[Federal Register Volume 70, Number 207 (Thursday, October 27, 2005)]
[Proposed Rules]
[Pages 62030-62054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21526]



[[Page 62029]]

-----------------------------------------------------------------------

Part III





Environmental Protection Agency





-----------------------------------------------------------------------



40 CFR Part 82



Protection of Stratospheric Ozone: The 2006 Critical Use Exemption From 
the Phaseout of Methyl Bromide; Proposed Rule

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

[[Page 62030]]


-----------------------------------------------------------------------

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 
follow-up 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 href="/cdn-cgi/l/email-protection#f8b9d599969cd5aad59c979b939d8cb89d8899d69f978e"><span class="__cf_email__" data-cfemail="67264a0609034a354a0308040c02132702170649000811">[email protected]</span></a>.
    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 e-mail address will be automatically 
captured and included as part of the comment that is placed in the 
public docket and made available on the Internet. If you submit an 
electronic comment, EPA recommends that you include your name and other 
contact information in the body of your comment and with any disk or 
CD-ROM you submit. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment. Electronic files should avoid the use of 
special characters, any form of encryption, and be free of any defects 
or viruses.
    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 e-mail at <a href="/cdn-cgi/l/email-protection#0a676f6878246b666665696b7e6365644a6f7a6b246d657c"><span class="__cf_email__" data-cfemail="87eae2e5f5a9e6ebebe8e4e6f3eee8e9c7e2f7e6a9e0e8f1">[email protected]</span></a> 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 pre-shipment 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?

[[Page 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 Ozone-
Depleting Substances?

    The current regulatory requirements of the Stratospheric Ozone 
Protection Program that limit production and consumption of ozone 
depleting substances can be found at 40 CFR part 82 subpart A. The 
regulatory program was originally published in the Federal Register on 
August 12, 1988 (53 FR 30566), in response to the 1987 signing and 
subsequent ratification of the Montreal Protocol on Substances that 
Deplete the Ozone Layer (Protocol). The U.S. was one of the original 
signatories

[[Page 62032]]

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

[[Page 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

[[Page 62034]]

``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 pre-
phaseout 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 E-Docket 
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

[[Page 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

[[Page 62036]]

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 user and
       Approved critical uses              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.        With a reasonable expectation that one or more
                                      except Georgia limited to    of the following limiting critical conditions
                                      growing locations in         either already exist or could occur without
                                      Alabama, Arkansas,           methyl bromide fumigation: moderate to severe
                                      Kentucky, Louisiana, North   yellow or purple nutsedge infestation, or to
                                      Carolina, South Carolina,    a lesser extent: fungal disease infestation
                                      Tennessee, and Virginia.     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,      With a reasonable expectation that one or more
                                      Arkansas, Florida,           of the following limiting critical conditions
                                      Georgia, Louisiana,          already either exist or could occur without
                                      Mississippi, North           methyl bromide fumigation: moderate to severe
                                      Carolina, Oklahoma, South    yellow or purple nutsedge infestation, or
                                      Carolina, Tennessee, Texas   moderate to severe disease infestation.
                                      and Virginia.
                                     (b) International Paper      With a reasonable expectation that one or more
                                      with and its subsidiaries    of the following limiting critical conditions
                                      limited to growing           already either exist or could occur without
                                      locations in Arkansas,       methyl bromide fumigation: moderate to severe
                                      Alabama, Georgia, South      yellow or purple nutsedge infestation, or
                                      Carolina and Texas.          moderate to severe disease infestation.
                                     (c) Public (government       With a reasonable expectation that one or more
                                      owned) seedling nurseries    of the following limiting critical conditions
                                      in the states of Idaho,      either already exist or could occur without
                                      Illinois, Indiana, Kansas,   methyl bromide fumigation: moderate to severe
                                      Kentucky, Maryland,          weed infestation including purple and yellow
                                      Missouri, Nebraska, New      nutsedge infestation, or moderate to severe
                                      Jersey, Ohio, Oregon,        Canada thistle infestation, or moderate to
                                      Pennsylvania, Utah,          severe nematodes, and to a lesser extent:
                                      Washington, West Virginia    fungal disease infestation.
                                      and Wisconsin.
                                     (d) Weyerhaeuser Company     With a reasonable expectation that one or more
                                      and its subsidiaries         of the following limiting critical conditions
                                      limited to growing           already either exist or could occur without
                                      locations in Alabama,        methyl bromide fumigation: moderate to severe
                                      Arkansas, North Carolina     yellow or purple nutsedge infestation,
                                      and South Carolina.          moderate to severe disease infestation, and
                                                                   to a lesser extent: nematodes and worms.
                                     (e) Weyerhaeuser Company     With a reasonable expectation that one or more
                                      and its subsidiaries         of the following limiting critical conditions
                                      limited to growing in        already either exist of could occur without
                                      Washington and Oregon.       methyl bromide fumigation: moderate to severe
                                                                   yellow nutsedge infestation, or moderate to
                                                                   severe fungal disease infestation.

[[Page 62037]]

 
                                     (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      With a reasonable expectation that one or more
                                      perennials growers.          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   With a reasonable expectation that one or more
                                      Raspberry Nursery            of the following limiting critical conditions
                                      Consortium limited to        already either exists or could occur without
                                      growing locations in         methyl bromide fumigation: moderate to severe
                                      California and Washington    nematode infestation, medium to heavy clay
                                      (Driscoll's raspberries      soils, or a prohibition of on the use of 1,3-
                                      and their contract growers   dichloropropene products due to reaching
                                      in California and            local township limits on the use of this
                                      Washington).                 alternative; or with a need for methyl
                                                                   bromide for research purposes.
                                     (b) Members of the           With a reasonable expectation that one or more
                                      California Association of    of the following limiting critical conditions
                                      Nurserymen-Deciduous Fruit   already either exists or could occur without
                                      and Nut Tree Growers.        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          With a reasonable expectation that one or more
                                      nurseries.                   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,          With a reasonable expectation that one or more
                                      Tennessee and Maryland       of the following limiting critical conditions
                                      growers.                     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   With a reasonable expectation that one or more
                                      growers.                     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     With a reasonable expectation that one or more
                                      raisin grape growers.        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        With a reasonable expectation that one or more
                                      growers.                     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        With a reasonable expectation that one or more
                                      growers.                     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.

[[Page 62038]]

 
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,       With a reasonable expectation that one or more
                                      Kentucky, Louisiana, North   of the following limiting critical conditions
                                      Carolina, South Carolina,    already either exists or could occur without
                                      Tennessee and Virginia       methyl bromide fumigation: moderate to severe
                                      growers.                     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,       With a reasonable expectation that one or more
                                      Georgia, Illinois,           of the following limiting critical conditions
                                      Kentucky, Louisiana,         already either exists or could occur without
                                      Maryland, New Jersey,        methyl bromide fumigation: moderate to severe
                                      North Carolina, Ohio,        yellow or purple nutsedge, or moderate to
                                      South Carolina, Tennessee    severe nematodes, or moderate to severe black
                                      and Virginia growers.        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,       With a reasonable expectation that one or more
                                      Florida, Georgia,            of the following limiting critical conditions
                                      Kentucky, Louisiana, North   already either exists or could occur without
                                      Carolina, South Carolina,    methyl bromide fumigation: moderate to severe
                                      and Tennessee growers.       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.

[[Page 62039]]

 
                                     (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       For the production of industry certified pure
                                      nursery producers who are    sod; with a reasonable expectation that one
                                      members of Turfgrass         or more of the following limiting critical
                                      Producers International      conditions already either exists or could
                                      (TPI).                       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      With a reasonable expectation that one or more
                                      locations in the U.S. who    of the following limiting critical conditions
                                      are members of the USA       exists: moderate to severe infestation of
                                      Rice Millers Association.    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   With a reasonable expectation that one or more
                                      facilities in the U.S. who   of the following limiting critical conditions
                                      are active members of the    exists: moderate to severe infestation or
                                      Pet Food Institute. (For     beetles, moths, or cockroaches, or older
                                      today's rule, ``pet food''   structures that cannot be properly sealed to
                                      refers to domestic dog and   use an alternative to methyl bromide, or the
                                      cat food).                   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     With a reasonable expectation that one or more
                                      American Millers'            of the following limiting critical conditions
                                      Association in the U.S.      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  With a reasonable expectation that one or more
                                      Pest Management              of the following limiting critical conditions
                                      Association associated       already exists or could occur without methyl
                                      with dry commodity           bromide fumigation: moderate to severe beetle
                                      structure fumigation         or moth infestation, or older structures that
                                      (cocoa) and dry commodity    can not be properly sealed to use an
                                      fumigation (processed        alternative to methyl bromide, or the
                                      foods, herbs, spices, and    presence of sensitive electronic equipment
                                      dried milk).                 subject to corrosivity, time to transition to
                                                                   an alternative.
Commodity Storage..................  (a) California entities      With a reasonable expectation that one or more
                                      storing walnuts, beans,      of the following limiting critical conditions
                                      dried plums, figs,           exists: rapid fumigation is required to meet
                                      raisins, dates and           a critical market window, such as during the
                                      pistachios in California.    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  With a reasonable expectation that one or more
                                      Country Ham Association.     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  With a reasonable expectation that one or more
                                      Association of Meat          of the following limiting critical conditions
                                      Processors.                  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      With a reasonable expectation that one or more
                                      (North Carolina).            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

[[Page 62040]]

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-
to-date 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.

[[Page 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 mid-year 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:
    <bullet> Historic information on pest control efficacy of current 
fumigant (trap catch data if available).
    <bullet> Size and building composition of facility.
    <bullet> Data from a range of geographic conditions.
    <bullet> Data on methyl bromide which will be used for comparison 
purposes.
    <bullet> Temperature data inside and outside the facilities.
    <bullet> Trap catch data from before treatment and 3-, 7- and 14-
working days after treatment.
    <bullet> Information on differences in ``down time'' (non-operating 
time) at facility for methyl bromide and alternative.
    <bullet> Amount of methyl bromide and alternative used in 
treatment.
    <bullet> 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:
    <bullet> Historic information on pest control efficacy of current 
fumigant.
    <bullet> Data from a range of geographic conditions.
    <bullet> Data on methyl bromide which will be used for comparison 
purposes.
    <bullet> Yield and quality data for the alternative as compared to 
methyl bromide.
    <bullet> Pest control data.
    <bullet> 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 double-counting 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

[[Page 62042]]

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 critical-use 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 pre-phaseout inventories for 
critical uses in excess of the amount of CSAs held by the seller. In 
addition, EPA noted that stocks were further taken into account through 
the trading provisions that allow 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 pre-phaseout 
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 pre-phaseout 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

[[Page 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 pre-phaseout 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 pre-phaseout 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 post-
harvest 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.

[[Page 62044]]



            Table II.--Allocation of Critical Use Allowances
------------------------------------------------------------------------
                                           2006 Critical   2006 Critical
                                          use allowances  use allowances
                 Company                   for pre-plant     for post-
                                               uses*       harvest uses*
                                            (kilograms)     (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 
sector-based 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 pre-plant 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

[[Page 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

[[Page 62046]]

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.

----------------------------------------------------------------------------------------------------------------
                                                     Number of     Total number      Hours per
               Collection activity                  respondents    of  responses     response       Total hours
----------------------------------------------------------------------------------------------------------------
Familiarization with Petition Process by end               2,000              20            1              20
 users..........................................
Submission of Data to EPA (Petitioner)..........              20              20            3              60
Submission of Letter to EPA Documenting Lack of               30               3             .25             .75
 Inventory (Distributor)........................
Submission of Letter to EPA Accepting Conversion               4               2             .25             .5
 of CSAs to CUAs (Producer/Importer)............
Report to EPA Documenting Expended Allowances                  4               2             .25             .5
 (Producer/Importer)............................
                                                 -----------------
    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 E-Docket 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 notice-and-comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions. For purposes of assessing the impacts of 
today's rule on small entities, small entity is defined as: (1) A small 
business

[[Page 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-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.

----------------------------------------------------------------------------------------------------------------
                                                                             NAICS small business size standard
            Category                   NAICS code            SIC code       (in number of  employees or millions
                                                                                         of dollars)
----------------------------------------------------------------------------------------------------------------
Agricultural production.........  1112--Vegetable and  0171--Berry Crops..  $0.75 million.
                                   Melon farming.
                                  1113--Fruit and Nut  0172--Grapes.......
                                   Tree Farming.
                                  1114--Greenhouse,    0173--Tree Nuts....
                                   Nursery, and        0175--Deciduous
                                   Floriculture         Tree Fruits
                                   Production.          (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  2041--Flour and
                                   Crop activities      Other Grain Mill
                                   (except Cotton       Products.
                                   Ginning).
                                  311211--Flour        2044--Rice Milling.  $21.5 million.
                                   Milling.
                                  311212--Rice         4221--Farm Product
                                   Milling.             Warehousing and
                                                        Storage.
                                  493110--General      4225--General
                                   Warehousing and      Warehousing and
                                   Storage.             Storage.
Distributors and Applicators....  493130--Farm         0721--Crop           $6 million.
                                   Product              Planting,
                                   Warehousing and      Cultivation, and
                                   Storage.             Protection.
Producers and Importers.........  115112--Soil         ...................  500 employees.
                                   Preparation,
                                   Planting and
                                   Cultivating.
                                  325320--Pesticide    2879--Pesticides
                                   and Other            and Agricultural
                                   Agricultural         Chemicals, NEC.
                                   Chemical
                                   Manufacturing.
----------------------------------------------------------------------------------------------------------------

    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 de-regulatory 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

[[Page 62048]]

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

[[Page 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:


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

* * * * *
    (c) * * *
    (1) Allocated critical use allowances granted for specified control 
period.

------------------------------------------------------------------------
                                                           2006 Critical
                                           2006 Critical       uses
                                          use allowances  allowances for
                 Company                   for pre-plant   post-harvest
                                                \*\           uses\*\
                                            (kilograms)     (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:


Sec.  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 non-critical 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

[[Page 62050]]

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 user and
       Approved critical uses              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.        With a reasonable expectation that one or more
                                      except Georgia limited to    of the following limiting critical conditions
                                      growing locations in         either already exist or could occur without
                                      Alabama, Arkansas,           methyl bromide fumigation: moderate to severe
                                      Kentucky, Louisiana, North   yellow or purple nutsedge infestation, or to
                                      Carolina, South Carolina,    a lesser extent: fungal disease infestation
                                      Tennessee, and Virginia.     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.

[[Page 62051]]

 
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,      With a reasonable expectation that one or more
                                      Arkansas, Florida,           of the following limiting critical conditions
                                      Georgia, Louisiana,          already either exist or could occur without
                                      Mississippi, North           methyl bromide fumigation: moderate to severe
                                      Carolina, Oklahoma, South    yellow or purple nutsedge infestation, or
                                      Carolina, Tennessee, Texas   moderate to severe disease infestation.
                                      and Virginia.
                                     (b) International Paper and  With a reasonable expectation that one or more
                                      its subsidiaries limited     of the following limiting critical conditions
                                      to growing locations in      already either exist or could occur without
                                      Arkansas, Alabama,           methyl bromide fumigation: moderate to severe
                                      Georgia, South Carolina      yellow or purple nutsedge infestation, or
                                      and Texas.                   moderate to severe disease infestation.
                                     (c) Public (government       With a reasonable expectation that one or more
                                      owned) seedling nurseries    of the following limiting critical conditions
                                      in the states of Idaho,      either already exist or could occur without
                                      Illinois, Indiana, Kansas,   methyl bromide fumigation: moderate to severe
                                      Kentucky, Maryland,          weed infestation including purple and yellow
                                      Missouri, Nebraska, New      nutsedge infestation, or moderate to severe
                                      Jersey, Ohio, Oregon,        Canada thistle infestation, or moderate to
                                      Pennsylvania, Utah,          severe nematodes, and to a lesser extent:
                                      Washington, West Virginia    fungal disease infestation.
                                      and Wisconsin.
                                     (d) Weyerhaeuser Company     With a reasonable expectation that one or more
                                      and its subsidiaries         of the following limiting critical conditions
                                      limited to growing           already either exist or could occur without
                                      locations in Alabama,        methyl bromide fumigation: moderate to severe
                                      Arkansas, North Carolina     yellow or purple nutsedge infestation,
                                      and South Carolina.          moderate to severe disease infestation, and
                                                                   to a lesser extent: nematodes and worms.
                                     (e) Weyerhaeuser Company     With a reasonable expectation that one or more
                                      and its subsidiaries         of the following limiting critical conditions
                                      limited to growing in        already either exist of could occur without
                                      Washington and Oregon.       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      With a reasonable expectation that one or more
                                      perennials growers.          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   With a reasonable expectation that one or more
                                      Raspberry Nursery            of the following limiting critical conditions
                                      Consortium limited to        already either exists or could occur without
                                      growing locations in         methyl bromide fumigation: moderate to severe
                                      California and Washington    nematode infestation, medium to heavy clay
                                      (Driscoll's raspberries      soils, or a prohibition of the use of 1,3-
                                      and their contract growers   dichloropropene products due to reaching
                                      in California and            local township limits on the use of this
                                      Washington).                 alternative.
                                     (b) Members of the           With a reasonable expectation that one or more
                                      California Association of    of the following limiting critical conditions
                                      Nurserymen-Deciduous Fruit   already either exists or could occur without
                                      and Nut Tree Growers.        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          With a reasonable expectation that one or more
                                      nurseries.                   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.

[[Page 62052]]

 
                                     (b) North Carolina,          With a reasonable expectation that one or more
                                      Tennessee and Maryland       of the following limiting critical conditions
                                      growers.                     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   With a reasonable expectation that one or more
                                      growers.                     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     With a reasonable expectation that one or more
                                      raisin grape growers.        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        With a reasonable expectation that one or more
                                      growers.                     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        With a reasonable expectation that one or more
                                      growers.                     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,       With a reasonable expectation that one or more
                                      Kentucky, Louisiana, North   of the following limiting critical conditions
                                      Carolina, South Carolina,    already either exists or could occur without
                                      Tennessee and Virginia       methyl bromide fumigation: moderate to severe
                                      growers.                     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.

[[Page 62053]]

 
                                     (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,       With a reasonable expectation that one or more
                                      Georgia, Illinois,           of the following limiting critical conditions
                                      Kentucky, Louisiana,         already either exists or could occur without
                                      Maryland, New Jersey,        methyl bromide fumigation: moderate to severe
                                      North Carolina, Ohio,        yellow or purple nutsedge, or moderate to
                                      South Carolina, Tennessee    severe nematodes, or moderate to severe black
                                      and Virginia growers.        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,       With a reasonable expectation that one or more
                                      Florida, Georgia,            of the following limiting critical conditions
                                      Kentucky, Louisiana, North   already either exists or could occur without
                                      Carolina, South Carolina,    methyl bromide fumigation: moderate to severe
                                      and Tennessee growers.       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       For the production of industry certified pure
                                      nursery producers who are    sod; with a reasonable expectation that one
                                      members of Turfgrass         or more of the following limiting critical
                                      Producers International      conditions already either exists or could
                                      (TPI).                       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      With a reasonable expectation that one or more
                                      locations in the U.S. who    of the following limiting critical conditions
                                      are members of the USA       exists: moderate to severe infestation of
                                      Rice Millers Association.    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   With a reasonable expectation that one or more
                                      facilities in the U.S. who   of the following limiting critical conditions
                                      are active members of the    exists: moderate to severe infestation or
                                      Pet Food Institute. (For     beetles, moths, or cockroaches, or older
                                      today's rule, ``pet food''   structures that can not be properly sealed to
                                      refers to domestic dog and   use an alternative to methyl bromide, or the
                                      cat food).                   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     With a reasonable expectation that one or more
                                      American Millers'            of the following limiting critical conditions
                                      Association in the U.S.      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.

[[Page 62054]]

 
                                     (e) Members of the National  With a reasonable expectation that one or more
                                      Pest Management              of the following limiting critical conditions
                                      Association associated       already exists or could occur without methyl
                                      with dry commodity           bromide fumigation: moderate to severe beetle
                                      structure fumigation         or moth infestation, or older structures that
                                      (cocoa) and dry commodity    can not be properly sealed to use an
                                      fumigation (processed        alternative to methyl bromide, or the
                                      food, herbs, spices, and     presence of sensitive electronic equipment
                                      dried milk).                 subject to corrosivity, time to transition to
                                                                   an alternative.
Commodity Storage..................  (a) California entities      With a reasonable expectation that one or more
                                      storing walnuts, beans,      of the following limiting critical conditions
                                      dried plums, figs,           exists: rapid fumigation is required to meet
                                      raisins, dates and           a critical market window, such as during the
                                      pistachios in California.    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  With a reasonable expectation that one or more
                                      Country Ham Association.     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  With a reasonable expectation that one or more
                                      Association of Meat          of the following limiting critical conditions
                                      Processors.                  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      With a reasonable expectation that one or more
                                      (North Carolina).            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


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>