62030 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 82 

[FRL–7990–1] 

RIN 2060–AN18 

Protection of Stratospheric Ozone: The 

2006 Critical Use Exemption From the 

Phaseout of Methyl Bromide 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of proposed rulemaking. 

SUMMARY: EPA is proposing an 

exemption to the phaseout of methyl 

bromide production and import for 2006 

critical uses. Specifically, EPA is 

proposing uses that will qualify for the 

2006 critical use exemption, and the 

amount of methyl bromide that may be 

produced, imported, or made available 

from stocks for those uses in 2006. 

EPA’s action is taken under the 

authority of the Clean Air Act and 

reflects recent consensus Decisions 

taken by the Parties to the Montreal 

Protocol on Substances that Deplete the 

Ozone Layer (Protocol) at the 16th 

Meeting of the Parties (MOP) and the 

2nd Extraordinary Meeting of the Parties 

(ExMOP). EPA is seeking comment on 

both the list of critical uses, and on 

EPA’s determination of the amounts of 

methyl bromide needed to satisfy those 

uses. 

DATES: Written comments on this 

proposed rule must be received on or 

before November 28, 2005, except as 

otherwise noted in this paragraph. Any 

party requesting a public hearing must 

notify the contact person listed below 

by 5 p.m. Eastern Standard Time on 

November 7, 2005. If a hearing is 

requested it will be held on November 

14, 2005. If a hearing is held, any party 

may submit follow-up comments in the 

form of rebuttal or supplementary 

information, but such comments must 

be received on or before December 12, 

2005. Persons interested in attending a 

public hearing should consult with the 

contact person below regarding the 

location and time of the hearing. 

Whether or not a hearing is held, if data 

relevant to the critical use exemption 

level is received on or before November 

28, 2005, any party may submit followup comments regarding such data, but 

such comments must be received on or 

before December 12, 2005. 

ADDRESSES: Submit your comments, 

identified by Regional Material in 

Edocket (RME) ID No. OAR–2005–0122, 

by one of the following methods: 

1. Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

2. Agency Web site: 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. 

3. E-mail: A-and-R-docket@epa.gov. 

4. Fax: (202) 343–2337, attn: Marta 

Montoro. 

5. Mail: ‘‘OAR–2005–0122’’, Air 

Docket, Environmental Protection 

Agency, Mailcode: 6102T, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460. 

6. Hand Delivery or Courier. Deliver 

your comments to: 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 

OAR–2005–0122. 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 Web site are 

‘‘anonymous access’’ systems, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

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

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

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. 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 proposed 

rule, contact Marta Montoro by 

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

mail at Marta Montoro, U.S. 

Environmental Protection Agency, 

Stratospheric Protection Division, 

Stratospheric Program Implementation 

Branch (6205J), 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460. 

You may also visit the Ozone Depletion 

Web site of EPA’s Stratospheric 

Protection Division at http:// 

www.epa.gov/ozone for further 

information about EPA’s Stratospheric 

Ozone Protection regulations, the 

science of ozone layer depletion, and 

other related topics. 

SUPPLEMENTARY INFORMATION: This 

proposed rule concerns Clean Air Act 

restrictions on the consumption, 

production and on the use of methyl 

bromide (class I, Group VI controlled 

substance) for critical uses during the 

calendar year of 2006. Under the Clean 

Air Act, methyl bromide consumption 

and production was phased out on 

January 1, 2005 apart from allowable 

exemptions, namely the critical use 

exemption and the quarantine and preshipment exemption. With today’s 

action, EPA is proposing and seeking 

comment on the uses that will qualify 

for the 2006 critical use exemption, as 

well as specific amounts of methyl 

bromide that may be produced, 

imported, or made available from stocks 

for proposed critical uses in 2006. 

Table of Contents 

I. General Information 

A. Regulated Entities 

B. How Can I Get Copies of This Document 

and Other Related Information? 

II. What Is the Background to the Phaseout 

Regulations for Ozone-Depleting 

Substances? 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 62031 

III. What Is Methyl Bromide? 

IV. What Is the Legal Authority for 

Exempting the Production and Import of 

Methyl Bromide for Critical Uses 

Authorized by the Parties to the 

Montreal Protocol? 

V. What Is the Critical Use Exemption 

Process? 

A. Background of the Process 

B. How Does This Proposed Rulemaking 

Relate to Previous Rulemaking Regarding 

the Critical Use Exemption? 

C. What Are the Proposed Critical Uses? 

D. What Are the Uses That May Obtain 

Methyl Bromide for Research? 

E. What Amount of Methyl Bromide Is 

Necessary for Critical Uses? 

F. What Are the Sources of Critical Use 

Methyl Bromide? 

G. What Are the Critical Use Allowance 

Allocations? 

H. What Are the Critical Stock Allowance 

Allocations? 

I. Clarifications to the Framework Rule 

J. Proposed Supplementary Critical Use 

Exemptions for 2006 

VI. Statutory and Executive Order Reviews 

A. Executive Order No. 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order No. 13132: Federalism 

F. Executive Order No. 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order No. 13045: Protection 

of Children From Environmental Health 

& Safety Risks 

H. Executive Order No. 13211: Actions 

That Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 

I. General Information 

A. Regulated Entities 

Entities potentially regulated by this 

proposed action are those associated 

with the production, import, export, 

sale, application and use of methyl 

bromide covered by an approved critical 

use exemption. Potentially regulated 

categories and entities include: 

Category Examples of regulated entities 

Industry .............. Producers, Importers and Exporters of methyl bromide; Applicators, Distributors of methyl bromide; Users of methyl bromide, 

e.g. farmers of vegetable crops, fruits and seedlings; and owners of stored food commodities and structures such as grain 

mills and processors, Government and non-government researchers. 

The above table is not intended to be 

exhaustive, but rather to provide a guide 

for readers regarding entities likely to be 

regulated by this proposed action. This 

table lists the types of entities that EPA 

is aware could potentially be regulated 

by this proposed action. To determine 

whether your facility, company, 

business, or organization is regulated by 

this proposed action, you should 

carefully examine the regulations 

promulgated at 40 CFR 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–2005–0122. 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 a.m. until 4:30 p.m. 

Monday through Friday, excluding legal 

holidays. A reasonable fee may be 

charged for copying docket materials. 

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. EPA prefers that you use 

the electronic EPA Dockets at http:// 

www.epa.gov/edocket/ to submit or 

view public comments and access the 

index listing of the contents of the 

official public docket. To locate the 

docket on EPA’s docket Web site, select 

‘‘search,’’ then key in the appropriate 

docket identification number, in this 

case OAR–2005–0122. 

Certain types of information will not 

be placed in the EPA Dockets. 

Information claimed as confidential 

business information (CBI) and other 

information whose disclosure is 

restricted by statute, will not be 

included in the official public docket 

and 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 Unit B. 

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. 

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. 

II. What Is the Background to the 

Phaseout Regulations for OzoneDepleting Substances? 

The current regulatory requirements 

of the Stratospheric Ozone Protection 

Program that limit production and 

consumption of ozone depleting 

substances can be found at 40 CFR part 

82 subpart A. The regulatory program 

was originally published in the Federal 

Register on August 12, 1988 (53 FR 

30566), in response to the 1987 signing 

and subsequent ratification of the 

Montreal Protocol on Substances that 

Deplete the Ozone Layer (Protocol). The 

U.S. was one of the original signatories 

62032 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 

to the 1987 Montreal Protocol and the 

U.S. ratified the Protocol on April 12, 

1988. Congress then enacted, and 

President George H.W. Bush signed into 

law, the Clean Air Act Amendments of 

1990 (CAAA of 1990) which included 

Title VI on Stratospheric Ozone 

Protection, codified as 42 U.S.C. 

Chapter 85, Subchapter VI, to ensure 

that the United States could satisfy its 

obligations under the Protocol. EPA 

issued new regulations to implement 

this legislation and has made several 

amendments to the regulations since 

that time. 

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, as 

well as by States under their own 

statutes and regulatory authority. Under 

FIFRA, methyl bromide is a restricted 

use pesticide. Because of this status, a 

restricted use pesticide is subject to 

certain Federal and State requirements 

governing its sale, distribution, and use. 

Nothing in this final rule implementing 

the Clean Air Act is intended to 

derogate from provisions in any other 

Federal, State, or local laws or 

regulations governing actions including, 

but not limited to, the sale, distribution, 

transfer, and use of methyl bromide. All 

entities that would be affected by 

provisions of this rule must continue to 

comply with FIFRA and other pertinent 

statutory and regulatory requirements 

for pesticides (including, but not limited 

to, requirements pertaining to restricted 

use pesticides) when importing, 

exporting, acquiring, selling, 

distributing, transferring, or using 

methyl bromide for critical uses. The 

regulations in 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. What Is the Legal Authority for 

Exempting the Production and Import 

of Methyl Bromide for Critical Uses 

Authorized by the Parties to the 

Montreal Protocol? 

Methyl bromide was added to the 

Protocol as an ozone depleting 

substance in 1992 through the 

Copenhagen amendment to the Protocol. 

The Parties authorize critical use 

exemptions through their Decisions. 

The Parties agreed that each 

industrialized country’s level of methyl 

bromide production and consumption 

in 1991 should be the baseline for 

establishing a freeze in the level of 

methyl bromide production and 

consumption for industrialized 

countries. EPA published a final rule in 

the Federal Register on December 10, 

1993 (58 FR 65018), listing methyl 

bromide as a class I, Group VI 

controlled substance, freezing U.S. 

production and consumption at this 

1991 level, and, in Section 82.7 of the 

rule, setting forth the percentage of 

baseline allowances for methyl bromide 

granted to companies in each control 

period (each calendar year) until the 

year 2001, when the complete phaseout 

would occur (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 CAA 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 

CAA 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 on Copenhagen. 

At their 1995 meeting, the Parties 

made adjustments to the methyl 

bromide control measures and agreed to 

reduction steps and a 2010 phaseout 

date for industrialized countries with 

exemptions permitted for critical uses. 

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

a 2001 phaseout date in accordance 

with the CAA 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 

proposing the uses that will qualify as 

approved critical uses in 2006 and the 

amount of the 2006 critical use 

exemption. 

Today’s proposed action reflects 

Decision XVI/2, taken at the Parties’

Sixteenth Meeting in November 2004; 

and Decision Ex.II/I, taken at the Second 

Extraordinary Meeting of the Parties in 

July 2005. In accordance with Article 

2H(5), the Parties have issued several 

Decisions pertaining to the critical use 

exemption. These include Decision IX/ 

6, which sets forth criteria for review of 

proposed critical uses; Decision XVI/2, 

which approved a portion of the 2006 

nominated amounts and critical-use 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 62033 

categories; and Decision Ex.II/I, which 

approved another portion of the 2006 

nominated amounts for critical-use 

categories. 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, XVI/2, and Decision 

Ex.II/1 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 and satisfy the 

requirements of Section 604(d)(6) and 

Section 614(b) of the Clean Air Act. 

In Decision XVI/2, taken in November 

2004, the Parties to the Protocol agreed 

as follows: ‘‘for the agreed critical-use 

categories for 2006, set forth in section 

IIA to the annex to the present decision 

for each Party, to permit, subject to the 

conditions set forth in decision Ex.I/4, 

to the extent those conditions are 

applicable, the levels of production and 

consumption for 2006 set forth in 

section IIB to the annex to the present 

decision which are necessary to satisfy 

critical uses, with the understanding 

that additional levels of production and 

consumption and categories of uses may 

be approved by the Meeting of the 

Parties to the Montreal Protocol in 

accordance with decision IX/6.’’ Section 

IIA of the Annex to Decision XVI/2 lists 

the following critical use categories for 

the U.S.: Cucurbits—field; dried fruit 

and nuts; forest nursery seedlings; 

nursery stock—fruit trees, raspberries, 

roses; strawberry runners; turfgrass; dry 

commodities cocoa beans; dry 

commodities/structures; eggplant field; 

mills and processors; peppers field; 

strawberry fruit field; tomato field; and 

orchard replant with a total agreed 

critical-use level of 6,897,680 kilograms, 

which is equivalent to 27% of the U.S. 

1991 methyl bromide consumption 

baseline. 

In Decision Ex.II/1, taken in July 

2005, the Parties to the Protocol agreed 

as follows: ‘‘for the agreed critical uses 

for 2006, set forth in table A of the 

annex to the present decision, to permit, 

subject to the conditions set forth in the 

present decision and in decision Ex. I/ 

4, to the extent those conditions are 

applicable, the supplementary levels of 

production and consumption for 2006 

set forth in table B of the annex to the 

present decision which are necessary to 

satisfy critical uses, with the 

understanding that additional levels and 

categories of uses may be approved by 

the Seventeenth Meeting of the Parties 

in accordance with decision IX/6.’’

Table A of the Annex to Decision Ex.II/ 

1 lists the following critical use 

categories for the U.S.: Ornamentals; 

dry-cured ham; dry commodities/ 

structures (cocoa beans); dry 

commodities/structures (processed 

foods, herbs and spices, dried milk and 

cheese processing facilities); eggplant—

field, for research only; mills and 

processors; peppers—field; strawberry 

fruit—field; tomato—field with a total 

agreed critical-use level of 1,117,003 

kilograms, which is equivalent to 5% of 

the U.S. 1991 methyl bromide 

consumption baseline. When combined, 

the agreed critical-use levels for 2006 

from Decision XVI/2 and from Decision 

Ex.II/1 total 8,074,683 kilograms, which 

is equivalent to 32% of the U.S. 1991 

methyl bromide consumption baseline. 

Based, in part, on the applications 

underlying the U.S. 2006 nomination, 

the extensive review of those 

applications culminating in the 

preparation of that nomination, and the 

Decisions noted above, EPA is 

proposing to modify Columns B and C 

of Appendix L to 40 CFR part 82, 

subpart A to reflect agreed critical-use 

categories, locations of use, and limiting 

critical conditions applicable for the 

2006 control period. 

The question of whether, and to what 

extent, EPA should adjust the total 

critical use level agreed by the Parties 

for 2006 is addressed in Section E 

below. The question of what amount of 

the total should come from new 

production or import, and what amount 

should come from pre-phaseout 

inventories, is addressed in Section F 

below. For the reasons given in those 

sections, and based, in part, on the 

applications underlying the U.S. 2006 

nomination, the extensive review of 

those applications culminating in the 

preparation of that nomination, and the 

Decisions noted above, EPA is 

proposing to modify the table in 40 CFR 

82.8 to reflect the amount of methyl 

bromide that may be produced or 

imported, and sold from pre-phaseout 

inventories, for the 2006 control period. 

V. What Is the Critical Use Exemption 

Process? 

A. Background of the Process 

Starting in 2002, EPA began notifying 

applicants as to the availability of an 

application process for a critical use 

exemption to the methyl bromide 

phaseout. On May 23, 2005, 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. The critical use exemption is 

designed to meet the needs of methyl 

bromide users who do not have 

technically and economically feasible 

alternatives available to them. 

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.’’

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. 

EPA’s December 23, 2004, regulation 

describing the operational framework 

for the critical use exemption (69 FR 

76982) established the majority of 

critical uses for the 2005 calendar. 

Today’s action proposes exemptions for 

2006 reflecting information that the U.S. 

Government submitted to the Protocol’s 

Ozone Secretariat in its annual 

Nomination submission in February 

2004, as approved by the Parties in July 

2005. For each exemption period, EPA 

provides an opportunity such as this for 

comment on the amounts of methyl 

bromide that may be supplied under the 

critical use exemption and the end uses 

that may obtain this critical use methyl 

bromide. 

The domestic review process is 

discussed in detail in a memo titled 

62034 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 

‘‘Development of 2003 Nomination for a 

Critical Use Exemption for Methyl 

Bromide for the United States of 

America’’ on EDOCKET OAR–2005–

0122. Briefly, the U.S. Government 

reviews applications using the criteria 

in Decision IX/6 and creates a package 

for submission to the Ozone Secretariat 

of the Protocol (the ‘‘critical use 

nomination’’ or CUN). The CUNs of 

various countries are then reviewed by 

the Methyl Bromide Technical Options 

Committee (MBTOC) and the Technical 

and Economic Assessment Panel 

(TEAP), which are independent 

advisory bodies to the Parties. These 

bodies make recommendations to the 

Parties regarding the nominations. 

On February 7, 2004, the U.S. 

Government submitted the second U.S. 

Nomination for a Critical Use 

Exemption for Methyl Bromide to the 

Ozone Secretariat of the United Nations 

Environment Programme. This second 

nomination contained a supplemental 

request for critical methyl bromide for 

2005 and the initial request for 2006. In 

June 2004, MBTOC sent questions to the 

U.S. Government concerning technical 

and economic issues in the nomination. 

The U.S. Government’s response was 

transmitted on August 12, 2004. The 

U.S. submitted a revised request in 

conjunction with ‘‘The U.S. Nomination 

for Critical Uses for Methyl Bromide in 

2007 and Beyond.’’ This revised request 

was for an additional amount of 622,053 

kilograms of methyl bromide for a total 

of 2,844,985 kilograms of methyl 

bromide for the year 2006. This revised 

request was included in the U.S. 

rebuttal to MBTOC’s recommendation 

issued in its October 2004 report. These 

documents, together with reports by the 

advisory bodies noted above, can be 

accessed on EDOCKET OAR–2005–

0122. 

B. How Does This Proposed Rulemaking 

Relate to Previous Rulemakings 

Regarding the Critical Use Exemption? 

On December 23, 2004, EPA 

published in the Federal Register a 

Final Rule entitled, ‘‘Protection of 

Stratospheric Ozone: Process for 

Exempting Critical Uses From the 

Phaseout of Methyl Bromide’’ (the 

‘‘Framework Rule’’) (69 FR 76982). That 

rule established the framework for the 

critical use exemption in the U.S, 

including trading provisions and 

recordkeeping and reporting obligations. 

The Framework Rule defines the 

terms ‘‘critical use allowances’’ (CUAs) 

and ‘‘critical stock allowances’’ (CSAs) 

at 40 CFR 82.3. Each allowance 

represents the right to produce or 

import, or to sell from inventory, 

respectively, one kilogram of methyl 

bromide to an approved critical use. For 

example, a distributor with 100 CSAs 

may sell 100 kilograms of stockpiled 

pre-phaseout methyl bromide to an 

approved critical use. Today’s action 

proposes the uses that will qualify as 

approved critical uses for 2006 and the 

amount of CUAs and CSAs to be 

allocated for those uses. In the future, 

EPA will continue to undertake 

rulemakings that address both the 

approved critical uses and the amounts 

of methyl bromide to be allocated for 

critical uses in specific exemption 

periods. 

On August 30, 2005, EPA published a 

direct final rule and concurrent 

proposal relating to supplemental 

critical use exemptions for 2005 (70 FR 

51270). These recent notices in the 

Federal Register would establish three 

(3) additional uses as qualifying for the 

critical use exemption and permit 

access to critical use methyl bromide for 

those uses in 2005. These notices would 

also allocate additional CSAs for 

supplementary amounts of critical use 

methyl bromide in 2005. The additional 

allocations for 2005 would supplement 

the CUAs and CSAs previously 

allocated for 2005 in the Federal 

Register on December 23, 2004 (69 FR 

76982). In today’s proposed action, the 

Agency is proposing: (1) To establish 

the list of uses that qualify for the 

critical use exemption in 2006; and (2) 

to specify the amounts of methyl 

bromide that may be produced or 

imported, or supplied from prephaseout inventories, for those uses in 

2006. EPA seeks comment on the 

proposed 2006 critical uses and the 

amount of methyl bromide the Agency 

has determined to be necessary to 

satisfy those uses. For detailed technical 

and economic information on the 

critical uses and the U.S. Government’s 

justifications for why there is a critical 

need for exempted methyl bromide, the 

Agency refers commenters to the EDocket where the U.S. nominations and 

additional information in the form of 

responses to MBTOC are available. The 

2004 U.S. nomination can be found at 

EDOCKET OAR–2003–0017 and 

EDOCKET OAR–2005–0122. These are 

the technical documents which are the 

basis for the Parties’ authorization of 

critical uses and permitted exempt 

production and import and which form 

part of the basis for this rulemaking. 

Reports by the Protocol’s advisory 

bodies, the MBTOC and TEAP, as well 

as questions to the U.S. from MBTOC, 

are also available in EDOCKET OAR–

2005–0122. 

C. What Are the Proposed Critical Uses? 

In Decision XVI/2, taken in November 

2004, the Parties to the Protocol agreed 

as follows: ‘‘for the agreed critical-use 

categories for 2006, set forth in section 

IIA to the annex to the present decision 

for each Party, to permit, subject to the 

conditions set forth in decision Ex.I/4, 

to the extent those conditions are 

applicable, the levels of production and 

consumption for 2006 set forth in 

section IIB to the annex to the present 

decision which are necessary to satisfy 

critical uses, with the understanding 

that additional levels of production and 

consumption and categories of uses may 

be approved by the Meeting of the 

Parties to the Montreal Protocol in 

accordance with decision IX/6.’’ Section 

IIA of the Annex to Decision XVI/2 lists 

the following critical use categories for 

the U.S.: Cucurbits—field; dried fruit 

and nuts; forest nursery seedlings; 

nursery stock—fruit trees, raspberries, 

roses; strawberry runners; turfgrass; dry 

commodities cocoa beans; dry 

commodities/structures; eggplant field; 

mills and processors; peppers field; 

strawberry fruit field; tomato field; and 

orchard replant with a total agreed 

critical-use level of 6,897,680 kilograms, 

which is equivalent to 27% of the U.S. 

1991 methyl bromide consumption 

baseline. 

In Decision Ex.II/1, taken in July 

2005, the Parties to the Protocol agreed 

as follows: ‘‘for the agreed critical uses 

for 2006, set forth in table A of the 

annex to the present decision, to permit, 

subject to the conditions set forth in the 

present decision and in decision Ex. I/ 

4, to the extent those conditions are 

applicable, the supplementary levels of 

production and consumption for 2006 

set forth in table B of the annex to the 

present decision which are necessary to 

satisfy critical uses, with the 

understanding that additional levels and 

categories of uses may be approved by 

the Seventeenth Meeting of the Parties 

in accordance with decision IX/6.’’

Table A of the Annex to Decision Ex.II/ 

1 lists the following critical use 

categories for the U.S.: Ornamentals; 

dry-cured ham; dry commodities/ 

structures (cocoa beans); dry 

commodities/structures (processed 

foods, herbs and spices, dried milk and 

cheese processing facilities); eggplant—

field, for research only; mills and 

processors; peppers—field; strawberry 

fruit—field; tomato—field with a total 

agreed critical-use level of 1,117,003 

kilograms, which is equivalent to 5% of 

the U.S. 1991 methyl bromide 

consumption baseline. When combined, 

the agreed critical-use levels for 2006 

from Decision XVI/2 and from Decision 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 62035 

Ex.II/1 total 8,074,683 kilograms, which 

is equivalent to 32% of the U.S. 1991 

methyl bromide consumption baseline. 

Based, in part, on the applications 

underlying the U.S. 2006 nomination, 

the extensive review of those 

applications culminating in the 

preparation of that nomination, and the 

Decisions noted above, EPA is 

proposing to modify Columns B and C 

of Appendix L to 40 CFR part 82, 

subpart A to reflect agreed critical-use 

categories. 

Under the December 23, 2004, 

Framework Rule (69 FR 76982), an 

approved critical user may obtain access 

to exempted production/import and 

limited inventories of pre-phaseout 

methyl bromide stocks, the combination 

of which constitute the supply of 

‘‘critical use methyl bromide’’ intended 

to meet the needs of agreed critical uses. 

As set out in the Framework Rule, an 

approved critical user is a self-identified 

entity who meets the following 

requirements: 

(1) For the applicable control period, 

applied to EPA for a critical use 

exemption or is a member of a 

consortium that applied to EPA for a 

critical use exemption for a use and 

location of use that was included in the 

U.S. nomination, authorized by a 

Decision of the Parties to the Montreal 

Protocol, and then finally determined by 

EPA in a notice-and-comment 

rulemaking to be an approved critical 

use, and 

(2) Has an area in the applicable 

location of use that requires methyl 

bromide fumigation because the person 

reasonably expects that the area will be 

subject to a limiting critical condition 

(LCC) during the applicable control 

period. 

Using these criteria, an approved 

critical user could be a tomato farmer in 

Florida whose farm is over karst 

topography but would not include a 

tomato farmer in Oklahoma even if he 

too has a farm over karst topography 

because no exemption application was 

filed on behalf of Oklahoma tomato 

farmers. Similarly, a Florida tomato 

farmer who did not have a field with 

karst topography, or one of the other 

limiting critical conditions specified in 

this rule, would not be an approved 

critical user because the circumstance of 

the use is not an approved critical use. 

A ‘‘limiting critical condition’’ is the 

basis on which the critical need for 

methyl bromide is demonstrated and 

authorized. It is defined as ‘‘the 

regulatory, technical, and economic 

circumstances * * * that establish 

conditions of critical use of methyl 

bromide in a fumigation area.’’ 40 CFR 

82.3. The limiting critical condition 

placed on a use category reflects certain 

regulatory, technical, or economic 

factors that either prohibit the use of 

alternatives or represent the lack of a 

technically or economically feasible 

alternative for that use or circumstance. 

For example, EPA may determine that a 

critical use exemption for tomatoes is 

only necessary for areas of tomato 

production in karst topography even if 

the EPA received applications for all of 

U.S. fresh market tomato production. In 

this example, not all tomato growers 

would be eligible to acquire exempted 

critical use methyl bromide. Only those 

growers with production in an area with 

the limiting critical condition of karst 

topography would have access to the 

methyl bromide under the critical use 

exemption. Another example is as 

follows: EPA received applications for 

exemptions for all U.S. grain milling 

companies that are members of the 

North American Milling Association 

(NAMA). The Parties authorized the 

exemption because grain milling 

companies have a critical need for 

methyl bromide because the alternatives 

can not be used, in part, due to 

corrosivity to electronic equipment. 

Thus, one of the limiting critical 

conditions for this critical use category 

is the presence of sensitive electronic 

equipment subject to corrosivity from 

fumigation with the alternative. All 

grain mills that are members of NAMA 

that have sensitive electronic equipment 

would be eligible to acquire and use 

critical use methyl bromide. 

EPA is proposing the critical uses for 

the year 2006 as well as the conditions 

that make these uses ‘‘critical’’ 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 2006. 

This proposal is based on the 

information submitted by CUE 

applicants, as well as public and 

proprietary data sources. The CUE 

applications (except to the extent 

claimed confidential), the U.S. 

nomination, the questions and answers 

between the MBTOC and the U.S. 

Government about the nomination, and 

procedural memos are all available on 

EDOCKET OAR–2005–0122. Data 

submitted by the CUE applicants served 

as a basis for the nomination. EPA and 

other government experts also sought 

data from multiple other sources, 

including but not limited to the 

National Agricultural Statistics Service 

of the U.S. Department of Agriculture, 

the State of California Department of 

Pesticide Regulation, and proprietary 

agricultural databases available to EPA. 

All of the CUE applications underwent 

a rigorous review by highly qualified 

technical experts. A detailed 

explanation of the nomination process, 

including the criteria used by expert 

reviewers, is available in a memo titled 

‘‘2003 Nomination Process’’ on 

EDOCKET OAR–2005–0122. The memo 

was originally written to describe the 

process leading to the 2005 critical use 

exemption rules, but is applicable 

generally to the process leading to 

today’s action. 

The U.S. Government, in developing 

the nomination, defined the limiting 

critical conditions for which exempted 

methyl bromide was being sought. The 

U.S. Government used the information 

referenced above to determine if (a) the 

lack of availability of methyl bromide 

for a particular use would result in 

significant market disruption, and (b) if 

there were any technically and 

economically feasible methyl bromide 

substitutes available to the user. The 

analysis was described in the U.S. 

nomination of critical uses. The 

nomination was then sent to the Parties 

to the Protocol, and the Parties used the 

information in the nomination and the 

report from the MBTOC, that was based 

in part on the iterative exchange of 

questions and answers with the U.S. 

Government, as the basis for the 

Decisions which authorized critical 

uses. 

Based on the information described 

above, EPA determined that the uses in 

Table I, with the limiting critical 

conditions specified, qualify to obtain 

and use critical use methyl bromide in 

2006. However, as discussed in Section 

E, some of the circumstances for some 

of the critical use categories have 

changed due to recent registrations of an 

alternative and therefore EPA is 

proposing a decrease in the total CUE 

level for 2006. EPA welcomes 

submissions of additional information 

regarding substitutes and alternatives 

for any of the uses in the Table I below. 

EPA wishes to note that while we may, 

in response to comments, reduce the 

quantities of critical use methyl 

bromide, or the types of critical uses, 

compared to what has been authorized 

by the Parties, EPA will not increase the 

quantities, or types, beyond those 

authorized by the Parties. 

EPA proposes, based on the 

determination described in the U.S. 

nomination and its supporting 

documents, that users who are in a 

specific geographic location, identified 

below, or who are members of a specific 

industry consortium, identified below, 

or companies specifically identified 

below, are approved critical users 

62036 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 

provided that such users are subject to 

the specified limiting critical condition. 

EPA notes the reference to emission 

minimization techniques in paragraph 6 

of Decision Ex.II/1 and urges the 

proposed users listed in Table I. below 

to use ‘‘emission minimization 

techniques such as virtually 

impermeable films, barrier film 

technologies, deep shank injection and/ 

or other techniques that promote 

environmental protection, whenever 

technically and economically feasible.’’

Users of methyl bromide should make 

every effort to decrease overall 

emissions of methyl bromide by 

implementing measures such as the 

ones listed in the previous sentence, to 

the extent consistent with state and 

local laws and regulations. In addition, 

research is being conducted on the 

potential to reduce rates and emissions 

using high-barrier films. 

TABLE I.—APPROVED CRITICAL USES

Column A Column B Column C 

Approved critical 

uses 

Approved critical user and location of 

use Limiting critical conditions 

PRE-PLANT USES 

Cucurbits .................. (a) Michigan growers ............................ With a reasonable expectation that moderate to severe soilborne fungal disease infestation, or moderate to severe disease infestation could occur without methyl bromide fumigation; or with a need for methyl bromide for research purposes. 

(b) Southeastern U.S. except Georgia 

limited to growing locations in Alabama, Arkansas, Kentucky, Louisiana, North Carolina, South Carolina, Tennessee, and Virginia.

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

conditions either already exist or could occur without methyl bromide fumigation: moderate to severe yellow or purple nutsedge infestation, or to a lesser 

extent: fungal disease infestation and root knot nematodes; or with a need 

for methyl bromide for research purposes. 

(c) Georgia growers .............................. With a reasonable expectation that one or more of the following limiting critical 

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

severe fungal disease infestation, or to a lesser extent: root knot nematodes; 

or with a need for methyl bromide for research purposes. 

Eggplant ................... (a) Florida growers ................................ With a reasonable expectation that one or more of the following limiting critical 

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

to severe nematodes, or moderate to severe disease infestation, or restrictions on alternatives due to karst geology; or with a need for methyl bromide 

for research purposes. 

(b) Georgia growers .............................. With a reasonable expectation that one or more of the following limiting critical 

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

to severe nematodes, or moderate to severe pythium root and collar rots, or 

moderate to severe southern blight infestation, and to a lesser extent: crown 

and root rot; or with a need for methyl bromide for research purposes. 

(c) Michigan growers ............................. With a reasonable expectation that moderate to severe soilborne fungal disease infestation could occur without methyl bromide fumigation; or with a 

need for methyl bromide for research purposes. 

Forest Nursery Seedlings.(a) growers in Alabama, Arkansas, 

Florida, Georgia, Louisiana, Mississippi, North Carolina, Oklahoma, 

South Carolina, Tennessee, Texas 

and Virginia.

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

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

to severe disease infestation. 

(b) International Paper with and its subsidiaries limited to growing locations 

in Arkansas, Alabama, Georgia, 

South Carolina and Texas.

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

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

to severe disease infestation. 

(c) Public (government owned) seedling nurseries in the states of Idaho, 

Illinois, Indiana, Kansas, Kentucky, 

Maryland, Missouri, Nebraska, New 

Jersey, Ohio, Oregon, Pennsylvania, 

Utah, Washington, West Virginia and 

Wisconsin.

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

conditions either already exist or could occur without methyl bromide fumigation: moderate to severe weed infestation including purple and yellow 

nutsedge infestation, or moderate to severe Canada thistle infestation, or 

moderate to severe nematodes, and to a lesser extent: fungal disease infestation. 

(d) Weyerhaeuser Company and its 

subsidiaries limited to growing locations in Alabama, Arkansas, North 

Carolina and South Carolina.

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

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

severe disease infestation, and to a lesser extent: nematodes and worms. 

(e) Weyerhaeuser Company and its 

subsidiaries limited to growing in 

Washington and Oregon.

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

conditions already either exist of could occur without methyl bromide fumigation: moderate to severe yellow nutsedge infestation, or moderate to severe 

fungal disease infestation. 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 62037 

TABLE I.—APPROVED CRITICAL USES—Continued 

Column A Column B Column C 

Approved critical 

uses 

Approved critical user and location of 

use Limiting critical conditions 

(f) Michigan growers ............................. With a reasonable expectation that one or more of the following limiting critical 

conditions already either exist or could occur without methyl bromide fumigation: moderate to severe disease infestation, moderate to severe Canada 

thistle infestation, moderate to severe nutsedge infestation, and to a lesser 

extent: nematodes. 

(g) Michigan herbaceous perennials 

growers.

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

conditions already exist or could occur without methyl bromide fumigation: 

moderate to severe nematodes, moderate to severe fungal disease infestation, and to a lesser extent: yellow nutsedge and other weeds infestation. 

Orchard Nursery 

Seedlings.

(a) Members of the Western Raspberry 

Nursery Consortium limited to growing locations in California and Washington (Driscoll’s raspberries and 

their contract growers in California 

and Washington).

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe nematode infestation, medium to heavy clay 

soils, or a prohibition of on the use of 1,3-dichloropropene products due to 

reaching local township limits on the use of this alternative; or with a need 

for methyl bromide for research purposes. 

(b) Members of the California Association of Nurserymen-Deciduous Fruit 

and Nut Tree Growers.

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe nematodes, 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; or with a need for methyl 

bromide for research purposes. 

(c) California rose nurseries .................. With a reasonable expectation that one or more of the following limiting critical 

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe nematodes, or user may be prohibited from using 

1,3-dichloropropene products because local township limits for this alternative have been reached; or with a need for methyl bromide for research 

purposes. 

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe disease infestation, or moderate to severe yellow 

or purple nutsedge infestation, or moderate to severe nematodes; or with a 

need for methyl bromide for research purposes. 

(b) North Carolina, Tennessee and 

Maryland growers.

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe black root rot, or moderate to severe root-knot 

nematodes, or moderate to severe yellow and purple nutsedge infestation, 

and to a lesser extent: crown rot; or with a need for methyl bromide for research purposes. 

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe nematodes, or moderate to severe fungal disease infestation, or replanted (non-virgin) orchard soils to prevent orchard 

replant disease, or medium to heavy soils, or a prohibition on the use of 1,3- 

dichloropropene products because local township limits for this alternative 

have been reached; or with a need for methyl bromide for research purposes. 

(b) California table and raisin grape 

growers.

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe nematodes, or moderate to severe fungal disease infestation, or replanted (non-virgin) orchard soils to prevent orchard 

replant disease, or medium to heavy soils, or a prohibition on the use of 1,3- 

dichloropropene products because local township limits for this alternative 

have been reached; or with a need for methyl bromide for research purposes. 

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe nematodes, or replanted (non-virgin) orchard 

soils to prevent orchard replant disease, or medium to heavy soils, or a prohibition on the use of 1,3-dichloropropene products because local township 

limits for this alternative have been reached; or with a need for methyl bromide for research purposes. 

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe nematodes, or replanted (non-virgin) orchard 

soils to prevent orchard replant disease, or medium to heavy soils, or a prohibition on the use of 1,3-dichloropropene products because local township 

limits for this alternative have been reached; or with a need for methyl bromide for research purposes. 

62038 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 

TABLE I.—APPROVED CRITICAL USES—Continued 

Column A Column B Column C 

Approved critical 

uses 

Approved critical user and location of 

use Limiting critical conditions 

Ornamentals ............. (a) California growers ............................ With a reasonable expectation that one or more of the following limiting critical 

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe disease infestation, or moderate to severe nematodes, or a prohibition on the use of 1,3-dichloropropene products because 

local township limits for this alternative have been reached; or with a need 

for methyl bromide for research purposes. 

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe weed infestation, or moderate to severe disease 

infestation, or moderate to severe nematodes, or karst topography; or with a 

need for methyl bromide for research purposes. 

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe disease infestation, or moderate to severe nematodes, or a prohibition on the use of 1,3-dichloropropene products because 

local township limits for this alternative have been reached; or with a need 

for methyl bromide for research purposes. 

(b) Alabama, Arkansas, Kentucky, Louisiana, North Carolina, South Carolina, Tennessee and Virginia growers.With a reasonable expectation that one or more of the following limiting critical 

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe yellow or purple nutsedge infestation, or moderate to severe nematodes, or moderate to severe pythium root, collar, 

crown and root rots, or the presence of an occupied structure within 100 feet 

of a grower’s field the size of 100 acres or less; or with a need for methyl 

bromide for research purposes. 

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

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

karst topography; or with a need for methyl bromide for research purposes. 

(d) Georgia growers .............................. With a reasonable expectation that one or more of the following limiting critical 

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

to severe nematodes, or moderate to severe pythium root and collar rots, or 

moderate to severe southern blight infestation, and to a lesser extent: crown 

and root rot; or with a need for methyl bromide for research purposes. 

(e) Michigan growers ............................ With a reasonable expectation that moderate to severe fungal disease infestation would occur without methyl bromide fumigation; or with a need for methyl bromide for research purposes. 

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe black root rot or crown rot, or moderate to severe 

yellow or purple nutsedge infestation, or moderate to severe nematodes, or 

a prohibition of the use of 1,3-dichloropropene products because local township limits for this alternative have been reached, time to transition to an alternative; or with a need for methyl bromide for research purposes. 

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe yellow or purple nutsedge, or moderate to severe 

nematodes, or moderate to severe disease infestation, or karst topography 

and to a lesser extent: carolina geranium or cut-leaf evening primrose infestation; or with a need for methyl bromide for research purposes. 

(c) Alabama, Arkansas, Georgia, Illinois, Kentucky, Louisiana, Maryland, 

New Jersey, North Carolina, Ohio, 

South Carolina, Tennessee and Virginia growers.

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe yellow or purple nutsedge, or moderate to severe 

nematodes, or moderate to severe black root and crown rot, or the presence 

of an occupied structure within 100 feet of a grower’s field the size of 100 

acres or less; or with a need for methyl bromide for research purposes. 

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

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

pathogens infestation; or with a need for methyl bromide for research purposes. 

(b) Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, North 

Carolina, South Carolina, and Tennessee growers.

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe yellow or purple nutsedge infestation, or moderate to severe disease infestation, or moderate to severe nematodes, or the 

presence of an occupied structure within 100 feet of a grower’s field the size 

of 100 acres or less, or karst topography; or with a need for methyl bromide 

for research purposes. 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 62039 

TABLE I.—APPROVED CRITICAL USES—Continued 

Column A Column B Column C 

Approved critical 

uses 

Approved critical user and location of 

use Limiting critical conditions 

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe disease infestation, or moderate to severe nematodes; or with a need for methyl bromide for research purposes. 

Turfgrass .................. (a) U.S. turfgrass sod nursery producers who are members of 

Turfgrass Producers International 

(TPI).

For the production of industry certified pure sod; with a reasonable expectation 

that one or more of the following limiting critical conditions already either exists or could occur without methyl bromide fumigation: moderate to severe 

bermudagrass, nutsedge and off-type perennial grass infestation, or moderate to severe, or moderate to severe white grub infestation; or with a need 

for methyl bromide for research purposes. 

POST-HARVEST USES 

Food Processing ...... (a) Rice millers in all locations in the 

U.S. who are members of the USA 

Rice Millers Association.

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

conditions exists: moderate to severe infestation of beetles, weevils or 

moths, or older structures that cannot be properly sealed to use an alternative to methyl bromide, or the presence of sensitive electronic equipment 

subject to corrosivity, time to transition to an alternative. 

(b) Pet food manufacturing facilities in 

the U.S. who are active members of 

the Pet Food Institute. (For today’s 

rule, ‘‘pet food’’ refers to domestic 

dog and cat food).

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

conditions exists: moderate to severe infestation or beetles, moths, or cockroaches, or older structures that cannot be properly sealed to use an alternative to methyl bromide, or the presence of sensitive electronic equipment 

subject to corrosivity, time to transition to an alternative. 

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

conditions exists: older structures that cannot be properly sealed to use an 

alternative to methyl bromide, or the presence of sensitive electronic equipment subject to corrosivity, time to transition to an alternative. 

(d) Members of the North American 

Millers’ Association in the U.S.

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

conditions already exists or could occur without methyl bromide fumigation: 

moderate to severe beetle infestation, or older structures that cannot be 

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

sensitive electronic equipment subject to corrosivity, time to transition to an 

alternative. 

(e) Members of the National Pest Management Association associated with 

dry commodity structure fumigation 

(cocoa) and dry commodity fumigation (processed foods, herbs, spices, 

and dried milk).

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

conditions already exists or could occur without methyl bromide fumigation: 

moderate to severe beetle or moth infestation, or older structures that can 

not be properly sealed to use an alternative to methyl bromide, or the presence of sensitive electronic equipment subject to corrosivity, time to transition to an alternative. 

Commodity Storage (a) California entities storing walnuts, 

beans, dried plums, figs, raisins, 

dates and pistachios in California.

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

conditions exists: rapid fumigation is required to meet a critical market window, such as during the holiday season, rapid fumigation is required when a 

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

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

silo availability for using alternatives; or with a need for methyl bromide for 

research purposes. 

Dry Cured Pork 

Products.

(a) Members of the National Country 

Ham Association.

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

conditions already exists or could occur without methyl bromide fumigation: 

moderate to severe red legged ham beetle, cheese/ham skipper, dermested 

beetle or ham mite infestation. 

(b) Members of the American Association of Meat Processors.With a reasonable expectation that one or more of the following limiting critical 

conditions already exists or could occur without methyl bromide fumigation: 

moderate to severe red legged ham beetle, cheese/ham skipper, dermested 

beetle or ham mite infestation. 

(c) Nahunta Pork Center (North Carolina).With a reasonable expectation that one or more of the following limiting critical 

conditions already exists or could occur without methyl bromide fumigation: 

moderate to severe red legged ham beetle, cheese/ham skipper, dermested 

beetle or ham mite infestation. 

D. What Are the Uses That May Obtain 

Methyl Bromide for Research? 

The categories listed in Section F 

above have been designated critical uses 

for 2006 in Decision XVI/2 and Decision 

Ex.II/1 of the Parties. The amount of 

methyl bromide approved for research 

purposes is included in the amount of 

methyl bromide approved by the Parties 

for the commodities for which 

‘‘research’’ is indicated as a limiting 

critical condition in the table above. 

However, the Agency is not setting aside 

a specific quantity of methyl bromide to 

be associated with research activities. 

Methyl bromide is needed for research 

purposes including experiments that 

require methyl bromide as a control 

chemical with which to compare the 

trial alternatives’ results. EPA is 

proposing that the following sectors be 

62040 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 

allowed to use methyl bromide for 

research purposes: cucurbits, dried fruit 

and nuts, nursery stock, strawberry 

nurseries, turfgrass, eggplant, peppers, 

strawberry fruit, tomatoes, and orchard 

replant. These are the sectors that 

requested methyl bromide for research 

in their applications to EPA. 

E. What Amount of Methyl Bromide Is 

Necessary for Critical Uses? 

In this section, EPA proposes the 

amount of methyl bromide that may be 

produced or imported for critical uses in 

2006, and the amount that may be sold 

for critical uses from pre-phaseout 

inventories. Section IIB of the Annex to 

Decision XVI/2 lists a ‘‘permitted level 

of production and consumption’’ for the 

United States in 2006 of 6,897,680 

kilograms, which is equivalent to 27% 

of the 1991 baseline of 25,528,270 

kilograms. Table B of the Annex to 

Decision Ex.II/1 lists a ‘‘permitted level 

of production and consumption’’ for the 

United States in 2006 of 760,585 

kilograms, which is equivalent to 3% of 

the 1991 baseline. When combined, the 

permitted level of production and 

consumption from the two Decisions is 

7,658,265 kilograms, which is 

equivalent to 30% of the 1991 baseline. 

Paragraph 2 of Decision Ex.II/1 states, 

‘‘that a Party with a critical-use 

exemption level in excess of permitted 

levels of production and consumption 

for critical uses is to make up any such 

difference between those levels by using 

quantities of methyl bromide available 

from existing stocks.’’ The difference 

between the agreed critical-use 

exemption level of 8,074,683 and the 

permitted level of production and 

consumption of 7,658,265 kilograms is 

416,418 kilograms, which is equivalent 

to 2% of the 1991 baseline. In 

accordance with paragraph 2 of 

Decision Ex.II/1, this amount would 

come from stocks. This is the minimum 

amount that would come from stocks 

under today’s proposed action. A 

further elaboration of proposed amounts 

that would come from stocks and those 

that would come from new production 

or import in 2006 is found below in 

Sections F and H. 

With this action, the Agency is 

proposing that the critical use levels of 

methyl bromide for 2006 be slightly less 

than the amount authorized by the 

Parties because of recent registrations of 

an alternative to methyl bromide. As 

noted above, the U.S. Government 

submitted the nomination for 2006 

critical use exemptions on February 7, 

2004. The information in the U.S. 

nomination reflected the most up-todate information on alternatives to 

methyl bromide that was available at 

that time of submission to the Parties in 

February 2004. In addition, through an 

iterative process of questions and 

answers with the MBTOC, the U.S. 

Government was able to provide new 

information about the status of methyl 

bromide alternatives in the United 

States for the nominated sectors up until 

the time the MBTOC issued its final 

report in the weeks prior to the 2nd 

Extraordinary Meeting of the Parties in 

July 2005. Since the MBTOC’s final 

review and report on the 2006 

nomination there have been two new 

actions in the U.S. relevant to uses 

included in Decision XVI/2 and 

Decision Ex.II/1. The most recent action, 

on July 15, 2005, was the issuance of an 

EPA rule establishing new Federal 

tolerance levels for residues of sulfuryl 

fluoride in or on commodities in food 

processing facilities (70 FR 40899). On 

this same day, EPA issued a Federal 

registration for these new uses of 

sulfuryl fluoride. The Agency 

understands that as many as 45 States 

subsequently issued State registrations 

allowing the use of sulfuryl fluoride for 

these new uses. EPA is soliciting 

comments on the verification of State 

registrations. In addition, on May 18, 

2005, the State of California registered 

sulfuryl fluoride for use in mills, 

warehouses, stationary transportation 

vehicles (railcars, trucks, etc.), 

temporary and permanent fumigation 

chambers, and storage structures 

containing commodities listed on the 

State-approved label (cereal and small 

grains, dried fruit, and nuts). The State 

of California has not approved the label 

issued by EPA on July 15, 2005. The 

Federal label permits sulfuryl fluoride 

use for a wide range of food 

commodities, such as dried fruits, tree 

nuts, cereals and small grains, and 

processed food products. Prior to these 

registration actions, sulfuryl fluoride 

was not considered as a technically and 

economically feasible alternative in the 

U.S. nomination. The Agency proposes 

to reflect these changes in the 

circumstances of the use sectors for 

which there is a newly registered 

alternative in determining the final 

amount of methyl bromide deemed to be 

critical for 2006. 

In today’s action, with these recent 

actions regarding sulfuryl fluoride 

described in the preceding paragraph, 

EPA is estimating that there will be a 

fifteen percent (15%) uptake of sulfuryl 

fluoride in the 2006 calendar year by 

these newly permitted uses which 

would mean that the post-harvest users 

would use sulfuryl fluoride instead of 

15% of the amount of methyl bromide 

for which they were authorized by the 

Parties for critical use exemptions in 

2006. Thus, today’s action proposes to 

reduce the amount of critical use methyl 

bromide by fifteen percent for those 

specific uses for which sulfuryl fluoride 

is now a newly legal alternative for use. 

Specifically, this means a fifteen percent 

reduction in the amount of critical use 

methyl bromide for the newly registered 

uses in California, such as mills, dried 

fruit and nuts, as well as a fifteen 

percent reduction in the amount of 

critical use methyl bromide for the 

sectors in the U.S. nomination that 

include food processing facilities, such 

as mills and processors. For the affected 

post-harvest sectors, the reduction 

would be from an authorized amount of 

707,746 kilograms to an amount of 

601,584 kilograms, which would be a 

reduction of no more than 0.42% of 

baseline. The Agency is estimating that 

there will be a 15% uptake of sulfuryl 

fluoride in 2006 by the specific uses for 

which there are recent registrations 

based on information found in MBTOC 

reports regarding projected uptake of 

sulfuryl fluoride for uses where there 

were previous registrations, as well as 

on information in the U.S. 

Government’s nomination for 2007 

critical use exemptions. In the MBTOC 

report the uptake estimate was for 10% 

for the 2005 calendar year for uses for 

which sulfuryl fluoride was registered 

in early 2004 (not including the most 

recent registration in California or the 

new Federal registration for food 

processing facilities). In the U.S. 

nomination for 2007, the uptake 

estimate is for 25% by all registered 

sulfuryl fluoride uses. EPA’s estimate of 

a 15% uptake of sulfuryl fluoride in the 

2006 calendar year falls between 

MBTOC’s uptake number for 2005 and 

the U.S. nomination’s uptake number 

for 2007. EPA notes that the estimated 

rate of uptake for 2007 takes into 

consideration that there have been 18 

months of trials and potential adoption 

by similar facilities since the first 

sulfuryl fluoride registration action 

early in 2004 for mills, cereals and small 

grains, and cereal and small grain 

processed products. The Agency 

believes that new agricultural 

techniques are first adopted at a 

relatively slow rate. As more people/ 

companies test the new technology the 

rate of adoption gradually increases. 

Given the short period of time since the 

most recent new registrations and 

tolerances, EPA believes that the 

specific uses associated with those new 

registrations and tolerances are unlikely 

to achieve a 25% rate of adoption 

during 2006. The 25% estimated rate of 

adoption contained in the U.S. 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 62041 

nomination for 2007 applies to 

circumstances (uses and locations) 

where the registrations occurred three 

years previously—early in 2004. Thus, 

with today’s action EPA is seeking 

comments on the estimate for a 15% 

uptake of sulfuryl fluoride for the 2006 

control period for those uses associated 

with the recent registration and 

tolerance actions, which occurred midyear in 2005. 

The Agency seeks comments on the 

proposed uptake of sulfuryl fluoride as 

an alternative to methyl bromide during 

2006 and the corresponding proposed 

reduction in the critical use level for 

2006. EPA seeks detailed data regarding 

sulfuryl fluoride as an alternative to 

methyl bromide in the circumstances of 

the sectors nominated and authorized 

for 2006 and the proposed uptake of 

sulfuryl fluoride in those sectors during 

2006. Relevant information may include 

whether products in a sector are 

intended for export, and whether 

importing countries have established 

approvals or tolerance levels for use of 

sulfuryl fluoride. A person submitting 

detailed data on sulfuryl fluoride as a 

methyl bromide alternative, or data on 

any other post-harvest alterative to 

methyl bromide, should include: 

• Historic information on pest control 

efficacy of current fumigant (trap catch 

data if available). 

• Size and building composition of 

facility. 

• Data from a range of geographic 

conditions. 

• Data on methyl bromide which will 

be used for comparison purposes. 

• Temperature data inside and 

outside the facilities. 

• Trap catch data from before 

treatment and 3-, 7- and 14-working 

days after treatment. 

• Information on differences in 

‘‘down time’’ (non-operating time) at 

facility for methyl bromide and 

alternative. 

• Amount of methyl bromide and 

alternative used in treatment. 

• Price to treat a typical facility (both 

chemical prices and fumigation set-up 

and take-down costs). 

The Agency recognizes that the status 

of other alternatives to methyl bromide 

may have changed since the finalization 

of the May 2005 MBTOC report and 

there may be updated comparative 

information regarding alternatives and 

methyl bromide, as well as new data on 

emission minimization techniques that 

would allow a user to obtain the same 

results with smaller quantities of methyl 

bromide. With today’s action, EPA is 

soliciting new information on 

alternatives to methyl bromide and 

emission minimization techniques. In 

particular, a person submitting detailed 

data on pre-plant alternatives should 

include: 

• Historic information on pest control 

efficacy of current fumigant. 

• Data from a range of geographic 

conditions. 

• Data on methyl bromide which will 

be used for comparison purposes. 

• Yield and quality data for the 

alternative as compared to methyl 

bromide. 

• Pest control data. 

• Price to treat an acre of a given 

crop. 

EPA will review updated data on the 

use of sulfuryl fluoride as compared to 

methyl bromide, and any other new 

information on alternatives or emission 

minimization techniques submitted in 

response to this notice, before 

promulgating the final critical use 

exemption level for 2006. The total 

critical use amount will not exceed the 

amount agreed by the Parties to the 

Protocol for 2006. 

If adequate quantitative information is 

submitted, EPA will conduct an analysis 

that is similar to that conducted in the 

development of the U.S. nomination in 

which EPA’s Office of Pesticide 

Programs reviews the quantity of methyl 

bromide requested by each applicant 

and adjusts the amounts needed where 

alternatives are not technically or 

economically feasible. Since the review 

associated with the development of the 

U.S. nomination is two years prior to 

the relevant year of exemption there 

may be specific situations where the 

critical need may have changed. In 

individual cases where new, more 

relevant and verifiable information 

becomes available after submission of 

the U.S. nomination, an additional 

‘‘post-hoc’’ review to evaluate the 

technical and economic feasibility of 

alternatives may be warranted. 

When considering the suitability of 

making a post-hoc assessment EPA 

considers two issues: First, whether any 

reductions been made in the nominated 

amount that are approved at the 

Meetings of the Parties to the Montreal 

Protocol, and second, the quality and 

verification of new data to support a 

post-hoc review. 

In the post-hoc review process the 

amount requested would once again be 

the starting point for all calculations. 

Each sector would be reviewed on an 

individual application basis. The first 

assessment would involve the 

subtraction process that adjusts for: 

Double-counting, growth, quarantine 

and preshipment use, and use rate 

differences. Adjustments for doublecounting is the estimate measured in 

kilograms in situations where an 

applicant has made a request for a CUE 

while a consortium has also made a 

request on their behalf in the 

consortium application. Growth is an 

adjustment in kilograms for amounts 

greater than the historical amount used. 

Adjustments for quarantine and 

preshipment (QPS) are for the kilograms 

that would qualify as QPS usage, which 

is part of a separate exemption category 

under the Protocol. Use rate differences 

are adjustments in kilograms to the 

lower of the historic use rate or 

requested use rate. 

The second part of the assessment 

would involve the percent adjustments. 

Use rate adjustment is the use rate in 

kilograms per 1000 cubic meters 

expressed as the lowest of either the 

historic use rate, requested use rate, or 

efficacious use rate as indicated by 

either: Research reports, usage under 

similar pest and environmental 

conditions, or MBTOC maximum use 

rates. Key pest adjustment is for those 

pests that are not adequately controlled 

by methyl bromide alternatives. 

Regulatory adjustment is for those areas 

where the alternatives have additional 

regulatory constraints on their use. 

Adoption of new fumigants or control 

measures is the percent of the requested 

volume where alternatives could be 

adopted to replace methyl bromide. 

Combined impacts adjustments are the 

percent of the requested area where 

alternatives cannot be used due to key 

pest, regulatory, and current status in 

adoption of new fumigants. In each case 

the total area impacted is the conjoined 

area that is impacted by any of the 

individual impacts. The effects are 

assumed to be independently 

distributed unless contrary evidence is 

available. 

When reviewing the adoption of new 

fumigants or control measures, any 

information on the relative efficacy of 

the alternative is critical. Examples of 

relevant information consists of: 

Historic information on efficacy of the 

current fumigant (comparative efficacy 

data should include methyl bromide as 

a standard whenever possible), size and 

building composition of facility being 

treated, data from a range of geographic 

conditions, temperature data from 

inside and outside the treated facilities, 

pest population data from before and 

after the treatments, information on 

down time between methyl bromide and 

alternatives, amounts of methyl bromide 

or alternative used, and the price to treat 

a typical facility including chemical, 

fumigation set-up and take down costs. 

The kilogram amount recommended 

is calculated by multiplying the final 

amount after all subtractions and 

62042 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 

multiplying it by the combined impacts 

adjustment. 

If adequate quantitative information is 

not submitted, EPA will review the 15 

percent uptake estimate in light of all 

information that the Agency holds and 

any new information received before the 

development of the final rule regarding 

the basis for that estimate. As noted 

above, the proposed 15 percent uptake 

of sulfuryl fluoride in 2006 for the 

limited number of uses for which there 

are recent registrations would result in 

an approximate reduction of the level of 

critical use methyl bromide for 2006 by 

0.42% of the U.S. 1991 consumption 

baseline level. 

F. What Are the Sources of Critical Use 

Methyl Bromide? 

As discussed above and in the 

Framework Rule (69 FR 76982), an 

approved critical user may obtain access 

to exempted production/import of 

methyl bromide and to limited 

inventories of pre-phaseout methyl 

bromide, the combination of which 

constitute the supply of ‘‘critical use 

methyl bromide’’ intended to meet the 

needs of agreed critical uses. In Decision 

XVI/2 and Decision Ex.II/1 the Parties to 

the Protocol authorized agreed criticaluse levels for 2006 of 8,074,683 

kilograms, which is equivalent to 32% 

of the U.S. 1991 methyl bromide 

consumption baseline. As noted above, 

paragraph 2 of Decision Ex.II/1 states, 

‘‘that a Party with a critical-use 

exemption level in excess of permitted 

levels of production and consumption 

for critical uses is to make up any such 

difference between those levels by using 

quantities of methyl bromide available 

from existing stocks.’’ The permitted 

level of production and consumption of 

critical use methyl bromide in Decision 

XVI/2 and Decision Ex.II/1 is 7,658,265 

kilograms which is equivalent to 30% of 

the U.S. 1991 consumption baseline, 

making the amount to come from stocks 

equivalent to 2% of baseline. 

In developing today’s action, the 

Agency notes that Decision XVI/2 (para. 

4) contains the following language, 

‘‘each Party which has an agreed critical 

use should ensure that the criteria in 

paragraph 1 of decision IX/6 are applied 

when licensing, permitting or 

authorizing critical use of methyl 

bromide and that such procedures take 

into account available stocks of banked 

or recycled methyl bromide,’’ and 

Decision Ex.II/1 (para. 5) contains the 

following slightly different language, 

‘‘each Party which has an agreed critical 

use renews its commitment to ensure 

that the criteria in paragraph 1 of 

decision IX/6 are applied when 

licensing, permitting or authorizing 

critical use of methyl bromide and that 

such procedures take into account 

quantities of methyl bromide available 

from existing stocks.’’

The language in these Decisions is 

similar to language in Decision Ex I/3, 

paragraph 5. In the December 23, 2004 

Federal Register notice establishing the 

framework for critical use exemptions 

and the critical use level for 2005, EPA 

interpreted paragraph 5 of Decision Ex 

I/3 ‘‘as meaning that the U.S. should not 

authorize critical use exemptions 

without including provisions addressing 

drawdown from stocks for critical uses’’

(69 FR 76987). The December 23, 2004 

final rule established provisions 

governing the sale of pre-phaseout 

inventories for critical uses, including 

the concept of critical stock allowances 

(CSAs) and a prohibition on sale of prephaseout inventories for critical uses in 

excess of the amount of CSAs held by 

the seller. In addition, EPA noted that 

stocks were further taken into account 

through the trading provisions that 

allow critical use allowances to be 

converted into critical stock allowances. 

Under today’s proposed action, no 

significant changes would be made to 

those provisions, which would remain 

part of the framework for the critical use 

exemption and which would continue 

to be in accordance with Decisions of 

the Parties. Bearing in mind the United 

States’ ‘‘renewed commitment’’ as stated 

in Decision Ex II/1, EPA is proposing an 

additional action based on experience 

with the 2005 critical use exemption. 

EPA is proposing to adjust the portion 

of critical use methyl bromide to come 

from exempted production or import as 

compared to the portion to come from 

stocks. With today’s action, the Agency 

is proposing that 6,823,707 kilograms of 

methyl bromide, which is equivalent to 

27% percent of the 1991 consumption 

baseline, come from new production or 

import, and that 1,150,824 kilograms, 

which is equivalent to 5% of baseline, 

come from pre-phaseout methyl 

bromide inventories. The percentage of 

methyl bromide proposed to come from 

pre-phaseout inventories is the same as 

the percentage that was to come from 

pre-phaseout inventories in the 2005 

control period. To date, it does not 

appear that critical users have had 

difficulty in obtaining methyl bromide 

from stocks during the 2005 control 

period. Drawing on this experience, 

EPA is proposing to grant CSAs 

equivalent to 5% of baseline for the 

2006 control period, on the assumption 

that users will continue to be able to 

access this level of stocks during 2006. 

There is some uncertainty in this 

determination, however, given that we 

have not come to the end of the control 

period, and because we anticipate that 

stock levels will be lower in 2006. In 

part because of this, EPA is proposing 

a safeguard to ensure that critical needs 

will be met should the assumption that 

users will be able to access this amount 

of stocks prove to be incorrect. EPA 

seeks comments on the proposed 

fractional portion of the 8,074,683 

kilograms authorized for critical uses in 

2006 that would come from prephaseout inventories of methyl bromide. 

In developing today’s proposal of the 

percentage that would come from new 

production or import as compared to the 

percentage that would come from prephaseout inventories of methyl bromide 

for the 2006 control period, the Agency 

recognizes there is still market 

uncertainty regarding the availability of 

stocks for critical uses and therefore 

proposes a petition process that would 

allow real-time responses to market 

conditions. The Agency is proposing a 

petition mechanism that will allow a 

critical user to demonstrate his or her 

inability to acquire sufficient methyl 

bromide from stocks. Upon receipt of a 

petition that meets the information 

criteria discussed below, EPA would 

review the petition and consider 

converting a limited number of CSAs to 

CUAs (up to the 30% limit agreed by the 

Parties to the Protocol in Decision XVI/ 

2 and Ex.II/1). EPA believes that this 

petition process is warranted given the 

uncertainty in projecting the amount of 

pre-phaseout inventories that may be 

available for critical uses. Thus, the 

proposed petition process would 

provide an important safety mechanism 

for critical users. 

Information To Be Submitted in Petition 

EPA proposes that if you are an 

approved critical user who has 

attempted unsuccessfully to obtain 

methyl bromide from at least two CSA 

holders, you may request additional 

production or import of methyl bromide 

by submitting the following information 

to EPA: (a) Your name and address; (b) 

name of contact person and phone and 

fax number(s), and e-mail address; (c) 

the name of the organization/ 

consortium that submitted an 

application for a critical use exemption 

and of which you are a member, (d) 

description of use, location and limiting 

critical condition qualifying for critical 

use methyl bromide; (e) quantity (in 

kilograms) of methyl bromide needed 

for the relevant control period and the 

amount acquired to date; (f) 

documentation or phone logs of 

unsuccessful attempts to place an order 

for a specific quantity of critical use 

methyl bromide with at least two 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 62043 

entities listed in 82.8; (g) the name, 

address and contract information for the 

distributor and the producer/importer 

who will be part of the adjustment 

transaction (converting CSAs to CUAs); 

(h) a letter from the distributor 

confirming that they hold CSAs for 

which they do not hold, and cannot 

obtain, a corresponding quantity of prephaseout inventories of methyl bromide; 

agreeing to the transfer, with EPA 

approval, of a specified quantity of their 

CSAs to an identified producer/importer 

for conversion to CUAs, on the 

condition that the producer/importer 

offer the distributor an opportunity to 

purchase a quantity of critical use 

methyl bromide equivalent to that 

produced or imported through the 

expenditure of the resulting CUAs; and 

confirming that the distributor will offer 

the petitioner, in turn, an opportunity to 

purchase the same quantity of critical 

use methyl bromide for critical uses; (i) 

a letter from the identified producer/ 

importer agreeing to the receipt of the 

CSAs transferred by the distributor, 

requesting EPA approval to convert the 

CSAs to CUAs, and confirming that they 

will offer the distributor an opportunity 

to purchase a quantity of critical use 

methyl bromide equivalent to that 

produced or imported with the CUAs 

resulting from the transaction. The 

offset established in the framework rule 

(69 FR 76982) for trades from CUAs to 

CSAs would not apply to a petition for 

converting CUAs to CSAs. The 

companies involved in a petition should 

indicate what information they are 

claiming as Confidential Business 

Information. Information claimed as 

confidential will be treated in 

accordance with EPA’s regulations on 

confidential business information at 40 

CFR part 2 subpart B. EPA will notify 

petitioners of deficiencies and give them 

an opportunity to provide information 

needed to fully complete the petition. 

However, if petitioners do not respond 

to EPA’s requests for additional 

information within 15 working days of 

the request and the petition remains 

incomplete, the petition will not be 

considered. A statement from a 

distributor that they cannot obtain 

stockpiled methyl bromide in a quantity 

corresponding to the number of CSAs 

they hold could be supported by on 

letters from local or regional suppliers 

indicating that stockpiled methyl 

bromide is unavailable. 

EPA is proposing that the petitioner 

submit documentation for an 

adjustment transaction that includes a 

letter from a distributor certifying that 

they hold CSAs but do not hold 

corresponding supplies of pre-phaseout 

methyl bromide and are unable to 

obtain such pre-phaseout material, and 

that the distributor is willing to have 

these CSAs converted to CUAs, if 

authorized, in a transaction with a 

producer/importer. The Agency is 

proposing a review and authorization of 

the petition request to ensure there is a 

need for an adjustment between the 

amount of critical use methyl bromide 

from new production/import as 

compared with the amount from prephaseout inventories. In addition, the 

Agency must ensure that the total 

aggregate amount of new production/ 

import does not exceed the limit agreed 

to by the Parties to the Protocol in 

Decision XVI/2 and Decision Ex.II/1. 

EPA seeks comment on the petition 

requirements outlined above and has 

submitted an Information Collection 

Request (ICR) to the Office of 

Management and Budget (OMB) for 

approval to collect this data. For 

additional information, please see 

Section VI.B, ‘‘Paperwork Reduction 

Act.’’

Deadline for Petitioning 

EPA is proposing that petitions would 

be due no later than October 1st of the 

relevant control period. EPA is 

proposing that the period for petitioning 

end October 1st to allow sufficient time 

for the Agency’s petition review and to 

assure the final authorization leaves 

enough time for the commercial 

transaction to occur within the control 

period to address concerns about the 

availability of critical use methyl 

bromide. EPA believes it is important to 

establish a fixed end-point for 

submission of petitions to give the 

petitions due consideration and ensure 

that total production and import for 

critical uses does not exceed the level 

agreed by the Parties to the Montreal 

Protocol for the control period. Because 

most of the information needed to 

support a petition should be readily 

available, EPA believes that the first 

three quarters of the calendar year 

(control period) should be sufficient 

time for petitioners to assess the market 

availability of critical use methyl 

bromide and collect and compile 

supporting documentation. Although 

EPA may request additional information 

from petitioners after the deadline of 

October 1st, the Agency will not 

consider petitions filed after these dates. 

Length of Agency Review of Petitions 

EPA is proposing a 30-working-day 

review period for petitions. If more 

information is needed, EPA will contact 

the applicant and specify the necessary 

information. EPA will consider the 

merits of each individual petition and 

industry-wide data on the availability 

and viability of alternatives. EPA retains 

the right to deny a petition based on 

information received regarding, inter 

alia, fraud, misrepresentation, 

inconsistency with Articles and 

Decisions under the Montreal Protocol, 

inconsistency with the CAA 

Amendments of 1990, or other reasons 

related to human health and the 

environment. 

Notification of Petitioners 

EPA will issue a letter to the 

petitioner, copying the distributor and 

producer/importer, stating whether the 

Agency is granting or denying the 

petition. Denial letters will state the 

reason for the denial. Within ten 

working working days after receipt of 

the denial letter, the petitioner may file 

a one-time appeal, with supporting 

reasons. EPA may affirm the denial or 

grant the petition based on the 

information provided by petitioner or 

other available evidence. If no appeal is 

taken by the tenth working day after 

receipt of the denial letter, the denial 

will be final on that day. 

G. What Are the Critical Use Allowance 

Allocations? 

EPA is proposing to allow limited 

amounts of new production or import of 

methyl bromide for critical uses for 

2006 in the amount of 6,823,707 

kilograms as shown in Table II. below. 

With today’s action, EPA is proposing to 

allocate critical use allowances (CUAs) 

to producers and importers of methyl 

bromide on a pro-rata basis based on 

their 1991 consumption baseline levels. 

Each critical use allowance (CUA) is 

equivalent to 1 kg of critical use methyl 

bromide. These allowances expire at the 

end of the control period and, consistent 

with the Framework Rule, are not 

bankable from one year to the next. 

Today’s proposal for allocating the 

following number of pre-plant and postharvest critical use allowances (CUAs) 

to the entities listed below would be 

subject to the trading provisions at 40 

CFR 82.12, which are discussed in 

section V.(G) of the preamble to the 

Framework Rule (69 FR 76982). 

As discussed in section V.(E) of the 

preamble to the Framework Rule (69 FR 

76990), EPA issues CUAs once a year 

except in the instance where the Parties 

authorize supplemental CUEs. EPA may 

amend allocations in a subsequent 

rulemaking to allocate supplemental 

methyl bromide for 2006. 

62044 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 

TABLE II.—ALLOCATION OF CRITICAL USE ALLOWANCES

Company 

2006 Critical 

use allowances for preplant uses* 

(kilograms) 

2006 Critical 

use allowances for postharvest uses* 

(kilograms) 

Great Lakes Chemical Corp .................................................................................................................................... 3,831,117 315,974 

Albemarle Corp ........................................................................................................................................................ 1,575,415 129,934 

Ameribrom, Inc ........................................................................................................................................................ 870,292 129,934 

TriCal, Inc ................................................................................................................................................................ 26,971 2,224 

Total .................................................................................................................................................................. 6,303,796 519,910 

* For production or import of class I, Group VI controlled substance exclusively for the Pre-Plant or Post-Harvest uses specified in Appendix L 

to 40 CFR Part 82. 

EPA seeks comment on the total 

levels of exempted production/import 

for critical uses in 2006. 

Paragraph four of Decision Ex. I/3, 

taken at the 1st Extraordinary Meeting 

of the Parties, stated ‘‘that Parties 

should endeavor to allocate the 

quantities of methyl bromide 

recommended by the Technology and 

Economic Assessment Panel as listed in 

annex II A to the report of the First 

Extraordinary Meeting of the Parties.’’

Similarly, paragraph four of Decision 

Ex. II/1 states, ‘‘that Parties that have an 

agreed critical use shall endeavor to 

license, permit, authorize or allocate the 

quantities of methyl bromide 

recommended by the Technology and 

Economic Assessment Panel to the 

specific categories of use shown in table 

A of the annex to the present decision.’’

In accordance with Decision Ex. I/3, 

paragraph four, and consistent with the 

more recent Decision, the Agency 

endeavored to allocate directly on a 

sector-by-sector basis by analyzing and 

proposing this option, among others, in 

August of 2004. In the final Framework 

Rule, the Agency made a reasoned 

decision as to the economic, 

environmental and practical effects of 

implementing the various proposed 

approaches, after considering public 

comment. In the August 25, 2004 

Allocation Framework proposed 

rulemaking (69 FR 52366), EPA solicited 

comment on both universal and sectorbased allocation of critical use 

allowances, as well as more flexible 

methods for determining allocations. 

After comments were received, it was 

determined in the final Framework Rule 

(69 FR 76989) that a lump-sum, or 

universal, allocation, modified to 

include distinct caps for pre-plant and 

post-harvest uses, was the most efficient 

and least burdensome approach that 

would achieve the desired 

environmental results, and that there 

would be significant administrative and 

practical difficulties associated with a 

sector-specific approach. EPA is not 

aware of any factors that would alter the 

analysis performed during the 

development of the Framework rule but 

seeks comment on today’s proposal to 

allocate CUAs in the same two 

groupings (pre-plant and post-harvest) 

as was done for 2005 control period. 

In developing the Framework Rule 

and allocating CUAs for 2005, EPA 

examined the economic, environmental 

and administrative effects of various 

allocation options over the projected life 

of the CUE exemption program. The 

Agency found that a universal approach 

would offer equal environmental 

protection, at less cost and with easier 

implementation compared to the other 

options, such as sector-specific 

allocation method. The Agency adopted 

a modified universal approach, 

separating pre-plant from post-harvest 

uses in order to address concerns raised 

by smaller, less frequent and end-of-year 

uses. 

In addition, although the approach 

adopted in the Framework Rule does 

not directly allocate allowances to each 

category of use, the Agency anticipates 

that reliance on market mechanisms 

will achieve similar results indirectly. 

As described in the August 25, 2004 

notice of proposed rulemaking and 

accompanying regulatory impact 

analysis (E-Docket OAR–2003–0230), 

the Agency believes that under the 

Universal system, as divided into preplant and post-harvest sectors, the 

actual critical use will closely follow the 

sector breakout listed by the TEAP and 

incorporated into the Parties’ Decision. 

EPA will continue to monitor sectoral 

use. The TEAP recommendations are 

based on data submitted by the U.S. 

which in turn are based on recent 

historic use data under the current 

methyl bromide phaseout market. In 

other words, the TEAP 

recommendations agreed to by the 

Parties are based on current use and the 

current uses are taking place in a 

marketplace where all methyl bromide 

uses in the pre-plant and post-harvest 

markets compete for a lump sum. A 

market-based lump sum system will 

likely operate to mirror a sector-specific 

allocation over time. For the reasons 

stated above, EPA is not proposing to 

change the approach adopted in the 

Framework Rule for the allocation of 

CUAs. However, in making today’s 

proposal, EPA endeavors to seek 

comments on a sector-specific allocation 

that would reflect groupings in the U.S. 

nomination that were subsequently 

recommended by the Technology and 

Economic Assessment Panel for 2006. 

H. What Are the Critical Stock 

Allowance Allocations? 

EPA is proposing to allocate critical 

stock allowances (CSAs) to the entities 

listed below in Table III for the control 

period of 2006 in the amount of 

1,150,824 kilograms. 

In the Framework Rule, EPA 

restricted access to stocks for approved 

critical users as a condition of obtaining 

new production and import (69 FR 

76987–76988). EPA is not planning to 

change this aspect of the critical use 

exemption framework through today’s 

proposed action. Decision Ex. II/1 

established two distinct levels: A 

critical-use exemption level and a 

permitted level of production and 

consumption. It further indicates that 

the difference between the two levels is 

to be made up ‘‘by using quantities of 

methyl bromide available from existing 

stocks.’’ The higher critical-use 

exemption level would have no 

meaning if critical users were allowed 

continued access to pre-phaseout 

inventories once the combination of 

new production or import and sale of 

pre-phaseout inventories for critical 

uses reached that level. Therefore, 

despite the absence in Decision XVI/2 or 

Decision Ex. II/1 of the explicit use 

prohibition that appeared in Decision 

Ex. I/3, paragraph 3, EPA continues to 

view the previously promulgated stock 

restrictions as an appropriate means of 

ensuring that total critical use does not 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 62045 

exceed the level agreed to by the Parties. 

The Agency also believes that the 

restriction on access to stocks for critical 

users is an expression of the United 

States’ ‘‘renewed commitment’’ to take 

stocks into account and that there is a 

likely environmental benefit to the 

establishment of an upper limit because 

it will increase the price of methyl 

bromide and thereby encourage the 

transition to alternatives in the long run. 

EPA currently possesses information 

on existing stocks of methyl bromide 

that has been claimed as confidential. 

With regard to data for 2003, EPA has 

determined that the aggregate stock 

information is not confidential business 

information and may be disclosed but is 

currently withholding that information 

due to the filing of complaints by 

affected businesses seeking to enjoin the 

Agency from its release (40 CFR 2.205). 

EPA will continue to follow its own 

regulations with respect to the treatment 

of this information. 

TABLE III.—ALLOCATION OF CRITICAL

STOCK ALLOWANCES

Company 

Albemarle 

Ameribrom, Inc. 

Bill Clark Pest Control, Inc. 

Blair Soil Fumigation 

Burnside Services, Inc. 

Cardinal Professional Products 

Carolina Eastern, Inc. 

Degesch America, Inc. 

Dodson Bros. 

Great Lakes Chemical Corp. 

Harvey Fertilizer & Gas 

Helena Chemical Co. 

Hendrix & Dail 

Hy Yield Bromine 

Industrial Fumigation Company 

J.C. Ehrlich Co. 

Pacific Ag 

Pest Fog Sales Corp. 

Prosource One 

Reddick Fumigants 

Royster-Clark, Inc. 

Southern State Cooperative, Inc. 

Trical Inc. 

Trident Agricultural Products 

UAP Southeast (NC) 

UAP Southeast (SC) 

Univar 

Vanguard Fumigation Co. 

Western Fumigation 

TOTAL—1,150,824 kilograms 

I. Clarifications to the Framework Rule 

EPA is proposing to clarify language 

in the Framework Rule regarding 

consecutive use of non-critical use 

methyl bromide and critical use methyl 

bromide. Under 82.13(dd), an approved 

critical user who purchases a quantity of 

critical use methyl bromide is required 

to certify, in part: ‘‘I will not use this 

quantity of methyl bromide for a 

treatment chamber, facility, or field that 

I previously fumigated with non-critical 

use methyl bromide purchased during 

the same control period’’ unless certain 

exceptions apply. This certification, by 

itself, would not preclude the user from 

using the critical-use methyl bromide 

for a treatment chamber, facility, or field 

that he or she had fumigated earlier that 

year with non-critical use methyl 

bromide purchased during an earlier 

control period. However, the 

prohibition at 82.4(p)(2)(vi) states: ‘‘No 

person who purchases critical use 

methyl bromide during the control 

period shall use that methyl bromide on 

a field or structure for which that person 

has used non-critical use methyl 

bromide for the same use (as defined in 

Columns A and B of appendix L) in the 

same control period’’ unless certain 

exceptions apply. That prohibition does 

not distinguish between non-critical use 

methyl bromide purchased during the 

current control period and carryover 

amounts purchased during earlier 

control periods. Most purchases will be 

used in the same control period in 

which they are bought. However, some 

amounts may be bought in one control 

period and used in a following control 

period, particularly when the purchase 

occurs close to the end of the calendar 

year. 

In the previous Federal Register 

notice concerning the supplemental 

allocation for 2005, EPA proposed to 

change 82.4(p)(2)(vi) so that end users 

who had been using non-critical use 

methyl bromide during the first part of 

2005 would not be prevented from using 

critical use methyl bromide on the same 

field or structure for the same use if they 

became approved critical users as a 

result of that supplemental rulemaking. 

The proposed change would also 

prevent adverse consequences for end 

users if the main allocation rule for a 

particular calendar year were delayed. 

In that instance, end users who were 

designated as approved critical users by 

the supplemental rule would not be 

penalized for having used non-critical 

use methyl bromide prior to the 

effective date of the rule making a 

supplemental allocation. 

EPA is proposing to reconcile the 

language in 82.4(p)(2)(vi) and 82.13(dd). 

EPA’s preferred approach is to change 

the language of the certification to omit 

the word ‘‘purchased’’ from the 

sentence that begins ‘‘I will not use this 

quantity of methyl bromide for a 

treatment chamber, facility, or field that 

I previously fumigated with non-critical 

use methyl bromide purchased during 

the same control period * * *’’. This 

approach would put the focus on 

actions taken during the current control 

period and would provide greater clarity 

and simplicity by eliminating the date 

of purchase of non-critical use methyl 

bromide as an issue. The change 

proposed in the Federal Register notice 

for the 2005 supplemental rule would 

provide a safeguard in the event of an 

administrative delay. Because that 

change is still pending, EPA is also 

considering a change to the language of 

the prohibition, using the current 

certification language as a model. Under 

this alternative approach, 82.4(p)(2)(vi) 

would read: ‘‘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, purchased during 

the same control period, for the same 

use (as defined in Columns A and B of 

appendix L) in the same control period’’

unless certain exceptions apply. This 

alternative approach would employ the 

point of sale to the end user as a proxy 

for actual use, following the example of 

provisions in the Framework Rule that 

address the purchase of critical use 

methyl bromide. EPA is requesting 

comment on these and other ways to 

reconcile these two provisions. 

J. Proposed Supplementary Critical Use 

Exemptions for 2006 

On January 31, 2005, the U.S. 

Government submitted a supplemental 

nomination for critical use exemptions 

for 2006 that is equivalent to 0.02% of 

the 1991 U.S. baseline. The 

supplemental nomination for 7,070 

kilograms for California dried beans was 

considered ‘‘unable to assess’’ by the 

MBTOC in their May 2005 report 

because of a need for clarification about 

the label for phosphine and the 

principal pest, the cowpea weevil. This 

supplemental nomination for 2006 will 

be considered by the Parties to the 

Protocol at their 17th Meeting in Dakar, 

Senegal in December 2005. The U.S. 

submitted additional information in 

August 2005 to the MBTOC responding 

to various questions on critical use 

nominations. The response included a 

clarification of the status of the 

phosphine label with regards to its use 

for dried beans. The MBTOC will issue 

another report in the fall of 2005 before 

the 17th Meeting. The Parties are 

unlikely to approve more than the 

amount nominated by the U.S. in this 

supplemental request. In anticipation of 

action on this supplemental nomination 

in December 2005, EPA is proposing to 

include this quantity in the critical use 

levels for 2006, subject to the estimate 

of a 15% uptake of sulfuryl fluoride due 

to the recent California registration. If 

62046 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 

the Parties reach a decision that a lesser 

amount is appropriate, EPA will adjust 

the quantity accordingly in the final 

rule. This proposed inclusion would 

very slightly increase the actual amount 

of critical use methyl bromide allocated, 

without a noticeable change in the 

overall percentages discussed in today’s 

action. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order No. 12866: 

Regulatory Planning and Review 

Under Executive Order No. 12866, (58 

FR 51735, October 4, 1993) the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and therefore 

subject to OMB review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: (1) Have an 

annual effect on the economy of $100 

million or more or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

OMB has notified EPA that it 

considers this a ‘‘significant regulatory 

action’’ under Executive Order No. 

12866 and EPA has submitted it to OMB 

for review. Changes made in response to 

OMB suggestions or recommendations 

will be documented in the public 

record. 

B. Paperwork Reduction Act 

The information collection 

requirements in this proposed 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 2179.04. 

The ICR pertains only to the 

petitioning requirements described in 

Section V.F. The information collection 

under this rule is authorized under 

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

Clean Air Act (CAA). 

The petition requirements included in 

this rule are intended, in part, 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 (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 the CAA. 

Critical users would only need to 

submit the information if they were 

otherwise unable to obtain methyl 

bromide. Section V.F contains a list of 

the data elements required for the 

petition process. 

Collection activity Number of 

respondents 

Total number 

of 

responses 

Hours per 

response Total hours 

Familiarization with Petition Process by end users ..................................... 2,000 20 1 20 

Submission of Data to EPA (Petitioner) ...................................................... 20 20 3 60 

Submission of Letter to EPA Documenting Lack of Inventory (Distributor) 30 3 .25 .75 

Submission of Letter to EPA Accepting Conversion of CSAs to CUAs 

(Producer/Importer) .................................................................................. 4 2 .25 .5 

Report to EPA Documenting Expended Allowances (Producer/Importer) .. 4 2 .25 .5 

Total Burden Hours .............................................................................. ........................ ........................ 4 .75 81 .75 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

To 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 EDocket OAR–2005–0122. Submit any 

comments related to the ICR for this 

proposed 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, 

Attention: Desk Office for EPA. Since 

OMB is required to make a decision 

concerning the ICR between 30 and 60 

days after October 27, 2005, a comment 

to OMB is best assured of having its full 

effect if OMB receives it by November 

28, 2005. The final rule will respond to 

any OMB or public comments on the 

information collection requirements 

contained in this proposal. 

C. Regulatory Flexibility Act (RFA) 

The RFA generally requires an agency 

to prepare a regulatory flexibility 

analysis of any rule subject to noticeand-comment rulemaking requirements 

under the Administrative Procedure Act 

or any other statute unless the agency 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. For 

purposes of assessing the impacts of 

today’s rule on small entities, small 

entity is defined as: (1) A small business 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 62047 

that is identified by the North American 

Industry Classification System (NAICS) 

Code in the Table below; (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less that 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

Category NAICS code SIC code 

NAICS small business size 

standard (in number of 

employees or millions 

of dollars) 

Agricultural production ...................... 1112—Vegetable and Melon farming.0171—Berry Crops .......................... $0.75 million. 

1113—Fruit and Nut Tree Farming .. 0172—Grapes.

1114—Greenhouse, Nursery, and 

Floriculture Production.

0173—Tree Nuts ..............................

0175—Deciduous Tree Fruits (except apple orchards and farms).

0179—Fruit and Tree Nuts, NEC ....

0181—Ornamental Floriculture and 

Nursery Products.

0831—Forest Nurseries and Gathering of Forest Products.

Storage Uses .................................... $6 million. 

115114—Postharvest Crop activities 

(except Cotton Ginning).

2041—Flour and Other Grain Mill 

Products.

311211—Flour Milling ...................... 2044—Rice Milling ........................... $21.5 million. 

311212—Rice Milling ....................... 4221—Farm Product Warehousing 

and Storage.

493110—General Warehousing and 

Storage.

4225—General Warehousing and 

Storage.

Distributors and Applicators .............. 493130—Farm Product 

Warehousing and Storage.

0721—Crop Planting, Cultivation, 

and Protection.

$6 million. 

Producers and Importers .................. 115112—Soil Preparation, Planting 

and Cultivating.

........................................................... 500 employees. 

325320—Pesticide and Other Agricultural Chemical Manufacturing.2879—Pesticides and Agricultural 

Chemicals, NEC.

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. EPA estimated that 3,218 

entities petitioned EPA for an 

exemption for the 2005 control period. 

EPA received requests from a 

comparable number of entities for the 

2006 control period. 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 proposed rule on 

small entities, EPA certifies that this 

action will not have a significant 

economic impact on a substantial 

number of small entities. In determining 

whether a rule has a significant 

economic impact on a substantial 

number of small entities, the impact of 

concern is any significant adverse 

economic impact on small entities, 

since the primary purpose of the 

regulatory flexibility analyses is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the 

proposed rule on small entities.’’ (5 

U.S.C. 603–604). Thus, an Agency may 

certify that a rule will not have a 

significant economic impact on a 

substantial number of small entities if 

the rule relieves a regulatory burden, or 

otherwise has a positive economic effect 

on all of the small entities subject to the 

rule. Since this rule exempts methyl 

bromide for approved critical uses after 

the phaseout date of January 1, 2005, 

this is a de-regulatory action which will 

confer a benefit to users of methyl 

bromide. EPA believes the estimated deregulatory value for users of methyl 

bromide is between $20 million to $30 

million annually. We have therefore 

concluded that today’s proposed rule 

will relieve regulatory burden for all 

small entities. We continue to be 

interested in the potential impacts of the 

proposed rule on small entities and 

welcome comments on issues related to 

such impacts. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Pub. L. 

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. If a written 

statement is required under Section 202, 

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, unless the Agency explains 

why this alternative is not selected or 

the selection of this alternative is 

inconsistent with law. 

Section 203 of the UMRA requires the 

Agency to establish a plan for obtaining 

input from and informing, educating, 

and advising any small governments 

that may be significantly or uniquely 

affected by the rule. Section 204 of the 

UMRA requires the Agency to develop 

62048 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 

a process to allow elected state, local, 

and tribal government officials to 

provide input in the development of any 

proposal containing a significant 

Federal intergovernmental mandate. 

EPA has determined that this rule 

does not contain a Federal mandate that 

may result in expenditures of $100 

million or more by State, local and tribal 

governments, in the aggregate, or by the 

private sector, in any one year. Today’s 

action seeks comments on proposals 

made in accordance with obligations 

under the international treaty, The 

Montreal Protocol on Substances that 

Deplete the Ozone Layer, as well as 

requirements set forth by Congress in 

Section 604(d)(6) of the Clean Air Act. 

Viewed as a whole, all of today’s 

amendments do 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 proposed rule is not 

subject to the requirements of Sections 

202 and 205 of the UMRA. EPA has also 

determined that this proposed 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 

proposal 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 No. 13132: 

Federalism 

Executive Order No. 13132, entitled 

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

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ The phrase ‘‘policies that 

have federalism implications’’ is 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’

Under Section 6 of Executive Order 

No. 13132, EPA may not issue a 

regulation that has federalism 

implications, that imposes substantial 

direct control costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct control costs 

incurred by State and local 

governments, or EPA consults with 

State and local officials early in the 

process of developing the regulation. 

EPA also may not issue a regulation that 

has federalism implications and that 

preempts State law, unless the Agency 

consults with State and local officials 

early in the process of developing the 

regulation. 

This proposed rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order No. 13132. Today’s 

proposed rule is expected to primarily 

affect producers, suppliers, importers 

and exporters and users of methyl 

bromide. Thus, Executive Order 13132 

does not apply to this rule. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicits comment on this 

proposed rule from State and local 

officials. 

F. Executive Order No. 13175: 

Consultation and Coordination With 

Indian Tribal Governments 

Executive Order No. 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), requires EPA 

to develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ This proposed rule does 

not have tribal implications, as specified 

in Executive Order No. 13175. Today’s 

proposed rule does not significantly or 

uniquely affect the communities of 

Indian tribal governments. The 

proposed rule does not impose any 

enforceable duties on communities of 

Indian tribal governments. Thus, 

Executive Order No. 13175 does not 

apply to this proposed rule. 

EPA specifically solicits additional 

comment on this proposed rule from 

tribal officials. 

G. Executive Order No. 13045: 

Protection of Children From 

Environmental Health & Safety Risks 

Executive Order No. 13045: 

‘‘Protection of Children from 

Environmental Health Risks and Safety 

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

applies to any rule that: (1) Is 

determined to be ‘‘economically 

significant’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

the Agency must evaluate the 

environmental health or safety effects of 

the planned rule on children, and 

explain why the planned regulation is 

preferable to other potentially effective 

and reasonably feasible alternatives 

considered by the Agency. 

EPA interprets Executive Order 13045 

as applying only to those regulatory 

actions that are based on health or safety 

risks, such that the analysis required 

under Section 5–501 of the Order has 

the potential to influence the regulation. 

This proposed rule is not subject to 

Executive Order 13045 because it does 

not establish an environmental standard 

intended to mitigate health or safety 

risks. 

H. Executive Order No. 13211: Actions 

That Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed rule is not a 

‘‘significant energy action’’ as defined in 

Executive Order No. 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

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

22, 2001)) because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

This proposed rule does not pertain to 

any segment of the energy production 

economy nor does it regulate any 

manner of energy use. Therefore, we 

have concluded that this proposed rule 

is not likely to have any adverse energy 

effects. 

I. The National Technology Transfer 

and Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law. 

No. 104–113, Section 12(d) (15 U.S.C. 

272 note) directs EPA to use voluntary 

consensus standards in its regulatory 

activities unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. This 

rulemaking does not involve technical 

standards. Therefore, EPA is not 

considering the use of any voluntary 

consensus standards. 

EPA welcomes comments on this 

aspect of the proposed rulemaking and, 

specifically, invites the public to 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 62049 

identify potentially-applicable 

voluntary consensus standards and to 

explain why such standards should be 

used in this regulation. 

List of Subjects in 40 CFR Part 82 

Environmental protection; 

Environmental treaty; Montreal Protocol 

on Substances that Deplete the Ozone 

Layer; Ozone depletion; Methyl 

bromide; Chemicals; Exports, Imports, 

Production, Reporting and 

recordkeeping requirements. 

Dated: October 21, 2005. 

Stephen L. Johnson, 

Administrator. 

40 CFR part 82 is proposed to be 

amended as follows: 

PART 82—PROTECTION OF 

STRATOSPHERIC OZONE 

1. The authority citation for part 82 

continues to read as follows: 

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

7671q. 

2. Section 82.8 is amended by revising 

paragraphs (c)(1) and (c)(2) to read as 

follows: 

§ 82.8 Grant of essential use allowances 

and critical use allowances. 

* * * * * 

(c) * * * 

(1) Allocated critical use allowances 

granted for specified control period. 

Company 

2006 Critical 

use allowances for preplant*

(kilograms) 

2006 Critical 

uses allowances for postharvest uses*

(kilograms) 

Great Lakes Chemical Corp .................................................................................................................................... 3,831,117 315,974 

Albemarle Corp ........................................................................................................................................................ 1,575,415 129,934 

Ameribrom, Inc ........................................................................................................................................................ 870,292 129,934 

TriCal, Inc ................................................................................................................................................................ 26,971 2,224 

Total .................................................................................................................................................................. 6,303,796 519,910 

*For production or import of class I, Group VI controlled substance exclusively for the Pre-Plant or Post-Harvest uses specified in appendix L 

to this subpart. 

(2) Allocated critical stock allowances 

granted for specified control period. 

Company 

Albemarle 

Ameribrom, Inc. 

Bill Clark Pest Control, Inc. 

Blair Soil Fumigation 

Burnside Services, Inc. 

Cardinal Professional Products 

Carolina Eastern, Inc. 

Degesch America, Inc. 

Dodson Bros. 

Great Lakes Chemical Corp. 

Harvey Fertilizer & Gas 

Helena Chemical Co. 

Hendrix & Dail 

Hy Yield Bromine 

Industrial Fumigation Company 

J.C. Ehrlich Co. 

Pacific Ag 

Pest Fog Sales Corp. 

Prosource One 

Reddick Fumigants 

Royster-Clark, Inc. 

Southern State Cooperative, Inc. 

Trical Inc. 

Trident Agricultural Products 

UAP Southeast (NC) 

UAP Southeast (SC) 

Univar 

Vanguard Fumigation Co. 

Western Fumigation 

TOTAL—1,150,824 kilograms 

3. Section 82.13 is amended by 

revising paragraph (dd) and adding 

paragraph (ee) to read as follows: 

§ 82.13 Recordkeeping and reporting 

requirements for class I controlled 

substances. 

* * * * * 

(dd) Every approved critical user 

purchasing an amount of critical use 

methyl bromide or purchasing 

fumigation services with critical use 

methyl bromide must, for each request, 

identify the use as a critical use and 

certify being an approved critical users. 

The approved critical user certification 

will state, in part: I certify, under 

penalty of law, ‘‘I am an approved 

critical user and I will use this quantity 

of methyl bromide for an approved 

critical use. My action conforms to the 

requirements associated with the critical 

use exemption published in 40 CFR part 

82. I am aware that any agricultural 

commodity within a treatment chamber, 

facility or field I fumigate with critical 

use methyl bromide cannot 

subsequently or concurrently be 

fumigated with non-critical use methyl 

bromide during the same control period, 

excepting a QPS exemption or a 

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

different crop or commodity). I will not 

use this quantity of methyl bromide for 

a treatment chamber, facility, or field 

that I previously fumigated with noncritical use methyl bromide during the 

same control period, excepting a QPS 

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 that 

type of critical use methyl bromide 

purchased, the acreage/square footage 

treated and will be signed and dated by 

the approved critical user. 

(ee) Petition Process for Critical Use 

Methyl Bromide. 

(1) By October 1 of the relevant 

control period, an approved critical user 

may petition the Director of the Office 

of Atmospheric Programs to convert a 

quantity of critical stock allowances 

held by an identified distributor to 

critical use allowances to be expended 

by an identified producer/importer. The 

approved critical user, or a consortium 

acting on the user’s behalf, must submit 

the following information. The entities 

that provide information to be included 

in a petition should indicate what 

information they are claiming as 

confidential business information. 

Information claimed as confidential will 

be treated in accordance with EPA’s 

regulations on confidential business 

information at 40 CFR part 2, subpart B. 

(i) Name and address; 

(ii) Name of contact person and phone 

and fax number(s), and e-mail address; 

(iii) The name of the organization/ 

consortium that submitted an 

application for a critical use exemption 

and of which the approved critical user 

is a member; 

(iv) Description of use, location and 

limiting critical condition qualifying for 

critical use methyl bromide; 

(v) Quantity (in kilograms) of methyl 

bromide needed for the relevant control 

period and the amount acquired to date; 

(vi) Documentation or phone logs of 

unsuccessful attempts to place an order 

for a specific quantity of critical use 

62050 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 

methyl bromide with at least two 

entities listed in 82.8; 

(vii) The name, address and contact 

information for the distributor and the 

producer/importer who will be part of 

the adjustment transaction (converting 

critical stock allowances (CSAs) to 

critical use allowances (CUAs)); 

(viii) A letter from the distributor 

confirming that they hold critical stock 

allowances (CSAs) for which they do 

not hold, and cannot obtain, a 

corresponding quantity of pre-phaseout 

inventories of methyl bromide; agreeing 

to the transfer, with EPA approval, of a 

specified quantity of their critical stock 

allowances (CSAs) to an identified 

producer/importer for conversion to 

critical use allowances (CUAs), on the 

condition that the producer/importer 

offer the distributor an opportunity to 

purchase a quantity of critical use 

methyl bromide equivalent to that 

produced or imported through the 

expenditure of the resulting critical use 

allowances (CUAs); and confirming that 

the distributor will offer the petitioner, 

in turn, an opportunity to purchase the 

same quantity of critical use methyl 

bromide for critical uses; 

(ix) A letter from the identified 

producer/importer agreeing to the 

receipt of the critical stock allowances 

(CSAs) transferred by the distributor, 

requesting EPA approval to convert the 

critical stock allowances (CSAs) to 

critical use allowances (CUAs), and 

confirming that they will offer the 

distributor an opportunity to purchase a 

quantity of critical use methyl bromide 

equivalent to that produced or imported 

with the critical use allowances (CUAs) 

resulting from the transaction. 

(2) If the Director of the Office of 

Atmospheric Programs notifies the 

petitioner of deficiencies in the 

submitted information, the petitioner 

will have 15 working days to submit the 

missing information. If the petitioner 

does not submit the missing information 

within the 15 working days, the Director 

of the Office of Atmospheric Programs 

will not further consider the petition. 

(3) Within 30 working days of receipt 

of a fully complete petition, the Director 

of the Office of Atmospheric Programs 

will issue a letter to the petitioner, and 

copies to the distributor and producer/ 

importer identified as being involved in 

the transaction, either granting or 

denying the petition. The Director of the 

Office of Atmospheric Programs will 

consider the information received in 

accordance with paragraph (ee)(1) of 

this section and other available 

information such as the availability and 

technical and economic feasibility of 

stockpiles and the industry-wide 

progress on implementing alternatives. 

The Director of the Office of 

Atmospheric Programs may deny a 

petition, make a determination to deny, 

in full or in part, a petition to convert 

a quantity of critical stock allowances 

(CSAs) to critical use allowances (CUAs) 

for one or more of the following reasons: 

(i) The need for the quantity of methyl 

bromide in the petition can be supplied 

from existing stocks held by other 

distributors, or from critical use methyl 

bromide produced or imported with 

critical use allowances (CUAs) held by 

other distributors; 

(ii) The need for the quantity of 

methyl bromide in the petition can be 

met by an alternative to methyl bromide 

due to changed circumstances in the 

situation of the approved critical use 

category; 

(iii) There is evidence of fraud or 

misrepresentation; 

(iv) Approval of the petition would be 

inconsistent with U.S. commitments 

and obligations under the provisions of 

the Montreal Protocol or (including 

Decisions agreed by the Parties); 

(v) Approval of the petition would be 

inconsistent with the Clean Air Act; 

(vi) Granting the petition may 

reasonably be expected to endanger 

human health or the environment. 

(4) Within 10 working days of receipt 

of a letter (the ‘‘denial letter’’) from the 

Director of the Office of Atmospheric 

Programs denying, in full or in part, the 

petition to convert a quantity of critical 

stock allowances (CSAs) to critical use 

allowances (CUAs), the petitioner may 

submit a one-time appeal with 

elaborated information. Within 10 

working days, the Director of the Office 

of Atmospheric Programs may affirm the 

denial or determination to deny the 

petition to convert a quantity of critical 

stock allowances (CSAs) to critical use 

allowances (CUAs) or make a 

determination to grant the petition to 

convert a quantity of critical stock 

allowances (CSAs) to critical use 

allowances (CUAs) in light of the 

information evidence submitted with 

the appeal and other available 

information. If no appeal is submitted 

by the tenth day after receipt of the 

denial letter notice outlining a 

determination by the Director of the 

Office of Atmospheric Programs to deny 

or grant a petition, the denial will be 

final on that day. 

* * * * * 

4. Appendix L is revised to read as 

follows: 

Appendix L to Part 82 Subpart A— 

Approved Critical Uses, and Limiting 

Critical Conditions for Those Uses for 

the 2006 Control Period 

Column A Column B Column C 

Approved critical 

uses 

Approved critical user and location of 

use Limiting critical conditions 

PRE-PLANT USES 

Cucurbits .................. (a) Michigan growers ............................ With a reasonable expectation that moderate to severe soilborne fungal disease infestation, or moderate to severe disease infestation could occur without methyl bromide fumigation; or with a need for methyl bromide for research purposes. 

(b) Southeastern U.S. except Georgia 

limited to growing locations in Alabama, Arkansas, Kentucky, Louisiana, North Carolina, South Carolina, Tennessee, and Virginia.

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

conditions either already exist or could occur without methyl bromide fumigation: moderate to severe yellow or purple nutsedge infestation, or to a lesser 

extent: fungal disease infestation and root knot nematodes; or with a need 

for methyl bromide for research purposes. 

(c) Georgia growers .............................. With a reasonable expectation that one or more of the following limiting critical 

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

severe fungal disease infestation, or to a lesser extent: root knot nematodes; 

or with a need for methyl bromide for research purposes. 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 62051 

Column A Column B Column C 

Approved critical 

uses 

Approved critical user and location of 

use Limiting critical conditions 

Eggplant ................... (a) Florida growers ................................ With a reasonable expectation that one or more of the following limiting critical 

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

to severe nematodes, or moderate to severe disease infestation, or restrictions on alternatives due to karst geology; or with a need for methyl bromide 

for research purposes. 

(b) Georgia growers .............................. With a reasonable expectation that one or more of the following limiting critical 

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

to severe nematodes, or moderate to severe pythium root and collar rots, or 

moderate to severe southern blight infestation, and to a lesser extent: crown 

and root rot; or with a need for methyl bromide for research purposes. 

(c) Michigan growers ............................. With a reasonable expectation that moderate to severe soilborne fungal disease infestation could occur without methyl bromide fumigation; or with a 

need for methyl bromide for research purposes. 

Forest Nursery Seedlings.(a) Growers in Alabama, Arkansas, 

Florida, Georgia, Louisiana, Mississippi, North Carolina, Oklahoma, 

South Carolina, Tennessee, Texas 

and Virginia.

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

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

to severe disease infestation. 

(b) International Paper and its subsidiaries limited to growing locations in 

Arkansas, Alabama, Georgia, South 

Carolina and Texas.

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

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

to severe disease infestation. 

(c) Public (government owned) seedling nurseries in the states of Idaho, 

Illinois, Indiana, Kansas, Kentucky, 

Maryland, Missouri, Nebraska, New 

Jersey, Ohio, Oregon, Pennsylvania, 

Utah, Washington, West Virginia and 

Wisconsin.

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

conditions either already exist or could occur without methyl bromide fumigation: moderate to severe weed infestation including purple and yellow 

nutsedge infestation, or moderate to severe Canada thistle infestation, or 

moderate to severe nematodes, and to a lesser extent: fungal disease infestation. 

(d) Weyerhaeuser Company and its 

subsidiaries limited to growing locations in Alabama, Arkansas, North 

Carolina and South Carolina.

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

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

severe disease infestation, and to a lesser extent: nematodes and worms. 

(e) Weyerhaeuser Company and its 

subsidiaries limited to growing in 

Washington and Oregon.

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

conditions already either exist of could occur without methyl bromide fumigation: moderate to severe yellow nutsedge infestation, or moderate to severe 

fungal disease infestation. 

(f) Michigan growers ............................. With a reasonable expectation that one or more of the following limiting critical 

conditions already either exist or could occur without methyl bromide fumigation: moderate to severe disease infestation, moderate to severe Canada 

thistle infestation, moderate to severe nutsedge infestation, and to a lesser 

extent: nematodes. 

(g) Michigan herbaceous perennials 

growers.

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

conditions already exist or could occur without methyl bromide fumigation: 

moderate to severe nematodes, moderate to severe fungal disease infestation, and to a lesser extent: yellow nutsedge and other weeds infestation. 

Orchard Nursery 

Seedlings.

(a) Members of the Western Raspberry 

Nursery Consortium limited to growing locations in California and Washington (Driscoll’s raspberries and 

their contract growers in California 

and Washington).

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe nematode infestation, medium to heavy clay 

soils, or a prohibition of the use of 1,3-dichloropropene products due to 

reaching local township limits on the use of this alternative. 

(b) Members of the California Association of Nurserymen-Deciduous Fruit 

and Nut Tree Growers.

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe nematodes, medium to heavy clay soils, or a 

prohibition of the use of 1,3-dichloropropene products due to reaching local 

township limits on the use of this alternative. 

(c) California rose nurseries .................. With a reasonable expectation that one or more of the following limiting critical 

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe nematodes, or user may be prohibited from using 

1,3-dichloropropene products because local township limits for this alternative have been reached. 

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe disease infestation, or moderate to severe yellow 

or purple nutsedge infestation, or moderate to severe nematodes; or with a 

need for methyl bromide for research purposes. 

62052 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 

Column A Column B Column C 

Approved critical 

uses 

Approved critical user and location of 

use Limiting critical conditions 

(b) North Carolina, Tennessee and 

Maryland growers.

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe black root rot, or moderate to severe root-knot 

nematodes, or moderate to severe yellow and purple nutsedge infestation, 

and to a lesser extent: crown rot; or with a need for methyl bromide for research purposes. 

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe nematodes, or moderate to severe fungal disease infestation, or replanted (non-virgin) orchard soils to prevent orchard 

replant disease, or medium to heavy soils, or a prohibition on the use of 1,3- 

dichloropropene products because local township limits for this alternative 

have been reached; or with a need for methyl bromide for research purposes. 

(b) California table and raisin grape 

growers.

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe nematodes, or moderate to severe fungal disease infestation, or replanted (non-virgin) orchard soils to prevent orchard 

replant disease, or medium to heavy soils, or a prohibition on the use of 1,3- 

dichloropropene products because local township limits for this alternative 

have been reached; or with a need for methyl bromide for research purposes. 

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe nematodes, or replanted (non-virgin) orchard 

soils to prevent orchard replant disease, or medium to heavy soils, or a prohibition on the use of 1,3-dichloropropene products because local township 

limits for this alternative have been reached; or with a need for methyl bromide for research purposes. 

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe nematodes, or replanted (non-virgin) orchard 

soils to prevent orchard replant disease, or medium to heavy soils, or a prohibition on the use of 1,3-dichloropropene products because local township 

limits for this alternative have been reached; or with a need for methyl bromide for research purposes. 

Ornamentals ............. (a) California growers ............................ With a reasonable expectation that one or more of the following limiting critical 

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe disease infestation, or moderate to severe nematodes, or a prohibition on the use of 1,3-dichloropropene products because 

local township limits for this alternative have been reached; or with a need 

for methyl bromide for research purposes. 

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe weed infestation, or moderate to severe disease 

infestation, or moderate to severe nematodes, or karst topography; or with a 

need for methyl bromide for research purposes. 

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe disease infestation, or moderate to severe nematodes, or a prohibition on the use of 1,3-dichloropropene products because 

local township limits for this alternative have been reached; or with a need 

for methyl bromide for research purposes. 

(b) Alabama, Arkansas, Kentucky, Louisiana, North Carolina, South Carolina, Tennessee and Virginia growers.With a reasonable expectation that one or more of the following limiting critical 

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe yellow or purple nutsedge infestation, or moderate to severe nematodes, or moderate to severe pythium root, collar, 

crown and root rots, or the presence of an occupied structure within 100 feet 

of a grower’s field the size of 100 acres or less; or with a need for methyl 

bromide for research purposes. 

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

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

karst topography; or with a need for methyl bromide for research purposes. 

(d) Georgia growers .............................. With a reasonable expectation that one or more of the following limiting critical 

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

to severe nematodes, or moderate to severe pythium root and collar rots, or 

moderate to severe southern blight infestation, and to a lesser extent: crown 

and root rot; or with a need for methyl bromide for research purposes. 

Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 62053 

Column A Column B Column C 

Approved critical 

uses 

Approved critical user and location of 

use Limiting critical conditions 

(e) Michigan growers ............................ With a reasonable expectation that moderate to severe fungal disease infestation would occur without methyl bromide fumigation; or with a need for methyl bromide for research purposes. 

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe black root rot or crown rot, or moderate to severe 

yellow or purple nutsedge infestation, or moderate to severe nematodes, or 

a prohibition of the use of 1,3-dichloropropene products because local township limits for this alternative have been reached, time to transition to an alternative; or with a need for methyl bromide for research purposes. 

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe yellow or purple nutsedge, or moderate to severe 

nematodes, or moderate to severe disease infestation, or karst topography 

and to a lesser extent: carolina geranium or cut-leaf evening primrose infestation; or with a need for methyl bromide for research purposes. 

(c) Alabama, Arkansas, Georgia, Illinois, Kentucky, Louisiana, Maryland, 

New Jersey, North Carolina, Ohio, 

South Carolina, Tennessee and Virginia growers.

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe yellow or purple nutsedge, or moderate to severe 

nematodes, or moderate to severe black root and crown rot, or the presence 

of an occupied structure within 100 feet of a grower’s field the size of 100 

acres or less; or with a need for methyl bromide for research purposes. 

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

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

pathogens infestation; or with a need for methyl bromide for research purposes. 

(b) Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, North 

Carolina, South Carolina, and Tennessee growers.

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe yellow or purple nutsedge infestation, or moderate to severe disease infestation, or moderate to severe nematodes, or the 

presence of an occupied structure within 100 feet of a grower’s field the size 

of 100 acres or less, or karst topography; or with a need for methyl bromide 

for research purposes. 

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

conditions already either exists or could occur without methyl bromide fumigation: moderate to severe disease infestation, or moderate to severe nematodes; or with a need for methyl bromide for research purposes. 

Turfgrass .................. (a) U.S. turfgrass sod nursery producers who are members of 

Turfgrass Producers International 

(TPI).

For the production of industry certified pure sod; with a reasonable expectation 

that one or more of the following limiting critical conditions already either exists or could occur without methyl bromide fumigation: moderate to severe 

bermudagrass, nutsedge and off-type perennial grass infestation, or moderate to severe, or moderate to severe white grub infestation; or with a need 

for methyl bromide for research purposes. 

POST-HARVEST USES 

Food Processing ...... (a) Rice millers in all locations in the 

U.S. who are members of the USA 

Rice Millers Association.

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

conditions exists: moderate to severe infestation of beetles, weevils or 

moths, or older structures that can not be properly sealed to use an alternative to methyl bromide, or the presence of sensitive electronic equipment 

subject to corrosivity, time to transition to an alternative. 

(b) Pet food manufacturing facilities in 

the U.S. who are active members of 

the Pet Food Institute. (For today’s 

rule, ‘‘pet food’’ refers to domestic 

dog and cat food).

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

conditions exists: moderate to severe infestation or beetles, moths, or cockroaches, or older structures that can not be properly sealed to use an alternative to methyl bromide, or the presence of sensitive electronic equipment 

subject to corrosivity, time to transition to an alternative. 

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

conditions exists: older structures that can not be properly sealed to use an 

alternative to methyl bromide, or the presence of sensitive electronic equipment subject to corrosivity, time to transition to an alternative. 

(d) Members of the North American 

Millers’ Association in the U.S.

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

conditions already exists or could occur without methyl bromide fumigation: 

moderate to severe beetle infestation, or older structures that can not be 

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

sensitive electronic equipment subject to corrosivity, time to transition to an 

alternative. 

62054 Federal Register / Vol. 70, No. 207 / Thursday, October 27, 2005 / Proposed Rules 

Column A Column B Column C 

Approved critical 

uses 

Approved critical user and location of 

use Limiting critical conditions 

(e) Members of the National Pest Management Association associated with 

dry commodity structure fumigation 

(cocoa) and dry commodity fumigation (processed food, herbs, spices, 

and dried milk).

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

conditions already exists or could occur without methyl bromide fumigation: 

moderate to severe beetle or moth infestation, or older structures that can 

not be properly sealed to use an alternative to methyl bromide, or the presence of sensitive electronic equipment subject to corrosivity, time to transition to an alternative. 

Commodity Storage (a) California entities storing walnuts, 

beans, dried plums, figs, raisins, 

dates and pistachios in California.

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

conditions exists: rapid fumigation is required to meet a critical market window, such as during the holiday season, rapid fumigation is required when a 

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

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

silo availability for using alternatives; or with a need for methyl bromide for 

research purposes. 

Dry Cured Pork 

Products.

(a) Members of the National Country 

Ham Association.

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

conditions already exists or could occur without methyl bromide fumigation: 

moderate to severe red legged ham beetle, cheese/ham skipper, dermested 

beetle or ham mite infestation. 

(b) Members of the American Association of Meat Processors.With a reasonable expectation that one or more of the following limiting critical 

conditions already exists or could occur without methyl bromide fumigation: 

moderate to severe red legged ham beetle, cheese/ham skipper, dermested 

beetle or ham mite infestation. 

(c) Nahunta Pork Center (North Carolina).With a reasonable expectation that one or more of the following limiting critical 

conditions already exists or could occur without methyl bromide fumigation: 

moderate to severe red legged ham beetle, cheese/ham skipper, dermested 

beetle or ham mite infestation. 

[FR Doc. 05–21526 Filed 10–26–05; 8:45 am] 

BILLING CODE 6560–50–P