptions, including the critical use exemption, which is the 
subject of today's rule. In a final rule published December 23, 2004 
(69 FR 76982), EPA established the framework for the critical use 
exemption; set forth a list of approved critical uses for 2005; and 
specified the amount of methyl bromide that could be supplied in 2005 
from stocks and new production or import to meet approved critical 
uses. As part of that rule, EPA issued critical use allowances (CUAs) 
for new production and import and critical stock allowances (CSAs) for 
sale of methyl bromide stocks. In today's action, EPA is amending the 
list of approved critical uses of methyl bromide and issuing additional 
CSAs for the 2005 control period. These actions are in accordance with 
Decision XVI/2 of the countries that have ratified the Montreal 
Protocol (the ``Parties''), taken at their November 2004 meeting.

Table of Contents

I. General Information
    A. Regulated entities
    B. How Can I Get Copies of This Document and Other Related 
Information?
    C. How and To Whom Do I Submit Comments?
    D. How Should I Submit Confidential Business Information (CBI) 
To the Agency?
II. What Is the Background of the Phaseout Regulations for Ozone-
Depleting Substances?
III. What Is Methyl Bromide?
IV. Legal Basis for This Action
V. What Is the Critical Use Exemption Process?
    A. Background on Critical Use Exemption Process
    B. 2005 Supplemental Request
    C. International Review of Critical Use Exemption Nominations
VI. Distribution of Critical Stock Allowances (CSAs).
VII. Supplemental Additional Critical Uses for Calendar Year 2005
    A. Baseline for Critical Stock Allowance Distribution
    B. Distribution of Critical Stock Allowances
    C. Type of Critical Stock Allowances: Universal
VIII. What Are the Statutory and Executive Order Reviews?
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Analysis
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health & Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Congressional Review Act

I. General Information

A. Regulated Entities

    Entities potentially regulated by this action are those associated 
with the production, import, export, sale, application and authorized 
use of methyl bromide. Potentially regulated categories and entities 
include:

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               Category                  Examples of regulated entities
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Industry.............................  Producers, Importers and
                                        Exporters of methyl bromide;
                                        Applicators, Distributors of
                                        methyl bromide; Users of methyl
                                        bromide, e.g. farmers of fruit
                                        and vegetable crops, owners of
                                        stored food commodity facilities
                                        and structures.
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    The above table is not intended to be exhaustive, but rather 
provides a guide for readers regarding entities likely to be regulated 
by this action. This table lists the types of entities that EPA is now 
aware could potentially be regulated by this action. To determine 
whether your facility, company, business, or organization is regulated 
by this action, you should carefully examine the regulations 
promulgated at 40 CFR Part 82, Subpart A. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person listed in the preceding FOR FURTHER INFORMATION 
CONTACT section.

B. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under the Office of Air and Radiation Docket & Information 
Center, Electronic Air Docket ID No. OAR-2004-0506. The official public 
docket consists of the documents specifically referenced in this 
action, any public comments received, and other information related to 
this action. Although a part of the official docket, the public docket 
does not include Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. The official 
public docket is the collection of materials that is available for 
public viewing at EPA West, 1301 Constitution Ave., NW., Room B108, 
Mail Code 6102T, Washington, DC 20460, Phone: (202) 566-1742, Fax: 
(202) 566-1741. The materials may be inspected from 8:30 am until 4:30 
pm Monday through Friday, excluding legal holidays. A reasonable fee 
may be charged for copying docket materials.
    Additional supporting documents related to this action may be found 
in EPA's electronic docket system, docket numbers OAR-2002-0018, OAR-
2003-0017, OAR-2003-0230, and in EPA's

[[Page 51272]]

paper docket, Air Docket ID No. A-2000-24.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/. An electronic version of the 
public docket is available through EPA's electronic public docket and 
comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the 
index listing of the contents of the official public docket, and to 
access those documents in the public docket that are available 
electronically. Once in the system, select ``search,'' then key in the 
appropriate docket identification number, OAR-2004-0506.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. Although not all 
docket materials may be available electronically, you may still access 
any of the publicly available docket materials through the docket 
facility identified in the ADDRESSES section of this document.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.

C. How and To Whom Do I Submit Comments?

    You may submit comments electronically, by mail, by fax, or through 
hand delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate docket identification number in the subject line on the 
first page of your comment, in this instance OAR-2004-0506. Please 
ensure that your comments are submitted within the specified comment 
period. Comments received after the close of comment period will be 
marked late. EPA is not required to consider these late comments. If 
you plan to submit comments, please also notify Marta Montoro, U.S. 
Environmental Protection Agency, Stratospheric Protection Division 
(6205J), 1200 Pennsylvania Ave., NW., Washington, DC 20460, (202) 343-
9321.
    Information designated as Confidential Business Information (CBI) 
under 40 CFR, Part 2, Subpart 2, must be sent directly to the contact 
person for this notice. However, the Agency is requesting that all 
respondents submit a non-confidential version of their comments to the 
docket as well.
    Electronically. If you submit an electronic comment as prescribed 
below, EPA recommends that you include your name, mailing address, and 
an e-mail address or other contact information in the body of your 
comment. Also include this contact information on the outside of any 
disk or CD-ROM you submit, and in any cover letter accompanying the 
disk or CD-ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments to 
docket OAR-2004-0506.
    ii. By Mail. Send one copy of your comments to each of the 
following two offices: U.S. Environmental Protection Agency, Air and 
Radiation Docket (6102), Electronic Air Docket ID No. OAR-2003-0230. 
Washington, DC 20460 and to U.S. Environmental Protection Agency, 
(6205J) 1200 Pennsylvania Ave., N.W., Washington, DC 20460, attn: Marta 
Montoro, docket no. OAR-2004-0506.
    iii. By Hand Delivery or Courier. Deliver your comments to: Marta 
Montoro, 1310 L Street NW., Washington, DC 20005, Attention Electronic 
Air Docket ID No. OAR-2004-0506. Such deliveries are only accepted 
during the normal hours of operation 9 a.m to 5 p.m.
    iv. By Facsimile. Fax your comments to both: (202) 566-1741, 
Attention Electronic Air Docket ID No. OAR-2003-0230, and to (202) 343-
2337 or (202) 343-2338, Attention Marta Montoro, Electronic Air Docket 
No. OAR-2004-0506.

D. How Should I Submit Confidential Business Information (CBI) to the 
Agency?

    Do not submit information that you consider to be CBI 
electronically through EPA's electronic public docket or by e-mail. 
Send or deliver information identified as CBI only to the mail or 
courier addresses listed in the FOR FURTHER INFORMATION CONTACT 
Section, Electronic Air Docket ID No. OAR-2004-0506. You may claim 
information that you submit to EPA as CBI by marking any part or all of 
that information as CBI (if you submit CBI on disk or CD-ROM, mark the 
outside of the disk or CD-ROM as CBI and then identify electronically 
within the disk or CD-ROM the specific information that is CBI). 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR Part 2. In addition to one complete 
version of the comment that includes any information claimed as CBI, a 
copy of the comment that does not contain the information claimed as 
CBI must be submitted for inclusion in the public docket and EPA's 
electronic public docket. If you submit the copy that does not contain 
CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM clearly 
that it does not contain CBI. Information not marked as CBI will be 
included in the public docket and EPA's electronic public docket 
without prior notice. If you have any questions about CBI or the 
procedures for claiming CBI, please consult the person identified in

[[Page 51273]]

the FOR FURTHER INFORMATION CONTACT Section.

II. What Is the Background to the Phaseout Regulations for Ozone-
Depleting Substances?

    The current regulatory requirements of the Stratospheric Ozone 
Protection Program that limit production and consumption of ozone 
depleting substances can be found at 40 CFR Part 82 Subpart A. The 
regulatory program was originally published in the Federal Register on 
August 12, 1988 (53 FR 30566), in response to the 1987 signing and 
subsequent ratification of the Montreal Protocol on Substances that 
Deplete the Ozone Layer (Protocol). The U.S. was one of the original 
signatories to the 1987 Montreal Protocol and the U.S. ratified the 
Protocol on April 21, 1988. Congress then enacted, and President Bush 
signed into law, the Clean Air Act Amendments of 1990 (CAAA of 1990) 
which included Title VI on Stratospheric Ozone Protection, codified as 
42 U.S.C. Chapter 85, Subchapter VI, to ensure that the United States 
could satisfy its obligations under the Protocol. EPA issued new 
regulations to implement this legislation and has made several 
amendments to the regulations since that time.

III. What Is Methyl Bromide?

    Methyl bromide is an odorless, colorless, toxic gas which is used 
as a broad-spectrum pesticide and is controlled under the CAA as a 
Class I ozone depleting substance (ODS). Methyl bromide is used in the 
U.S. and throughout the world as a fumigant to control a wide variety 
of pests such as insects, weeds, rodents, pathogens, and nematodes. 
Additional characteristics and details about the uses of methyl bromide 
can be found in the proposed rule on the phaseout schedule for methyl 
bromide published in the Federal Register on March 18, 1993 (58 FR 
15014) and the final rule published in the Federal Register on December 
10, 1993 (58 FR 65018).
    The phaseout schedule for methyl bromide production and consumption 
was revised in a direct final rulemaking on November 28, 2000 (65 FR 
70795), which allowed for the phased reduction in methyl bromide 
consumption and extended the phaseout to 2005. The revised phaseout 
schedule was again amended to allow for an exemption for quarantine and 
preshipment purposes on July 19, 2001 (66 FR 37751) with an interim 
final rule and with a final rule (68 FR 238) on January 2, 2003. 
Information on methyl bromide can be found at the following sites of 
the World Wide Web: http://www.epa.gov/ozone/mbr and http://www.unep.org/ozone or by contacting the Stratospheric Ozone Hotline at 
1-800-296-1996.
    Because it is a pesticide, methyl bromide is also regulated by EPA 
under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) 
and other statutes and regulatory authority and by States under their 
own statutes and regulatory authority. Under FIFRA, methyl bromide is a 
restricted use pesticide. Because of this status, a restricted use 
pesticide is subject to certain Federal and State requirements 
governing its sale, distribution, and use. Nothing in this final rule 
implementing the Clean Air Act is intended to derogate from provisions 
in any other Federal, State, or Local laws or regulations governing 
actions including, but not limited to, the sale, distribution, 
transfer, and use of methyl bromide. All entities that would be 
affected by provisions of this final rule must continue to comply with 
FIFRA and other pertinent statutory and regulatory requirements for 
pesticides (including, but not limited to, requirements pertaining to 
restricted use pesticides) when importing, exporting, acquiring, 
selling, distributing, transferring, or using methyl bromide for 
critical uses. The regulations in today's action are intended only to 
implement the CAA restrictions on the production, consumption and use 
of methyl bromide for critical uses exempted from the phaseout of 
methyl bromide.

IV. Legal Basis for This Action

    Methyl bromide was added to the Protocol as an ozone depleting 
substance in 1992 through the Copenhagen amendment to the Protocol. The 
Parties authorize critical use exemptions through their Decisions.
    The Parties agreed that each industrialized country's level of 
methyl bromide production and consumption in 1991 should be the 
baseline for establishing a freeze in the level of methyl bromide 
production and consumption for industrialized countries. EPA published 
a final rule in the Federal Register on December 10, 1993 (58 FR 
65018), listing methyl bromide as a class I, Group VI controlled 
substance, freezing U.S. production and consumption at this 1991 level, 
and, in Section 82.7 of the rule, setting forth the percentage of 
baseline allowances for methyl bromide granted to companies in each 
control period (each calendar year) until the year 2001, when the 
complete phaseout would occur (58 FR 65018). This phaseout date was 
established in response to a petition filed in 1991 under sections 602 
(c)(3) and 606 (b) of the Clean Air Act Amendments (CAAA) of 1990, 
requesting that EPA list methyl bromide as a class I substance and 
phase out its production and consumption. This date was consistent with 
section 602 (d) of the CAAA of 1990, which for newly listed class I 
ozone-depleting substances provides that ``no extension [of the 
phaseout schedule in section 604] under this subsection may extend the 
date for termination of production of any class I substance to a date 
more than 7 years after January 1 of the year after the year in which 
the substance is added to the list of class I substances.'' EPA based 
its action on scientific assessments and actions by the Parties to the 
Montreal Protocol to freeze the level of methyl bromide production and 
consumption for industrialized countries at the 1992 Meeting of the 
Parties in Copenhagen.
    At their 1995 meeting, the Parties made adjustments to the methyl 
bromide control measures and agreed to reduction steps and a 2010 
phaseout date for industrialized countries with exemptions permitted 
for critical uses. At this time, the U.S. continued to have a 2001 
phaseout date in accordance with the CAAA of 1990 language. At their 
1997 meeting, the Parties agreed to further adjustments to the phaseout 
schedule for methyl bromide in industrialized countries, with reduction 
steps leading to a 2005 phaseout for industrialized countries. In 
October 1998, the U.S. Congress amended the CAA to prohibit the 
termination of production of methyl bromide prior to January 1, 2005, 
to require EPA to bring the U.S. phaseout of methyl bromide in line 
with the schedule specified under the Protocol, and to authorize EPA to 
provide exemptions for critical uses. These amendments were contained 
in Section 764 of the 1999 Omnibus Consolidated and Emergency 
Supplemental Appropriations Act (Pub. L. 105-277, October 21, 1998) and 
were codified in Section 604 of the CAA, 42 U.S.C. 7671c. On November 
28, 2000, EPA issued regulations to amend the phaseout schedule for 
methyl bromide and extend the complete phaseout of production and 
consumption to 2005 (65 FR 70795).
    On December 23, 2004 (69 FR 76982), EPA published a final rule in 
the Federal Register that established the framework for the critical 
use exemption; set forth a list of approved critical uses for 2005; and 
specified the amount of methyl bromide that could be supplied in 2005 
from available stocks and new production or import to meet approved 
critical uses. Today, EPA is authorizing sale of additional amounts of 
methyl bromide from inventory for

[[Page 51274]]

critical uses in the 2005 control period. In addition, EPA is amending 
the existing list of approved critical uses.
    Today's action reflects Decision XVI/2, taken at the Parties' 
Sixteenth Meeting in November 2004. In accordance with Article 2H(5), 
the Parties have issued several Decisions pertaining to the critical 
use exemption. These include Decision IX/6, which set forth criteria 
for review of proposed critical uses; Decision Ex. I/3, which addressed 
agreed critical uses, critical-use exemption levels, and allowable 
levels of new production and consumption for critical uses in 2005; and 
Decision XVI/2, which, in part, supplemented the critical use 
categories and exemption levels discussed in Decision Ex. I/3.
    For a discussion of the relationship between the relevant 
provisions of the CAA and Article 2H of the Protocol, and the extent to 
which EPA takes into account Decisions of the Parties that interpret 
Article 2H, refer to the December 23, 2004 FR notice (69 FR 76984-
76985). Briefly, EPA regards Decisions IX/6, Ex I/3, and XVI/2 as 
subsequent consensus agreements of the Parties that address the 
interpretation and application of the critical use provision in Article 
2H(5) of the Protocol. In today's action, EPA is following the terms of 
these Decisions. This will ensure consistency with the Montreal 
Protocol, 42 U.S.C. 7671c(d)(6).
    In Decision XVI/2, taken in November 2004, the Parties to the 
Protocol agreed as follows: `` Section IA of the Annex to Decision XVI/
2 lists the following supplemental critical use categories for the 
U.S.: Dried fruit and nuts; eggplant field; peppers field; tomato 
field; dry commodities structures (cocoa); dry commodities--processed 
foods, herbs, spices, dried milk; ornamentals; smokehouse ham; 
strawberry fruit''. These are the uses for which the U.S. requested 
either initial authorization or a higher critical use level in its 
supplemental request for 2005. EPA is amending the following uses 
listed in Column A of Appendix L to 40 CFR Part 82; Subpart A to 
reflect Decision XVI/2: Eggplant; ornamentals; peppers; strawberry 
fruit; tomatoes; food processing; and commodity storage. Based on the 
applications underlying the U.S. supplemental request, EPA is modifying 
Columns B and C of Appendix L to 40 CFR Part 82, Subpart A to add new 
approved critical users, locations of use, and limiting critical 
conditions.
    Section IB of the Annex to Decision XVI/2 does not list a 
supplemental level of production or consumption for the U.S. EPA's 
December 23, 2004 final rule already authorizes the full amount of 
production and consumption approved in the Parties' prior Decision 
regarding critical uses in 2005, Decision Ex. I/3. Therefore, EPA is 
not authorizing any additional production or consumption beyond that 
already authorized in the December 23, 2004 final rule. Instead, EPA is 
authorizing sale of additional amounts of methyl bromide from inventory 
for critical uses in the 2005 control period. This approach is in 
accordance with the Parties' statement in Decision Ex I/3 that ``a 
Party with a critical-use exemption level in excess of permitted levels 
of production and consumption for critical uses is to make up any such 
difference between those levels by using quantities of methyl bromide 
from stocks that the Party has recognized to be available.''
    The December 23, 2004 final rule authorized production of 7,659,000 
kilograms (30% of the 1991 consumption baseline) and sale of 1,283,214 
kilograms (5% of the 1991 baseline) from pre-phaseout inventories. In 
today's action, EPA is authorizing the sale of an additional 610,665 
kilograms (2.4% of the 1991 baseline) from pre-phaseout inventories for 
critical uses. Thus, the total critical use amount for 2005 would be 
9,552,879 kilograms, with 1,893,879 kilograms coming from pre-phaseout 
inventories.

V. What Is the Critical Use Exemption Process?

A. Background on Critical Use Exemption Process

    Starting in 2002, EPA began notifying applicants as to the 
availability of an application process for a critical use exemption to 
the methyl bromide phaseout. The Agency published a notice in the 
Federal Register (68 FR 24737) announcing the deadline to apply, and 
directing applicants to announcements posted on EPA's methyl bromide 
Web site at http://www.epa.gov/ozone/mbr. Applicants were told they may 
apply as individuals or as part of a group of users (a ``consortium'') 
who face the same limiting critical conditions (i.e. specific 
conditions which establish a critical need for methyl bromide). This 
process has been repeated on an annual basis since then.
    In response to the yearly requests for critical use exemption 
applications published in the Federal Register, applicants have 
provided information supporting their position that they have no 
technically and economically feasible alternatives to methyl bromide 
available to them. Applicants for the exemption have submitted 
information on their use of methyl bromide, on research into the use of 
alternatives to methyl bromide, on efforts to minimize use of methyl 
bromide and efforts to reduce emissions and on the specific technical 
and economic research results of testing alternatives to methyl 
bromide.
    The CAA allows the Agency to create an exemption for critical uses 
to the extent consistent with the Protocol. The critical use exemption 
process is designed to meet the needs of methyl bromide users who do 
not have technically and economically feasible alternatives available. 
In EPA's recently published regulation describing the operational 
framework for the critical use exemption (69 FR 76982) the majority of 
critical uses for the 2005 calendar year were established. This action 
authorizes additional uses that the U.S. government submitted to the 
Protocol's Ozone Secretariat as a supplemental request in February 
2004. In addition, EPA is adding to the number of CSAs previously 
allocated for the 2005 control period.
    For this action, the operational framework for authorizing CSAs is 
described in EPA's recent regulation, published in the Federal Register 
on December 23, 2004 (69 FR 76982). All elements of the framework, such 
as the cap, trading provisions, and reporting and recordkeeping 
obligations, remain the same for this action. However, this rulemaking 
also allows additional quantities of methyl bromide to be made 
available from inventory and to augment the list of approved critical 
uses.
    For information on EPA's calculation of CSAs, please see E-Docket 
OAR-2004-0506.

B. 2005 Supplemental Request

    A detailed explanation of the development of the nomination, 
including the criteria used by expert reviewers, is available in a memo 
titled ``2003 Nomination Process: Development of 2003 Nomination for a 
Critical Use Exemption for Methyl Bromide from the United States of 
America'' on E-Docket OAR-2003-0230 (document 104) and E-Docket OAR-
2004-0506. This memo applies equally to the 2004 Nomination, which 
included the supplemental request for 2005. All critical use exemption 
applications, including those described in the supplemental request for 
2005, underwent a rigorous review by highly qualified technical 
experts. The CUE applications (except to the extent claimed 
confidential) are available on E-Docket OAR-2004-0506. Data from the 
applications served as the basis for

[[Page 51275]]

the nomination and was augmented by multiple other sources, including 
but not limited to the National Agricultural Statistics Service of the 
U.S. Department of Agriculture, the State of California Department of 
Pesticide Regulation, peer-reviewed articles, and crop budgets.
    After submission of the first U.S. Nomination for a Critical Use 
Exemption for Methyl Bromide, (nomination) in February 2003, EPA and 
other U.S. government agencies decided to make supplemental requests in 
February 2004 for certain sectors that did not apply for an exemption 
in time for the 2003 nomination. For example, in some cases the sector 
consortia did not file an application during the first round of 
exemption applications in 2002, but instead did so in 2003. In other 
cases, sector consortia filed additional materials in 2003. Lastly, 
some sectors were incorrectly characterized in the first nomination, so 
EPA amended the sector chapters and amount of requests in the form of 
the 2005 supplemental request. The review process for the supplemental 
request was rigorous, with technical and economic criteria in place 
during the review process.
    With the second nomination submitted to the Ozone Secretariat in 
February 2004, most of which was intended for the 2006 control period, 
the U.S. government included the supplemental request for 2005 in 
Appendix B. Appendix B was attached to each of the nomination chapters, 
available on E-Docket OAR-2004-0506 and http://www.epa.gov/mbr/nomination_2006.html. All of the supplemental requests were 
characterized in the corresponding chapters in the nomination, 
including explanations of technically and economically infeasible 
alternatives for each sector. The U.S. originally nominated the 
following new applicants for the 2005 supplemental request:

Applicant Name

California Cut Flower Commission
National Country Ham Association
Wayco Ham Company
California Date Commission
National Pest Management Association
Michigan Pepper Growers
Michigan Eggplant Growers
Burley & Dark Tobacco USA--transplant trays
Burley & Dark Tobacco USA--field grown
Virginia Tobacco Growers--transplant trays
Michigan Herbaceous Perennials
Ozark Country Hams
Nahunta Pork Center
American Association of Meat Processors

    This request was subsequently modified. In August 2004, all of the 
tobacco applicants withdrew their CUE requests for the 2005 control 
period and beyond. With regard to the strawberry fruit sector, MBTOC 
initially recommended a reduction to the U.S. request in this sector. 
After being provided with additional information, MBTOC revised this 
recommendation, and the United States was granted a supplemental 
allocation to make up the difference. The U.S. also requested an 
additional amount for tomatoes, having received new data regarding pest 
pressure in two California counties. More information on each of these 
sectors, including calculations of production losses and other 
technical data, can be found in the annual nomination on E-Docket OAR-
2004-0506. Memos explaining the technical contexts and corrections for 
both of these sectors are available on E-Docket OAR-2004-0506.
Ornamentals (California Cut Flower Commission and Florida Growers)
    This request for a methyl bromide CUE was made on behalf of growers 
in Florida and members of the California Cut Flower Commission. The 
ornamentals industry is complex and growers produce multiple species 
and varieties in a single year. This diversity makes finding methyl 
bromide alternatives for each crop species very complicated. The 
nomination for the ornamental sector was for areas with moderate-severe 
pest pressure and for areas in California where critical users may be 
prohibited from using 1,3-dichloropropene products because local 
township caps for this alternative have been reached.
Dry Cured Pork Products (National Country Ham Association, American 
Association of Meat Processors, Nahunta Pork Center)
    For this sector, EPA received several more CUE applications for the 
2006 control period that were also requesting methyl bromide for the 
2005 control period. It should be noted that Ozark Country Ham and 
Wayco Ham in the above table were eventually nominated under the 
National Country Ham Association. The U.S. government nomination 
included only facilities where dry cured ham, dry cured country ham, 
hard salami, pepperoni, and sausage are produced. There are no 
registered alternatives for this sector. The nomination was for 
facilities owned by the companies that are members of these 
associations, and for the Nahunta Pork Center.
Dried Fruit and Nuts (California Date Commission)
    California produces most of the domestic supply of dates. The 
nomination was for peak production periods, because high volumes of 
dates must be processed in order to enter the market quickly for the 
holiday season, or if there is limited silo availability for using 
alternatives. Substantial time and production losses would occur if 
processors were relying on alternatives alone, as there is a short 
period after harvest in which to fumigate. The nomination is limited to 
Riverside county.
National Pest Management Association
    The U.S. government nominated commodities and food processing 
plants treated by members of this association. Commodities included are 
processed foods, spices and herbs, cocoa, and dried milk, and other 
commodities that were nominated but not authorized. The nomination for 
facilities that are older and cannot be properly sealed in order to use 
a methyl bromide alternative, or for facilities that contain sensitive 
electronic equipment that is subject to corrosivity as a result of 
fumigation with a methyl bromide alternative, or in instances where 
heat treatment would cause a commodity to go rancid.
Michigan Pepper Growers/Michigan Eggplant Growers
    EPA is including these sectors separately in Appendix L. Initially 
the request for eggplant and pepper growers in Michigan was included 
with the request for tomato growers, but the sectors are distinct. The 
request is for areas where fungal pathogen infestation is moderate to 
severe.
Michigan Herbaceous Perennials
    The U.S. government nominated this group because the currently 
registered alternatives do not provide adequate treatment for the 
numerous plant species grown. Research trials for efficacy are ongoing 
for alternatives not yet registered. The request was for areas where 
pest pressure is moderate to severe. These growers comprise part of the 
forest seedling sector but did not submit a CUE application to EPA in 
2002, during the first round. They are not currently listed in Column B 
of Appendix L.
    The report prepared by the technical advisory body, discussed 
further in section V.C., is silent with regard to the 2005 request for 
Michigan Herbaceous Perennials. Decision XVI/2 did not authorize 
supplemental amounts for the seedling sector in 2005, nor did it list 
herbaceous perennials separately as an

[[Page 51276]]

agreed critical use category. Thus, Decision XVI/2 did not affect the 
status of Michigan Herbaceous Perennials for 2005.

C. International Review of Critical Use Exemption Nominations

    The criteria for the exemption are delineated in Decision IX/6 of 
the Parties to the Protocol. In that Decision, the Parties agreed that 
``a use of methyl bromide should qualify as ``critical'' only if the 
nominating Party determines that: (I) The specific use is critical 
because the lack of availability of methyl bromide for that use would 
result in a significant market disruption; and (ii) there are no 
technically and economically feasible alternatives or substitutes 
available to the user that are acceptable from the standpoint of 
environment and public health and are suitable to the crops and 
circumstances of the nomination. The U.S. government reviews 
applications using these criteria and creates a package for submission 
to the Ozone Secretariat of the Protocol (the ``critical use 
nomination'' or CUN). The CUNs of various countries are then reviewed 
by the Methyl Bromide Technical Options Committee (MBTOC) and the 
Technical and Economic Assessment Panel (TEAP), which are independent 
advisory bodies to the Parties. These bodies make recommendations to 
the Parties regarding the nominations.
    On February 7, 2004, the U.S. government submitted the second U.S. 
Nomination for a Critical Use Exemption for Methyl Bromide to the Ozone 
Secretariat of the United Nations Environment Programme. The 2005 
supplemental request was submitted as Appendix B to this nomination. 
This supplemental request, like the remainder of the document, was 
based on a thorough analysis of the technical and economic feasibility 
of available alternatives specified by the MBTOC for each critical use 
and the potential for significant market disruption. The nomination can 
be found on E-docket on OAR-2004-0506.
    In June 2004, the MBTOC sent questions to the U.S. government 
concerning technical and economic issues in the nomination. These 
questions, as well as the U.S. government's response, can be accessed 
on E-docket OAR-2004-0506. The U.S. government's response was 
transmitted on August 13, 2005. When responding to these questions, the 
U.S. government explained that critical use exemptions were being 
sought only in areas with moderate-severe pest pressure, where the use 
of alternatives would result in substantial yield losses, or where 
regulatory restrictions or geophysical conditions prohibit the adoption 
of alternatives. There were questions on all of the sectors described 
in today's action; however, many questions focused on alternatives in 
the overall sector instead of the specific supplemental requested 
amount.
    In October, 2004, the MBTOC and the Technical and Economic 
Assessment Panel (TEAP) issued a final report on critical use 
nominations for methyl bromide. This report, issued by the United 
Nations Environment Programme (UNEP) and TEAP, is titled ``Critical Use 
Nominations for Methyl Bromide: Final Report'' and can be accessed at 
http://www.unep.ch/ozone/teap/Reports/MBTOC/MBCUN-october2004.pdf or on 
E-docket OAR-2004-0506. In Annex I of the report, the advisory bodies 
recommended an additional 584,093 kilograms of methyl bromide for U.S. 
critical uses in 2005. The additional kilograms were recommended for 
the following sectors: Dried fruit and nuts (dates); dry commodities/
structures (cocoa beans); dry commodities/structures (processed foods, 
herbs and spices, dried milk and cheese processing facilities); 
eggplant; ornamentals; peppers; smokehouse ham; strawberry fruit; and 
tomatoes.
    Based on the recommendations from the advisory bodies, the Parties 
authorized 610,655 kilograms of methyl bromide for 2005 supplemental 
uses in the U.S., in Decision XVI/2. The authorization adds 26,562 
kilograms to the TEAP recommendation by restoring the full amount of 
the U.S. request for dry commodities/structures (cocoa beans). The 
Parties approved the above-mentioned uses referenced in the MBTOC/TEAP 
report.
    In today's action, EPA is adding the new uses to the list of 
approved critical uses, and allocating additional CSAs for the sale of 
methyl bromide from inventory for critical uses in 2005.
    EPA is also amending the Reporting and Recordkeeping Requirements 
in 40 CFR part 82 to require that entities report the amount of pre-
phaseout methyl bromide inventory, held for sale or transfer to another 
entity, to the Agency on an annual basis. Entities will be required to 
differentiate between the amounts owned by them and those owned by 
other entities. Pre-phaseout refers to inventories of methyl bromide 
produced or imported prior to January 1, 2005. This additional 
requirement will allow EPA to track the drawdown of pre-phaseout 
inventories.

VI. Distribution of Critical Stock Allowances (CSAs)

A. Basis for Critical Stock Allowance Distribution

    With today's action, EPA is allocating critical stock allowances 
(CSAs) to producers and importers of methyl bromide, and other entities 
that hold pre-phaseout quantities of methyl bromide for sale, on a pro-
rated basis in relation to an average of their 2003 and 2004 holdings 
of inventory. Each CSA is equivalent to one kilogram of methyl bromide. 
Thus, an allowance holder must expend one CSA for each kilogram of 
methyl bromide sold to an approved critical user for approved critical 
uses.
    The methodology for calculating the amount of CSAs for each entity 
is explained in a memorandum titled ``CSA Description Memo,'' available 
on E-docket OAR-2004-0506. In summary, EPA has used its authority under 
Section 114 of the CAA to require that certain regulated entities 
provide EPA with information about their holdings of methyl bromide.
    EPA is allocating CSAs on a pro-rated basis, calculated as an 
average of the entities' December 31, 2003 and August 25, 2004 holdings 
of pre-phaseout methyl bromide as baseline. This same baseline was also 
used to calculate CSAs in the allocation framework rule (69 FR 76982).
    EPA also notes that due to a slight baseline reporting error, one 
entity was granted fewer CSAs in the December, 2004 framework rule than 
they would have been had this reporting error not occurred. The entity 
has since clarified the data submitted to EPA. Therefore, EPA is 
granting this entity sufficient CSAs from the 610,665 supplemental 
amount to make up the difference and is calculating the distribution of 
the supplemental CSAs based on the revised baseline. The total amount 
for distribution using the revised baseline is 610,665 kilograms minus 
the amount granted off the top to correct the earlier distribution.

B. Distribution of Critical Stock Allowances

    Allocated CSAs are granted for a specified control period. EPA is 
allocating CSAs to the following companies for the 2005 supplemental 
authorized amounts of critical use methyl bromide.

Company

Albemarle
Ameribrom, Inc.
Bill Clark Pest Control, Inc.
Blair Soil Fumigation
Burnside Services, Inc.
Cardinal Professional Products

[[Page 51277]]

Carolina Eastern, Inc.
Degesch America, Inc.
Dodson Bros.
Great Lakes Chemical Corporation
Harvey Fertilizer and Gas
Helena Chemical Co.
Hendrix and Dail
Hy Yield Bromine
Industrial Fumigation Company
J.C. Ehrlich Co.
Pacific Ag
Pest Fog Sales Corporation
ProSource One
Reddick Fumigants
Royster-Clark, Inc.
Southern State Cooperative, Inc.
Trical, Inc.
Trident Agricultural Products
UAP Southeast (NC)
UAP Southeast (SC)
Univar
Vanguard Fumigation Co.
Western Fumigation
     Total 610,665 Kilograms

    EPA has determined that the individual holdings of stocks of methyl 
bromide are confidential business information. The amount of CSAs 
allocated to each company could be used to calculate the individual 
stock holdings if information on aggregate stock holdings were 
released. EPA has determined that the aggregate stock information is 
not confidential business information but is currently withholding that 
information due to the filing of complaints seeking to enjoin the 
Agency from its release. Because release could occur depending on the 
outcome of that litigation, EPA is not listing the number of allowances 
proposed for distribution to each entity. EPA is placing a document 
listing the proposed allocations and distribution basis of CSAs for 
each entity in the confidential portion of the docket.
    With today's action, EPA is determining that 610,665 kgs of methyl 
bromide are required to satisfy critical uses for the 2005 supplemental 
request. As discussed in Section VII, the amount of the U.S. 
supplemental request is based on applications received, public and 
private databases, and a rigorous technical review. EPA is authorizing 
those entities that hold inventories of methyl bromide to sell an 
additional 610,665 kgs for approved supplemental critical uses during 
2005.
    EPA is also clarifying 40 CFR 82.4 (p)(2), which was added to Sec.  
82.4 by the final allocation framework rule published on December 23, 
2004 (69 FR 76982). Specifically, paragraph (p)(2)(vi) states that, 
with some exceptions: ``No person who purchases critical use methyl 
bromide during the control period shall use that methyl bromide on a 
field or structure for which that person has used non-critical use 
methyl bromide for the same use (as defined in Columns A and B of 
Appendix L) in the same control period.'' However, EPA did not intend 
this prohibition to prevent end users who have been using non-critical 
use methyl bromide during the first part of 2005 from using critical 
use methyl bromide on the same field or structure for the same use if 
they became approved critical users as a result of this supplemental 
rulemaking. Such a result would deprive those end users of the benefit 
of the exemption solely as a result of the timing of the rule. Thus, 
EPA is adding the following exception to paragraph (p)(2)(vi): ``or 
unless, subsequent to that person's use of the non-critical use methyl 
bromide, that person * * * (b) becomes an approved critical user as a 
result of rulemaking.'' EPA is also proposing to make a corresponding 
change to Sec.  82.13, paragraph (2)(dd), which describes the self-
certification process for approved critical users: `` * * * I am aware 
that any agricultural commodity within a treatment chamber, facility, 
or field I fumigate with critical use methyl bromide cannot 
subsequently be fumigated with non-critical use methyl bromide during 
the same control period, excepting a QPS treatment or a treatment for a 
different use * * * unless a local township cap limit now prevents me 
from using methyl bromide alternatives, or I have now become an 
approved critical user as a result of rulemaking.''

C. Type of Critical Stock Allowances: Universal

    During the proposal and finalization of EPA's previous regulatory 
action concerning the operational framework for methyl bromide 
allocation (69 FR 76982), EPA considered several options for 
authorizing CSAs and CUAs. For CUAs, EPA co-proposed two options for 
the cap on critical use methyl bromide: a universal cap where all 
approved critical uses would purchase critical use methyl bromide and a 
sector-specific cap where each of the 16 critical use sectors would 
have their own cap of reserved material. In addition, EPA raised the 
possibility of adopting various hybrid options. The universal cap was 
supported by most public commenters because of the ease of 
implementation and cost savings and efficiencies to the regulated 
community. In the final rulemaking, EPA established two types of CUAs: 
one for pre-plant soil uses and the other for post-harvest, structural 
uses.
    However, the portion of critical use methyl bromide to come from 
stocks was both proposed and finalized as a universal cap. EPA received 
no adverse comment to the proposal to make the quantities from stocks 
available in a universal fashion.
    Paragraph 3 of Decision XVI/2 states that ``Parties should 
endeavour to ensure that the quantities of methyl bromide recommended 
by the Technology and Economic Assessment Panel are allocated as listed 
in Sections IA [2005 quantities] and IIA [2006 quantities] to the annex 
to the present decision.'' Similar language appeared in Decision Ex I/
3. As described in the December 23, 2004 Federal Register notice (69 FR 
76982), there would be significant administrative and practical 
difficulties associated with a sector-specific cap. Therefore, EPA has 
arrived at an allocation system that relies at least partly on the 
market to allocate quantities on a sectoral basis. EPA anticipates, 
based on historical use patterns and the research undertaken pursuant 
to submitting the U.S. nomination, that usage patterns will generally 
reflect the sectoral quantities found in the relevant annexes to 
Decisions Ex I/3 and XVI/2.
    Therefore, in today's action, EPA is allocating the additional CSAs 
totaling 610,665 kilograms of critical use methyl bromide, for calendar 
year 2005, in a universal fashion.

VII. Supplemental Additional Critical Uses for Calendar Year 2005

    Based on EPA's assessment of the technical and economic feasibility 
of alternatives and the potential for a significant market disruption 
if methyl bromide were not available for the uses proposed for addition 
in Appendix L, and the lack of any new information received since the 
submission of the U.S. supplemental request that would change EPA's 
assessment, EPA is adding new uses to Appendix L as reflected in the 
table below. EPA is authorizing the additional critical uses for the 
year 2005 as well as conditions that make these uses ``critical.'' This 
proposal is based on the data submitted by critical use exemption 
applicants, as well as public and proprietary data sources.
    During the development of the nomination, EPA determined that the 
following additional uses with the limiting critical conditions 
specified below qualify to obtain and use critical use methyl bromide. 
EPA also does not believe that the technical and economic data have 
changed significantly since submitting the nomination. Therefore EPA 
believes that the amounts nominated in February 2004 and authorized by 
the Parties in November 2004 reflect the best available data. However, 
EPA welcomes submissions of current information regarding

[[Page 51278]]

substitutes and alternatives for these uses.
    In June 2004, MBTOC submitted questions to the U.S. government 
about the nomination. While these questions did not specifically 
concern the supplemental request for 2005, the questions concerned all 
of the sectors in the supplemental request except for dried fruit and 
nuts (dates). The questions predominately focused on alternatives to 
methyl bromide and requested further clarification on points made in 
the nomination. All of the MBTOC questions and the U.S. government 
responses, submitted on August 13, 2004, are available on E-docket OAR-
2004-0506.

Amendments to Appendix L of CFR Part 82

    The following table shows the additions to Appendix L of CFR Part 
82.

------------------------------------------------------------------------
                                Column B Approved
  Column A Approved critical    critical user and    Column C Limiting
             uses                location of use    critical conditions
------------------------------------------------------------------------
                             PRE-PLANT USES
------------------------------------------------------------------------
Eggplant......................  Michigan growers.  With a reasonable
                                                    expectation that
                                                    moderate to severe
                                                    fungal pathogen
                                                    infestation either
                                                    already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation.
Ornamentals (Cut flowers).....  California Cut     With a reasonable
                                 Flower             expectation that
                                 Commission and     moderate to severe
                                 Florida growers.   pest pressure either
                                                    already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation, or with
                                                    reasonable
                                                    expectation that the
                                                    user may be
                                                    prohibited from
                                                    using 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached.
Peppers (field)...............  Michigan growers.  With a reasonable
                                                    expectation that
                                                    moderate to severe
                                                    fungal pathogen
                                                    infestation either
                                                    already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation.
Strawberry fruit..............  California         With a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    black root rot or
                                                    crown rot, moderate
                                                    to severe yellow or
                                                    purple nutsedge
                                                    infestation, a
                                                    prohibition of the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached, time
                                                    to transition to an
                                                    alternative, hilly
                                                    terrain that
                                                    prevents the
                                                    distribution of
                                                    alternative.
Tomatoes......................  California         With a reasonable
                                 growers in San     expectation that
                                 Diego and          moderate to severe
                                 Ventura counties.  pest pressure either
                                                    already exists or
                                                    could occur or where
                                                    alternatives are
                                                    ineffective because
                                                    of hilly terrain.
-------------------------------
                            POST-HARVEST USES
------------------------------------------------------------------------
Food processing...............  Members of the     With reasonable
                                 National Pest      expectation that one
                                 Management         or more of the
                                 Association        following limiting
                                 associated with    critical conditions
                                 dry commodity      exists: Older
                                 structure          facilities that
                                 fumigation         cannot be properly
                                 (cocoa) and dry    sealed to use an
                                 commodity          alternative to
                                 fumigation         methyl bromide, or
                                 (processed food,   the presence of
                                 herbs, spices,     sensitive electronic
                                 and dried milk).   equipment subject to
                                                    corrosivity, or
                                                    where heat treatment
                                                    would cause
                                                    rancidity to
                                                    commodities, time to
                                                    transition to an
                                                    alternative.
Dried Fruit and Nuts--(dates    Growers and        With a reasonable
 only).                          packers who are    expectation that one
                                 members of the     or more of the
                                 California Date    following limiting
                                 Commission,        critical conditions
                                 whose facilities   exists: Rapid
                                 are located only   fumigation is
                                 in Riverside       required to meet a
                                 County.            critical market
                                                    window such as
                                                    during the holiday
                                                    season, rapid
                                                    fumigation is
                                                    required when a
                                                    buyer provides short
                                                    (2 days or less)
                                                    notification for a
                                                    purchase, or there
                                                    is a short period
                                                    after harvest in
                                                    which to fumigate
                                                    and there is limited
                                                    silo availability
                                                    for using
                                                    alternatives.
Dry Cured Pork Products.......  (A) Members of     Pork product
                                 the National       facilities who are
                                 Country Ham        owned by companies
                                 Association.       that are members of
                                                    the Association.
                                (B) Members of     Pork product
                                 the American       facilities owned by
                                 Association of     companies that are
                                 Meat Processors.   members of the
                                                    Association.
                                (C) Nahunta Pork
                                 Center (North
                                 Carolina).
------------------------------------------------------------------------

Summary of Supporting Analysis

VIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the

[[Page 51279]]

President's priorities, or the principles set forth in the Executive 
Order.
    Pursuant to the terms of Executive Order 12866, OMB has notified 
EPA that it considers this a ``significant regulatory action'' within 
the meaning of the Executive Order. EPA has submitted this action to 
OMB for review. Changes made in response to OMB suggestions will be 
documented in the public record.
    This action will likely have a minor cost savings associated with 
its implementation, but the Agency did not conduct a formal analysis of 
savings given that such an analysis would have resulted in negligible 
savings. This action represents the authorization only 2.5% of 1991 
consumption baseline of methyl bromide to be made available for 
critical uses.

B. Paperwork Reduction Act

    The information collection requirements in this rule have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by EPA has been 
assigned EPA ICR number 2179.03. This rule supplements the rule 
published in the Federal Register on December 23, 2004 (69 FR 76982). 
The information collection under these rules is authorized under 
Sections 603(b), 603(d) and 614(b) of the Clean Air Act (CAA).
    The mandatory reporting requirements included in these rules are 
intended to:
    (1) Satisfy U.S. obligations under the international treaty, The 
Montreal Protocol on Substances that Deplete the Ozone Layer 
(Protocol), to report data under Article 7;
    (2) Fulfill statutory obligations under Section 603(b) of Title VI 
of the Clean Air Act Amendments of 1990 (CAA) for reporting and 
monitoring;
    (3) Provide information to report to Congress on the production, 
use and consumption of class I controlled substances as statutorily 
required in Section 603(d) of Title VI of the CAA.
    In this rule, EPA is amending the Reporting and Recordkeeping 
Requirements in 40 CFR part 82 to require that entities report the 
amount of pre-phaseout methyl bromide inventory, held for sale or for 
transfer to another entity, to the Agency on an annual basis. Pre-
phaseout refers to inventories of methyl bromide produced or imported 
prior to January 1, 2005. This additional requirement will allow EPA to 
track the drawdown of pre-phaseout inventories.

----------------------------------------------------------------------------------------------------------------
                                                     Number of     Total number      Hours per
               Collection activity                  respondents    of responses      response       Total hours
----------------------------------------------------------------------------------------------------------------
Rule Familiarization............................              54              54              .5              27
Data Compilation (annual basis).................              54              54              .5              27
Data Reporting (annual basis)...................              54              54              .5              27
                                                 -----------------
    Total Burden Hours..........................  ..............             162  ..............              81
----------------------------------------------------------------------------------------------------------------

    EPA informs respondents that they may assert claims of business 
confidentiality for any of the information they submit. Information 
claimed confidential will be treated in accordance with the procedures 
for handling information claimed as confidential under 40 CFR Part 2, 
Subpart B, and will be disclosed only to the extent, and by means of 
the procedures, set forth in that subpart. If no claim of 
confidentiality is asserted when the information is received by EPA, it 
may be made available to the public without further notice to the 
respondents (40 CFR 2.203).
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information; process and maintain information; disclose and 
provide information; adjust the existing ways to comply with any 
previously applicable instructions and requirements; train personnel to 
be able to respond to a collection of information; search data sources; 
complete and review the collection of information; and transmit or 
otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15.
    When this ICR is approved by OMB, the Agency will publish a 
technical amendment to 40 CFR part 9 in the Federal Register to display 
the OMB control number for the approved information collection 
requirements contained in these rules.
    To obtain comment on the Agency's need for this information, the 
accuracy of the provided burden estimates, and any suggested methods 
for minimizing respondent burden, including the use of automated 
collection techniques, EPA has established a public docket for this 
rule, which includes this ICR, under Electronic Docket ID number OAR-
2004-0506. Submit any comments related to the rule ICR for this rule to 
EPA and OMB. See ADDRESSES Section at the beginning of this notice for 
where to submit comments to EPA. Send comments to OMB at the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
725 17th Street NW., Washington DC 20503 attn: Desk Officer for EPA. 
Include the EPA ICR number 2179.03 in correspondence related to this 
ICR.
    Since OMB is required to make a decision concerning the ICR between 
30 and 60 days after August 30, 2005, a comment to OMB is best assured 
of having its full effect if OMB receives it by September 29, 2005. The 
final rule will respond to any OMB or public concerns on the 
information collection requirements contained in this rule.

C. Regulatory Flexibility Analysis

    EPA has determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with this final rule. For purposes 
of assessing the impacts of today's rule on small entities, small 
entity is defined as: (1) A small business that is identified by the 
North American Industry Classification System (NAICS) Code in the Table 
below; (2) a small governmental jurisdiction that is a government of a 
city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.

[[Page 51280]]



----------------------------------------------------------------------------------------------------------------
                                                                                                    NAICS Small
                                                                                                   business size
                                                                                                   standard (in
              Category                         NAICS Code                     SIC Code               number of
                                                                                                   employees or
                                                                                                    millions of
                                                                                                     dollars)
----------------------------------------------------------------------------------------------------------------
Agricultural Production.............  1112--Vegetable and Melon     0171--Berry.................            0.75
                                       farming.                     0171--Berry Crops...........
                                      1114--Greenhouse, Nursery,    0181--Ornamental
                                       and Floriculture Production.  Floriculture and Nursery
                                                                     products.
Storage Uses........................  115114--Postharvest crop      4221--Farm Product                     21.5
                                       activities (except Cotton     Warehousing and Storage.
                                       Ginning).                    4225--General Warehousing
                                      493110--General Warehousing    and Storage.
                                       and Storage.
                                      493130--Farm product
                                       Warehousing Storage.
----------------------------------------------------------------------------------------------------------------

    Agricultural producers of minor crops and entities that store 
agricultural commodities are categories of affected entities that 
contain small entities. This rule only affects entities that applied to 
EPA for a de-regulatory exemption. In most cases, EPA received 
aggregated requests for exemptions from industry consortia. On the 
exemption application, EPA asked consortia to describe the number and 
size distribution of entities their application covered. Based on the 
data provided, EPA estimates that there are 3,218 entities that 
petitioned EPA for an exemption. Since many applicants did not provide 
information on the distribution of sizes of entities covered in their 
applications, EPA estimated that between \1/4\ to \1/3\ of the entities 
may be small businesses based on the definition given above. In 
addition, other categories of affected entities do not contain small 
businesses based on the above description.
    After considering the economic impacts of today's rule on small 
entities, EPA has concluded that this action will not have a 
significant economic impact on a substantial number of small entities. 
The small entities directly regulated by this rule are primarily 
agricultural entities, producers, importers, and distributors of methyl 
bromide, as well as any entities holding inventory of methyl bromide.
    In determining whether a rule has a significant economic impact on 
a substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' (5 U.S.C. 603-604). 
Thus, an Agency may conclude that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves a regulatory burden, or otherwise has a positive economic 
effect on all of the small entities subject to the rule. Since this 
rule will make additional methyl bromide available for approved 
critical uses after the phaseout date of January 1, 2005, this is a de-
regulatory action which will confer a benefit to users of methyl 
bromide. EPA believes the estimated de-regulatory value for users of 
methyl bromide is between $20 million to $30 million annually, as a 
result of the entire critical use exemption program over its projected 
duration. We have therefore concluded that today's final rule will 
relieve regulatory burden for all small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local and tribal 
governments and the private sector. Under Section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures by State, local and tribal governments, in 
the aggregate, or by the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least-
costly, most cost-effective, or least burdensome alternative of the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments, in the aggregate, or by the 
private sector, in any one year. Today's action contains only one new 
mandate, which is the reporting requirement for the drawdown of pre-
phaseout inventories. Today's amendment does not create a Federal 
mandate resulting in costs of $100 million or more in any one year for 
State, local, and tribal governments, in the aggregate, or for the 
private sector. Thus, today's rule is not subject to the requirements 
of Sections 202 and 205 of the UMRA.
    EPA has also determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments; therefore, EPA is not required to develop a plan with 
regard to small governments under Section 203. Finally, because this 
rule does not contain a significant intergovernmental mandate, the 
Agency is not required to develop a process to obtain input from 
elected State, local, and tribal officials under Section 204.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State

[[Page 51281]]

and local officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.''
    This rule does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. Today's rule is expected to 
primarily affect producers, suppliers, importers and exporters and 
users of methyl bromide. Thus, Executive Order 13132 does not apply to 
this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This rule does not have 
tribal implications, as specified in Executive Order 13175. The rule 
does not impose any enforceable duties on communities of Indian tribal 
governments. Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health & Safety Risks

    Executive Order 13045: ``Protection of Children From Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under E.O. 12866, and (2) concerns an environmental health 
or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    EPA interprets E.O. 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under Section 5-501 of the Order has the potential to 
influence the regulation. This rule is not subject to E.O. 13045 
because it does not establish an environmental standard intended to 
mitigate health or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. This rule does 
not pertain to any segment of the energy production economy nor does it 
regulate any manner of energy use. Further, we have concluded that this 
rule is not likely to have any adverse energy effects.

I. The National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
rulemaking does not involve technical standards. Therefore, EPA is not 
considering the use of any voluntary consensus standards.

J. Congressional Review Act

    The Congressional Review Act, 5, U.S.C 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of Congress and to the Comptroller General of the United 
States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective October 31, 2005.

List of Subjects in 40 CFR Part 82

    Environmental protection, Chemicals, Methyl Bromide, Ozone, 
Reporting and Recordkeeping requirements, Treaties.

    Dated: August 23, 2005.
Stephen L. Johnson,
Administrator.

0
40 CFR part 82 is to be amended as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

0
1. The authority citation for part 82 continues to read as follows:

    Authority: 42 U.S.C. 7414, 7601, 7671-7671q.

0
2. Section 82.4 is amended by revising paragraph (p)(2)(vi) to read as 
follows:


Sec.  82.4  Prohibitions for class I controlled substances.

* * * * *
    (p) * * *
    (2) * * *
    (vi) No person who purchases critical use methyl bromide during the 
control period shall use that methyl bromide on a field or structure 
for which that person has used non-critical use methyl bromide for the 
same use (as defined in Columns A and B of Appendix L) in the same 
control period, excepting methyl bromide used under the quarantine and 
pre-shipment exemption, unless, subsequent to that person's use of the 
non-critical use methyl bromide, that person (a) becomes subject to a 
prohibition on the use of methyl bromide alternatives due to the 
reaching of a local township limit described in Appendix L of this 
part, or (b) becomes an approved critical user as a result of 
rulemaking.
* * * * *

0
3. Section 82.8 is amended by revising paragraph (c)(2) to read as 
follows:


Sec.  82.8  Grant of essential use allowances and critical use 
allowances.

* * * * *
    (c) * * *
    (2) Allocated critical stock allowances granted for specified 
control period. The following companies are allocated critical stock 
allowances for 2005 on a pro-rata basis in relation to the stocks held 
by each.

Company

Albemarle
Ameribrom, Inc.

[[Page 51282]]

Bill Clark Pest Control, Inc.
Blair Soil Fumigation
Burnside Services, Inc.
Cardinal Professional Products
Carolina Eastern, Inc.
Degesch America, Inc.
Dodson Bros. Products
Great Lakes Chemical Corporation
Harvey Fertilizer and Gas
Helena Chemical Co.
Hendrix and Dail
Hy Yield Bromine
Industrial Fumigation Company
J.C. Ehrlich Co.
Pacific Ag
Pest Fog Sales Corporation
ProSource One
Reddick Fumigants
Royster-Clark, Inc.
Southern State Cooperative, Inc.
Trical, Inc.
Trident Agricultural Products
UAP Southeast (NC)
UAP Southeast (SC)
Univar
Vanguard Fumigation Co.
Western Fumigation
     Total 1,893,879 Kilograms


0
4. Section 82.13 is amended by revising paragraph (g)(4) introductory 
text, paragraphs (bb)(2)(iv), (cc)(2)(iv), and (dd) and by adding 
paragraphs (f)(3)(xviii), (g)(4)(xix), (bb)(2)(v) and (cc)(2)(v) to 
read as follows:


Sec.  82.13  Recordkeeping and Reporting Requirements for class I 
controlled substances.

* * * * *
    (f) * * *
    (3) Reporting Requirements--Producers. For each quarter, except as 
specified in this paragraph (f)(3), each producer of a class I 
controlled substance must provide the Administrator with a report 
containing the following information:
* * * * *
    (xviii) Producers shall report annually the amount of methyl 
bromide produced or imported prior to the January 1, 2005 phaseout date 
owned by the reporting entity, as well as quantities held by the 
reporting entity on behalf of another entity, specifying the name of 
the entity on whose behalf the material is held.
    (g) * * *
    (4) Reporting Requirements--Importers. For each quarter, except as 
specified in this paragraph (g)(4), every importer of a class I 
controlled substance (including importers of used, recycled or 
reclaimed controlled substances) must submit to the Administrator a 
report containing the following information:
* * * * *
    (xix) Importers shall report annually the amount of methyl bromide 
produced or imported prior to the January 1, 2005 phaseout date owned 
by the reporting entity, as well as quantities held by the reporting 
entity on behalf of another entity, specifying the name of the entity 
on whose behalf the material is held.
* * * * *
    (bb) * * *
    (2) * * *
    (iv) The number of unexpended and expended critical stock 
allowances;
    (v) The amount of methyl bromide produced or imported prior to the 
January 1, 2005 phaseout date owned by the reporting entity, as well as 
quantities held by the reporting entity on behalf of another entity, 
specifying the name of the entity on whose behalf the material is held.
* * * * *
    (cc) * * *
    (2) * * *
    (iv) The number of unexpended and expended critical stock 
allowances;
    (v) The amount of methyl bromide produced or imported prior to the 
January 1, 2005 phaseout date owned by the reporting entity, as well as 
quantities held by the reporting entity on behalf of another entity, 
specifying the name of the entity on whose behalf the material is held.
* * * * *
    (dd) Every approved critical user purchasing an amount of critical 
use methyl bromide or purchasing fumigation services with critical use 
methyl bromide must, for each request, identify the use as a critical 
use and certify being an approved critical user. The approved critical 
user certification will state, in part: I certify, under penalty of 
law, ``I am an approved critical user and I will use this quantity of 
methyl bromide for an approved critical use. My action conforms to the 
requirements associated with the critical use exemption published in 40 
CFR part 82. I am aware that any agricultural commodity within a 
treatment chamber, facility, or field I fumigate with critical use 
methyl bromide can not subsequently or concurrently be fumigated with 
non-critical use methyl bromide during the same control period, 
excepting a QPS treatment or a treatment for a different use (e.g., a 
different crop or commodity). I will not use this quantity of methyl 
bromide for a treatment chamber, facility, or field that I previously 
fumigated with non-critical use methyl bromide purchased during the 
same control period, excepting a QPS treatment or a treatment for a 
different use (e.g., a different crop or commodity), unless a local 
township limit now prevents me from using methyl bromide alternatives 
or I have now become an approved critical user as a result of 
rulemaking.'' The certification will also indicate the type of critical 
use methyl bromide purchased, the location of the treatment, the crop 
or commodity treated, the quantity of critical use methyl bromide 
purchased, the acreage/square footage treated and will be signed and 
dated by the approved critical user.

Appendix L--[Amended]

0
5. Appendix L is revised to read as follows:

------------------------------------------------------------------------
                                     Column B
  Column A  Approved critical   Approved critical    Column C  Limiting
             uses               user and location   critical conditions
                                      of use
------------------------------------------------------------------------
                             PRE-PLANT USES
------------------------------------------------------------------------
Cucurbits.....................  (a) Michigan       With a reasonable
                                 growers.           expectation that
                                                    moderate to severe
                                                    fungal pathogen
                                                    infestation already
                                                    either exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation.
                                (b) Alabama,       With a reasonable
                                 Arkansas,          expectation that
                                 Georgia, North     moderate to severe
                                 Carolina, South    yellow or purple
                                 Carolina,          nutsedge infestation
                                 Tennessee, and     already either
                                 Virginia growers.  exists or could
                                                    occur without methyl
                                                    bromide fumigation.
Eggplant......................  (a) Georgia        With a reasonable
                                 growers.           expectation that
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge infestation
                                                    either already exist
                                                    or could occur
                                                    without methyl
                                                    bromide fumigation.

[[Page 51283]]

 
                                (b) Florida        With a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already exist
                                                    or could occur
                                                    without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    karst topography.
                                (c) Michigan       With a reasonable
                                 Growers.           expectation that
                                                    moderate to severe
                                                    fungal pathogen
                                                    infestation already
                                                    either exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation.
Forest Seedlings..............  (a) Members of     With a reasonable
                                 the Southern       expectation that one
                                 Forest Nursery     or more of the
                                 Management         following limiting
                                 Cooperative        critical conditions
                                 limited to         already either exist
                                 growing            or could occur
                                 locations in       without methyl
                                 Alabama,           bromide fumigation:
                                 Arkansas,          moderate to severe
                                 Florida,           yellow or purple
                                 Georgia,           nutsedge
                                 Louisiana,         infestation, or
                                 Mississippi,       moderate to severe
                                 North Carolina,    disease infestation.
                                 Oklahoma, South
                                 Carolina,
                                 Tennessee,
                                 Texas, and
                                 Virginia.
                                (b) International  With a reasonable
                                 Paper and its      expectation that one
                                 subsidiaries       or more of the
                                 limited to         following limiting
                                 growing            critical conditions
                                 locations in       already either exist
                                 Arkansas,          or could occur
                                 Alabama,           without methyl
                                 Georgia, South     bromide fumigation:
                                 Carolina and       moderate to severe
                                 Texas.             yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    disease infestation.
                                (c) Weyerhaeuser   With a reasonable
                                 Company and its    expectation that one
                                 subsidiaries       or more of the
                                 limited to         following limiting
                                 growing            critical conditions
                                 locations in       already either exist
                                 Alabama,           or could occur
                                 Arkansas, North    without methyl
                                 Carolina, South    bromide fumigation:
                                 Carolina,          moderate to severe
                                 Oregon, and        yellow or purple
                                 Washington.        nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    disease infestation.
                                (d) Public         With a reasonable
                                 (government        expectation that one
                                 owned) seedling    or more of the
                                 nurseries in the   following limiting
                                 states of          critical conditions
                                 California,        already either exist
                                 Idaho, Illinois,   or could occur
                                 Indiana, Kansas,   without methyl
                                 Kentucky,          bromide fumigation:
                                 Maryland,          moderate to severe
                                 Missouri,          yellow or purple
                                 Nebraska, New      nutsedge
                                 Jersey, Ohio,      infestation, or
                                 Oregon,            moderate to severe
                                 Pennsylvania,      disease infestation.
                                 Utah,
                                 Washington, West
                                 Virginia and
                                 Wisconsin.
                                (e) Members of     With a reasonable
                                 the Nursery        expectation that one
                                 Technology         or more of the
                                 Cooperative        following limiting
                                 limited to         critical conditions
                                 growing            already either exist
                                 locations in       or could occur
                                 Oregon and         without methyl
                                 Washington.        bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    disease infestation.
                                (f) Michigan       With a reasonable
                                 seedling           expectation that one
                                 nurseries.         or more of the
                                                    following limiting
                                                    critical conditions
                                                    already exist or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation: moderate
                                                    to severe yellow or
                                                    purple nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    disease infestation.
Ginger........................  Hawaii growers...  With a reasonable
                                                    expectation that the
                                                    limiting critical
                                                    condition already
                                                    either exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation, or
                                                    moderate to severe
                                                    bacterial wilt
                                                    infestation.
Orchard Nursery Seedlings.....  (a) Members of     With a reasonable
                                 the Western        expectation that one
                                 Raspberry          or more of the
                                 Nursery            following limiting
                                 Consortium         critical conditions
                                 limited to         already either
                                 growing            exists or could
                                 locations in       occur without methyl
                                 California and     bromide fumigation:
                                 Washington         moderate to severe
                                 (Driscoll's        nematode
                                 raspberries and    infestation, medium
                                 their contract     to heavy clay soils,
                                 growers in         or a prohibition of
                                 California and     on the use of 1,3-
                                 Washington).       dichloropropene
                                                    products due to
                                                    reaching local
                                                    township limits on
                                                    the use of this
                                                    alternative.
                                (b) Members of     With a reasonable
                                 the California     expectation that one
                                 Association of     or more of the
                                 Nurserymen-        following of
                                 Deciduous Fruit    limiting critical
                                 and Nut Tree       conditions already
                                 Growers.           either exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation: moderate
                                                    to severe nematode
                                                    infestation, medium
                                                    to heavy clay soils,
                                                    or a prohibition of
                                                    on the use of 1,3-
                                                    dichloropropene
                                                    products due to
                                                    reaching local
                                                    township limits on
                                                    the use of this
                                                    alternative.
                                (c) Members of     With a reasonable
                                 the California     expectation that one
                                 Association of     or more of the
                                 Nurserymen-        following limiting
                                 Citrus and         critical conditions
                                 Avocado Growers.   already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    nematode
                                                    infestation, medium
                                                    to heavy clay soils,
                                                    or a prohibition of
                                                    on the use of 1,3-
                                                    dichloropropene
                                                    products due to
                                                    reaching local
                                                    township limits on
                                                    the use of this
                                                    alternative.
Orchard Replant...............  (a) California     With a reasonable
                                 stone fruit        expectation that one
                                 growers.           or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    replanted (non-
                                                    virgin) orchard
                                                    soils to prevent
                                                    orchard replant
                                                    disease, or medium
                                                    to heavy soils, or a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached.

[[Page 51284]]

 
                                (b) California     With a reasonable
                                 table and raisin   expectation that one
                                 grape growers.     or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    replanted (non-
                                                    virgin) orchard
                                                    soils to prevent
                                                    orchard replant
                                                    disease, or medium
                                                    to heavy soils, or a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached.
                                (c) California     With a reasonable
                                 walnut growers.    expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    replanted (non-
                                                    virgin) orchard
                                                    soils to prevent
                                                    orchard replant
                                                    disease, or medium
                                                    to heavy soils, or a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached.
                                (d) California     With a reasonable
                                 almond growers.    expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    replanted (non-
                                                    virgin) orchard
                                                    soils to prevent
                                                    orchard replant
                                                    disease, or medium
                                                    to heavy soils, or a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached.
Ornamentals...................  (a) Yoder          For use in all
                                 Brothers Inc. in   chrysanthemum
                                 Florida.           production.
                                (b) California     With a reasonable
                                 rose nurseries.    expectation that the
                                                    user may be
                                                    prohibited from
                                                    using 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached.
                                (c) California     With a reasonable
                                 Cut Flower         expectation that the
                                 Commission         user may be
                                 Growers and        prohibited from
                                 Florida Growers.   using 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached.
Peppers.......................  (a) California     With a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    disease infestation,
                                                    or moderate to
                                                    severe yellow or
                                                    purple nutsedge
                                                    infestation, or a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached.
                                (b) Alabama,       With a reasonable
                                 Arkansas,          expectation that one
                                 Georgia, North     or more of the
                                 Carolina, South    following limiting
                                 Carolina,          critical conditions
                                 Tennessee and      already either
                                 Virginia growers.  exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or the
                                                    presence of an
                                                    occupied structure
                                                    within 100 feet of a
                                                    grower's field the
                                                    size of 100 acres or
                                                    less.
                                (c) Florida        With a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    karst topography.
                                (d) Michigan       With a reasonable
                                 growers.           expectation that
                                                    moderate to severe
                                                    fungal pathogen
                                                    infestation already
                                                    either exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation.
Strawberry Nurseries..........  (a) California     With a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    black root rot or
                                                    crown rot, or
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation.
                                (b) North          With a reasonable
                                 Carolina and       expectation that the
                                 Tennessee          use will occur in
                                 growers.           the presence of an
                                                    occupied structure
                                                    within 100 feet of a
                                                    grower's field the
                                                    size of 100 acres or
                                                    less.
Strawberry Fruit..............  (a) California     With a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    black root rot or
                                                    crown rot, moderate
                                                    to severe yellow or
                                                    purple nutsedge
                                                    infestation, a
                                                    prohibition of the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached, time
                                                    to transition to an
                                                    alternative.
                                (b) Florida        With a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge, or karst
                                                    topography.
                                (c) Alabama,       With a reasonable
                                 Arkansas,          expectation that one
                                 Georgia, North     or more of the
                                 Carolina, South    following limiting
                                 Carolina,          critical conditions
                                 Tennessee,         already either
                                 Virginia, Ohio     exists or could
                                 and, New Jersey    occur without methyl
                                 growers.           bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge, or the
                                                    presence of an
                                                    occupied structure
                                                    within 100 feet of a
                                                    grower's field the
                                                    size of 100 acres or
                                                    less.
Sweet Potatoes................  California         With a reasonable
                                 growers.           expectation that the
                                                    user may be
                                                    prohibited from
                                                    using 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached.

[[Page 51285]]

 
Tomatoes......................  (a) Michigan       With a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    disease infestation,
                                                    fungal pathogens
                                                    infestation.
                                (b) Alabama,       With a reasonable
                                 Arkansas,          expectation that one
                                 Georgia, North     or more of the
                                 Carolina, South    following limiting
                                 Carolina,          critical conditions
                                 Tennessee          and already either
                                 Virginia growers.  exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or the
                                                    presence of an
                                                    occupied structure
                                                    within 100 feet of a
                                                    grower's field the
                                                    size of 100 acres or
                                                    less.
                                (c) Florida        With a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    karst topography.
                                (d) California     With a reasonable
                                 growers in San     expectation that
                                 Diego and          moderate to severe
                                 Ventura.           pest counties
                                                    pressure exists and
                                                    where alternatives
                                                    are ineffective
                                                    because of hilly
                                                    terrain.
Turfgrass.....................  (a) U.S.           For the production of
                                 turfgrass sod      industry certified
                                 nursery            pure sod.
                                 producers who
                                 are members of
                                 Turfgrass
                                 Producers
                                 International
                                 (TPI).
                                (b) U.S. golf      For establishing sod
                                 courses.           in the construction
                                                    of new golf courses
                                                    or the renovation of
                                                    putting greens,
                                                    tees, and fairways.
-------------------------------
                            POST-HARVEST USES
------------------------------------------------------------------------
Food Processing...............  (a) Rice millers   With a reasonable
                                 in all locations   expectation that one
                                 in the U.S. who    or more of the
                                 are members of     following limiting
                                 the USA Rice       critical conditions
                                 Millers            exists: older
                                 Association.       structures that can
                                                    not be properly
                                                    sealed to use an
                                                    alternative to
                                                    methyl bromide, or
                                                    the presence of
                                                    sensitive electronic
                                                    equipment subject to
                                                    corrosivity, time to
                                                    transition to an
                                                    alternative.
                                (b) Pet food       With a reasonable
                                 manufacturing      expectation that one
                                 facilities in      or more of the
                                 the U.S. who are   following limiting
                                 active members     critical conditions
                                 of the Pet Food    exists: older
                                 Institute. (For    structures that can
                                 today's rule,      not be properly
                                 ``pet food''       sealed to use an
                                 refers to          alternative to
                                 domestic dog and   methyl bromide, or
                                 cat food).         the presence of
                                                    sensitive electronic
                                                    equipment subject to
                                                    corrosivity, time to
                                                    transition to an
                                                    alternative.
                                (c) Kraft Foods    With a reasonable
                                 in the U.S.        expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    exists: older
                                                    structures that can
                                                    not be properly
                                                    sealed to use an
                                                    alternative to
                                                    methyl bromide, or
                                                    the presence of
                                                    sensitive electronic
                                                    equipment subject to
                                                    corrosivity, time to
                                                    transition to an
                                                    alternative.
                                (d) Members of     With a reasonable
                                 the North          expectation that one
                                 American           or more of the
                                 Millers'           following limiting
                                 Association in     critical conditions
                                 the U.S..          already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation: older
                                                    structures that can
                                                    not be properly
                                                    sealed to use an
                                                    alternative to
                                                    methyl bromide, or
                                                    the presence of
                                                    sensitive electronic
                                                    equipment subject to
                                                    corrosivity, time to
                                                    transition to an
                                                    alternative.
                                (e) Members of     With reasonable
                                 the National       expectation that one
                                 Pest Management    or more of the
                                 Association        following limiting
                                 (associated with   critical conditions
                                 dry commodity      already exists or
                                 structure          could occur without
                                 fumigation         methyl bromide
                                 (cocoa) and dry    fumigation: older
                                 commodity          structures that
                                 fumigation         cannot be properly
                                 (processed food,   sealed in order to
                                 herbs, spices,     use an alternative
                                 and dried milk).   to methyl bromide,
                                                    or the presence of
                                                    electronic equipment
                                                    that is subject to
                                                    corrosivity, or
                                                    where heat treatment
                                                    would cause
                                                    rancidity to a
                                                    particular
                                                    commodity, time to
                                                    transition to an
                                                    alternative.
Commodity Storage.............  (a) Gwaltney of    For smokehouse ham
                                 Smithfield in      curing facilities
                                 the U.S..          owned by the
                                                    company.
                                Dry cured pork     Pork product
                                 products: (b)      facilities who are
                                 Members of the     members of the
                                 National Country   Association.
                                 Ham Association.
                                Dry cured pork     Pork product
                                 products: (c)      facilities who are
                                 Members of the     members of the
                                 American           Association.
                                 Association of
                                 Meat Processors.
                                Dry cured pork     For facilities owned
                                 products: (d)      by the company.
                                 Nahunta Pork
                                 Center.
                                (b) California     With a reasonable
                                 entities storing   expectation that one
                                 walnuts, beans,    or more of the
                                 dried plums,       following limiting
                                 figs, raisins,     critical conditions
                                 and pistachios     exists: rapid
                                 in California.     fumigation is
                                                    required to meet a
                                                    critical market
                                                    window, such as
                                                    during the holiday
                                                    season, rapid
                                                    fumigation is
                                                    required when a
                                                    buyer provides short
                                                    (2 days or less)
                                                    notification for a
                                                    purchase, or there
                                                    is a short period
                                                    after harvest in
                                                    which to fumigate
                                                    and there is limited
                                                    silo availability
                                                    for using
                                                    alternatives.

[[Page 51286]]

 
                                (c) Growers and    With a reasonable
                                 packers who are    expectation that one
                                 members of the     or more of the
                                 California Date    following limiting
                                 Commission,        critical conditions
                                 whose facilities   exists: rapid
                                 are located in     fumigation is
                                 Riverside County.  required to meet a
                                                    critical market
                                                    window, such as
                                                    during the holiday
                                                    season, when a buyer
                                                    provides short (2
                                                    days or less)
                                                    notification for a
                                                    purchase, or there
                                                    is a short period
                                                    after harvest in
                                                    which to fumigate
                                                    and there is limited
                                                    silo availability
                                                    for using
                                                    alternatives.
------------------------------------------------------------------------

[FR Doc. 05-17191 Filed 8-29-05; 8:45 am]
BILLING CODE 6560-50-U


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