­
2­
the
"
double
cap"
agreed
to
in
Decision
Ex
I/
3
by
the
Parties
to
the
Protocol
C.
How
Will
Critical
Use
Allowances
(
CUAs)
be
Distributed?
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.
EPA
proposes
using
historic
1991
baseline
levels
of
consumption
allowances
to
allocate
CUAs
because
it
is
consistent
with
the
method
of
allocation
currently
in
place
under
the
phaseout
of
methyl
bromide
and
because
EPA
has
easily
verifiable
baseline
data
for
1991.
EPA
is
proposing
to
use
consumption
baselines
and
not
production
baselines
because
critical
use
methyl
bromide
can
be
legally
sourced
in
the
U.
S.
through
either
domestic
production
or
import.
A
critical
use
allowance
(
CUA),
as
described
in
Section
B.
of
this
proposed
rule,
entitles
the
allowance
holder
either
to
produce
or
to
import
one
(
1)
kilogram
of
methyl
bromide.
Therefore,
EPA
believes
that
the
production
baseline
would
be
inappropriate
to
use
since
it
would
exclude
importers
from
meeting
the
needs
of
critical
uses.
Although
EPA
is
proposing
to
distribute
allowances
to
producers
and
importers
based
on
the
1991
baseline,
EPA
also
requests
comment
on
the
option
of
allocating
allowances
to
producers
and
importers
based
on
the
volume
of
material
marketed
over
a
previous
historic
period,
such
as
the
immediate
past
four
years.
EPA
does
not
have
adequate
data
to
create
a
new
baseline
of
marketed
material
for
methyl
bromide
producers
and
importers.
EPA
believes
that
acquiring
sufficient,
credible
data
of
this
nature,
would
require
the
Agency
to
review
all
transaction
records
for
each
sale
made
by
a
methyl
bromide
producer
or
importer
to
a
distributor,
other
supplier,
or
directly
to
end
users.
The
Agency
is
concerned
that
it
would
take
a
long
time
to
compile,
receive
and
analyze
such
detailed
information.
In
addition,
such
a
process
of
compiling
and
submitting
the
information
to
make
a
new
baseline
determination
would
impose
additional
burden
on
the
regulated
community.
This
burden
would
likely
be
annual
since
the
volumes
of
marketed
material
would
not
remain
static
from
year­
to­
year
after
2005.
EPA
also
requests
comment
on
an
allocation
method
that
equally
divides
the
number
of
allowances
amongst
those
entities
with
historic
production
and
consumption.
EPA
believes
that
this
would
be
the
simplest
approach
to
allocating
allowances.
However,
a
simple
division
of
the
critical
use
allowances
(
CUAs)
based
on
the
number
of
entities
involved
would
grossly
distort
historic
and
current
relative
market
shares
of
the
regulated
entities;
some
would
receive
far
more
than
their
historic
production
and
consumption
and
others
would
receive
far
less.
Allocating
allowances
based
on
volume
of
recently
marketed
material
may
more
closely
reflect
current
market
shares
for
each
company,
but,
for
reasons
involving
the
annual
burden
on
industry
and
government
discussed
above,
this
is
not
a
desirable
distributional
mechanism.
Therefore,
EPA
is
proposing
to
allocate
allowances
based
on
the
1991
historic
baseline
that
has
been
used
for
more
than
a
decade
in
the
U.
S.
to
determine
relative
market
shares
among
producers
and
importers.
Allocating
CUAs
based
on
each
company's
1991
baseline
allowances
(
on
a
pro­
rata
basis)
is
a
better
reflection
of
market
share
than
simply
dividing
the
number
of
allowances
by
the
total
number
of
entities,
and
would
be
less
burdensome
than
conducting
a
detailed
recent
historical
market
share
analysis
on
a
an
annual
basis.
Using
the
1991
historic
baseline
method
for
distributing
CUAs
is
consistent
with
how
EPA
has
allocated
methyl
bromide
production
and
consumption
allowances
for
the
past
decade
under
the
methyl
bromide
phaseout.
EPA
seeks
­
3­
comment
on
these
options
for
baseline
determination
and
critical
use
allowance
(
CUA)
distribution.
During
stakeholder
meetings
prior
to
development
of
this
rule,
one
stakeholder
suggested
that
EPA
give
the
allowances
to
a
third
party
not­
for­
profit
entity
who
would
in
turn
auction
the
allowances
to
the
producers,
importers,
and
distributors.
After
the
producer,
importer
and
distributor
purchased
the
requisite
number
of
allowances,
these
entities
could
then
expend
the
allowances
as
described
in
Sections
VI.
B.
and
VI.
M.
of
this
proposed
rule.
The
revenue
derived
from
the
auction
would
be
used
by
the
not­
for­
profit
entity
to
fund
transitions
to
alternatives
where
the
alternatives
are
technically
available
but
not
economically
feasible
and
research
into
alternatives
to
methyl
bromide
where
no
technically
feasible
alternatives
exist
to
date.
Under
the
allowance
auction
approach,
no
additional
activities
would
be
required
of
the
end
users
but
they
would
receive
a
substantial
benefit
in
the
form
of
the
transition
fund
described
above
in
this
paragraph.
One
of
the
economic
benefits
of
the
auction
would
be
the
redistribution
of
windfall
profits
that
the
producers
and
importers
of
methyl
bromide
currently
receive
under
the
phaseout
of
methyl
bromide
and
that
will
be
extended
under
the
proposed
critical
use
exemption.
There
are
relatively
few
producers
and
importers
of
methyl
bromide
and
the
regulatory­
induced
scarcity
created
by
the
Protocol
and
CAA
means
higher
prices
can
be
charged
and
the
additional
profits
are
then
received
and
kept
by
the
producer
and
importer
companies.
Under
an
auction
however,
producers
and
importers
would
pay
for
the
right
to
produce
or
import
methyl
bromide,
thereby
decreasing
their
windfall
profits.
Apart
from
a
small
amount
of
money
to
maintain
operations
of
the
not­
for­
profit
entity,
in
theory
the
revenues
derived
from
the
auction
could
be
transferred
to
end
users
of
methyl
bromide
to
ease
the
economic
burden
of
their
phaseouts.
A
second
stakeholder
commented
that
an
auction
could
be
established
as
follows.
EPA
would
distribute
allowances
to
producers
and
importers
as
described
in
this
NPRM
which
would
entitle
the
companies
to
take
two
actions
(
a)
produce
and
import
kilograms
of
methyl
bromide
up
to
the
number
of
allowances
held,
or
(
b)
auction
the
allowances
to
critical
end
users.
The
end
users
would
then
turn
in
their
allowances
to
the
methyl
bromide
supplier
at
the
time
of
purchase.
A
similar
allocation
method
that
would
address
the
windfall
profit
issue
is
as
follows.
EPA
would
distribute
CUAs
to
end
users.
The
users
would
then
sell
the
allowances
to
producers
and
importers
who
would
then
be
able
to
produce
or
import
critical
use
methyl
bromide.
This
distribution
system
would
allow
windfall
profits
to
be
captured
by
the
users.
Problems
with
this
system
are
the
same
ones
discussed
with
distributing
allowances
to
a
not­
for
profit
entity
as
described
in
the
preceding
paragraph.
EPA
seeks
comment
on
these
alternative
suggested
approaches
to
allowance
distribution.
Windfall
profits
could
be
an
issue
of
significant
concern
to
some
elements
of
the
regulated
community.
Since
1991,
when
the
phaseout
of
methyl
bromide
began,
to
2002
the
price
of
methyl
bromide
has
almost
doubled.
Staff
economists
at
EPA
estimate
that
the
price
of
methyl
bromide
may
have
risen
from
$
5.90
to
$
11.70
per
kilogram
(
in
constant
2002
dollars)
during
this
time
horizon.
Assuming
that
the
cost
of
producing
and
importing
methyl
bromide
has
risen
at
the
same
rate
as
inflation,
this
translates
into
annual
windfall
profits
of
about
more
than
$
66
million.
No
one
can
predict
the
future
price
of
methyl
bromide,
although
some
estimates
are
made
in
analytic
documents
that
are
available
in
the
docket
and
accompany
today's
proposed
rulemaking.
EPA
seeks
comment
on
future
windfall
profits
and
how
different
methods
of
allocating
methyl
bromide
­
4­
would
influence
methyl
bromide
pricing.
EPA
seeks
comments
on
today's
proposed
method
for
allocating
critical
use
allowances
(
CUAs)
and
the
many
other
options
for
allocating
CUAs
described
above,
as
well
as
the
magnitude
of
burden
associated
with
any
of
the
options
that
would
adjust
existing
baselines.

D.
How
are
Critical
Stock
Allowances
(
CSAs)
Distributed?
EPA
proposes
to
allocate
CSAs
on
a
pro­
rata
basis
between
each
of
the
identified
entities
that
holds
stocks.
EPA
will
pro­
rate
the
total
amount
of
stocks
that
the
Agency
has
determined
are
available
between
each
known
entity
relative
to
the
percentage
of
the
total
existing
stocks
they
hold.
For
example,
if
company
A
holds
one
percent
of
all
existing
stocks
and
EPA
determines
that
1,000
kilograms
of
stocks
are
available,
EPA
will
issue
that
company
10
critical
stock
allowances
(
CSAs).
EPA
believes
this
is
the
most
equitable
and
least
arbitrary
method
available
for
allocating
CSAs.
Based
on
information
currently
available,
EPA
proposes
to
issue
CSA's
to
the
handful
of
companies
that
had
stocks
of
methyl
bromide
in
2003.
The
amount
allocated
to
each
of
these
companies
(
and
any
other
company
that
may
come
forward)
will
be
determined
in
the
final
rule
on
the
basis
of
comments
and
additional
information
collected
by
EPA.
EPA
seeks
comment
on
the
proposal
to
allocate
Critical
Stock
Allowances
on
a
pro­
rata
basis
to
these
companies
(
and
any
other
party
holding
stocks)
based
on
the
amount
of
stocks
held
by
each
entity
and
the
Agency's
determination
of
available
stocks
for
meeting
critical
use
needs.
In
today's
Federal
Register,
EPA
is
requesting
additional
information
on
the
amount
of
available
stocks
in
the
United
States.
Elsewhere
in
today's
Federal
Register
EPA
is
publishing
a
notice
under
Section
114
of
the
CAA
calling
for
every
entity
to
submit
to
EPA
by
[
INSERT
DATE
20
DAYS
AFTER
PUBLICATION]
information
on
their
stocks
of
methyl
bromide
that
are
unrestricted
(
not
for
quarantine
and
preshipment
and
produced
solely
for
export
to
Article
5
countries).
An
entity
that
does
not
submit
information
to
EPA
regarding
stocks
of
methyl
bromide
they
hold
for
sale
or
transfer
to
another
entity
on
[
DATE
OF
PUBLICATION]
will
not
receive
critical
stock
allowances
(
CSAs)
in
the
allocation
made
in
the
final
rule.
Such
persons
will
not,
therefore,
be
able
to
sell
methyl
bromide
to
any
of
the
approved
critical
users
in
the
16
agreed
critical­
use
categories
defined
in
Decision
Ex
I/
3
by
the
Parties
to
the
Protocol.
As
noted
above,
EPA
is
currently
evaluating
(
in
accordance
with
the
procedures
in
40
C.
F.
R.
Part
2,
Subpart
B)
whether
the
inventory
amounts
held
by
individual
entities
are
entitled
to
be
withheld
from
the
public
as
confidential
business
information.
If
EPA
makes
a
final
determination
that
the
amount
of
stocks
held
by
each
entity
is
not
confidential
business
information,
then
the
final
rule
will
contain
the
specific
amounts
of
CSA's
allocated
to
each
entity
on
the
basis
of
the
information
submitted
to
EPA.
However,
if
EPA
determines
that
individual
company
holdings
of
methyl
bromide
stocks
are
CBI,
then
the
final
rule
will
list
the
names
of
the
parties
issued
CSAs
without
including
the
amounts.
EPA
would
then
confidentially
inform
each
party
of
amount
of
CSAs
allocated
to
them
for
2005.
Alternatively,
EPA
might
be
able
to
allocate
CSAs
on
a
pro­
rata
basis
without
revealing
the
amount
of
existing
stocks
held
by
each
party.
This
is
because
the
CSA
allocation
would
be
a
pro­
rata
percentage
of
"
available"
stocks,
which
may
be
an
lesser
amount
than
the
aggregate
of
­
5­
existing
stocks
held
by
all
the
companies,
and
therefore
not
actual
amount
held
by
each
of
the
companies.
EPA
seeks
comment
on
whether
this
approach
would
reconcile
its
competing
obligations
to
provide
notice
to
the
public
and
to
protect
confidential
business
information.

E.
Are
Allowances
to
be
Allocated
on
a
Sector­
Specific
Basis
or
as
One
Lump
Sum
for
All
Sectors?
Decision
Ex
I/
3
(
4)
states
that,
"
Parties
should
endeavor
to
allocate
quantities
of
methyl
bromide"
in
accordance
with
the
recommendations
made
by
the
Technology
and
Economic
Assessment
Panel
(
TEAP)
as
listed
in
agreed
critical­
use
categories.
EPA
is
therefore
requesting
comment
on
a
sector­
based
allocation
of
allowances,
as
well
as
several
other
more
flexible
methods
for
making
allocations.

1.
Sector­
specific
allocation
EPA
seeks
comments
on
a
sector­
specific
allocation
of
critical­
use
alloances
(
CUAs)
and
also
a
sector­
specific
allocation
of
critical
stock
allowances
(
CSAs).
Under
a
sector­
specific
option,
in
2005
EPA
would
create
and
allocate
16
different
types
of
CUAs,
one
type
for
each
end
use
category
authorized
by
the
Parties.
End
users
of
methyl
bromide
made
applications
to
EPA
for
an
exemption
and
the
U.
S.
government
created
a
nomination
of
uses
with
similar
circumstances
to
be
considered
by
the
Parties.
These
nominations
aggregated
similar
circumstances
of
methyl
bromide
use
into
sectors.
In
a
sector­
specific
allocation
scheme,
each
producer
and
importer
of
methyl
bromide
would
be
allocated
16
different
types
of
CUAs
on
a
pro­
rata
basis
in
relation
to
their
overall
1991
consumption
baseline.
For
example,
assume
producer
A
has
a
consumption
baseline
that
equals
50%
of
total
allowable
U.
S.
consumption.
If
the
Parties
authorized
new
production
of
100
kilograms
of
methyl
bromide
for
tomatoes
and
20
kilograms
of
methyl
bromide
for
flower
nurseries,
EPA
would
allocate
50
tomato
critical
use
allowances
(
tomato
CUAs)
and
10
flower
nursery
critical
use
allowances
(
flower
nursery
CUAs)
to
company
A.
See
Section
VI.
N.
below
for
the
proposed
sector­
specific
allocation
of
CUAs
to
individual
producers
and
importers.
The
methyl
bromide
produced
or
imported
with
a
tomato
CUA
could
only
be
sold
and
used
for
growing
tomatoes
by
an
approved
critical
user
that
has
the
limiting
critical
conditions
cited
as
the
basis
for
the
critical
methyl
bromide
need
in
the
nomination
that
was
subsequently
authorized
by
the
Parties.
EPA
recognizes
that
not
all
allowance
holders
(
producer/
importers)
may
want
or
need
allowances
of
all
types.
For
example,
some
allowance
holders
may
supply
only
certain
geographic
markets
or
certain
sectors.
If
EPA
were
to
implement
an
allocation
scheme,
such
as
a
sectorspecific
system,
that
is
more
restrictive
than
the
current
market,
EPA
would
permit
allowance
trading
amongst
allowance
holders.
For
instance,
a
tomato
CUA
holder
in
Region
A
would
be
able
to
trade
with
a
tomato
CUA
holder
in
Region
B;
however,
a
tomato
CUA
holder
would
not
be
allowed
to
trade
with
a
strawberry
CUA
holder
in
Regions
A
and
B.
Section
607
of
the
CAA
allows
for
trading
in
part
to
encourage
rationalization
in
the
industry.
It
would
be
difficult
for
EPA
to
know
exactly
which
company
services
which
particular
group
of
end
users.
However,
the
market­
based
mechanisms
(
transfers
of
allowances)
described
later
in
this
preamble
may
rectify
such
issues
under
a
sector­
specific
allocation
scheme.
EPA
believes
that
an
allocation
scheme
that
is
more
restrictive
than
the
"
lump
sum"
­
6­
approach
described
below,
such
as
the
sector­
or
applicant­
specific
allocation,
would
provide
greater
assurance
to
each
sector
or
group
of
applicants
that
some
defined
amount
of
methyl
bromide
would
be
available
for
that
particular
user
group.
However,
under
a
sector­
or
applicantspecific
system,
if
the
user
group
did
not
use
its
entire
allowable
amount
of
methyl
bromide,
it
would
not
be
available
for
other
approved
critical
users.
So
too,
if
a
group
needed
more
methyl
bromide
because
they
had
a
particularly
bad
pest
infestation
or
demand
for
their
product
suddenly
increased,
the
group
would
not
be
able
to
secure
additional
quantities
without
first
seeking
approval
from
the
Parties
during
the
annual
nomination
process
and
obtaining
a
higher
allocation
through
EPA's
subsequent
notice­
and­
comment
rulemaking
which
is
resource
and
time
intensive.
A
more
restrictive
sector­
or
applicant­
specific
allocation
provides
more
certainty
to
each
group
but
at
the
cost
of
flexibility.

2.
Lump
Sump
Allocation
EPA
requests
comment
on
the
option
of
creating
one
pool
of
CUAs
and
one
pool
of
CSAs
that
can
be
used
to
supply
critical
use
methyl
bromide
across
sectors
in
what
is
known
as
a
"
lump
sum"
or
"
universal"
approach.
This
means
that
critical
use
methyl
bromide
produced
or
imported
with
CUAs
could
be
used
for
any
of
the
agreed
critical­
use
categories.
Likewise,
with
a
lump
sum
allocation
of
critical
stock
allowances
(
CSAs),
the
limited
inventory
that
is
available
for
sale
into
the
critical
use
market
would
be
for
any
of
the
agreed
critical­
use
categories.
Under
a
universal
allocation
system,
EPA
anticipates
that
the
actual
critical
use
will
closely
follow
the
sector
breakout
listed
by
the
TEAP
and
incorporated
into
Decision
Ex
I/
3.
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
which
is
a
"
universal"
system.
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
users
compete
for
the
lump
sum.
Thus,
EPA
expects
that
2005
use
under
a
universal
approach
will
look
similar
to
the
TEAP
recommendations
and
annex
II
a
in
Decision
Ex
I/
3.
To
the
extent
that
any
discrepancies
between
expected
and
actual
use
in
2005
occurs,
a
later
section
of
today's
proposed
rulemaking
describes
tracking
and
reporting
requirements
that
will
help
verify
actual
use
by
sector
and
help
refine
future
U.
S.
nominations
for
critical
use
exemptions
by
highlighting
differences
between
amounts
nominated
for
a
sector,
recommended
by
TEAP,
and
agreed
by
the
Parties
and
the
actual
use
by
that
sector
during
the
2005
control
period.
EPA
would
like
to
note
that
currently
the
methyl
bromide
market
under
the
phaseout
reductions
(
since
1994)
operates
as
a
"
universal"
or
"
lump
sum"
system.
All
end
users
of
methyl
bromide
compete
in
the
same
marketplace
for
methyl
bromide
under
the
phaseout
regulations.
EPA
believes
that
no
critical
user
will
face
a
situation
where
they
cannot
access
approximately
the
same
levels
of
methyl
bromide
that
they
have
historically
been
able
to
access
during
the
years
of
the
phaseout
because
the
U.
S.
government
used
recent
historic
data
(
1997
­
2001)
in
determining
how
much
to
nominate
for
each
sectors
critical
use
and
this
use
data
is
based
on
amounts
of
methyl
bromide
obtained
under
a
universal
market.
In
addition
to
the
logistic
and
administrative
reasons
for
implementing
a
universal
allocation
scheme,
there
are
significant
economic
reasons
to
implement
such
a
lump
sum
approach.
The
more
restrictive
the
methyl
bromide
caps
are,
the
less
efficient
the
distribution
of
­
7­
methyl
bromide
one
would
expect
in
the
market.
According
to
economic
theory,
under
a
universal
cap,
methyl
bromide
would
go
to
those
users
with
the
highest
marginal
cost
of
substitution
who
would
set
the
price
of
methyl
bromide.
This
price
of
methyl
bromide
would
lead
those
users
with
marginal
costs
of
substitution
lower
than
the
price
of
methyl
bromide
to
move
instead
to
an
alternative
that
may
not
have
been
previously
economically
feasible,
thus
resulting
in
a
comparatively
more
efficient
distribution
of
material
and
an
overall
lower
cost
of
compliance
for
the
regulated
community
as
a
whole.
EPA
estimates
that
the
cost
savings
to
the
regulated
entities
of
an
illustrative
sector­
specific
approach
may
be
between
$
20
to
$
27
million
when
compared
to
a
complete
phase
out
of
methyl
bromide;
the
cost
savings
under
an
illustrative
universal
approach
may
be
$
22
to
$
31
million
(
see
section
VII
a
for
more
information
on
this
analysis).
Thus,
the
universal
approach
results
in
a
greater
cost
savings
to
the
regulated
entities
overall.
A
full
discussion
of
this
cost
estimate
may
be
found
in
the
docket
for
today's
rulemaking.

3.
Applicant­
specific
Allocation
EPA
requests
comment
on
making
allowances
specific
to
applicants.
Under
this
option,
in
2005
EPA
would
create
and
allocate
51
different
types
of
CUAs
and
51
different
types
of
CSAs,
one
for
each
authorized
applicant.
Again,
these
allowances
would
be
distributed
to
producers
and
importers
in
a
pro­
rated
fashion
and
would
be
tradable
amongst
them.
EPA
recognizes
that
the
more
types
of
allowances
we
create,
the
more
administratively
and
logistically
complex
the
regulation
becomes
for
the
regulated
community.
With
added
administrative
complexity
generally
comes
higher
costs
of
implementation
which
may
include
costs
associated
with
generating
more
specific
information
and
greater
inflexibility
in
the
market.

4.
Hybrid
Allocation
Options
EPA
also
is
requesting
comment
on
a
hybrid
approach
that
would
create
sector­
or
applicant­
specific
CUAs
and
universal
or
"
lump
sum"
CSAs.
EPA
realizes
that
stocks
may
be
held
by
distributors
and
applicators.
Unlike
producers
and
importers
whom
EPA
has
historically
regulated,
some
of
these
entities
are
smaller
or
more
specialized.
For
example,
EPA
is
aware
of
a
distributor
and
custom
applicator
based
on
the
East
Coast
that
only
services
customers
in
the
eastern
part
of
the
U.
S.
It
is
unlikely
that
this
East
Coast
distributor
and
applicator
will
have
any
customers
from
the
California
fruit
tree
nursery
sector
that
was
authorized
for
critical
use
methyl
bromide,
since
this
is
a
region
the
distributor
and
applicator
does
not
service.
Thus,
an
allocation
of
fruit
tree
nursery
CSAs
would
be
of
little
practical
use
to
this
company.
If
the
allocation
were
sector­
specific,
the
company
could
trade
its
fruit
tree
nursery
CSAs
with
one
of
the
distributor/
applicator
companies
that
operates
in
California.
However,
if
the
company
on
the
east
coast
was
allocated
only
a
small
number
of
fruit
tree
nursery
CSAs,
it
may
not
be
worth
the
time
and
cost
to
find
a
suitable
trading
partner
and
engage
in
the
trade.
Therefore,
EPA
is
also
requesting
comment
on
an
allocation
scheme
that
would
have
sector­
specific
or
even
applicantspecific
CUAs,
but
universal
CSAs.
The
universal
CSAs
would
alleviate
problems
associated
with
dividing
small
quantities
of
inventories
scattered
throughout
the
distribution
system
into
many
different
types
of
end
uses
that
may
be
of
little
use
to
a
distributor
in
a
specific
geographic
location.
In
addition,
the
universal
CSAs
would
provide
some
flexibility
to
the
end
user
community
in
the
event
that
unanticipated
market
forces
drive
up
demand
in
a
particularly
­
8­
commodity
area
or
pest
outbreaks
in
a
particular
crop
are
unusually
high
in
a
particular
growing
season.
EPA
is
also
requesting
comment
on
making
CUAs
and
CSAs
universal
but
requiring
distributors
and
others
who
sell
methyl
bromide
directly
to
end
users
to
"
endeavor"
to
make
quantities
of
critical
use
methyl
bromide
available
to
their
customers
as
prescribed
in
Decision
Ex
I/
3
annex
II
a.
This
option
would
rely
on
entities
at
the
point
of
sale
to
ration
methyl
bromide
to
their
customers
the
same
way
they
have
been
doing
under
the
phaseout
­­
based
on
each
clients
historical
purchases
­­
in
essence
giving
each
sector
(
customer)
the
right
of
first
refusal
to
a
specific
quantity
of
methyl
bromide.
However,
under
a
scheme
where
distributors
endeavor
to
make
the
critical
use
methyl
bromide
available
in
accordance
with
the
quantities
associated
with
specific­
sectors
in
annex
II
a
of
Decision
Ex
I/
3,
the
methyl
bromide,
whether
from
CUAs
or
CSAs
would
still
be
"
universal,"
and
distributors
would
have
the
flexibility
to
move
quantities
of
critical
use
methyl
bromide
from
one
sector
that
does
not
need
their
full
amount,
to
another
sector
that
may
have
higher
than
anticipated
need.
Finally,
regarding
the
allocation
of
critical
use
allowances
(
CUAs)
for
new
production
and
import
of
methyl
bromide
after
the
January
1,
2005
phaseout,
EPA
is
seeking
comments
on
whether
a
percentage
should
be
allocated
on
a
sector­
specific
basis
and
a
percentage
should
be
allocated
in
a
universal,
lump
sum
basis.
This
option
of
allocating
a
percentage
of
the
CUAs
as
sector­
specific
and
a
percentage
of
CUAs
as
universal
would
provide
some
measure
of
assurance
for
each
applicant
as
well
as
providing
flexibility
if
a
few
of
the
sectors
faced
greater
need
for
methyl
bromide
in
the
2005
control
period.
EPA
is
seeking
comments
on
these
hybrid
approaches
and
in
particular,
comments
on
what
portion
of
the
authorized
quantity
should
be
made
sector­
or
applicant­
specific,
if
any,
and
what
portion
should
be
made
universal
through
any
allocation
scheme.
In
today's
action,
EPA
is
seeking
comments
on
several
different
methods
for
allocating
allowances.
The
circumstances
that
are
the
basis
for
the
U.
S.
sector
nominations
and
the
TEAP
recommendations
for
specific
sectors
may
have
changed
since
that
data
was
submitted.
However,
since
EPA
will
not
issue
allowances
for
more
critical
use
methyl
bromide
than
the
amount
authorized
by
the
Parties,
this
proposed
rulemaking
provides
stakeholders
with
the
opportunity
to
request
flexibility
in
how
the
material
is
made
available
to
accommodate
changes
in
the
marketplace
that
have
transpired
since
the
TEAP
review.
This
NPRM
represents
part
of
EPA's
endeavor
to
allocate
methyl
bromide
in
accordance
with
TEAP's
recommendations.
Thus,
EPA
seeks
comment
on
the
universal,
sector­
specific,
application­
specific,
and
hybrid
methods
for
allocating
CUAs
and
CSAs.
EPA
will
evaluate
and
reconcile
these
comments
and
then
publish
a
final
rule
that
describes
how
allowances
will
be
distributed.

F.
How
Many
Critical
Use
Allowances
(
CUAs)
and
Critical
Stockpile
Allowances
(
CSAs)
Will
Producers,
Importers
and
Distributers
be
Allocated?
Using
the
methodology
described
in
the
immediately
preceding
sections
of
this
proposed
rulemaking,
EPA
proposes
the
following
allocation
of
critical
use
allowances
and
critical
stock
allowances.
EPA
is
proposing
options
that
would
allow
for
sector­
specific
allocations
of
critical
use
allowances(
CUAs),
and
for
a
universal
allocation
of
critical
use
allowances
(
CUAs).
In
addition,
­
9­
today's
action
proposes
a
universal
allocation
of
critical
stock
allowances
(
CSAs).
The
distribution
of
CUAs
to
specific
producers
and
importers
of
methyl
bromide
is
as
follows
for
a
universal
allocation
(
Table
I),
and
for
a
sector­
specific
allocation
(
Table
II).
The
proposed
distribution
of
CSAs
would
be
as
follows
for
a
universal
allocation
(
Table
III),
unless
EPA
receives
new
information
in
response
to
the
Section
114
request
published
elsewhere
in
today's
Federal
Register.

Table
I­
Critical
Use
Allowance
Allocation
for
the
Calendar
Year
2005
(
Universal)

Company
/
Universal
Allocation
Number
of
Critical
Use
Allowances
(
kilograms)

Great
Lakes
Chemical
Corporation
4,427,693
Albemarle
Corportion
1,820,736
AmeriBrom,
Inc.
1,005,814
Trical,
Inc.
31,171
Total
7,285,414
Table
II­
Critical
Use
Allowance
Allocation
for
the
Calendar
Year
2005
(
Sector
Specific)

Sector­
Specific
Allocation
Number
of
Critical
Use
Allowances
(
kilograms)
for
each
Company
for
Each
Sector
Approved
Critical­
Use
Sectors
Great
Lakes
Chemical
Corporation
Albemarle
Corporation
Ameribrom,
Inc
Trical,
Inc.

Chrysanthemum
cuttings
­
rose
plants
14,563
5,989
3,308
103
Curcurbits
­
field
588,133
241,850
133,603
4,141
Dried
fruit,
beans
and
nuts
42,955
17,664
9,758
302
Eggplant
­
field
36,423
14,978
8,274
256
Forest
tree
nurseries
95,323
39,198
21,654
671
Fruit
tree
nurseries
22,678
9,325
5,152
160
Ginger
production
­
field
4,555
1,873
1,035
32
Mills
and
processors
239,155
98,344
54,327
1,684
Orchard
replant
349,660
143,785
79,430
2,462
Peppers
­
field
537,381
220,979
122,074
3,783
­
10­
Smokehouse
ham
449
185
102
3
Strawberry
fruit
­
field
908,020
373,392
206,269
6,393
Strawberry
runners
27,227
11,196
6,185
192
Sweet
potato
­
field
40,023
16,458
9,092
282
Tomato
­
field
1,418,739
583,408
322,287
9,988
Turfgrass
102,409
42,112
23,264
721
TOTAL
4,427,693
1,820,736
1,005,814
31,173
Table
III­
Critical
Stock
Allowance
Allocation
Company
Number
of
Critical
Stock
Allowances
(
kilograms)

Company
A...
...
reserved,
pending
resolution
of
CBI
claim
and
Section
114
request
Company
B...
...
reserved,
pending
resolution
of
CBI
claim
and
Section
114
request
Total
1,656,800
G.
What
are
the
Tracking
Requirements
for
a
Sector­
or
Applicant­
Specific
Allocation?
In
the
event
that
EPA
puts
in
place
a
final
rule
that
issues
sector­
or
applicant­
specific
allowances,
EPA
must
devise
a
system
that
would
ensure
compliance
with
the
sector/
applicant
level
caps.
EPA
believes
that
tracking
types
of
allowances
expended
(
e.
g.
pepper
CUAs)
in
order
to
ensure
compliance
with
a
sector
cap
is
essentially
an
accounting
question
and
is
therefore
seeking
comment
on
a
system
that
controls
sector­
or
applicant­
level
production
and
import
through
different
types
of
CUAs.
EPA
seeks
comment
on
a
system
where
entities
in
the
supply
chain
such
as
producers,
importers,
and
distributors
would
create
and
keep
an
on­
going
log
of
the
amount
and
type
of
critical
use
methyl
bromide
(
i.
e.,
eggplant
CUAs),
on
a
per
kilogram
basis,
that
they
acquire
and
sell
during
the
year.
In
addition,
entities
that
acquire
critical
use
methyl
bromide
from
a
supplier
would
sign
a
self
certification
form
indicating
that
they
understand
they
are
taking
possession
of
a
certain
number
of
kilograms
of
critical
use
methyl
bromide
of
a
specific
type.
EPA
believes
that
it
is
the
responsibility
of
the
distributor
or
other
supplier
to
place
orders
with
producers
or
importers
for
critical
use
methyl
bromide
of
the
appropriate
type
to
meet
the
needs
of
their
customers
which
means
that
a
distributor
may
have
to
call
more
than
one
company
to
find
the
correct
type
of
material
in
sufficient
quantity
to
meet
demand
(
see
Sections
VI.
L.
and
VI.
M.
for
more
information
on
record
keeping
and
reporting
requirements).
EPA
received
a
suggestion
during
the
public
meetings
on
potential
allocation
framework
options
held
during
the
summer
of
2003
to
require
the
use
of
a
database
system
to
track
critical
use
methyl
bromide.
Currently,
a
real
time
database
system
is
being
used
in
the
state
of
California
­
11­
to
track
the
use
of
1,3­
dichloropropene
and
ensure
that
the
township
caps
are
not
exceeded.
Under
this
option,
EPA
would
require
registrants
to
populate
the
database
with
information
on
the
allowable
critical
uses,
the
approved
critical
users,
and
the
amount
of
critical
use
methyl
bromide
produced,
imported
or
available
from
critical
stockpiles.
Distributors
and
applicators
would
consult
the
database
and
reserve
a
specific
amount
of
critical
use
methyl
bromide
when
an
order
is
placed
for
the
material
or
for
fumigation
with
critical
use
methyl
bromide.
The
reservation
would
freeze
the
amounts
of
critical
use
methyl
bromide
for
14
days
­­
at
which
point
the
company
that
made
the
reservation
would
lose
its
reservation
unless
it
indicated
that
the
material
had
already
been
used
in
a
fumigation.
This
database
could
be
created
by
EPA
through
a
contractor
or
EPA
could
require
regulated
entities
to
utilize
existing
commercial
database
programs.
EPA
believes
that
producers,
importers,
distributers,
and
applicators
would
likely
have
to
make
some
capital
expenditures
to
be
able
to
use
the
database
for
tracking
purposes.
EPA
believes
that
the
database
approach
would
provide
high
quality
use
data
on
critical
use
of
methyl
bromide
and
that
it
could
be
used
under
a
sector
specific
or
applicant
specific
approach
to
ensure
that
distributers
and
other
points
of
sale
do
not
exceed
total
allowable
amounts
of
critical
use
methyl
bromide
for
that
particular
use.
EPA
seeks
comment
on
the
use
of
a
commercially
available
database
system
to
track
the
sale
of
critical
use
methyl
bromide.

H.
How
Do
"
Approved
Critical
Users"
Acquire
Methyl
Bromide
Under
Today's
Proposal?
With
today's
action,
EPA
is
proposing
that
approved
critical
users
(
end
users)
within
an
agreed
critical­
use
sector,
that
also
have
the
"
limiting
critical
conditions"
for
their
specific
circumstances
of
use,
acquire
methyl
bromide
following
a
system
nearly
identical
to
the
existing
procedures
under
the
quarantine
and
preshipment
exemption
(
QPS)
to
the
phaseout
of
methyl
bromide
(
68
FR
237
(
January
2,
2003)).
The
phrases
"
approved
critical
user"
and
"
limiting
critical
condition"
are
further
discussed
below
in
Sections
I.
and
K.,
respectively.
EPA
proposes
that
approved
critical
users
of
methyl
bromide
who
wish
to
acquire
critical
use
methyl
bromide,
or
who
contract
for
fumigation
with
critical
use
methyl
bromide,
will
self
certify
that
they
are
approved
critical
users
at
the
time
of
purchase.
EPA
will
create
a
form
that
an
approved
critical
user
will
complete
with
basic
information
about
the
user
(
name,
location
of
fumigation,
consortium,
etc),
the
number
of
kilograms
to
be
purchased
and
the
area
to
be
treated,
the
agreed
critical­
use
category
(
i.
e.
tomatoes,
bean
storage,
etc.),
and
a
check
list
of
the
applicable
limiting
critical
conditions
approved
by
EPA
and
the
Parties
(
e.
g.
karst
topography,
heavy
to
moderate
nutsedge
infestation).
The
form
would
be
signed
by
the
approved
critical
user
(
purchaser)
of
the
methyl
bromide
and
given
to
the
supplier
of
methyl
bromide
to
indicate
that
the
purchaser
is
acquiring
exempted
critical
use
methyl
bromide
from
the
supplier
to
use
in
accordance
with
the
exemption
and
bears
the
full
penalty
of
law
for
providing
false
information
or
for
use
that
is
not
in
accordance
with
the
critical
use
exemption
regulations.
Producers,
importers,
and
distributors
will
be
prohibited
from
selling
methyl
bromide
in
critical
use
categories
without
obtaining
a
self­
certification
from
an
approved
critical
user.
If
an
approved
critical
user
seeks
methyl
bromide
from
stocks
existing
prior
to
2005,
then
the
user
must
find
a
supplier
who
holds
a
sufficient
amount
of
critical
stock
allowances
(
CSAs)
to
sell
methyl
bromide
to
an
agreed
critical­
use
category.
To
obtain
methyl
bromide
produced
or
imported
in
2005
under
the
exemption,
the
approved
critical
user
must
go
to
a
supplier
who
has
­
12­
methyl
bromide
newly
produced
or
imported
through
expended
2005
critical
use
allowances
(
CUAs).
EPA
requests
comment
on
the
proposed
self
certification
system.

I.
Who
is
an
Approved
Critical
User?
An
approved
critical
user
is
entity
who
obtains
the
benefit
of
acquiring
newly
produced
or
imported
methyl
bromide
that
is
dedicated
for
use
in
those
use
categories
that
have
been
agreed
to
be
critical.
Such
users
benefit
under
the
critical
use
exemption
because
they
have
greater
assurance
certainty
that
methyl
bromide
will
be
available
for
their
critical
needs
because
this
newly
produced
and
imported
methyl
bromide
cannot
be
used
for
other
purposes
or
by
non­
critical
users.
However,
a
condition
for
the
obtaining
the
benefit
of
this
dedicated
supply
of
methyl
bromide
after
the
phaseout
date
is
that
approved
critical
users
will
see
their
access
to
existing,
previously
unrestricted
stocks
of
methyl
bromide
limited
when
necessary
to
ensure
that
total
use
of
methyl
bromide
in
critical
use
categories
does
not
exceed
the
overall
critical
use
cap
established
in
Decision
Ex.
I/
3.
EPA
is
proposing
to
define
an
"
approved
critical
user"
as
an
entity
whose
circumstance
of
methyl
bromide
use
is
covered
by
an
application
that
is
included
in
the
U.
S.
nomination
and
subsequently
authorized
by
a
Decision
of
the
Parties
to
the
Montreal
Protocol
for
a
critical
use
exemption
and
then
determined,
through
this
EPA
notice­
and­
comment
rulemaking,
to
be
eligible
for
exempted
critical
use
methyl
bromide
(
see
Section
A.
of
this
notice
of
proposed
rulemaking).
Thus,
EPA
proposes
to
define
an
"
approved
critical
user"
as
a
person
meeting
the
following
two
criteria:
a.
The
user,
for
the
applicable
control
period,
applied
to
EPA
for
a
critical
use
exemption
or
is
a
member
of
a
consortium
that
applied
for
a
critical
use
exemption
for
a
use
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
noticeand
comment
rulemaking
to
be
a
critical
use,
AND
(
2)
The
user
has
an
area
that
requires
methyl
bromide
fumigation
because
the
area
is
subject
to
a
limiting
critical
condition.
To
summarize,
EPA
proposes
that
in
order
to
qualify
as
an
approved
critical
user,
you
must
satisfy
the
following
conditions:
(
1)
you
must
have
submitted
or
belong
to
a
group
that
submitted
an
application
to
EPA
for
a
critical
use
exemption
for
the
specific
control
period;
(
2)
the
use
and
circumstances
of
use
included
in
your
application
must
have
been
nominated
by
the
U.
S.
for
a
critical
use
exemption;
(
3)
the
Parties
to
the
Protocol
must
agree
in
a
Decision
that
your
use
and
circumstance
is
a
critical
use
and
then,
(
4)
through
this
notice­
and­
comment
rulemaking
EPA
must
identify
your
use
as
a
critical
use
and
your
circumstance
as
a
limiting
critical
condition.
EPA
requests
comment
on
the
proposed
criteria
for
being
an
"
approved
critical
user"
described
above,
in
particular,
in
the
context
of
the
language
of
Decision
IX/
6
and
Decision
Ex
I/
3
by
the
Parties
to
the
Protocol.
The
Agency
recognizes
there
may
be
other
ways
of
defining
an
"
approved
critical
user"
in
the
context
of
Decision
IX/
6
and
Decision
Ex
I/
3,
such
as
the
following:
(
1)
not
including
criterion
number
two
above
(
the
limiting
critical
condition);
(
2)
not
including
criteria
numbers
one
and
two
above
and
instead
defining
approved
critical
user
broadly
to
include
any
user
in
one
of
­
13­
the
agreed
critical­
use
categories
in
Annex
II.
A.
of
Decision
Ex
I/
3.
We
request
comment
on
whether
such
an
alternative
definition
would
be
more
appropriate
and
consistent
with
Decisions
IX/
6
and
Ex.
I/
3.

J.
Can
New
Market
Entrants
or
New
Consortia
Members
be
Approved
Critical
Users?
EPA
proposes
that
an
approved
critical
user
can
include
a
member
of
a
consortium
during
the
control
period
even
if
the
user
was
not
a
member
at
the
time
the
application
was
submitted
to
EPA.
In
today's
proposal,
EPA
is
defining
consortium
as
an
organization
representing
a
group
of
methyl
bromide
users
that
has
collectively
submitted
an
application
for
a
critical
use
exemption
on
behalf
of
all
members
of
the
group.
The
members
of
a
consortium
would
be
determined
by
the
rules
established
by
the
consortium.
Members
could
either
be
required
to
formally
join
the
consortium
(
i.
e.,
by
submitting
an
application
or
paying
dues)
or
may
automatically
become
members
upon
meeting
particular
criteria
(
i.
e.
a
grower
of
a
specific
crop
in
a
particular
region).
EPA
does
not
believe
that
it
is
up
to
the
Agency
or
to
distributors
and
third
party
applicators
of
methyl
bromide
to
discern
between
different
types
of
consortium
members.
For
example,
the
Southern
Forest
Nursery
Management
Cooperative
consists
of
a
certain
number
of
forest
seedling
nursery
operators.
The
Cooperative
made
an
application
to
EPA
for
a
critical
use
exemption
that
only
included
its
members.
Therefore,
only
members
of
the
Cooperative
would
qualify
as
approved
critical
users
pursuant
to
the
consortium's
application.
However,
if
a
company
that
was
not
a
member
of
the
Cooperative
at
the
time
of
the
application
in
2002
decided
to
join
the
cooperative
in
2004,
EPA
is
proposing
that
the
company
be
eligible
to
access
critical
use
methyl
bromide
available
to
members
of
the
consortium
once
the
exemption
takes
effect
in
2005
since
the
company
would
be
a
member
of
the
Cooperative
during
the
control
period.
A
second
example
is
the
California
Strawberry
Commission,
which
made
an
application
to
EPA
to
cover
all
strawberry
growers
in
the
state
of
California.
Because
the
initial
application
was
made
on
behalf
of
all
growers
in
that
state,
any
strawberry
grower
in
California
regardless
of
the
date
when
he
first
entered
the
market
is
considered
by
EPA
to
be
a
member
of
the
consortium.
Thus,
a
new
strawberry
grower
who
enters
the
market
in
California
in
2005
and
who
meets
the
limiting
critical
condition
for
the
agreed
critical­
use
category
would
be
able
to
access
the
critical
use
methyl
bromide
under
the
framework
set
forth
in
today's
proposal.
In
summary,
EPA
proposes
that
an
approved
critical
user
may
include
an
entity
who
newly
enters
the
market
of
a
crop/
use
that
has
a
limiting
critical
condition;
an
entity
who
switches
to
a
crop/
use
that
has
a
limiting
critical
condition;
an
entity
who
increases
production
of
a
crop/
use
that
has
a
limiting
critical
condition;
or
an
entity
who
switches
production
of
a
crop/
use
with
a
limiting
critical
condition
from
one
physical
location
to
another.
In
each
instance,
such
an
entity
would
need
to
meet
the
limiting
critical
condition
and
qualify
as
a
member
of
consortium
that
applied
for
and
obtained
a
critical
use
exemption.
Under
the
second
example
described
above,
any
consortium
that
applied
for
an
exemption
for
a
broad
geographic
group
of
users
may
in
fact
be
encouraging
free
riders.
However,
EPA
believes
that
those
consortia
that
applied
on
behalf
of
an
entire
state
or
region
in
their
initial
application
believe
that
all
users
in
that
location
need
a
critical
use
exemption
based
on
technical
and
economic
criteria.
Therefore,
if
a
new
user
enters
the
market
place
in
that
same
location,
­
14­
EPA
believes
that
the
user
would
have
automatically
become
a
member
of
the
consortium
as
if
he
had
entered
the
market
at
the
time
the
application
was
made.
Therefore,
the
only
remaining
relevant
question
is
whether
or
not
the
new
market
entrant
in
the
geographic
area
meets
the
limiting
critical
condition
and
therefore
may
be
an
approved
critical
user.
In
public
meetings,
EPA
received
a
suggestion
from
the
affected
community
which
called
for
allowing
critical
use
exemptions
to
only
be
made
available
to
those
users
who
are
"
users
of
record."
A
user
of
record
was
suggested
to
be
an
approved
critical
user
who
was
engaged
in
production
of
a
crop
or
commodity
in
a
critically­
exempted
sector
immediately
prior
to
the
control
period.
The
effect
of
such
a
provision
would
be
to
require
any
entity
that
was
not
a
user
of
record
to
use
an
alternative
to
methyl
bromide
for
the
first
year
it
engages
in
crop
or
commodity
production.
After
the
first
year,
the
new
market
entrant
would
become
a
user
of
record
and
would
be
able
to
avail
himself
of
critical
use
methyl
bromide.
EPA
believes
that
this
system
may
provide
an
incentive
for
new
entrants
to
try
alternatives
to
methyl
bromide.
However,
this
system
would
be
difficult
to
administer
outside
of
the
state
of
California
where
such
information
is
already
tracked
by
state
regulators.
In
addition,
critical
use
methyl
bromide
will
only
be
available
for
those
users
who
do
not
have
any
technically
and
economically
feasible
alternatives
available
to
them;
therefore,
a
requirement
such
as
the
one
suggested
would
foreclose
any
new
entrants
altogether.
EPA
believes
that
in
order
to
accommodate
the
ever
shifting
marketplace,
growers
and
other
users
of
methyl
bromide
should
be
allowed
to
increase
or
move
production
as
needed
so
long
as
total
U.
S.
production
and
import
of
methyl
bromide
for
use
in
a
given
sector
remains
under
the
limits
authorized
by
the
Parties
and
determined
to
be
a
critical
use
in
the
U.
S.
through
notice­
and­
comment
rulemaking.
Therefore
EPA
is
proposing
an
option
in
today's
notice
that
allows
for
shifts
in
the
marketplace
(
market
entry
and
exit,
and
rotation
into
new
production
areas)
while
still
ensuring
fairness
to
those
groups
who
applied
for
a
CUE.
It
is
important
to
note
that
the
amount
of
methyl
bromide
that
may
be
supplied
for
critical
uses
in
a
calendar
year
(
control
period)
will
not
increase
even
if
the
number
of
users
or
treated
area
increases.
The
only
way
the
amount
of
methyl
bromide
available
for
critical
uses
will
be
increased
is
if
the
Parties
authorize
such
an
increase
and
EPA
incorporates
the
increase
into
its
phaseout
regulation
through
notice­
and­
comment
rulemaking.
Under
the
proposed
framework
outlined
in
this
section,
users
who
have
the
limiting
critical
condition
but
who
are
not
users
or
members
of
a
group
of
users
that
submitted
an
application
to
EPA,
are
not
eligible
critical
users.
For
example,
a
consortium
applied
on
behalf
of
certain
raspberry
nurseries
in
California
and
Oregon.
This
use
was
determined
by
EPA
to
qualify
for
an
exemption
because
of
the
limiting
critical
condition
that
there
are
no
technically
feasible
alternatives
which
provide
adequate
control
of
pests
for
raspberry
nursery
propagative
stock.
If
a
raspberry
nursery
operator
in
California
met
the
limiting
critical
condition
but
was
not
a
member
of
the
consortium
and
needed
to
buy
methyl
bromide,
under
the
proposed
option,
they
would
not
be
an
approved
critical
user
because
the
application
that
was
made
to
EPA
was
not
on
behalf
of
all
growers
in
California,
only
certain
identified
companies.
EPA
did
consider
allowing
such
a
person
to
acquire
critically
exempted
material.
EPA
decided
not
to
propose
this
option
in
order
to
discourage
free
riders
who
did
not
invest
the
time
and
effort
to
apply
for
an
exemption
or
even
join
a
consortium
that
submitted
an
application.
EPA
understands
that
users
who
applied
for
an
­
15­
exemption
sometimes
spent
hundreds
of
hours
preparing
an
application
for
a
critical
use
exemption.
EPA
recommends
that
users
who
did
not
submit
an
application
or
are
not
part
of
a
consortia,
consult
with
USDA
or
EPA
immediately
to
determine
if
they
could
be
included
in
the
next
U.
S.
nomination
of
critical
uses.
Such
users
should
also
consider
contacting
any
consortium
that
applied
for
an
exemption
for
their
use
category.
EPA
is
seeking
comment
on
this
manner
of
treating
new
market
entrants
and
users
of
methyl
bromide
that
were
not
part
of
the
consortia
or
companies
that
submitted
applications
for
critical
use
exemptions.

K.
What
Uses
and
"
Limiting
Critical
Condition"
are
Permitted
Access
to
the
Methyl
Bromide
under
the
Critical
Use
Exemption?
A
"
limiting
critical
condition"
is
the
basis
on
which
the
critical
need
for
methyl
bromide
is
demonstrated
and
authorized.
The
limiting
critical
condition
placed
on
a
use
category
reflects
certain
regulatory,
technical
or
economic
factors
that
either
prohibit
the
use
of
feasible
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
able
to
acquire
and
use
critical
use
methyl
bromide.
Some
approved
critical
users
have
limiting
critical
conditions
that
are
contingent.
These
"
contingent
critical
uses"
are
those
uses
of
methyl
bromide
which
qualify
as
an
approved
critical
use
only
if
a
specified
condition
has
been
met.
For
example,
a
number
of
potential
critical
use
needs
for
methyl
bromide
in
California
currently
use
the
alternative
1,3­
Dichloropropene
(
1,3­
D)
in
various
formulations.
This
chemical
is
regulated
by
the
state
of
California
so
that
specific
townships
have
limits
on
the
amount
of
1,3­
D
that
can
be
used
over
a
given
time
period.
Certain
of
the
agreed
critical­
use
categories
in
Decision
Ex
I/
3
may
have
a
contingent
need
for
critical
use
methyl
bromide
in
the
event
that
the
township
cap
for
1,3­
D
has
been
reached
or
exceeded.
EPA
proposes
that
producers
and
importers
be
allowed
to
produce
and
import
critical
use
methyl
bromide
for
contingent
uses
at
any
time
during
the
control
period.
However,
EPA
is
proposing
that
unused
methyl
bromide
produced
or
imported
for
such
contingent
purposes
will
be
deducted
from
the
total
number
of
CUAs
that
EPA
makes
available
for
the
following
control
period
(
it
would
become
stocks
available
for
the
use
in
the
subsequent
control
periods).
Below
EPA
describes
the
"
limiting
critical
conditions"
for
each
of
the
agreed
critical­
use
categories
in
Decision
Ex
I/
3.
EPA
seeks
comment
on
these
"
limiting
critical
conditions"
­
16­
proposed
for
each
agreed
critical­
use
category
in
Decision
Ex
I/
3.
EPA
seeks
comment
on
the
uses
of
methyl
bromide
and
the
limiting
critical
conditions
the
Agency
has
determined
meet
the
criteria
for
a
critical
use
exemption
and
refers
commenters
to
the
E­
Docket
where
the
U.
S.
nominations,
additional
responses
to
MBTOC,
and
a
memo
describing
the
determination
process
are
available.
EPA
wishes
to
note
that
while
we
may,
in
response
to
comments,
reduce
the
types
and
conditions
of
a
critical
use
compared
to
what
has
been
authorized
by
the
Parties,
EPA
will
not
increase
the
quantities,
and
sectors,
beyond
those
authorized
by
the
Parties.
Section
2H(
5)
of
the
Protocol
limits
the
critical
use
exemption
to
those
uses
agreed
upon
by
the
Parties.
The
agreed
critical
uses
for
2005
are
reflected
in
Decision
Ex.
I/
3.
EPA
based
the
proposed
"
limiting
critical
conditions"
on
the
data
submitted
by
critical
use
exemption
applicants,
as
well
as
public
and
propriety
data
sources.
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
this
data
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
conducted
and
described
in
the
U.
S.
nomination
of
critical
uses.
This
nomination
was
then
sent
to
the
Parties
to
the
Protocol,
and
the
Parties
used
this
information
as
the
basis
for
the
decision
which
authorized
critical
uses.
Based
on
the
data
described
above,
EPA
determined
that
the
following
uses
with
the
limiting
critical
conditions
specified
below
qualify
to
obtain
and
use
critical
use
methyl
bromide.
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
consortia,
identified
below,
or
companies
specifically
identified
below,
are
approved
critical
users
provided
that
such
users
are
subject
to
the
specified
limiting
critical
condition.

PRE­
PLANT
USES
Cucurbits
a)
Michigan
growers
with
moderate
to
severe
fungal
pathogen
infestation;
b)
Alabama,
Arkansas,
Georgia,
North
Carolina,
South
Carolina,
Tennessee,
and
Virginia
growers
with
moderate
to
severe
yellow
or
purple
nutsedge
infestation;
Eggplant
a)
Georgia
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
moderate
to
severe
nematode
infestation
and/
or
moderate
to
severe
fungal
pathogen
infestation;
b)
Florida
growers
with
limiting
critical
conditions:
moderate
to
severe
yellow
or
purple
nutsedge
infestation
and/
or
moderate
to
severe
nematode
infestation
and/
or
moderate
to
severe
fungal
pathogen
infestation
and/
or
karst
topography;
Forest
Seedlings
Approved
critical
users
listed
below
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
fungal
pathogen
infestation,
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
and/
or
moderate
to
severe
disease
infestation.
a)
Members
of
the
Southern
Forest
Nursery
Management
Cooperative
limited
to
­
17­
growing
locations
in
Alabama,
Arkansas,
Florida,
Georgia,
Louisiana,
Mississippi,
North
Carolina,
Oklahoma,
South
Carolina,
Tennessee,
Texas,
and
Virginia;
b)
International
Paper
and
its
subsidiaries
limited
to
growing
locations
in
Arkansas,
Alabama,
Georgia,
South
Carolina
and,
Texas;
c)
Weyerhaeuser
Company
and
its
subsidiaries
limited
to
growing
locations
in
Alabama,
Arkansas,
North
Carolina,
South
Carolina,
Oregon
and,
Washington;
d)
Public
(
government
owned)
seedling
nurseries
in
the
states
of
California,
Idaho,
Illinois,
Indiana,
Kansas,
Kentucky,
Maryland,
Missouri,
Nebraska,
New
Jersey,
Ohio,
Oregon,
Pennsylvania,
Utah,
Washington,
West
Virginia
and,
Wisconsin;
e)
Members
of
the
Nursery
Technology
Cooperative
limited
to
growing
locations
in
Oregon
and
Washington;
and
f)
Michigan
seedling
nurseries
Ginger
a)
Hawaii
growers
with
the
limiting
critical
condition
of
moderate
to
severe
nematode
infestation
and/
or
moderate
to
severe
bacterial
wilt
infestation;
Orchard
Nursery
Seedlings
Approved
critical
users
listed
below
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
nematode
infestation,
medium
to
heavy
clay
soils,
and/
or
a
prohibition
of
on
the
use
of
1,3­
dichloropropene
products
due
to
reaching
local
township
limits
on
the
use
of
this
alternative;
a)
Members
of
the
Western
Raspberry
Nursery
Consortium
limited
to
growing
locations
in
California
and
Oregon
(
Driscoll's
raspberries
and
their
contract
growers
in
California
and
Oregon)
b)
Members
of
the
California
Association
of
Nurserymen­
Deciduous
Fruit
and
Nut
Tree
Growers
c)
Members
of
theCalifornia
Association
of
Nurserymen­
Citrus
and
Avocado
Growers
Orchard
Replant
Approved
critical
users
listed
below
with
one
or
more
of
the
following
limiting
critical
conditions:
replanted
(
non­
virgin)
orchard
soils
to
prevent
orchard
replant
disease,
and/
or
medium
to
heavy
soils,
and/
or
a
prohibition
on
the
use
of
1,3­
dichloropropene
products
because
local
township
limits
for
this
alternative
have
been
reached.
a)
California
stone
fruit
growers
b)
California
table
and
raisin
grape
growers
c)
California
walnut
growers
d)
California
Almond
growers
Ornamentals
a)
Yoder
Brothers
Inc.
for
use
in
chrysanthemum
production.
b)
California
rose
nurseries
prohibited
from
using
1,3­
dichloropropene
products
because
local
township
limits
for
this
alternative
have
been
reached
Peppers
a)
California
growers
with
the
limiting
critical
conditions
of
moderate
to
severe
fungal
pathogens,
and/
or
moderate
to
sever
disease
infestation,
and/
or
moderate
to
sever
nematode
infestation,
and/
or
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
­
18­
and/
or
a
prohibition
on
the
use
of
1,3­
dichloropropene
products
because
local
township
limits
for
this
alternative
have
been
reached;
b)
Alabama,
Arkansas,
Georgia,
North
Carolina,
South
Carolina,
Tennessee
and
Virginia
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
and/
or
the
presence
of
an
occupied
structure
within
76
meters
of
a
grower's
field
the
size
of
100
acres
or
less;
c)
Florida
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
and/
or
karst
topography;
Strawberry
Nurseries
a)
California
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
black
root
rot
or
crown
rot,
moderate
to
severe
nematode
infestation,
and/
or
moderate
to
severe
yellow
or
purple
nutsedge
infestation;
b)
North
Carolina
and
Tennessee
growers
with
the
presence
of
an
occupied
structure
within
76
meters
of
a
grower's
field
the
size
of
100
acres
or
less;
Strawberry
Fruit
a)
California
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
black
root
rot
or
crown
rot,
moderate
to
severe
nematode
infestation,
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
a
prohibition
of
the
use
of
1,3­
dichloropropene
products
because
local
township
limits
for
this
alternative
have
been
reached;
b)
Florida
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
yellow
or
purple
nutsedge,
and/
or
karst
topography;
c)
Alabama,
Arkansas,
Georgia,
North
Carolina,
South
Carolina,
Tennessee,
Virginia,
Ohio
and,
New
Jersey
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
yellow
or
purple
nutsedge,
and/
or
the
presence
of
an
occupied
structure
within
76
meters
of
a
grower's
field
the
size
of
100
acres
or
less;
Sweet
Potatoes
a)
California
growers
with
the
contingent
limiting
critical
condition
of
a
prohibition
on
the
use
of
1,3­
dichloropropene
products
because
local
township
limits
for
this
alternative
have
been
reached;
Tomatoes
a)
Michigan
growers
with
moderate
to
severe
disease
and/
or
fungal
pathogens;
b)
Alabama,
Arkansas,
Georgia,
North
Carolina,
South
Carolina,
Tennessee
and
Virginia
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
and/
or
and/
or
the
presence
of
an
occupied
structure
within
76
meters
of
a
grower's
field
the
size
of
100
acres
or
less;
c)
Florida
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
and/
or
karst
topography;
Turfgrass
a)
U.
S.
turfgrass
sod
nursery
producers
for
the
production
of
industry
certified
pure
sod
b)
U.
S.
golf
courses
establishing
sod
in
the
construction
of
new
golf
courses
or
the
renovation
of
putting
greens,
tees,
and
fairways.
­
19­
POST­
HARVEST
USES
Food
Processing
Approved
critical
users
listed
below
with
one
or
more
of
the
following
limiting
critical
conditions:
older
structures
that
can
not
be
properly
sealed
to
use
an
alternative
to
methyl
bromide,
and/
or
the
presence
of
sensitive
electronic
equipment
subject
to
corrosivity;
a)
Rice
millers
in
Arkansas,
California
Louisiana,
Florida,
Missouri,
and
Mississippi
b)
Pet
food
manufacturing
facilities
in
the
U.
S.
c)
Kraft
Foods
d)
Members
of
the
North
American
Millers'
Association
Commodity
Storage
a)
Smokehouse
ham
curing
in
facilities
owned
by
Gwaltney
of
Smithfield.
b)
Entities
storing
walnuts,
beans,
dried
plums,
and
pistachios
in
California
with
one
or
more
of
the
following
limiting
critical
conditions:
rapid
fumigation
is
required
to
meet
a
critical
market
window,
such
as
during
the
holiday
season,
rapid
fumigation
is
required
when
a
buyer
provides
short
(
2
days
or
less)
notification
for
a
purchase,
and/
or
there
is
a
short
period
after
harvest
in
which
to
fumigate
and
there
is
limited
silo
availability
for
using
alternatives.

L.
What
are
the
Reporting
Requirements?
In
today's
action,
EPA
is
proposing
that
producers
and
importers
of
critical
use
methyl
bromide
submit
quarterly
reports
to
EPA
on
the
number
of
kilograms
of
critical
use
allowances
(
CUAs)
expended
and
unexpended.
In
addition,
those
entities
that
sell
critical
use
methyl
bromide
to
end
users
shall
report
to
EPA
on
an
annual
basis,
the
total
amount
of
methyl
bromide
sold
to
each
sector
during
the
control
period.
For
example,
a
distributor
would
submit
an
annual
report
to
EPA
that
he
sold
1,000
kilograms
of
critical
use
methyl
bromide
for
pre­
plant
tomato
fumigation
and
500
kilograms
of
critical
use
methyl
bromide
for
pre­
plant
strawberry
fumigation.
EPA
is
proposing
this
reporting
on
sale
of
methyl
bromide
to
end­
users
on
a
sector­
by­
sector
basis
regardless
of
whether
the
final
rule
makes
CUA
and
CSA
allocations
on
a
lump
sum
or
sector­
specific
basis,
because
the
Agency
believes
the
sector­
specific
sales
information
will
help
improve
the
validity
of
data
in
future
U.
S.
nominations
for
critical
use
exemptions.
In
developing
the
nominations,
the
U.
S.
government
found
it
difficult
to
verify
the
amount
of
methyl
bromide
used
in
a
sector
and/
or
geographic
region.
Thus,
EPA
seeks
comments
on
today's
proposal
to
collect
sales
information
on
a
sector­
specific
basis,
even
if
the
final
CUA
and
CSA
allocation
is
done
under
a
lump
sum
framework.
EPA
is
further
proposing
that
producers,
importers,
distributors
and
applicators
allocated
critical
stock
allowances
(
CSAs)
file
quarterly
reports
to
EPA
on
the
number
of
expended
and
unexpended
CSAs
based
on
the
amount
of
methyl
bromide
stocks
sold
during
the
quarter
to
an
approved
critical
user
(
from
whom
a
self­
certification
was
received).
Information
collection
as
proposed
above
is
authorized
under
Sections
603(
b),
603(
d)
and
614(
b)
of
the
CAAA.
EPA
believes
the
reporting
requirements
outlined
above
are
necessary
in
order
to
meet
U.
S.
reporting
obligations
under
Article
7
of
the
Protocol
and
CAAA
reporting
requirements
to
Congress
under
Section
603(
d).
­
20­
M.
What
are
the
Record­
Keeping
Requirements?
EPA
proposes
that
producers,
importers,
and
distributors
of
critical
use
methyl
bromide
maintain
selfcertification
records
from
buyers
(
typically
wholesale
buyers)
for
3
years,
along
with
other
transactional
records
such
as
invoices
and
order
forms.
EPA
proposes
that
distributors,
third
party
applicators,
and
any
other
entities
that
directly
sell
critical
use
methyl
bromide
or
fumigation
services
to
approved
critical
users,
keep
self­
certification
records
signed
by
the
buyer
of
the
critical
use
methyl
bromide
(
whether
from
expended
CUAs
or
from
expended
CSAs)
on
file
for
3
years,
along
with
other
transactional
records
such
as
invoices
and
order
forms.
EPA
believes
that
mandatory
record
keeping
requirements
create
a
disincentive
for
the
illegal
traffic
of
controlled
ozone
depleting
substances
(
ODS).
In
some
instances,
the
phaseout
of
other
chemicals
regulated
under
Title
VI
of
the
Clean
Air
Act
Amendments
(
CAAA)
has
resulted
in
a
vigorous
black
market
for
the
illegal
sale
of
ODSs.
The
United
States
is
in
close
proximity
to
developing
countries
who
have
not
yet
phased
out
of
methyl
bromide
and
who
therefore
may
have
supplies
of
methyl
bromide
available
to
them
at
a
lower
price
than
methyl
bromide
in
the
U.
S.
This
price
disparity
between
physically
nearby
markets
could
result
in
an
incentive
to
illegally
reimport
methyl
bromide
into
the
United
States.
Unlike
other
ODS,
the
shipment,
sale,
and
use
of
methyl
bromide
is
tightly
controlled
under
other
statutes
such
as
FIFRA
making
such
activities
not
only
dangerous
but
difficult
to
undertake.
Therefore,
EPA
does
not
anticipate
that
a
significant
black
market
will
develop
in
the
United
States
for
illegally
produced
or
imported
methyl
bromide.
Stringent
record­
keeping
requirements
under
the
CAAA
that
bear
stiff
penalties
for
violation
on
the
creation,
import,
and
sale
of
methyl
bromide
for
critical
uses
will,
EPA
believes,
further
dampen
interest
in
the
illegal
trade
of
methyl
bromide.
EPA
seeks
comment
on
the
ways
to
discourage
the
development
of
a
significant
black
market
through
record­
keeping
activities.

N.
How
Often
will
Critical
Use
Allowances
(
CUAs)
be
Distributed
and
How
are
Allowances
Expended?
EPA
proposes
to
allocate
critical
use
allowances
(
CUAs),
through
notice­
and­
comment
rulemaking,
on
an
annual
basis
(
calender
year)
consistent
with
authorizations
by
the
Parties
and
Section
604(
d)(
6)
of
the
CAAA.
To
the
extent
that
the
Parties
continue
to
identify
a
need
for
controls
on
available
stocks,
the
Agency
will
also
allocate
critical
stock
allowances
(
CSAs)
on
an
annual
basis.
EPA
proposes
to
allow
producers
and
importers
to
expend
their
critical
use
allowances
(
CUAs)
for
production
and
import
of
methyl
bromide
at
any
time
during
the
control
period
(
calendar
year)
so
as
to
avoid
disruptions
in
the
supply
of
methyl
bromide.
However,
as
with
other
allowances
under
EPA's
phaseout
program
for
ozone­
depleting
substances,
EPA
is
proposing
that
companies
would
only
be
able
to
expend
CUAs
during
the
specified
control
period
(
calendar
year)
 
for
today's
proposed
action
that
would
be
during
2005.
In
other
words,
there
would
not
be
any
banking
of
unused
critical
use
allowances
(
CUAs)
from
control
period
to
control
period.
If
the
Parties'
decision
authorizing
2006
critical
use
exemptions
is
specific
about
controls
of
available
stocks,
then
the
Agency
would
discuss
such
a
control
in
its
notice­
andcomment
rulemaking
for
the
2006
allocations.
In
developing
today's
action,
EPA
also
takes
comment
on
options
for
addressing
concerns
about
the
need
for
mid­
year
adjustments
in
allocations
of
CUAs
and
CSAs.
EPA
is
seeking
­
21­
comments
on
an
option
of
issuing
half
of
the
allowances
at
the
beginning
of
the
control
period
and
then
the
remainder
of
the
allowances
six
months
into
the
control
period,
or,
some
other
percentage
split
for
two
separate
allocations.
Under
this
option,
EPA
would
publish
an
annual
rulemaking
before
the
start
of
the
control
period
indicating
how
many
allowances
of
each
type
could
be
expended
in
the
first
two
quarters
of
the
year
and
how
many
allowances
of
each
type
could
be
expended
in
the
later
two
quarters
of
the
year.
EPA
also
notes
that
complete
information
on
stocks
of
methyl
bromide
held
on
December
31st
for
a
given
year
would
not
be
reported
to
the
Agency
until
45
days
after
December
31st,
which
might
mean
the
determination
of
available
stocks
could
be
designed
as
a
two­
step
process
that
could
result
in
mid­
year
allocations
for
a
control
period.
In
this
second
allocation
of
the
remainder
of
allowances,
EPA
could,
if
necessary,
adjust
the
relative
percentages
of
critical
use
allowances
and
critical
stock
allowances
to
ensure
that
critical
needs
are
satisfied
for
the
control
period
if
EPA's
initial
projection
of
available
stocks
is
later
found
to
be
inaccurate.
The
combined
total
of
critical
use
allowances
issued
for
the
control
period
would
not
exceed
the
cap
on
new
production
and
consumption
set
forth
in
a
Decision
of
the
Parties.
Finally,
EPA
seeks
comments
on
an
option
where
both
CSAs
and
CUAs
would
be
allocated
for
the
beginning
of
a
control
period
but
the
CSAs
would
expire
in
a
short
time
frame
and
the
unexpended
CSAs
would,
through
rulemaking,
be
allocated
as
additional
CUAs
up
to
the
limit
for
new
production
and
import
authorized
by
the
Parties.
EPA
notes
there
are
many
steps
in
publishing
rulemakings,
many
of
which
can
be
time
consuming.
Publishing
two
rulemakings
to
allocate
allowances
for
a
given
year
might
result
in
a
lapse
in
available
allowances
and
therefore
a
disruption
in
supply.
Publishing
two
rulemakings
for
each
calendar
year
would
also
introduce
much
greater
uncertainty
into
the
market.
The
Agency
recognizes
that
an
alternative
approach
might
be
to
base
the
determination
of
available
stocks
on
a
"
fiscal"
year
from
September
31st
to
September
31st,
and
then
publish
a
single
allocation
rulemaking
for
the
subsequent
calendar
year.
EPA
requests
comment
on
these
options
and
whether
any
of
them
address
concerns
regarding
the
availability
of
sufficient
critical
use
methyl
bromide
that
were
raised
by
entities
in
sectors
who
fumigate
later
in
the
calendar
year
and
other
issues
regarding
the
supply
chain
for
methyl
bromide
and
the
data
available
for
subsequent
allocation
rulemakings.
EPA
proposes
to
allow
producers
and
importers
to
expend
(
use)
their
allowances
for
production
and
import
of
methyl
bromide
at
any
time
during
the
control
period
so
as
to
avoid
disruptions
in
the
supply
of
methyl
bromide
(
See
Section
VI
B.
above
regarding
"
expending"
allowances).
However,
EPA
also
requests
comment
on
an
option
that
would
permit
allowances
to
be
expended
only
when
an
order
for
methyl
bromide
had
been
placed
by
a
distributor
or
some
other
purchaser
of
methyl
bromide,
making
a
so­
called
"
redeemable"
allowance
system
(
see
Section
VII.
on
a
redeemable
allowance
system).
However,
EPA
believes
that
such
an
approach
is
unlikely
to
result
in
significantly
less
critical
use
methyl
bromide
production,
importation
and
stockpile
draw
down,
and
would
be
more
disruptive
to
the
methyl
bromide
market.
EPA
is
proposing
to
allow
producers,
importers,
distributors,
applicators,
and
other
entities
that
hold
critical
stock
allowances
(
CSAs)
to
expend
their
stockpile
allowances
by
selling
a
corresponding
amount
of
methyl
bromide
stocks,
at
any
point
during
the
control
period.
Likewise,
the
Agency
is
proposing
that
producers
and
importers
allocated
critical
use
allowances
(
CUAs)
would
be
able
to
expend
their
allowances
to
produce
or
import
methyl
bromide
for
the
­
22­
agreed
critical­
use
categories
at
any
time
during
the
control
period
(
calendar
year).
This
approach
is
preferred
because
producers
and
importers
need
a
certain
amount
of
time
to
actually
manufacture,
and
bring
to
market,
quantities
of
methyl
bromide.
Furthermore,
producers
and
importers
need
to
make
business
decisions
regarding
manufacturing
and
marketing
well
before
an
order
is
actually
placed
in
order
to
efficiently
batch
their
production
and
import
operations.
EPA
will
allocate
CUAs
and
CSAs
before
the
control
period
and
the
allowances,
under
today's
proposal,
may
be
expended
at
any
point
during
the
one
year
control
period.
On
December
31st
of
the
pertinent
year,
unexpended
CUAs
and
CSAs
disappear
and
the
companies
must
be
reallocated
allowances
for
the
subsequent
calendar
year
(
control
period).
EPA
seeks
comments
on
today's
proposal
and
the
other
options
described
above
regarding
when
allowances
are
allocated
and
when
allowances
can
be
expended.

O.
Can
Allowances
be
Traded?
In
accordance
with
CAAA
Section
607,
EPA
proposes
that
producers
and
importers
allocated
critical
use
allowances
(
CUAs)
be
permitted
to
trade
or
transfer
those
allowances.
EPA
is
proposing
that
CUAs
would
be
transferable
as
other
allowances
for
controlled
ozone­
depleting
substances
can
be
traded
under
existing
regulatory
provisions
of
the
40
CFR
Part
82,
Subpart
A.
Section
607
of
the
CAAA
governs
the
allocation
of
allowances
for
the
production
and
consumption
of
class
I
and
class
II
ozone
depleting
substances
and
the
transfers
(
trades)
of
such
allowances.
Paragraph
(
c)
of
Section
607
requires
that
such
transfers
of
allowances
result
in
a
lower
level
of
production
than
if
the
trade
had
not
occurred.
In
accordance
with
the
requirements
of
Section
607
of
the
CAAA,
EPA
is
proposing
an
offset
of
one
tenth
of
one
percent
of
the
amount
of
CUAs
being
traded
that
would
be
deducted
from
the
transferor's
allowance
balance
at
the
time
of
a
trade.
A
one
tenth
of
one
percent
offset
is
consistent
with
the
offset
required
for
the
transfer
of
essential
use
allowances
under
the
phaseout
program
for
class
I
controlled
ozonedepleting
substances,
which,
like
critical
use
allowances,
permit
the
exempted
production
or
import
of
ozone­
depleting
substances
beyond
a
phaseout
date.
Critical
stock
allowances
(
CSAs)
are
not
used
in
order
to
produce
or
import
methyl
bromide
but
rather
are
rights
to
allowance
holders
to
sell
pre­
existing
supplies
of
methyl
bromide
to
the
critical
use
market.
Because
CSAs
govern
the
amount
of
existing
material
that
can
be
sold,
EPA
is
not
proposing
to
require
an
offset
associated
with
transfers
of
CSAs.
If
the
holder
of
a
CSA
does
not
wish
to
sell
his
inventoried
methyl
bromide
to
the
critical
use
market,
he
may
sell
his
critical
stock
allowances
(
CSAs)
to
another
CSA
holder.
The
second
CSA
holder
may
then
sell
additional
amounts
of
his
methyl
bromide
inventory
to
the
agreed
critical­
use
categories
specified
in
the
rulemaking.
There
will
be
no
offsets
with
trades
of
CSAs.
As
noted
earlier,
a
CSA
is
only
expended
when
methyl
bromide
stocks
are
sold
to
an
approved
critical
user.
Thus,
normal
distribution
of
stocks
of
methyl
bromide
from
a
producer
or
importer
to
a
distributor
does
not
require
a
CSA.
For
example,
if
a
producer
sends
a
distributor
10,000
kilograms
of
methyl
bromide
stocks
for
sale
to
approved
critical
users,
the
producer
would
not
need
to
expend
CSAs
to
sell
methyl
bromide
to
a
distributor.
However,
if
the
distributor
intended
to
sell
the
methyl
bromide
to
an
approved
critical
user,
the
distributor
would
need
to
have
sufficient
CSAs
to
sell
to
a
self­
certifying
approved
critical
user.
If
the
distributor
did
not
have
sufficient
CSAs,
it
might
request
that
the
producer
transfer
CSAs
to
the
distributor
­
23­
as
part
of
the
sales
transaction
of
stocks
manufactured
prior
to
January
1,
2005.
EPA
is
seeking
comment
on
the
appropriateness
of
the
proposed
offset
for
CUAs.
Trades
of
the
production
and
consumption
allowances
associated
with
class
I
controlled
ozone­
depleting
substances
prior
to
each
chemical's
phaseout,
including
methyl
bromide,
have
been
subject
to
a
one
percent
offset.
For
consistency
with
the
requirements
governing
other
types
of
allowance
transfers
under
the
phaseout
regulations,
EPA
proposes
that
the
entity
that
is
selling
or
giving
allowances
to
another
entity
must
file
an
allowance
transfer
form
with
EPA,
which
the
existing
regulation
requires
that
EPA
process
within
3
business
days
of
receipt.
The
current
regulation
states
that
trades
that
are
not
processed
by
EPA
in
3
working
days
are
automatically
approved.
EPA
established
this
short
review
period
to
encourage
trading
and
ensure
the
Agency
does
not
impede
a
fluid
market.
Today's
action
proposes
that
the
information
to
be
provided
to
EPA
would
include
the
total
number
of
CUAs
to
be
transferred
and
the
name
of
the
entity
who
is
acquiring
the
allowances.
See
40
CFR
Sections
82.9,
82.10
and
82.12
under
the
current
regulations
and
below
in
the
proposed
regulatory
text.
EPA
is
proposing
an
additional,
special
type
of
transfer
for
the
methyl
bromide
critical
use
exemption
program.
EPA
is
proposing
that
a
person
holding
critical
use
allowances
(
CUAs)
could
exchange
them
for
additional
critical
stock
allowances
(
CSAs)
and
this
exchange
would
not
require
an
offset.
Under
this
option,
the
CUAs
would
be
retired
and
EPA
would
issue
additional
CSAs
in
an
amount
equal
to
the
amount
of
retired
CUAs.
This
type
of
an
exchange
is
consistent
with
Decision
IX/
6
and
section
607
of
the
Clean
Air
Act
Amendments
because
it
results
in
use
of
more
stocks
and
less
production
in
a
given
control
period.
Because
the
Parties
specified
the
maximum
amount
of
critical
use
methyl
bromide
that
may
be
derived
from
new
production
or
import
in
Decision
Ex
I/
3,
EPA
is
proposing
that
CUAs
may
be
converted
into
CSAs
in
this
manner,
but
not
vice
versa.
The
Protocol
and
CAAA
have
no
restriction
on
meeting
more
critical
use
needs
from
stocks.
However,
because
Decision
Ex
I/
3
limits
the
total
amount
of
new
production
or
import
in
2005,
there
cannot
be
an
exchange
that
would
increase
the
number
of
CUAs.
EPA
seeks
comments
on
the
proposed
exchange
of
CUAs
for
CSAs.
EPA
is
seeking
comments
on
the
programs
proposed
for
trading
allowances
and
the
options
that
are
described
above.

P.
Are
Allowances
Bankable
from
One
Year
to
the
Next?
EPA
proposes
to
prohibit
banking
of
allowances
(
both
CUAs
and
CSAs)
from
one
year
to
the
next
because
the
controls
under
the
Montreal
Protocol
and
the
Clean
Air
Act
Amendments
are
calendar
year
"
control
periods".
The
U.
S.
has
obligations
under
the
Montreal
Protocol
and
the
Clean
Air
Act
Amendments
to
control
the
production
and
consumption
of
ozone­
depleting
"
controlled
substances"
on
an
annual,
calendar
year
basis.
To
date,
the
authorization
for
exempted
production
and
import
of
methyl
bromide
for
agreed
critical­
use
categories
(
Decision
Ex
I/
3)
is
only
for
the
2005
calendar
year.
For
the
2005
calendar
year
(
control
period),
methyl
bromide
production
and
import
is
prohibited,
except
where
otherwise
exempted.
In
addition,
the
controls
on
the
use
of
stocks
by
critical
use
sectors
is
also
limited
to
only
the
2005
calendar
year.
The
Parties
may
allow
for
multiple
year
exemptions
in
the
future
which
may
possibly
allow
for
banking
of
allowances
from
one
year
to
the
next
so
long
as
it
is
within
the
duration
of
the
exemption
authorized
by
the
Parties.
In
addition,
it
is
not
clear
whether
future
Decisions
on
the
­
24­
critical
use
exemption
will
employ
the
double
cap
concept
and
effectively
limit
the
amount
of
material
that
may
be
obtained
from
stocks
for
critical
uses.
EPA
will
revisit
the
issue
of
banking
allowances
under
a
multi­
year
scenario
to
reflect
any
framework
changes
agreed
to
by
the
Parties
in
future
decisions.

Q.
How
is
Unused
Critical
Use
Methyl
Bromide
Treated
at
the
End
of
the
Compliance
Period?
The
critical
use
exemption
is
currently
an
annual
exemption
program.
The
amount
of
new
production
and
import
authorized
by
the
Parties
for
2005
must
be
produced
or
imported
during
that
calendar
year
(
control
period)
and
not
beyond
December
31st
of
the
pertinent
year.
However,
methyl
bromide
produced
or
imported
under
the
authorized
exemption
for
a
given
year
may
still
be
unused
at
the
end
of
the
compliance
control
period,
and
could
be
used
in
subsequent
years
for
critical
uses.
In
the
event
there
are
inventories
of
methyl
bromide
produced
or
imported
with
CUAs
remaining
at
the
end
of
the
control
period,
EPA
proposes
to
include
these
quantities
in
the
calculation
of
available
stocks
(
factor
B)
in
the
determination
of
total
CUAs
to
be
allocated
for
the
subsequent
year.
EPA
is
proposing
that
if
critical
use
allowances
(
CUAs)
are
allocated
on
a
sector­
specific
basis,
and
the
methyl
bromide
is
produced
or
imported
but
unused
in
the
control
period,
the
material
could
be
used
only
for
the
approved
critical
uses
in
the
subsequent
control
period.
This
proposal
would
mean
quantities
produced
or
imported
with
expended
CUAs
not
used
in
the
relevant
control
period
would,
as
stated
in
today's
proposal,
be
taken
into
account
in
the
calculation
of
available
stocks
for
determining
the
level
of
new
production
or
import
for
the
subsequent
control
period
(
factor
B
in
the
algorithm
discussed
in
Section
VI.
A.
above).
EPA
would
include
unused
critical
use
methyl
bromide
in
the
calculation
of
available
stocks
for
the
subsequent
year.
EPA
also
seeks
comment
on
restricting
the
use
of
sector­
specific
critical
use
methyl
bromide
to
only
the
sector
for
which
it
was
allocated.
For
example,
if
methyl
bromide
was
produced
in
a
given
year
with
expended
eggplant
CUAs,
EPA
could
limit
the
use
of
unused
quantities
to
only
approved
critical
use
eggplant
uses
in
the
subsequent
control
period.
EPA
seeks
comments
on
the
proposed
method
for
accounting
for
unused
critical
use
methyl
bromide
and
the
other
options
discussed
above.

R.
What
are
the
Enforcement
Provisions
Governing
Critical
Uses?
Section
113
of
the
CAAA
controls
enforcement
activities
for
violations
of
requirements
under
Title
VI.
Under
the
Stratospheric
Ozone
Program
regulations,
EPA
has
historically
defined
each
kilogram
of
unauthorized
production
or
importation
of
controlled
substances
to
be
a
separate
violation
of
its
regulations.
See
e.
g.
40
C.
F.
R.
§
82.4(
a)(
1)
("
Every
kilogram
of
excess
production
constitutes
a
separate
violation
of
this
subpart.").
Likewise,
for
the
restricted
distribution
under
exemption
programs
of
controlled
substances,
the
Stratospheric
Ozone
Program
has
also
considered
each
kilogram
of
inappropriate
sale
for
a
use
other
than
the
designated
specific
exempted
purpose
to
be
a
separate
violation.
To
ensure
U.
S.
compliance
under
the
Montreal
Protocol,
EPA
believes
this
approach
remains
justified
for
enforcement
against
producers,
importers,
and
distributors
of
methyl
bromide
because
these
are
large
companies
that
have
an
ability
to
pay
higher
penalties
and
should
face
a
substantial
deterrent
­
25­
against
producing,
importing,
and
selling
large
quantities
of
controlled
substances
in
excess
of
allowances
or
application
limitations.
In
addition,
these
producers,
importers
and
distributors
are
larger
companies
that
typically
have
government
affairs
staff
and
retain
legal
counsel
to
advise
them
on
their
regulatory
requirements.
Thus,
EPA
will
continue
to
define
violations
involving
the
unauthorized
production,
import,
or
sale
of
critical
use
methyl
bromide
on
a
per
kilogram
basis.
In
the
case
of
methyl
bromide
end­
users,
defining
each
violation
on
a
per
kilogram
basis
could
mean
a
small
farmer
might
face
the
potential
of
a
very
high
penalty
if
she
applied
critical
use
methyl
bromide
in
an
unauthorized
fashion.
However,
in
assessing
penalties
under
any
enforcement
action,
the
Agency
takes
into
consideration
the
size
of
the
violator,
the
economic
benefit
or
advantage
achieved
from
the
violation
and
the
ability
of
the
violator
to
pay
a
penalty.
Farmers
in
many
of
the
agreed
critical
use
categories
typically
use
several
hundred
kilograms
of
methyl
bromide
to
treat
a
single
acre.
If
the
Agency
were
to
maintain
that
each
kilogram
that
is
wrongly
used
is
a
separate
violation,
then
a
farmer
ordering
and
applying
3,000
kilogram
in
error
to
her
10
acre
farm
would
face
a
potential
maximum
penalty
of
more
than
$
97
million.
EPA
recognizes
that
there
is
a
difference
in
scale
of
possible
violations
and
impact
on
compliance
with
U.
S.
obligations
under
the
Protocol
and
is
therefore
proposing
to
define
each
single
violation
for
the
mis­
use
of
critical
use
methyl
bromide
by
an
end­
user
differently
than
a
violation
by
a
holder
of
a
CUA
or
CSA
so
it
reflects
the
typical
farm
size
and
application
rate
of
a
person
in
the
approved
critical­
use
categories,
and
also
reflects
the
economic
benefit/
advantage
that
accrues
due
to
a
mis­
use
violation
by
an
end­
user.
EPA
is
proposing
to
define
each
violation
associated
with
the
improper
use
of
critical
use
methyl
bromide
in
increments
of
200
kilograms.
Taking
the
example
of
the
farmer
described
above,
who
ordered
and
submitted
a
self­
certification
to
use
3,000
kilograms
of
critical
use
methyl
bromide
in
accordance
with
today's
proposed
restrictions,
but
then
wrongfully
applied
the
material,
she
would
face
15
separate
violations
for
this
mis­
use
with
a
potential
maximum
penalty
of
$
487,000.
EPA
wishes
to
note
again
that
in
assessing
penalties,
the
Agency
takes
into
account
the
circumstances
of
the
violation,
the
size
of
the
violator
and
their
ability
to
pay.
EPA
believes
it
is
important
to
retain
a
sizable
potential
maximum
penalty
so
there
is
a
deterrent
against
abuse
of
this
exemption
from
the
phaseout.
EPA
also
notes
that
larger
farms
(
that
might
be
operated
by
sizable
agricultural
corporations)
will
also
be
ordering
and
certifying
the
proper
use
of
large
quantities
of
critical
use
methyl
bromide
and
if
the
material
were
to
be
mis­
used
they
should
continue
to
face
large
potential
maximum
penalties.
EPA
requests
comments
on
whether
the
proposed
definition
for
an
end­
user's
violation
is
appropriate
for
enforcement,
especially
in
light
of
the
fact
that
the
person
is
self­
certifying
that
they
will
use
the
critical
use
methyl
bromide
in
accordance
with
today's
proposed
restrictions
for
the
exemption.
Under
today's
action,
EPA
is
not
proposing
to
use
the
Federal
Insecticide,
Fungicide,
and
Rodenticide
Act
(
FIFRA)
authorities
or
mechanisms
to
implement
or
enforce
the
critical
use
exemption.
However,
under
today's
action,
nothing
precludes
parallel
implementation
and
enforcement
under
FIFRA
and
other
federal,
state,
and
local
pesticide
regulations.

VII.
What
are
Other
Options
on
which
EPA
Seeks
Comment?
EPA
also
requests
comment
on
other
options
for
allocating
critical
use
exemption
allowances.
In
addition
to
the
proposed
option
described
above
which
entails
the
distribution
of
­
26­
critical
use
allowances
to
producers
and
importers,
and
critical
stock
allowances
to
all
suppliers
of
methyl
bromide,
EPA
is
requesting
comment
on
an
additional
regulatory
framework
that
would
give
critical
use
exemption
permits
to
the
end
users
of
methyl
bromide.
These
permits,
hereafter
referred
to
as
"
critical
user
permits"
(
CUPs)
would
differ
from
the
critical
use
allowances
in
the
following
manner.
Critical
user
permits
would
be
redeemed
to
buy
one
(
1)
kilogram
of
methyl
bromide
for
an
approved
critical
use
whereas
a
critical
use
allowance
(
CUA)
would
be
an
allowance
for
the
production
or
import
of
one
(
1)
kilogram
of
methyl
bromide
by
a
manufacturer
or
importer
of
methyl
bromide.
EPA
believes
that
the
options
described
in
Section
VII
of
this
proposed
rulemaking
would
create
a
new
burden
on
approved
critical
users
of
methyl
bromide.
A
full
analysis
of
the
burden
associated
with
providing
permits
to
end
users
is
described
in
the
supporting
analytical
documents
that
accompany
this
rule.
The
supporting
analysis
primarily
analyzed
two
options
for
who
could
hold
critical
use
allowances,
producers
and
importers
or
end
users.
Under
a
system
that
creates
permits
distributed
to
methyl
bromide
end­
users,
EPA
estimated
that
the
annual
burden
would
be
about
$
6.4
million
per
year.
In
contrast,
a
system
designed
to
provide
allowances
only
to
producers
and
importers
would
cost
about
$
2.2
million.
For
a
more
complete
discussion
of
the
supporting
analysis,
please
see
Section
VIII.
A
of
this
proposal.
In
conducting
the
analysis,
in
some
cases
EPA
made
only
qualitative
assessments
due
to
uncertainty
about
the
future
price
of
methyl
bromide
and
other
unknown
factors.
In
other
instances,
it
was
difficult
to
create
a
direct
quantitative
comparison
on
the
de­
regulatory
benefit
of
one
option
compared
to
the
other.
EPA
believes
the
options
in
Section
VII
would
be
substantially
more
burdensome
for
approved
critical
users
(
end­
users)
than
the
proposed
option
in
Section
VI.
At
the
stakeholder
meetings
held
over
the
previous
year
EPA
received
public
comment
to
this
effect.
To
the
degree
that
not
all
potentially
interested
parties
were
able
to
attend
these
stakeholder
meetings,
EPA
specifically
requests
comment
on
these
options
to
better
understand
if
the
benefits
of
these
options
outweigh
the
additional
regulatory
burden.

A.
Distribution
of
Critical
User
Permits
(
CUPs)
to
End
Users
of
Methyl
Bromide?
EPA
is
taking
comment
on
options
regulating
downstream
distribution
of
methyl
bromide
through
the
allocation
of
critical
user
permits
(
CUPs)
to
end­
users,
.
EPA
seeks
comment
on
two
options
for
initially
distributing
the
CUPs.
One
option,
similar
to
the
method
used
in
Canada
under
their
phaseout
of
methyl
bromide,
would
involve
the
distribution
of
permits
to
end
users.
The
second
option
would
employ
an
auction
system
whereby
the
allowances
would
be
sold
to
the
user
with
the
highest
bid.
A
CUP
system
involving
the
distribution
of
permits
to
end
users
would
require
individual
farms
and
companies
to
provide
data
to
EPA
(
see
Section
VIII.
E
for
more
detail
on
distribution
of
permits).
EPA
would
then
examine
the
data
and
would
write
an
additional
notice­
andcomment
rulemaking
to
distribute
permits
to
each
entity.
This
process
would
take
between
one
and
two
years
to
complete,
due
the
large
number
of
critical
use
methyl
bromide
end­
users
(
approximately
2,000
farmers
or
companies),
so
permits
would
not
be
available
to
end
users
until
after
the
phaseout
takes
effect.
In
such
a
scenario,
EPA
would
implement
the
CUPs
beginning
in
2007
and
rely
on
an
upstream
system
as
described
in
Section
VI
as
an
interim
control
measure
until
2007.
­
27­
EPA
is
accepting
comments
on
employing
an
auction
as
one
method
to
circumvent
the
burden
and
time
involved
with
permit
distribution.
However,
the
auction
of
CUPs,
similar
to
a
method
where
EPA
uses
historical
data
to
distribute
CUPs,
would
impose
more
requirements
on
end
users
than
the
proposed
option.
End
users
under
the
auction
would
be
required
to
familiarize
themselves
with
auction
procedures,
participate
in
the
auction,
keep
records
of
all
auction
and
CUP
activities
for
three
years,
and
report
to
EPA
annually
on
the
use
of
CUPs
acquired.
Under
the
proposed
option,
end
users
would
not
have
any
reporting
or
recordkeeping
obligations
except
self­
certification
when
placing
a
purchasing
order.
Again,
similar
to
using
historical
data
to
distribute
CUPs,
there
are
timing
concerns
regarding
the
auction.
The
time
taken
to
implement
an
auction
would
cause
an
implementation
delay
past
January
2005.
In
stakeholder
meetings
held
by
EPA
over
the
summer
of
2003,
stakeholders
universally
commented
that
they
wanted
a
simple
regulation
and
one
that
would
impose
minimum
burden
on
end
users.
This
comment
was
regularly
made
in
association
with
the
two
end­
user
permit
options,
which
stakeholders
viewed
as
presenting
significant
burden
on
end­
users
without
sufficient
accompanying
benefits.
Under
either
CUP
scenario,
EPA
would
abide
by
the
parameters
set
by
the
Parties
in
the
authorization
of
critical
use
exemptions.
Decision
Ex
I/
3
requests
that
Parties
endeavor
to
allocate
critical
use
permits
according
to
the
use
categories
recommended
by
the
TEAP.
Thus,
EPA
requests
comment
on
whether
it
could
create
one
auction
where
all
critical
users
would
vie
for
permits
or
should
create
sector
level
auctions
instead.
EPA
may
propose
to
be
more
restrictive
than
required
under
the
Protocol,
as
interpreted
by
the
Parties,
but
not
less.

B.
What
is
a
Critical
User
Permit
(
CUP)
and
Can
it
Be
Traded?
A
critical
user
permit
(
CUP)
is
a
permit
which
would
entitle
the
holder
to
obtain
one
kilogram
of
methyl
bromide
for
use
for
approved
critical
uses.
Once
a
user
acquires
an
initial
allocation
of
permits,
whether
through
rulemaking
or
auction,
EPA
would
allow
the
user
to
either
redeem
the
permit
to
buy
methyl
bromide,
hold
that
permit
unredeemed
until
the
end
of
the
control
period
when
it
would
expire,
or
sell
the
permit
to
another
entity.
Although
only
approved
critical
users
would
be
given
permits
initially,
EPA
requests
comment
on
whether
it
should
restrict
the
type
of
entity
to
whom
approved
critical
users
could
sell
permits.
EPA
seeks
comments
on
how
allowing
end­
users
to
trade
CUPs
with
brokers,
trading
firms,
citizen
groups
and
others
might
affect
the
methyl
bromide
market.
EPA
has
identified
three
additional
ways
that
trades
of
CUPs
might
be
governed:
(
1)
allowing
trades
only
within
a
sector
(
only
allowing
a
tomato
trade
with
a
tomato
grower),
(
2)
allowing
trades
of
CUPs
across
sectors
(
a
tomato
CUP
for
a
strawberry
CUP),
or
not
allowing
end­
users
to
trade
their
CUPs
after
the
initial
allocation
(
resulting
in
a
more
command
and
control
approach).
EPA
seeks
comments
on
these
options.

C.
Who
is
Eligible
to
Receive
an
Initial
Allocation
of
CUPs
and
Who
May
Use
CUPs?
EPA
requests
comment
on
two
options
for
who
can
receive
an
initial
allocation
of
CUPs.
The
first
option
would
only
allow
those
entities
included
in
an
application
to
EPA
to
receive
an
initial
allocation
of
CUPs.
The
second
option
would
allow
those
users
not
explicitly
covered
by
an
application
but
who
have
the
limiting
critical
condition
to
receive
an
initial
allocation.
Once
an
­
28­
entity
receives
its
CUP
allocation,
it
can
either
use
it
to
acquire
critical
use
methyl
bromide,
or
it
can
simply
hold
it
(
holding
a
CUP
is
addressed
in
Section
VII.
D
below).
There
are
also
two
options
for
who
can
use
a
CUP
to
acquire
critical
use
methyl
bromide,
namely
only
allowing
those
entities
included
in
an
application
to
EPA
to
participate,
or
allowing
those
users
not
explicitly
covered
by
an
application
but
who
have
the
limiting
critical
condition
to
redeem
a
CUP
for
methyl
bromide.
EPA
believes
that
it
would
be
unfair
to
those
groups
that
invested
the
resources
in
applying
to
EPA
for
an
exemption
if
EPA
adopted
an
option
that
would
make
an
initial
allocation
of
permits
available
to
users
who
meet
the
limiting
critical
condition
but
are
not
covered
by
an
application.
However,
EPA
believes
that
a
hybrid
approach
which
allows
any
user
who
meets
the
limiting
critical
condition
to
buy
permits
after
the
initial
allocation
would
be
reasonable
in
that
the
right
of
first
refusal
has
already
been
given
to
those
that
applied
for
the
exemption.
EPA
requests
comment
on
this
issue.

D.
Who
May
Hold
a
CUP?
Even
though
only
approved
critical
users
would
be
able
to
obtain
methyl
bromide
under
the
critical
use
exemption,
EPA
would
allow
any
entity
to
hold
permits.
For
example,
EPA
is
considering
allowing
citizen
groups
and
brokers
to
hold
permits,
but
not
giving
such
entities
an
initial
allocation
and
not
allowing
them
to
use
or
redeem
the
CUPs.
EPA
seeks
comment
on
who
may
receive
an
initial
allocation
of
CUPs,
who
may
hold
CUPs,
and
who
may
redeem
CUPs
for
critical
use
methyl
bromide.

E.
Methods
for
Distribution
of
Critical
User
Permits:
Distribution
Based
on
Data
EPA
requests
comment
on
several
methods
for
distributing
CUPs
to
the
end
user
community
using
entity­
level
historic
use
and/
or
operational
information.
One
method
would
use
entity­
level
historic
methyl
bromide
use
data
to
create
a
baseline
against
which
CUPs
would
be
allocated.
Under
this
option,
individual
end
users
would
have
to
provide
3
years
of
historic
use
data
and
documentation
to
EPA
which
would
include
total
quantity
(
kilograms)
of
methyl
bromide
used
in
each
year,
the
hectares
or
cubic
meters
treated
annually,
the
formulation
rates,
and
data
on
efforts
to
minimize
use
and
emissions.
Using
these
data,
EPA
would
establish
a
straight
average
baseline
and
would
pro­
rate
amounts
of
methyl
bromide
available
to
the
sector
by
the
total
treated
area
requested
by
entities
that
submitted
the
additional
data.
If
a
user
has
not
been
a
historic
grower
or
owner
of
the
commodity
for
which
he
seeks
an
exemption
but
is
now
a
member
of
a
covered
consortium,
EPA
is
considering
having
that
user
submit
documentation
to
support
his
plans
to
treat
the
specified
acreage/
volume.
Alternatively,
a
new
entrant
might
not
be
given
an
initial
allocation
but
be
allowed
to
buy
and
use
CUPs
from
a
willing
seller
so
long
as
the
entity
met
the
limiting
critical
condition.
Another
method
for
distributing
CUPs
would
involve
economic
considerations
for
each
entity.
For
example,
EPA
could
distribute
permits
to
those
users
with
the
highest
marginal
cost
of
substitution,
in
other
words
to
those
end
users
with
the
greatest
economic
need.
Alternatively,
EPA
is
considering
distributing
permits
to
end
users
with
the
lowest
marginal
cost
of
substitution
who
would
then
be
inclined
to
sell
their
permits
to
users
who
have
a
higher
substitution
cost.
In
­
29­
order
for
EPA
to
make
a
determination
as
to
how
to
distribute
permits
under
a
scenario
using
cost
economic
criteria,
individual
entities
would
have
to
submit
historic
use
data
to
EPA
and
individual
entity
cost
economic
data
on
operational
costs
and
the
costs
of
alternatives.
EPA
seeks
comment
on
the
options
described
for
determining
baselines
and
distributing
CUPs.

F.
Submitting
Individual
Entity
Data
to
Obtain
Critical
User
Permits
(
CUPs)
Under
an
option
involving
the
distribution
of
CUPs,
users
would
be
required
to
submit
the
additional
data
for
baseline
determination
either
with
the
annual
critical
use
application
or
under
separate
cover
to
EPA.
Each
year,
beginning
in
2002,
users
interested
in
a
critical
use
exemption
have
been
required
to
submit
a
detailed
application
to
EPA
between
August
and
September.
A
small
number
of
users
applied
only
on
behalf
of
their
operations
alone
and
therefore
for
these
users,
EPA
has
sufficient
use
data
on
a
per
entity
basis
in
order
to
create
an
historic
baseline
of
methyl
bromide
use
for
a
few
entities.
Most
users
however
applied
for
a
critical
use
exemption
as
groups
of
similar
users
(
e.
g.
all
of
tomato
growers
in
Michigan).
In
these
instances,
EPA
does
not
have
the
bulk
of
the
baseline
data
needed
to
create
per
entity
historic
baselines
of
methyl
bromide
use.
Due
to
the
amount
of
time
it
would
take
a)
for
users
to
submit
additional
data
and
documentation
to
EPA
and
b)
for
EPA
to
analyze
the
data
and
write
a
notice­
and­
comment
regulation
allocating
baseline
allocations,
EPA
would
implement
the
CUPs
beginning
in
2007
and
relying
on
an
upstream
system
as
described
in
Section
VI
of
this
proposal
an
interim
control
measure
until
2007.

G.
Methods
for
Distribution
of
Critical
User
Permits:
Distribution
Using
Auctions
EPA
is
also
interested
in
comment
on
using
an
auction
as
a
method
for
distributing
critical
use
permits
(
CUPs)
to
operations
(
users)
that
meet
the
critical
use
criteria.
EPA
understands
that
affected
entities
have
expressed
a
strong
preference
for
a
simple
regulatory
mechanism
for
the
critical
use
exemption.
EPA
believes
that
of
all
the
options,
an
auction
may
be
by
far
the
most
complex
to
design,
would
be
unlikely
to
be
in
place
in
time
for
the
beginning
of
the
critical
use
exemption,
and
may
impose
a
steep
learning
curve
on
affected
entities.
EPA
does
not
have
statutory
authority
to
set
a
price
for
methyl
bromide
under
the
Clean
Air
Act
Amendments.
Therefore,
to
implement
an
auction,
EPA
could
only
consider
an
option
that
did
not
have
the
government
set
a
minimum
or
maximum
price
for
material
under
the
critical
use
exemption.
EPA
therefore
is
only
considering
auctions
using
a
sealed
bid
method
with
no
set
minimum
bid.
Other
bid
options
which
EPA
did
not
consider
include
the
ascending
bid
or
English
auction
and
the
declining
bid
or
Dutch
auction.
In
a
sealed
bid
auction,
each
bidder
discloses
the
maximum
bid
they
would
offer
and
the
number
of
permits
they
are
seeking.
The
auctioneer
then
opens
all
of
the
bids
and
awards
the
permits
to
the
highest
bidders
until
there
are
no
more
permits
left.
The
price
of
the
last
permit
awarded
could
be
used
to
set
the
price
of
all
of
the
bids
awarded
(
clearing
price)
or
the
price
could
be
determined
by
the
bid
set
by
the
bidder
("
pay
as
you
bid").
In
an
ascending
auction
bid,
the
auctioneer
offers
a
losing
bidder
the
chance
to
increase
his/
her
bid.
When
the
bidding
has
ended,
the
permits
are
distributed
to
the
highest
bidders.
In
a
declining
bid
auction,
the
auctioneer
­
30­
sets
a
price
for
the
permit
at
the
high
end
of
the
spectrum.
Bidders
can
then
accept
the
price
and
buy
permits
or
can
wait
and
see
if
the
price
comes
down.
EPA
believes
that
it
only
has
authority
for
a
"
pay
as
you
bid"
auction.
To
submit
a
bid,
a
user
would
first
have
to
establish
an
account
via
a
letter
of
credit
or
similar
mechanism
with
the
auctioneer
or
would
have
to
submit
a
certified
check
for
their
maximum
bid
amount
with
their
bid
form.
Information
on
the
bid
form
would
include
name
of
bidder,
contact
information
for
bidder,
name
and
contact
information
of
the
authorized
representative
if
applicable,
number
of
kilograms
the
bidder
wishes
to
purchase
at
a
given
price,
type
of
permits
if
applicable,
location
to
be
fumigated,
a
description
of
other
crops
or
uses
that
would
benefit
from
the
fumigation
(
e.
g.
a
double
crop
of
peppers),
and
a
certification
form
that
any
methyl
bromide
obtained
will
be
used
only
for
critical
use
purposes.
The
bid
price
could
be
structured
to
include
just
the
cost
of
the
permit
(
the
bid
premium)
or
the
cost
of
the
permit
plus
the
price
of
the
actual
methyl
bromide
purchased.
In
the
former,
the
bidder
only
obtains
the
right
to
buy
methyl
bromide
at
a
price
to
be
set
by
the
supplier;
in
the
latter
option,
the
price
paid
by
the
successful
bidder
includes
the
right
to
buy
methyl
bromide
and
the
cost
of
the
methyl
bromide.
However,
since
EPA
does
not
have
the
authority
to
redistribute
revenues
from
the
auction,
EPA
only
considered
a
bid
price
that
covers
the
cost
of
the
CUP
(
the
right
to
buy
methyl
bromide)
alone.
All
revenues
from
the
auction
would
be
sent
to
the
U.
S.
Treasury
since
EPA
does
not
have
statutory
authority
to
capture
the
revenue
for
other
purposes.
EPA
is
considering
running
the
auction
in
house,
having
another
federal
entity
run
the
auction,
or
allowing
a
third
party
to
administer
the
auction.
Each
of
these
implementation
schemes
for
operating
the
bidding
process
would
award
the
CUPs
simply
on
the
basis
of
price.
In
the
event
that
a
third
party
were
to
run
the
auction,
EPA
examined
the
options
of
having
the
party
run
the
auction
either
for
a
fee
or
as
a
gratuitous
service
to
the
government.
If
the
auction
would
be
run
as
the
latter,
the
third­
party
would
then
be
able
to
charge
a
reasonable
administration
fee
from
those
in
the
user
community
that
elected
to
participate
in
the
auction.
EPA
seeks
comment
on
the
various
elements
of
the
auction
method
for
distributing
permits.

H.
Frequency
of
Auctions
and
Set
Asides
In
order
to
make
the
auction
feasible,
EPA
believes
that
two
auctions
a
year
would
be
required,
one
shortly
before
the
beginning
of
the
control
period
and
one
three
to
four
months
after
the
new
control
period
begins.
The
second,
later
auction
would
be
required
in
order
to
ensure
that
quantities
of
methyl
bromide
authorized
by
the
Parties
to
the
Protocol
in
their
meeting
only
two
months
before
the
control
period
and
approved
through
rulemaking
during
the
early
part
of
the
compliance
period
could
be
allocated
to
users
EPA
further
seeks
comment
on
creating
a
set­
aside
program
to
hold
back
permits
from
the
auction.
Under
such
a
program,
between
10%
and
50%
of
the
total
allowable
amount,
would
be
held
in
reserve
for
a
second
annual
auction
in
order
to
accommodate
those
users
who
typically
acquire
methyl
bromide
later
on
in
the
season.
EPA
seeks
comment
on
the
use
of
set­
asides,
the
amount
of
methyl
bromide
to
set
aside
for
a
second
auction,
and
the
number
of
times
a
year
EPA
should
conduct
an
auction.
­
31­
I.
Other
Methods
for
Distributing
CUPs
EPA
also
requests
comments
on
other
options
for
distributing
critical
use
permits
(
CUPs)
that
would
not
entail
EPA
giving
permits
directly
to
end
users
of
methyl
bromide.
EPA
is
considering
giving
the
CUPs
to
the
consortium
that
applied
for
an
exemption.
The
consortium
could
then
determine
how
they
would
like
to
distribute
allowances
to
individual
users,
either
through
use
of
data
or
through
an
auction.
However,
there
are
several
consortia
that
do
not
have
any
infrastructure
to
receive
and
distribute
the
permits
and
some
consortia
are
not
even
legally
incorporated
entities.
Alternatively,
EPA
is
considering
giving
allowances
to
State
governments
to
re­
distribute
using
a
method
of
their
choosing.
However,
due
to
concerns
about
the
possibility
of
creating
an
unfunded
mandate,
EPA
has
decided
not
to
further
consider
such
an
option.

J.
Tracking
Permits
EPA
is
evaluating
the
feasibility
of
developing
a
web­
enabled
database
program
to
allow
for
the
tracking
and
trading
of
CUPs.
Since
almost
10
million
CUPs
could
be
issued
based
on
the
number
of
kilograms
requested
by
the
U.
S.
government
for
critical
uses
in
the
2003
nomination,
EPA
believes
that
a
new
tracking
system
would
have
to
be
developed
to
facilitate
the
trading
and
tracking
of
CUPs.
Each
entity
that
applies
for
an
initial
allocation
of
CUPs
would
be
required
to
create
an
account
in
the
web­
enabled
database
as
well
as
entities
that
sell
or
distribute
methyl
bromide
to
end
users
and
entities
who
acquire
permits
through
trading.
Once
allocated,
EPA
would
place
CUPs
in
the
account
of
the
end
user.
All
accounts
would
be
frozen
on
an
annual
basis
on
December
31st
for
the
annual
true­
up
period
during
which
time
no
transactions
could
take
place.

K.
Redeeming
CUPs
for
Methyl
Bromide
A
CUP
holder
may
redeem
his
permit
with
a
methyl
bromide
supplier
such
as
a
custom
applicator
or
distributor
by
transferring
his
permits
to
the
supplier's
account.
To
transfer
the
permits,
EPA
would
require
the
permit
holder
to
electronically
transfer
his
permits
to
the
supplier's
account
indicating
the
number
of
acres/
square
feet
to
be
treated,
location
of
area
to
be
treated
(
address,
coordinates,
parcel
ID
number)
and
whether
a
second
crop
will
benefit
from
the
fumigation.
The
permit
holder
would
then
transfer
the
permits
electronically
to
the
supplier's
account,
at
which
point
the
permits
would
be
deactivated
automatically
by
the
system.
Automatically,
an
electronic
mail
notification
would
be
sent
to
the
supplier
notifying
him
that
the
specified
CUPs
have
been
transferred
to
his
account.
The
user
would
then
print
out
a
certification
form
that
the
material
would
only
be
used
for
the
specific
critical
use,
sign
it
and
send
it
to
the
supplier
before
he
or
she
could
receive
the
methyl
bromide.
A
supplier
or
end
user
would
have
ten
business
days
to
dispute
the
transaction
with
EPA
in
the
event
that
an
error
was
made
by
the
permit
holder
in
the
transfer
of
permits.

L.
Reporting
Requirements
for
CUP
Holders
CUP
holders
would
be
required
to
annually
reconcile
their
accounts
by
submitting
a
written
form
to
EPA
no
later
than
15
days
after
the
end
of
the
control
period,
i.
e.
December
31st
or
the
date
when
all
unredeemed
permits
would
expire.
The
form
would
be
created
by
EPA
and
available
on
the
EPA's
methyl
bromide
website.
CUP
holders
would
be
required
to
indicate
how
­
32­
much
critical
use
methyl
bromide
bought
during
the
year
has
not
been
used
and/
or
remains
held
in
inventory
for
future
use.

M.
Interaction
between
CUPs
and
CUAs
EPA
could
implement
the
CUP
program
as
a
stand
alone
program
or
in
conjunction
with
a
CUA
and
CSA
program.
If
the
CUP
program
were
to
be
implemented
as
a
stand
alone
program,
CUP
holders
would
sell
their
permits
to
producers
and
importers
of
methyl
bromide
at
a
time
of
their
choosing.
The
producers
and
importers
would
not
be
able
to
produce
or
import
methyl
bromide
until
they
held
sufficient
CUPs
to
match
their
production
or
import
decisions.
EPA
believes
that
under
such
a
system,
it
is
likely
that
producers
and
importers
would
solicit
CUPs
early
in
the
year
in
order
to
bundle
them
for
planning
the
year's
production
or
import.
Producers
and
importers
might
be
likely
to
pay
more
for
permits
they
obtain
early
in
the
year
since
they
seek
certainty
on
the
amounts
they
will
be
able
to
produce
and
import
during
the
year.
Under
the
stand
alone
CUP
program,
EPA
is
considering
two
options
for
how
permit
holders
would
obtain
methyl
bromide.
Under
the
first
option,
the
permit
holder
would
be
entitled
to
receive
1
kilogram
of
methyl
bromide
for
each
permit
sold.
EPA
believes
that
under
this
scenario,
the
price
producers
and
importers
would
be
willing
to
pay
is
likely
to
be
lower
than
under
the
second
option.
Under
the
second
option,
a
permit
holder
would
sell
his
permit
to
a
producer
or
importer
and
would
then
purchase
methyl
bromide
at
a
later
date
through
his
normal
supplier
as
a
separate
transaction
following
the
procedures
proposed
in
today's
notice­
andcomment
rulemaking.
Under
the
stand
alone
CUP
program,
the
reporting
and
recordkeeping
requirements
for
producers,
importers,
distributors,
custom
applicators
and
fumigators
would
be
required
as
described
in
Sections
VI
of
this
preamble.
EPA
understands
that
creating
a
stand
alone
system
for
the
creation
of
exempted
methyl
bromide
could
place
some
strain
on
the
methyl
bromide
production
system
unless
producers
and
importers
were
able
to
buy
CUPs
from
permit
holders
several
months
in
advance
of
the
control
period.
However,
due
to
the
time
it
would
take
to
allocate
CUPs
through
a
notice­
and­
comment
rulemaking,
it
would
be
unlikely
that
sufficient
time
would
be
available
before
the
control
period
for
producers
and
importers
of
methyl
bromide
to
have
sufficient
certainty
to
make
production
decisions.
Under
a
combined
option
EPA
might
allocate
CUAs,
and
CSAs(
as
in
the
program
described
in
Section
VI
of
today's
notice)
side­
by­
side
with
a
CUP
system
described
in
this
Section
VII.
Under
a
combined
system,
the
tracking
requirements
on
usage
and
sector­
specific
limitations
on
CUAs
and/
or
CSAs
by
sector
could
be
eliminated
since
these
requirements,
in
part,
are
designed
to
ensure
that
the
U.
S.
does
not
exceed
the
recommended
amounts
for
each
sector.
EPA
seeks
comment
on
the
stand
alone
CUP
option
and
the
combined
options.

VIII.
What
Conforming
Amendments
Is
EPA
Proposing
With
Respect
to
Essential
Use
Allowances?
To
make
it
easier
for
the
public
to
read
and
EPA
to
update
the
allocation
of
critical
use
allowances
and
critical
stock
allowance
each
year,
EPA
proposes
to
create
a
new
regulation
at
40
C.
F.
R.
§
82.8.
This
section
number
is
currently
reserved.
EPA
proposes
to
place
the
list
of
­
33­
critical
use
allowance
and
critical
stock
allowance
allocations
in
this
section.
In
addition,
to
be
consistent
with
this
improved
formatting
for
the
critical
use
exemption
regulations,
EPA
also
proposes
to
include
the
essential
use
allowance
allocations
in
section
82.8.
Moving
these
allocations
to
section
82.8
requires
certain
conforming
amendments
to
sections
82.3
and
82.4(
n)
as
reflected
in
the
proposed
regulatory
text
below.
EPA
seeks
comment
on
whether
these
changes
make
both
the
critical
use
exemption
and
essential
use
exemption
regulations
more
clear.

IX.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
Under
Executive
Order
12866,
(
58
FR
51735,
October
4,
1993)
the
Agency
must
determine
whether
the
regulatory
action
is
"
significant"
and
therefore
subject
to
OMB
review
and
the
requirements
of
the
Executive
Order.
The
Order
defines
"
significant
regulatory
action"
as
one
that
is
likely
to
result
in
a
rule
that
may:
(
1)
have
an
annual
effect
on
the
economy
of
$
100
million
or
more
or
adversely
affect
in
a
material
way
the
economy,
a
sector
of
the
economy,
productivity,
competition,
jobs,
the
environment,
public
health
or
safety,
or
State,
local,
or
tribal
governments
or
communities;
(
2)
create
a
serious
inconsistency
or
otherwise
interfere
with
an
action
taken
or
planned
by
another
agency;
(
3)
materially
alter
the
budgetary
impact
of
entitlements,
grants,
user
fees,
or
loan
programs
or
the
rights
and
obligations
of
recipients
thereof;
or
(
4)
raise
novel
legal
or
policy
issues
arising
out
of
legal
mandates,
the
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
12866
and
EPA
has
submitted
it
to
OMB
for
review.
We
will
document
changes
made
in
response
to
OMB
suggestions
or
recommendations
in
the
public
record.
EPA
conducted
an
economic
impact
analysis
(
Economic
Impact
Analysis
for
Methyl
Bromide
Allocation
in
the
United
States,
hereafter
EIA)
that
attempts
to
assess
the
effect
of
allowing
critical
use
exemptions
on
the
regulated
entities.
The
analysis
is
conducted
relative
to
the
complete
phaseout
of
methyl
bromide
production
and
consumption
in
2005
(
consumption
is
defined
as
production
plus
imports
minus
exports).
Therefore,
any
change
in
the
existing
regulations
that
allows
for
continued
production
and
import
of
methyl
bromide
may
be
considered
de­
regulatory
in
nature,
and
will
likely
result
in
overall
cost
savings
to
the
regulated
entities.
Note
that
this
analysis
focuses
only
on
the
effects
to
the
regulated
entities.
EPA
looked
at
three
illustrative
alternatives
for
implementing
the
critical
use
exemption:
(
1)
an
upstream
cap
and
trade
allowance
system
which
would
give
critical
use
allowances
to
producers
and
importers
of
methyl
bromide;
(
2)
an
upstream
cap
and
trade
system
with
a
downstream
permit
trading
system
where
the
permits
are
distributed
to
end
users
and;
(
3)
an
upstream
cap
and
trade
system
with
a
downstream
permit
trading
system
where
the
permits
are
initially
obtained
through
an
auction.
Alternative
1
mirrors
the
Agency's
proposal;
Alternatives
2
and
3
mirror
the
CUP
option.
Given
the
illustrative
nature
of
these
alternatives,
many
assumptions
are
invoked.
One
of
­
34­
the
critical
assumptions
used
to
generate
the
analysis
is
the
assumed
phaseout
schedule.
The
analysis
assumes
that
in
2005,
the
CUE
exemptioin
would
equal
39
percent
of
the
1991
U.
S.
baseline
consumption.
By
2018,
the
analysis
assumes
that
methyl
bromide
production
and
consumption
would
be
phased
out
completely
EPA
also
assumes
that
under
a
universal
approach,
80
percent
of
the
total
available
amount
of
methyl
bromide
would
go
to
the
two
largest
groups
of
end
users,
tomatoes
and
strawberries.
Eighty
percent
was
used
to
reflect
the
total
amount
of
methyl
bromide
originally
requested
by
these
applicants
as
a
proportion
of
the
amount
requested
by
other
applicants.
See
EIA
for
more
discussion.
The
incremental
cost
savings
estimated
for
today's
proposed
rule
includes
two
general
components:
cost
savings
from
the
continued
use
of
methyl
bromide
as
compared
to
use
of
a
more
expensive
substitute
(
under
the
baseline),
and
the
economic
benefit
associated
with
the
increased
crop
yield
obtained
through
use
of
methyl
bromide
instead
of
a
less
effective
substitute
(
under
the
baseline).
The
analysis
also
estimates
the
administrative
costs
associated
with
each
option
(
e.
g.,
reporting
and
recordkeeping).
The
estimated
cost
savings
are
approximately
$
19
million
to
$
31
million
on
an
annual
basis
and
$
380
million
to
$
600
million
on
a
Net
Present
Value
basis
depending
on
the
particular
option
and
discount
rate
used
(
EIA,
p.
126).

Table
I:
Annualized
and
Net
Present
Value
of
Private
Sector
Compliance
Costs
for
Alternative
1*

Discount
Rate
Annualized
Costs
Net
Present
Value
Costs
Sector
Specific
Approach
Illustrative
Universal
Approach
Sector
Specific
Approach
Illustrative
Universal
Approach
3%
­$
19.5
million
­$
21.9
million
­$
616.6
million
­$
695.6
million
7%
­$
26.8
million
­$
31.3
million
­$
382.7
million
­$
446.8
million
*
Timeline:
2005
­
2018
There
are
two
factors
which
affect
these
estimates:
the
size
of
the
cap
(
i.
e.
the
amount
of
critical
use
methyl
bromide
exempted)
and
how
the
cap
is
constrained
(
i.
e.
if
there
is
one
"
universal"
amount
of
methyl
bromide
made
available
to
all
approved
critical
users
or
if
there
is
a
sub­
cap
for
each
sector/
commodity
group).
The
EIA
addresses
the
question
of
whether
or
not
a
framework
option
that
would
create
either
an
upstream
cap
and
trade
system
(
Alternative
1)
or
a
downstream
tradable
permit
system
(
Alternative
2)
is
more
economically
efficient
(
Alternative
3,
the
auction
approach
for
allocating
allowances,
was
not
quantitatively
analyzed
in
this
EIA).
The
EIA
concluded
that
in
fact
who
holds
the
allowances
has
relatively
little
impact
on
the
efficiency
of
compliance
costs
per
se
and
that
such
costs
are
impacted
more
by
the
size
of
the
cap
and
constraints
on
the
cap
as
identified
in
­
35­
the
preceding
paragraphs.
Under
both
options,
methyl
bromide
is
ultimately
purchased
by
the
user
of
methyl
bromide
with
the
highest
willingness
to
pay.
The
main
driver
of
efficiency
is
whether
or
not
methyl
bromide
goes
to
the
highest
value
use
within
a
commodity
sector
or
if
it
goes
to
the
use
with
the
highest
value
across
sectors.
According
to
Chapter
5
of
the
EIA,
however,
there
are
some
factors
that
could
affect
whether
or
not
the
options
produce
the
same
result
in
terms
of
consumption
of
methyl
bromide
by
end
users
and
in
control
costs,
namely
how
smoothly
the
market
functions
under
either
option.
For
more
information
on
the
qualitative
factors
that
would
impact
either
option
for
who
holds
the
allowances,
as
well
as
a
discussion
of
the
limitations
associated
with
the
analysis,
please
refer
to
the
EIA
available
in
docket
OAR­
2003­
0230.
While
option
two
is
better
than
option
one
in
compensating
end
users
who
give
up
their
de
facto
"
rights"
to
methyl
bromide,
the
drawback
to
option
two
is
the
additional
complexity
in
both
administering
the
system
and
in
complying
with
the
system.
The
EIA
estimates
that
the
administrative
burden
for
the
regulated
community
and
EPA
under
options
one
and
two
as
follows:
Table
2:
Administrative
Burden
of
Alternatives
1
and
2
EPA
Burden
Industry
Burden
Alternative
One
$
25
k
(
annual)
$
15
k
(
one
time)
$
2,200
k(
annual)
$
86
k
(
one
time)

Alternative
Two
$
2,100
k
(
annual)
$
53
k
(
one
time)
$
6,400
k
(
annual)
$
2,000
k
(
one
time)

Source:
EIA
pages
102
and
117
Because
the
general
methodological
framework
of
the
model
used
for
the
analysis
of
the
2000
Phaseout
Rule
was
retained
to
calculate
the
costs
for
today's
proposed
rule,
and
because
the
phaseout
model
relies
on
an
engineering
approach,
the
EIA
is
not
well
suited
to
predict
the
distribution
of
methyl
bromide
bromidei.
In
addition
to
this
limitation,
the
analysis
does
not
take
into
account
the
full
array
of
alternatives
to
methyl
bromide
that
are
under
development.
Also,
due
to
the
limited
nature
of
the
analysis,
the
EIA
does
not
explore
how
the
costs
savings
would
pass
through
the
economy,
and
who
(
consumers
and/
or
regulated
entities)
will
eventually
realize
the
cost
savings.
Further
details
regarding
the
de­
regulatory
benefits
of
the
proposed
critical
use
exemption
and
a
discussion
on
the
relative
merits
of
the
two
main
options
are
available
in
the
EIA
which
is
docketed
with
this
proposed
rulemaking.

B.
Paperwork
Reduction
Act
The
information
collection
requirements
in
this
rule
have
been
submitted
for
approval
to
the
Office
of
Management
and
Budget
(
OMB)
under
the
Paperwork
Reduction
Act,
44
U.
S.
C.
3501
et
seq.
The
information
collection
requirements
are
not
enforceable
until
OMB
approves
them.
EPA
submitted
an
ICR
to
OMB
concurrent
with
today's
proposed
rule.
In
the
ICR,
EPA
characterizes
the
paperwork
burden
that
industry
may
face
as
a
result
of
today's
proposed
action.
­
36­
The
Information
Collection
Request
(
ICR)
document
prepared
by
EPA
has
been
assigned
EPA
ICR
number
1432.23.
The
information
collection
under
this
rule
is
authorized
under
Sections
603(
b),
603(
d)
and
614(
b)
of
the
Clean
Air
Act
Amendments
(
CAAA).
The
mandatory
reporting
requirements
included
in
this
rule
are
intended
to:
1)
Satisfy
U.
S.
obligations
under
the
international
treaty,
The
Montreal
Protocol
on
Substances
that
Deplete
the
Ozone
Layer
(
Protocol),
to
report
data
under
Article
7;
2)
Fulfill
statutory
obligations
under
Section
603(
b)
of
Title
VI
of
the
Clean
Air
Act
Amendments
of
1990
(
CAAA)
for
reporting
and
monitoring;
3)
Provide
information
to
report
to
Congress
on
the
production,
use
and
consumption
of
class
I
controlled
substances
as
statutorily
required
in
Section
603(
d)
of
Title
VI
of
the
CAAA.
Information
will
be
collected
through
quarterly
reporting
by
producers
and
importers
and
annual
reporting
by
distributors
and
third
party
applicators
of
methyl
bromide.
In
addition,
distributors
and
third
party
applicators
would
be
required
to
provide
quarterly
updates
on
the
availability
of
critical
use
exempted
methyl
bromide.

Collection
Activity
No.
of
respondents
Total
no.
of
responses
Hours
per
response
Total
hours
Rule
Familiarization
54
54
4
216
Report
Inventory
Data
(
one
time)
54
54
2.5
135
Data
Compilation
(
quarterly
basis)
4
16
4
64
Data
Compilation
(
annual
basis)
50
50
8
400
Data
Reporting
(
quarterly
basis)
4
16
.5
8
Data
Reporting
(
annual
basis)
50
50
.5
25
Reporting
on
Allowance
Trading
Activities
4
16
.5
8
Self
Certification
Activities
by
Producers,
Importers,
and
Distributors
54
100
.25
25
Self
Certification
Activities
by
End
Users
2,000
2,500
.25
625
Total
Burden
Hours
18
1,505
Burden
means
the
total
time,
effort,
or
financial
resources
expended
by
persons
to
generate,
maintain,
retain,
or
disclose
or
provide
information
to
or
for
a
Federal
agency.
This
includes
the
time
needed
to
review
instructions;
develop,
acquire,
install,
and
utilize
technology
and
systems
for
the
purposes
of
collecting,
validating,
and
verifying
information;
process
and
maintain
information;
disclose
and
provide
information;
adjust
the
existing
ways
to
comply
with
­
37­
any
previously
applicable
instructions
and
requirements;
train
personnel
to
be
able
to
respond
to
a
collection
of
information;
search
data
sources;
complete
and
review
the
collection
of
information;
and
transmit
or
otherwise
disclose
the
information.
An
Agency
may
not
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to
a
collection
of
information
unless
it
displays
a
currently
valid
OMB
control
number.
The
OMB
control
numbers
for
EPA's
regulations
are
listed
in
40
CFR
Part
9
and
48
CFR
Chapter
15.
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
Electronic
Docket
ID
number
OAR­
2003­
0230.
Submit
any
comments
related
to
the
rule
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
D.
C.
20503
attn:
Desk
Officer
for
EPA.
Include
the
EPA
ICR
number
(
1432.23)
in
correspondence
related
to
this
ICR.
EPA
informs
respondents
that
they
may
assert
claims
of
business
confidentiality
for
any
of
the
information
they
submit.
Information
claimed
confidential
will
be
treated
in
accordance
with
the
procedures
for
handling
information
claimed
as
confidential
under
40
CFR
Part
2,
Subpart
B,
and
will
be
disclosed
only
to
the
extent,
and
by
means
of
the
procedures,
set
forth
in
that
subpart.
If
no
claim
of
confidentiality
is
asserted
when
the
information
is
received
by
EPA,
it
may
be
made
available
to
the
public
without
further
notice
to
the
respondents
(
40
CFR
2.203).

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
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.

Category
NAICS
code
SIC
code
NAICS
Small
business
size
standard
(
in
number
of
employees
or
millions
of
dollars)
­
38­
Agricultural
production
Storage
Uses
Distributors
and
Applicators
Producers
and
Importers
1112­
Vegetable
and
Melon
farming
1113­
Fruit
and
Nut
Tree
Farming
1114­
Greenhouse,
Nursery,
and
Floriculture
Production
115114­
Postharvest
Crop
activities
(
except
Cotton
Ginning)
311211­
Flour
Milling
311212­
Rice
Milling
493110­
General
Warehousing
and
Storage
493130­
Farm
Product
Warehousing
and
Storage
115112­
Soil
Preparation,
Planting
and
Cultivating
325320­
Pesticide
and
Other
Agricultural
Chemical
Manufacturing
0171­
Berry
Crops
0172­
Grapes
0173­
Tree
Nuts
0175­
Deciduous
Tree
Fruits
(
except
apple
orchards
and
farms)
0179­
Fruit
and
Tree
Nuts,
NEC
0181­
Ornamental
Floriculture
and
Nursery
Products
0831­
Forest
Nurseries
and
Gathering
of
Forest
Products
2041­
Flour
and
Other
Grain
Mill
Products
2044­
Rice
Milling
4221­
Farm
Product
Warehousing
and
Storage
4225­
General
Warehousing
and
Storage
0721­
Crop
Planting,
Cultivation,
and
Protection
2879­
Pesticides
and
Agricultural
Chemicals,
NEC
$
0.75
million
$
6
million
$
21.5
million
$
6
million
500
employees
Agricultural
producers
of
minor
crops
and
entities
that
store
agricultural
commodities
are
categories
of
affected
entities
that
contain
small
entities.
This
rule
only
affects
entities
that
applied
to
EPA
for
a
de­
regulatory
exemption.
In
most
cases,
EPA
received
aggregated
requests
for
exemptions
from
industry
consortia.
On
the
exemption
application,
EPA
asked
consortia
to
describe
the
number
and
size
distribution
of
entities
their
application
covered.
Based
on
the
data
provided,
EPA
estimates
that
there
are
3,218
entities
that
petitioned
EPA
for
an
exemption.
Since
many
applicants
did
not
provide
information
on
the
distribution
of
sizes
of
entities
covered
in
their
applications,
EPA
estimated
that
between
1/
4
to
1/
3
of
the
entities
may
be
small
businesses
based
on
the
definition
given
above.
In
addition,
other
categories
of
affected
entities
do
not
contain
small
businesses
based
on
the
above
description.
­
39­
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
will
make
methyl
bromide
available
for
approved
critical
uses
after
the
phaseout
date
of
January
1,
2005,
this
is
a
de­
regulatory
action
which
will
confer
a
benefit
to
users
of
methyl
bromide.
EPA
believes
the
estimated
de­
regulatory
value
for
users
of
methyl
bromide
is
between
$
20
million
to
$
30
million
annually.
We
have
therefore
concluded
that
today's
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),
P.
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
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
proposed
rule
seeks
to
obtain
comment
on
provisions
authorized
under
the
international
treaty,
The
Montreal
Protocol
on
Substances
that
Deplete
the
Ozone
Layer,
as
well
as
authorizations
set
forth
by
Congress
in
Section
604
(
d)(
6)
of
the
Clean
Air
Act
Amendments.
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
­
40­
elected
State,
local,
and
tribal
officials
under
Section
204.

E.
Executive
Order
13132:
Federalism
Executive
Order
13132,
entitled
"
Federalism"
(
64
FR
43255,
August
10,
1999),
requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
State
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
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
13132.
Today's
proposed
rule
is
expected
to
primarily
affect
producers,
suppliers,
importers
and
exporters
and
users
of
methyl
bromide.
Thus,
the
requirements
of
Section
6
of
the
Executive
Order
do
not
apply
to
this
proposed
rule.

F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments
Executive
Order
13175,
entitled
"
Consultation
and
Coordination
with
Indian
Tribal
Governments"
(
65
FR
67249,
November
9,
2000),
requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
tribal
officials
in
the
development
of
regulatory
policies
that
have
tribal
implications."
This
proposed
rule
does
not
have
tribal
implications,
as
specified
in
Executive
Order
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
13175
does
not
apply
to
this
proposed
rule.

G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
&
Safety
Risks
Executive
Order
13045:
"
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks"
(
62
FR
19885,
April
23,
1997)
applies
to
any
rule
that:
(
1)
is
determined
to
be
"
economically
significant"
as
defined
under
E.
O.
12866,
and
(
2)
concerns
an
environmental
health
or
safety
risk
that
EPA
has
reason
to
believe
may
have
a
disproportionate
effect
on
children.
If
the
regulatory
action
meets
both
criteria,
the
Agency
must
evaluate
the
environmental
health
or
safety
effects
of
the
planned
rule
on
children,
and
explain
why
the
planned
regulation
is
preferable
to
other
potentially
effective
and
reasonably
feasible
alternatives
considered
by
the
Agency.
EPA
interprets
E.
O.
13045
as
applying
only
to
those
regulatory
actions
that
are
based
on
health
or
safety
risks,
such
that
the
analysis
required
under
Section
5­
501
of
the
Order
has
the
potential
to
influence
the
regulation.
This
proposed
rule
is
not
subject
to
E.
O.
13045
because
it
does
not
establish
an
environmental
standard
intended
to
mitigate
health
or
safety
risks.
­
41­
H.
Executive
Order
13211:
Actions
that
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
This
rule
is
not
a
"
significant
energy
action"
as
defined
in
Executive
Order
13211,
"
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use"
(
66
FR
28355
(
May
22,
2001))
because
it
is
not
likely
to
have
a
significant
adverse
effect
on
the
supply,
distribution,
or
use
of
energy.
This
rule
does
not
pertain
to
any
segment
of
the
energy
production
economy
nor
does
it
regulate
any
manner
of
energy
use.
Therefore,
we
have
concluded
that
this
rule
is
not
likely
to
have
any
adverse
energy
effects.

I.
The
National
Technology
Transfer
and
Advancement
Act
Section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
("
NTTAA"),
Pub
L.
No.
104­
113,
§
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.

____________________
Date
______________________________________________
Michael
O.
Leavitt,
Administrator
PART
82­
PROTECTION
OF
STRATOSPHERIC
OZONE
1.
The
authority
citation
for
subpart
82
continues
to
read
as
follows:

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

Subpart
A­
Production
and
Consumption
Controls
2.
Section
82.3
is
amended
by
adding
new
definitions
in
alphabetical
order
for
the
terms,
"
Approved
critical
use,"
"
Approved
critical
user,"
"
Consortium,"
"
Contingent
critical
use,"
"
Critical
need,"
"
Critical
stock
allowance,"
"
Critical
stock
allowance
holder,"
"
Critical
use
allowance,"
"
Critical
use
allowance
holder,"
"
Critical
use
methyl
bromide,"
"
End
user,"
"
Limiting
critical
condition,"
"
Sector
cap,"
"
Self
applicators,"
"
Third
party
applicator,"
"
Unexpended
critical
stock
allowance,"
and
"
Unexpended
critical
use
allowance."

§
82.3
Definitions.
Approved
critical
use(
s)
means
those
uses
of
methyl
bromide
listed
in
Section
82.4(
p)
that
have
a
limiting
critical
condition.
*
*
*
*
*
­
42­
Approved
critical
user(
s)
means
a
person
who:
(
1)
for
the
applicable
control
period,
applied
to
EPA
for
a
critical
use
exemption
or
is
a
member
of
a
consortium
that
applied
for
a
critical
use
exemption
for
a
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
a
critical
use,
and
(
2)
has
an
area
that
requires
methyl
bromide
fumigation
because
the
area
is
subject
to
a
limiting
critical
condition.
*
*
*
*
*
Confer
means
to
shift
the
essential­
use
allowances
obtained
under
Sec.
82.8
from
the
holder
of
the
unexpended
essential­
use
allowances
to
a
person
for
the
production
of
a
specified
controlled
substance,
or
to
shift
the
HCFC­
141b
exemption
allowances
granted
under
Sec.
82.16(
h)
from
the
holder
of
the
unexpended
HCFC­
141b
exemption
allowances
to
a
person
for
the
production
or
import
of
the
controlled
substance.
*
*
*
*
*
Consortium
means
an
organization
representing
a
group
of
methyl
bromide
users
that
has
collectively
submitted
an
application
for
a
critical
use
exemption
on
behalf
of
all
members
of
the
group.
The
members
of
a
consortium
shall
be
determined
on
the
basis
of
the
rules
established
by
the
organization.
Members
may
either
be
required
to
formally
join
the
consortium
(
i.
e.,
by
submitting
an
application
or
paying
dues)
or
may
automatically
become
members
upon
meeting
particular
criteria
(
i.
e.
a
grower
of
a
specific
crop
in
a
particular
region).
*
*
*
*
*
Critical
need
exists
when
the
following
two
conditions
are
satisfied:
(
1)
there
are
no
technically
and
economically
feasible
alternatives
or
substitutes
for
methyl
bromide
available
to
end
users
that
are
acceptable
from
the
standpoint
of
environment
and
health
and
are
suitable
to
the
crops
and
circumstances
involved,
and
(
2)
the
lack
of
availability
of
methyl
bromide
for
a
particular
use
would
result
in
significant
market
disruption
in
the
United
States.
*
*
*
*
*
Critical
stock
allowance
(
CSA)
means
the
privilege
granted
by
this
subpart
to
sell
one
(
1)
kilogram
of
methyl
bromide
to
an
approved
critical
user
during
the
specified
control
period
to
the
extent
permitted
by
federal
and
state
pesticide
statutes
and
regulations
other
than
the
Clean
Air
Act
Amendments
and
regulations
in
40
CFR
Part
82.
A
person's
critical
stock
allowances
are
the
total
of
the
allowances
obtained
under
§
82.8(
c)
as
may
be
modified
under
§
82.12
(
transfer
of
allowances).
*
*
*
*
*
Critical
stock
allowance
(
CSA)
holder
means
an
entity
to
which
EPA
allocates
a
quantity
of
critical
stock
allowances
as
reflected
under
§
82.8(
c).
*
*
*
*
*
Critical
use
allowance
(
CUA)
means
the
privilege
granted
by
this
subpart
to
produce
or
import
one
(
1)
kilogram
of
methyl
bromide
for
an
approved
critical
user
during
the
specified
control
period.
A
person's
critical
use
allowances
are
the
total
of
the
allowances
obtained
under
§
82.8(
c)
as
may
be
modified
under
§
82.12
(
transfer
of
allowances).
*
*
*
*
*
Critical
use
allowance
(
CUA)
holder
means
an
entity
to
which
EPA
allocates
a
quantity
of
critical
use
allowances
as
reflected
in
§
82.8(
c).
*
*
*
*
*
Critical
use
methyl
bromide
means
the
class
I,
Group
VI
controlled
substance
produced
and
imported
through
expending
a
critical
use.
*
*
*
*
*
­
43­
End
user
means
a
person
that
treats
or
fumigates
commodities,
crops,
structures
or
land
in
his
possession
with
methyl
bromide
or
contracts
with
a
third
party
applicator
for
such
treatment
or
fumigation.
*
*
*
*
*
Limiting
critical
condition
means
the
regulatory,
technical,
and
economic
circumstances
listed
in
Appendix
L
to
this
subpart
that
establish
a
critical
need
for
methyl
bromide
in
a
fumigation
area.
Such
conditions
may
include,
but
are
not
limited,
to
(
1)
the
absence
of
any
alternative
to
methyl
bromide
for
a
specific
use;
(
2)
regulatory
restrictions
that
prohibit
the
use
of
available
alternatives
in
a
specific
fumigation
area;
(
3)
or
terrain,
soil,
or
climatological
conditions
that
render
use
of
available
alternatives
technically
or
economically
infeasible
in
a
specific
fumigation
area.
*
*
*
*
*
Sell
to
approved
critical
uses
means
to
sell
quantities
of
methyl
bromide
to
an
end
user
or
to
contract
with
an
end
user
to
provide
treatment
or
fumigation
services
on
commodities,
structures,
crops,
or
land
in
the
possession
of
the
end
user.
*
*
*
*
*
Third
party
applicator
means
an
applicator
of
critical
use
methyl
bromide
who
fumigates
or
treats
commodities,
structures,
crops,
or
land
in
the
possession
of
an
end
user.
*
*
*
*
*
Unexpended
critical
stock
allowances
(
CSA)
means
critical
stock
allowances
against
which
methyl
bromide
has
not
yet
been
sold
or
distributed
to
approved
critical
uses.
At
any
time
in
any
control
period
a
person's
unexpended
critical
stock
allowances
are
the
total
of
the
level
of
critical
stock
allowances
the
person
has
authorization
under
this
subpart
to
hold
at
that
time
for
that
control
period,
minus
the
level
of
class
I,
Group
VI
controlled
substances
that
the
person
has
sold
or
distributed
to
approved
critical
users
in
that
control
period
until
that
time.
*
*
*
*
*
Unexpended
critical
use
allowances
(
CUA)
means
critical
use
allowances
against
which
methyl
bromide
has
not
yet
been
produced
or
imported.
At
any
time
in
any
control
period
a
person's
unexpended
critical
use
allowances
are
the
total
of
the
level
of
critical
use
allowances
the
person
has
authorization
under
this
subpart
to
hold
at
that
time
for
that
control
period,
minus
the
level
of
class
I,
Group
VI
controlled
substances
that
the
person
has
produced
or
has
imported
solely
for
approved
critical
uses
in
that
control
period
until
that
time.
*
*
*
*
*

3.
Section
82.4
is
amended
by
revising
paragraph
(
b)
and
republishing
the
text,
revising
paragraph
(
d)
and
republishing
the
text,
by
revising
paragraph
(
n),
and
by
adding
paragraph
(
p)
as
follows:
§
82.4
Prohibitions.
*
*
*
*
*
(
b)(
1)
Effective
January
1,
1996,
for
any
class
I,
Group
I,
Group
II,
Group
III,
Group
IV,
Group
V,
or
Group
VII
controlled
substances,
and
effective
January
1,
2005,
for
any
class
I,
Group
VI
controlled
substance,
and
effective
August
18,
2003,
for
any
class
I,
Group
VIII
controlled
substance,
no
person
may
produce,
at
any
time
in
any
control
period,
(
except
that
are
transformed
or
destroyed
domestically
or
by
a
person
of
another
Party)
in
excess
of
the
amount
of
conferred
unexpended
essential
use
allowances
or
exemptions
under
this
subpart,
or
the
amount
of
unexpended
critical
use
allowances
allocated
under
this
subpart,
or
the
amount
of
unexpended
Article
5
allowances
as
allocated
under
§
§
82.9,
for
that
substance
held
by
that
person
under
the
authority
of
this
subpart
at
that
time
for
that
control
period.
Every
kilogram
of
excess
production
­
44­
constitutes
a
separate
violation
of
this
subpart.
(
2)
Production
and
import
of
class
I,
Group
VI
controlled
substances
is
not
subject
to
the
prohibitions
in
paragraph
(
c)(
1)
of
this
section
if
it
is
solely
for
quarantine
and
preshipment
applications
as
defined
in
this
subpart.
*
*
*
*
*
(
d)(
1)
Effective
January
1,
1996,
for
any
class
I,
Group
I,
Group
II,
Group
III,
Group
IV,
Group
V,
or
Group
VII
controlled
substances,
and
effective
January
1,
2005,
for
any
class
I,
Group
VI
controlled
substance,
and
effective
August
18,
2003,
for
any
class
I,
Group
VIII
controlled
substance,
no
person
may
import
(
except
for
transhipments
or
heels),
at
any
time
in
any
control
period,
(
except
for
controlled
substances
that
are
transformed
or
destroyed)
in
excess
of
the
amount
of
unexpended
essential
use
allowances
or
exemptions,
or
unexpended
critical
use
allowances,
as
allocated
in
this
subpart
for
that
substance
held
by
that
person
under
the
authority
of
this
subpart
at
that
time
for
that
control
period.
Every
kilogram
of
excess
importation
(
other
than
transhipments
or
heels)
constitutes
a
separate
violation
of
this
subpart.
It
is
a
violation
of
this
subpart
to
obtain
unused
class
I
controlled
substances
under
the
general
laboratory
exemption
in
excess
of
actual
need
and
to
recycle
that
material
for
sale
into
other
markets.
(
2)
Production
and
import
of
class
I,
Group
VI
controlled
substances
is
not
subject
to
the
prohibitions
in
paragraph
(
c)(
1)
of
this
section
if
it
is
solely
for
quarantine
and
preshipment
applications
as
defined
in
this
subpart.
*
*
*
*
*
(
n)
No
person
may
use
class
I
controlled
substances
produced
or
imported
under
the
essential
use
exemption
for
any
purpose
other
than
those
set
forth
in
this
paragraph.
Effective
January
1,
1996,
essential­
use
allowances
are
apportioned
to
a
person
under
Section
82.8(
a)
and
(
b)
for
the
exempted
production
or
importation
of
specified
class
I
controlled
substances
solely
for
the
purposes
listed
in
paragraphs
(
n)(
1)(
i)
through
(
iii)
of
this
section.
(
1)
Essential­
uses
for
the
production
or
importation
of
controlled
substances
as
agreed
to
by
the
Parties
to
the
Protocol
and
subject
to
the
periodic
revision
of
the
Parties
are:
(
i)
Metered
dose
inhalers
(
MDIs)
for
the
treatment
of
asthma
and
chronic
obstructive
pulmonary
disease
that
were
approved
by
the
Food
and
Drug
Administration
before
December
31,
2000.
(
ii)
Space
Shuttle
­
solvents.
(
iii)
Essential
laboratory
and
analytical
uses
(
defined
at
Appendix
G
of
this
subpart).
(
2)
Any
person
acquiring
unused
class
I
controlled
substances
produced
or
imported
under
the
authority
of
essential­
use
allowances
or
the
essential­
use
exemption
granted
in
Section
82.8
to
this
subpart
for
use
in
anything
other
than
an
essential­
use
(
i.
e.,
for
uses
other
than
those
specifically
listed
in
paragraph
(
n)(
1)
of
this
section)
is
in
violation
of
this
subpart.
Each
kilogram
of
unused
class
I
controlled
substance
produced
or
imported
under
the
authority
of
essential­
use
allowances
or
the
essential­
use
exemption
and
used
for
a
non­
essential
uses
is
a
separate
violation
of
this
subpart.
Any
person
selling
unused
class
I
controlled
substances
produced
or
imported
under
authority
of
essential­
use
allowances
or
the
essential­
use
exemption
for
uses
other
than
an
essential­
use
is
in
violation
of
this
subpart.
Each
kilogram
of
unused
class
I
controlled
substances
produced
or
imported
under
authority
of
essential­
use
allowances
or
the
essential­
use
exemption
and
sold
for
a
use
other
than
an
essential­
use
is
a
separate
violation
of
this
subpart.
It
is
a
violation
of
this
subpart
to
obtain
unused
class
I
controlled
substances
under
the
exemption
for
laboratory
and
analytical
uses
in
excess
of
actual
need
and
to
recycle
that
material
for
sale
into
other
markets.
*
*
*
*
*
­
45­
(
p)
For
critical
use
methyl
bromide,
for
the
relevant
control
period:
(
1)
No
person
shall
sell
critical
use
methyl
bromide
to
an
end
user
who
is
not
an
approved
critical
user.
Every
kilogram
of
critical
use
methyl
bromide
sold
to
an
end
user
that
is
not
an
approved
critical
use
constitutes
a
separate
violation
of
this
subpart.
(
2)
No
person
shall
sell
methyl
bromide
produced
or
consumed
before
the
phaseout
date
of
January
1,
2005,
to
an
approved
critical
user
for
a
critical
use
listed
in
Column
A
of
appendix
L
unless
the
person
holds
a
critical
stock
allowance
(
CSA).
Every
kilogram
of
methyl
bromide
sold
to
an
approved
critical
user
for
critical
use
in
excess
of
the
number
of
critical
stock
allowances
held
by
the
seller
constitutes
a
separate
violation
of
this
subpart.
(
3)
No
person
shall
sell
methyl
bromide
produced
or
consumed
before
the
phaseout
date
of
January
1,
2005,
for
a
critical
use
listed
in
Column
A
to
an
end
user
listed
in
column
B
of
Appendix
L
who
is
not
an
approved
critical
user
because
the
end
user
does
not
have
an
area
subject
to
the
limiting
critical
condition
in
Column
C
of
Appendix
L.
(
4)
No
person
who
acquires
critical
use
methyl
bromide
may
use
such
quantities
for
a
use
other
than
the
specified
critical
use
listed
in
Column
A
of
Appendix
L
to
this
subpart.
No
person
who
acquires
critical
use
methyl
bromide
produced
under
an
allowance
for
a
specific
use
sector
listed
in
Appendix
L
to
this
subpart,
if
applicable,
may
use
such
quantities
in
a
different
use
sector.
No
person
who
acquires
critical
use
methyl
bromide
may
use
such
material
unless
he
meets
a
limiting
critical
condition
listed
in
Appendix
L
to
this
subpart.
No
approved
critical
user
shall
take
possession
of
quantities
of
critical
use
methyl
bromide
or
acquire
fumigation
services
using
quantities
of
critical
use
methyl
bromide
without
first
certifying
that
they
are
approved
critical
users
in
accordance
with
the
requirements
in
Section
82.13.
Every
200
kilograms
of
methyl
bromide
certified
by
an
end
user
to
be
for
an
approved
critical
use
that
is
used
for
a
use
other
than
the
specified
critical
use
listed
in
Column
A
of
Appendix
L
to
this
subpart
constitutes
a
separate
violation
of
this
subpart
.
(
5)
No
person
shall
sell
critical
use
methyl
bromide
to
an
approved
critical
user
without
first
obtaining
a
signed
certification
form
from
the
approved
critical
user.
Every
kilogram
of
critical
use
methyl
bromide
sold
to
an
approved
critical
user
without
first
obtaining
certification
constitutes
a
separate
violation
of
this
subpart.

4.
Revise
the
title
of
82.8
to
read
as
follows,
and,
since
this
section
was
reserved,
add
text
to
read
as
follows:

§
82.8
Grant
of
essential
use
allowances
and
critical
use
allowances.
(
a)
Effective
January
1,
1996,
persons
in
the
following
list
are
allocated
essential­
use
allowances
or
exemptions
for
quantities
of
a
specific
class
I
controlled
substance
for
a
specific
essential­
use
(
the
Administrator
reserves
the
right
to
revise
the
allocations
based
on
future
decisions
of
the
Parties).

TABLE
I
­
Essential
Use
Allowances
for
Calendar
Year
2004
Company
Chemical
Quantity
(
metric
tons)

(
i)
Metered
Dose
Inhalers
(
for
oral
inhalation)
for
Treatment
of
Asthma
and
Chronic
Obstructive
Pulmonary
Disease
­
46­
Armstrong
Pharmaceuticals
CFC­
11
or
CFC­
12
or
CFC­
114
390.60
Aventis
Pharmaceutical
Products
CFC­
11
or
CFC­
12
or
CFC­
114
48.40
Boehringer
Ingelheim
Pharmaceuticals
CFC­
11
or
CFC­
12
or
CFC­
114
500.20
PLIVA
Inc.
CFC­
11
or
CFC­
12
or
CFC­
114
136.00
Schering­
Plough
Corporation
CFC­
11
or
CFC­
12
orCFC­
114
918.00
3M
Pharmaceuticals
CFC­
11
or
CFC­
12
orCFC­
114
84.71
(
ii)
Cleaning,
Bonding
and
Surface
Activation
Applications
for
the
Space
Shuttle
Rockets
and
Titan
Rockets
National
Aeronautics
and
Space
Administration
(
NASA)/
Thiokol
Rocket
Methyl
Chloroform
141.877
(
b)
A
global
exemption
for
class
I
controlled
substances
for
essential
laboratory
and
analytical
uses
shall
be
in
effect
through
December
31,
2005
subject
to
the
restrictions
in
Appendix
G
of
this
subpart,
and
subject
to
the
record­
keeping
and
reporting
requirements
at
§
82.13(
u)
through
(
x).
There
is
no
amount
specified
for
this
exemption.
(
c)
Effective
January
1,
2005,
critical
use
allowances
are
apportioned
as
set
forth
in
paragraph
(
c)(
1)
of
this
Section
for
the
exempted
production
and
import
of
class
I,
Group
VI
controlled
substances
specifically
for
those
approved
critical
uses
listed
in
Appendix
L
to
this
subpart
for
the
applicable
control
period.
Every
kilogram
of
production
and
import
in
excess
of
the
total
number
and
type
of
unexpended
critical
use
allowances
held
for
a
particular
type
of
use
constitutes
a
separate
violation
of
this
subpart.
Effective
January
1,
2005,
critical
stock
allowances
of
a
specific
number
are
apportioned
as
set
forth
in
paragraph
(
c)(
2)
of
this
Section,
for
those
uses
listed
in
Appendix
L
to
this
subpart
for
the
applicable
control
period,
for
the
sale
to
approved
critical
users
of
class
I,
Group
VI
controlled
substances
held
in
inventory
that
were
produced
or
consumed
before
the
January
1,
2005
phaseout
date.
Every
kilogram
of
sale
to
approved
critical
users
in
excess
of
the
total
number
of
unexpended
critical
stock
allowances
held
constitutes
a
separate
violation
of
this
subpart.
(
1)
Allocated
critical
use
allowances
for
annual
control
period.
[
Reserved]
(
2)
Allocated
critical
stock
allowances
for
annual
control
period.
[
Reserved]

5.
Section
82.12
is
amended
by:
revising
paragraph
(
a)
and
republishing
the
text,
revising
paragraph
(
a)(
i)(
H)
and
republishing
the
text,
revising
paragraph
(
a)(
i)(
I)(
ii)
and
republishing
the
text
and,
revising
paragraph
(
a)(
i)(
I)(
iii)
and
republishing
the
text
as
follows.

§
82.12
Transfers
of
allowances
for
class
I
controlled
substances.
(
a)
Inter­
company
transfers.
(
1)
Until
January
1,
1996,
for
all
class
I
controlled
substances,
except
for
Group
VI,
and
­
47­
until
January
1,
2005,
for
Group
VI,
any
person
(  
transferor'')
may
transfer
to
any
other
person
(  
transferee'')
any
amount
of
the
transferor's
consumption
allowances
or
production
allowances,
and
effective
January
1,
1995,
for
all
class
I
controlled
substances
any
person
(  
transferor'')
may
transfer
to
any
other
person
(  
transferee'')
any
amount
of
the
transferor's
Article
5
allowances.
After
January
1,
2002,
any
essential­
use
allowance
holder
(
including
those
persons
that
hold
essential­
use
allowances
issued
by
a
Party
other
than
the
United
States)
(  
transferor'')
may
transfer
essential­
use
allowances
for
CFCs
to
a
metered
dose
inhaler
company
solely
for
the
manufacture
of
essential
MDIs.
After
January
1,
2005,
any
critical
use
allowance
holder
("
transferor")
may
transfer
critical
use
allowances
to
any
other
person
("
transferee").
After
January
1,
2005,
any
critical
stock
allowance
holder
("
transferor")
may
transfer
critical
stock
allowances
to
any
critical
stock
allowance
holder
("
transferee").
(
i)
*
*
*
(
H)
The
one
percent
offset
applied
to
the
unweighted
amount
traded
will
be
deducted
from
the
transferor's
production
or
consumption
allowance
balance
(
except
for
trades
from
transformers
and
destroyers
to
producers
or
importers
for
the
purpose
of
allowance
reimbursement).
In
the
case
of
transferring
essential
use
allowances,
the
amount
of
one
tenth
of
one
percent
of
the
amount
traded
will
be
deducted
from
the
transferor's
allowance
balance.
In
the
case
of
transferring
critical
use
allowances,
the
amount
of
one
tenth
of
one
percent
of
the
amount
traded
will
be
deducted
from
the
transferor's
critical
use
allowance
balance.
(
I)
*
*
*
(
ii)
The
Administrator
will
determine
whether
the
records
maintained
by
EPA,
taking
into
account
any
previous
transfers
and
any
production,
allowable
imports
and
exports
of
controlled
substances
reported
by
the
transferor,
indicate
that
the
transferor
possesses,
as
of
the
date
the
transfer
claim
is
processed,
unexpended
allowances
sufficient
to
cover
the
transfer
claim
(
i.
e.,
the
amount
to
be
transferred
plus,
in
the
case
of
transferors
of
essential
use
allowances
and
critical
use
allowances,
one
tenth
of
one
percent
of
the
transferred
amount).
Within
three
working
days
of
receiving
a
complete
transfer
claim,
the
Administrator
will
take
action
to
notify
the
transferor
and
transferee
as
follows:
(
A)
*
*
*
(
B)
*
*
*
(
iii)
In
the
event
that
the
Administrator
does
not
respond
to
a
transfer
claim
within
the
three
working
days
specified
in
paragraph
(
a)(
1)(
ii)
of
this
Section,
the
transferor
and
transferee
may
proceed
with
the
transfer.
EPA
will
reduce
the
transferor's
balance
of
unexpended
allowances
by
the
amount
to
be
transferred
plus,
in
the
case
of
transfers
of
production,
consumption
or
critical
use
allowances,
one
percent
of
that
amount,
and
in
the
case
of
essential
use
allowances
and
critical
use
allowances,
one
tenth
of
one
percent
of
that
amount.
However
if
EPA
ultimately
finds
that
the
transferor
did
not
have
sufficient
unexpended
allowances
to
cover
the
claim,
the
transferor
and
transferee
will
be
held
liable
for
any
violations
of
the
regulations
of
this
subpart
that
occur
as
a
result
of,
or
in
conjunction
with,
the
improper
transfer.
(
e)
Exchange
of
Critical
Use
Allowances
for
Critical
Stock
Allowances.
(
1)
Critical
use
allowance
holders
may
petition
the
Administrator
to
exchange
a
quantity
of
their
unexpended
critical
use
allowances
for
an
equivalent
amount
of
critical
stock
allowances
provided
they
hold
this
equivalent
amount
of
class
I,
Group
VI
controlled
substance
that
was
produced
or
imported
in
the
prior
control
period
either
with
production
allowances
and
consumption
allowances
or
critical
use
allowances.
A
person
allocated
critical
stock
allowances
may
not
petition
to
exchange
unexpended
critical
stock
allowances
for
critical
use
allowances.
(
2)
[
Reserved]
­
48­
6.
Section
82.13
is
amended
by:
revising
paragraph
(
a),
adding
paragraphs
(
f)(
2)(
xx)
through
(
f)(
2)(
xxi),
revising
paragraph
(
f)(
3)(
iv),
adding
paragraphs
(
f)(
3)(
xvi)
through
(
f)(
3)(
xix),
adding
paragraph
(
g)(
1)(
xx)
through
(
g)(
1)(
xxi),
revising
paragraph
(
g)(
4)(
vii),
adding
paragraphs
(
g)(
4)(
xviii)
through
(
g)(
4)(
xxi),
and
adding
paragraphs
(
ab)
through
(
ad).

§
82.13
Recordkeeping
and
reporting
requirements.
(
a)
Unless
otherwise
specified,
the
recordkeeping
and
reporting
requirements
set
forth
in
this
Section
take
effect
on
January
1,
1995.
For
class
I,
Group
VIII
controlled
substances,
the
recordkeeping
and
reporting
requirements
set
forth
in
this
Section
take
effect
on
August
18,
2003.
For
class
I,
Group
VI
critical
use
methyl
bromide,
the
recordkeeping
and
reporting
requirements
set
forth
in
this
Section
take
effect
January
1,
2005.
(
f)
*
*
*
(
2)
*
*
*
(
xx)
For
class
I,
Group
VI
controlled
substances,
dated
records
such
as
invoices
and
order
forms,
and
a
log
of
the
quantity
of
controlled
substances
produced
for
critical
use,
by
specified
critical
use
if
applicable
as
per
Appendix
L
of
this
subpart,
and
the
quantity
sold
for
critical
use,
by
specified
critical
use
if
applicable
as
per
Appendix
L
of
this
subpart,
and;
(
xxi)
Written
certifications
that
quantities
of
class
I,
Group
VI
controlled
substances
produced
for
critical
use
were
purchased
by
distributors,
applicators,
or
end
users
to
be
used
or
sold
only
for
critical
use
in
accordance
with
the
definitions
and
prohibitions
in
this
subpart.
Certifications
must
be
maintained
by
a
producer
for
a
minimum
of
three
years.
(
3)
*
*
*
(
iv)
The
producer's
total
of
expended
and
unexpended
production
allowances,
consumption
allowances,
Article
5
allowances,
critical
use
allowances
by
specified
critical
use
if
applicable,
critical
stock
allowances,
and
amount
of
essential­
use
allowances
and
destruction
and
transformation
credits
conferred
at
the
end
of
that
quarter;
(
v)
*
*
*
(
vi)
*
*
*
(
vii)
*
*
*
(
viii)
*
*
*
(
ix)
*
*
*
(
x)
*
*
*
(
xi)
*
*
*
(
xii)
*
*
*
(
xiii)
*
*
*
(
xiv)
*
*
*
(
xv)
*
*
*
(
xvi)
For
critical
uses
of
class
I,
Group
VI
controlled
substances,
an
annual
list
of
the
total
amount
of
critical
use
methyl
bromide
by
specified
critical
use,
if
applicable
as
per
Appendix
L
of
this
subpart,
that
was
produced,
bought,
and
sold
as
well
as
the
amounts
of
critical
use
methyl
bromide
held
in
inventory
by
the
reporting
entity
or
held
in
inventory
by
the
reporting
entity
on
behalf
of
another
entity.
(
g)
*
*
*
(
1)
*
*
*
(
xx)
For
class
I,
Group
VI
controlled
substances,
dated
records
such
as
invoices
and
order
forms,
of
the
quantity
of
controlled
substances
imported
for
critical
use,
by
specified
critical
use
if
applicable
per
Appendix
L
of
this
subpart,
and
the
quantity
sold
for
critical
use,
by
specified
­
49­
critical
use
if
applicable
as
per
Appendix
L
of
this
subpart,
and;
(
xxi)
Written
certifications
that
quantities
of
class
I,
Group
VI
controlled
substances
imported
for
critical
use
were
purchased
by
distributors,
applicators,
or
end
users
to
be
used
or
sold
only
for
critical
use
in
accordance
with
the
definitions
and
prohibitions
in
this
subpart.
Certifications
must
be
maintained
by
an
importer
for
a
minimum
of
three
years.
(
4)
*
*
*
(
vii)
The
importer's
total
sum
of
expended
and
unexpended
consumption
allowances
by
chemical
as
of
the
end
of
that
quarter
and
the
total
sum
of
expended
and
unexpended
critical
use
allowances
by
specified
critical
use,
if
applicable,
as
per
Appendix
L
of
this
subpart;
(
viii)
*
*
*
(
ix)
*
*
*
(
x)
*
*
*
(
xi)
*
*
*
(
xii)
*
*
*
(
xiii)
*
*
*
(
xiv)
*
*
*
(
xv)
*
*
*
(
xvi)
*
*
*
(
xvii)
*
*
*
(
xviii)
For
critical
uses
of
class
I,
Group
VI
controlled
substances,
an
annual
list
of
the
total
amount
of
critical
use
methyl
bromide
by
specified
critical
use
if
applicable,
as
per
Appendix
L
of
this
subpart,
that
was
imported,
bought,
and
sold
as
well
as
the
amounts
of
critical
use
methyl
bromide
held
in
inventory
by
the
reporting
entity
or
held
in
inventory
by
the
reporting
entity
on
behalf
of
another
entity.
*
*
*
*
*
(
ab)
Every
distributor
of
methyl
bromide
(
class
I,
Group
VI
controlled
substances)
who
purchases
or
receives
a
quantity
of
critical
use
methyl
bromide
must
comply
with
recordkeeping
and
reporting
requirements
specified
in
this
paragraph.
(
1)
Recordkeeping
 
Every
distributor
of
critical
use
methyl
bromide
must
certify
to
the
producer
or
importer
or
other
entity
from
which
they
are
acquiring
quantities
of
critical
use
methyl
bromide
that
such
quantities
received
will
be
sold
or
used
only
for
approved
critical
use(
s)
in
accordance
with
the
definitions
and
prohibitions
in
this
subpart.
(
i)
Every
distributor
of
a
quantity
of
critical
use
methyl
bromide
must
receive
from
an
applicator,
or
any
other
entity
to
whom
they
sell
critical
use
methyl
bromide,
a
certification
of
the
quantity
of
critical
use
methyl
bromide
ordered,
prior
to
delivery
of
the
quantity,
stating
that
the
quantity
will
be
sold
or
used
only
for
approved
critical
uses
in
accordance
with
definitions
and
prohibitions
in
this
subpart.
(
ii)
Every
distributor
of
methyl
bromide
who
receives
a
certification
from
an
applicator
or
any
other
entity
to
which
they
sell
critical
use
methyl
bromide
must
maintain
the
certifications
as
records
for
3
years.
(
iii)
Every
distributor
of
a
quantity
of
critical
use
methyl
bromide
must
maintain
invoice
and
order
records
related
to
the
sale
of
such
material
for
3
years.
(
2)
Reporting
 
Every
distributor
of
critical
use
methyl
bromide
must
report
to
the
Administrator
annually,
the
following
items:
(
i)
For
critical
uses
of
class
I,
Group
VI
controlled
substances,
an
annual
list
of
the
amount
of
critical
use
methyl
bromide
bought,
organized
by
specified
critical
use
if
applicable
as
per
Appendix
L
of
this
subpart,
and;
­
50­
(
ii)
For
critical
uses
of
class
I,
Group
VI
controlled
substances,
an
annual
list
of
the
amount
of
critical
use
methyl
bromide
sold
organized
by
specified
critical
use
and;
(
iii)
For
critical
uses
of
class
I,
Group
VI
controlled
substances,
an
annual
list
of
the
amount
of
critical
use
methyl
bromide
held
by
the
reporting
entity
or
held
by
the
reporting
entity
on
behalf
of
another
entity,
organized
by
specified
critical
use
if
applicable
as
per
Appendix
L
of
this
subpart.
(
ac)
Every
third
party
applicator
of
methyl
bromide
(
class
I,
Group
VI
controlled
substances)
that
purchases
or
receives
critical
use
methyl
bromide
must
comply
with
recordkeeping
and
reporting
requirements
specified
in
this
paragraph.
(
1)
Recordkeeping
 
Every
third
party
applicator
of
methyl
bromide
must
certify
to
the
producer
or
importer
or
other
entity
from
whom
they
are
acquiring
quantities
of
critical
use
methyl
bromide
that
such
quantities
received
will
be
sold
or
used
only
for
approved
critical
use
in
accordance
with
the
definitions
and
prohibitions
in
this
subpart.
(
i)
Every
third
party
applicator
of
a
quantity
of
critical
use
methyl
bromide
must
receive
from
an
end
user
or
any
other
entity,
to
whom
they
sell
critical
use
methyl
bromide,
or
for
whom
they
fumigate
an
area,
a
certification
that
the
quantity
of
class
I,
Group
VI
controlled
substances
ordered,
prior
to
delivery
of
the
quantity
or
prior
to
providing
fumigation
services,
will
only
be
sold
or
used
for
critical
uses
in
accordance
with
definitions
and
prohibitions
in
this
subpart.
(
ii)
Every
third
party
applicator
of
methyl
bromide
who
receives
a
certification
from
an
entity
to
which
they
sell
critical
use
methyl
bromide
must
maintain
the
certifications
as
records
for
3
years.
(
iii)
Every
third
party
applicator
of
a
quantity
of
critical
use
methyl
bromide
must
maintain
invoice
and
order
records
related
to
the
sale
of
such
material
for
three
years.
(
2)
Reporting
 
Every
third
party
applicator
of
critical
use
methyl
bromide
must
report
to
the
Administrator
annually,
the
following
items:
(
i)
For
critical
uses
of
class
I,
Group
VI
controlled
substances,
an
annual
list
of
the
amount
of
critical
use
methyl
bromide
bought,
and
from
whom,
organized
by
specified
end
use
if
applicable
as
per
Appendix
L
of
this
subpart
and;
(
ii)
For
critical
uses
of
class
I,
Group
VI
controlled
substances,
an
annual
list
of
the
amount
of
critical
use
methyl
bromide
sold
organized
by
specified
end
use
and;
(
iii)
For
critical
uses
of
class
I,
Group
VI
controlled
substances,
an
annual
list
of
the
amount
of
critical
use
methyl
bromide
held
for
the
reporting
entity
or
held
by
the
reporting
entity
on
behalf
of
another
entity,
organized
by
specified
end
use
if
applicable
as
per
Appendix
L
of
this
subpart.
(
ad)
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,
certify
knowledge
of
the
requirements
associated
with
the
exemption
for
critical
use
in
this
subpart
and
provide
such
information
that
identifies
the
use
as
a
critical
use
and
the
user
as
an
approved
critical
user.
The
certification
will
state,
in
part:
"
I
certify,
under
penalty
of
law,
knowledge
of
the
requirements
associated
with
the
exempted
critical
use
published
in
40
CFR
part
82,
including
the
requirement
that
this
letter
cite
basic
information
identifying
the
end
use
as
an
approved
critical
use
and
the
end
user
as
an
approved
critical
user."
*
*
*
*
*

7.
Add
to
this
subpart
Appendix
L
that
reads
as
follows:

APPENDIX
L
TO
PART
82
SUBPART
A
 
APPROVED
CRITICAL
USES,
AND
­
51­
LIMITING
CRITICAL
CONDITIONS
FOR
THOSE
USES
FOR
THE
2005
CONTROL
PERIOD
Column
A
Column
B
Column
C
Approved
Critical
Uses
End
Users
Limiting
Critical
Conditions
PRE­
PLANT
USES
Cucurbits
a)
Michigan
growers
with
moderate
to
severe
fungal
pathogen
infestation
b)
Alabama,
Arkansas,
Georgia,
North
Carolina,
South
Carolina,
Tennessee,
and
Virginia
growers
with
moderate
to
severe
yellow
or
purple
nutsedge
infestation
Eggplant
a)
Georgia
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
moderate
to
severe
nematode
infestation
and/
or
moderate
to
severe
fungal
pathogen
infestation
b)
Florida
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
yellow
or
purple
nutsedge
infestation
and/
or
moderate
to
severe
nematode
infestation
and/
or
moderate
to
severe
fungal
pathogen
infestation
and/
or
karst
topography
Forest
Seedlings
a)
Members
of
the
Southern
Forest
Nursery
Management
Cooperative
limited
to
growing
locations
in
Alabama,
Arkansas,
Florida,
Georgia,
Louisiana,
Mississippi,
North
Carolina,
Oklahoma,
South
Carolina,
Tennessee,
Texas,
and
Virginia
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
fungal
pathogen
infestation,
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
and/
or
moderate
to
severe
disease
infestation.

b)
International
Paper
and
its
subsidiaries
limited
to
growing
locations
in
Arkansas,
Alabama,
Georgia,
South
Carolina
and,
Texas
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
fungal
pathogen
infestation,
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
and/
or
moderate
to
severe
disease
infestation.

c)
Weyerhaeuser
Company
and
its
subsidiaries
limited
to
growing
locations
in
Alabama,
Arkansas,
North
Carolina,
South
Carolina,
Oregon
and,
Washington
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
fungal
pathogen
infestation,
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
and/
or
moderate
to
severe
disease
infestation.

d)
Public
(
government
owned)
seedling
nurseries
in
the
states
of
California,
Idaho,
Illinois,
Indiana,
Kansas,
Kentucky,
Maryland,
Missouri,
Nebraska,
New
Jersey,
Ohio,
Oregon,
Pennsylvania,
Utah,
Washington,
West
Virginia
and,
Wisconsin
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
fungal
pathogen
infestation,
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
and/
or
moderate
to
severe
disease
infestation.
­
52­
e)
Members
of
the
Nursery
Technology
Cooperative
limited
to
growing
locations
in
Oregon
and
Washington
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
fungal
pathogen
infestation,
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
and/
or
moderate
to
severe
disease
infestation.

f)
Michigan
seedling
nurseries
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
fungal
pathogen
infestation,
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
and/
or
moderate
to
severe
disease
infestation.

Ginger
a)
Hawaii
growers
with
the
limiting
critical
condition
of
moderate
to
severe
nematode
infestation
and/
or
moderate
to
severe
bacterial
wilt
infestation
Orchard
Nursery
Seedlings
a)
Members
of
the
Western
Raspberry
Nursery
Consortium
limited
to
growing
locations
in
California
and
Oregon
(
Driscoll's
raspberries
and
their
contract
growers
in
California
and
Oregon)
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
nematode
infestation,
medium
to
heavy
clay
soils,
and/
or
a
prohibition
of
on
the
use
of
1,3­
dichloropropene
products
due
to
reaching
local
township
limits
on
the
use
of
this
alternative
b)
Members
of
the
California
Association
of
Nurserymen­
Deciduous
Fruit
and
Nut
Tree
Growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
nematode
infestation,
medium
to
heavy
clay
soils,
and/
or
a
prohibition
of
on
the
use
of
1,3­
dichloropropene
products
due
to
reaching
local
township
limits
on
the
use
of
this
alternative
c)
Members
of
theCalifornia
Association
of
Nurserymen­
Citrus
and
Avocado
Growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
nematode
infestation,
medium
to
heavy
clay
soils,
and/
or
a
prohibition
of
on
the
use
of
1,3­
dichloropropene
products
due
to
reaching
local
township
limits
on
the
use
of
this
alternative
Orchard
Replant
a)
California
stone
fruit
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
replanted
(
non­
virgin)
orchard
soils
to
prevent
orchard
replant
disease,
and/
or
medium
to
heavy
soils,
and/
or
a
prohibition
on
the
use
of
1,3­
dichloropropene
products
because
local
township
limits
for
this
alternative
have
been
reached.

b)
California
table
and
raisin
grape
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
replanted
(
non­
virgin)
orchard
soils
to
prevent
orchard
replant
disease,
and/
or
medium
to
heavy
soils,
and/
or
a
prohibition
on
the
use
of
1,3­
dichloropropene
products
because
local
township
limits
for
this
alternative
have
been
reached.

c)
California
walnut
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
replanted
(
non­
virgin)
orchard
soils
to
prevent
orchard
replant
disease,
and/
or
medium
to
heavy
soils,
and/
or
a
prohibition
on
the
use
of
1,3­
dichloropropene
products
because
local
township
limits
for
this
alternative
have
been
reached.
­
53­
d)
California
almond
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
replanted
(
non­
virgin)
orchard
soils
to
prevent
orchard
replant
disease,
and/
or
medium
to
heavy
soils,
and/
or
a
prohibition
on
the
use
of
1,3­
dichloropropene
products
because
local
township
limits
for
this
alternative
have
been
reached.

Ornamentals
a)
Yoder
Brothers
Inc.
for
use
in
chrysanthemum
production
b)
California
rose
nurseries
prohibited
from
using
1,3­
dichloropropene
products
because
local
township
limits
for
this
alternative
have
been
reached
Peppers
a)
California
growers
with
the
limiting
critical
conditions
of
moderate
to
severe
fungal
pathogens,
and/
or
moderate
to
sever
disease
infestation,
and/
or
moderate
to
sever
nematode
infestation,
and/
or
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
and/
or
a
prohibition
on
the
use
of
1,3­
dichloropropene
products
because
local
township
limits
for
this
alternative
have
been
reached
b)
Alabama,
Arkansas,
Georgia,
North
Carolina,
South
Carolina,
Tennessee
and
Virginia
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
and/
or
the
presence
of
an
occupied
structure
within
76
meters
of
a
grower's
field
the
size
of
100
acres
or
less
c)
Florida
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
and/
or
karst
topography
Strawberry
Nurseries
a)
California
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
black
root
rot
or
crown
rot,
moderate
to
severe
nematode
infestation,
and/
or
moderate
to
severe
yellow
or
purple
nutsedge
infestation
b)
North
Carolina
and
Tennessee
growers
with
the
presence
of
an
occupied
structure
within
76
meters
of
a
grower's
field
the
size
of
100
acres
or
less
Strawberry
Fruit
a)
California
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
black
root
rot
or
crown
rot,
moderate
to
severe
nematode
infestation,
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
a
prohibition
of
the
use
of
1,3­
dichloropropene
products
because
local
township
limits
for
this
alternative
have
been
reached
b)
Florida
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
yellow
or
purple
nutsedge,
and/
or
karst
topography
c)
Alabama,
Arkansas,
Georgia,
North
Carolina,
South
Carolina,
Tennessee,
Virginia,
Ohio
and,
New
Jersey
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
yellow
or
purple
nutsedge,
and/
or
the
presence
of
an
occupied
structure
within
76
meters
of
a
grower's
field
the
size
of
100
acres
or
less
­
54­
Sweet
Potatoes
a)
California
growers
with
the
contingent
limiting
critical
condition
of
a
prohibition
on
the
use
of
1,3­
dichloropropene
products
because
local
township
limits
for
this
alternative
have
been
reached
Tomatoes
a)
Michigan
growers
with
moderate
to
severe
disease
and/
or
fungal
pathogens
b)
Alabama,
Arkansas,
Georgia,
North
Carolina,
South
Carolina,
Tennessee
and
Virginia
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
and/
or
and/
or
the
presence
of
an
occupied
structure
within
76
meters
of
a
grower's
field
the
size
of
100
acres
or
less
c)
Florida
growers
with
one
or
more
of
the
following
limiting
critical
conditions:
moderate
to
severe
yellow
or
purple
nutsedge
infestation,
and/
or
karst
topography
Turfgrass
a)
U.
S.
turfgrass
sod
nursery
producers
for
the
production
of
industry
certified
pure
sod
b)
U.
S.
golf
courses
for
establishing
sod
in
the
construction
of
new
golf
courses
or
the
renovation
of
putting
greens,
tees,
and
fairways
POST­
HARVEST
USES
Food
Processing
a)
Rice
millers
in
Arkansas,
California
Louisiana,
Florida,
Missouri,
and
Mississippi
with
one
or
more
of
the
following
limiting
critical
conditions:
older
structures
that
can
not
be
properly
sealed
to
use
an
alternative
to
methyl
bromide,
and/
or
the
presence
of
sensitive
electronic
equipment
subject
to
corrosivity
b)
Pet
food
manufacturing
facilities
in
the
U.
S.
with
one
or
more
of
the
following
limiting
critical
conditions:
older
structures
that
can
not
be
properly
sealed
to
use
an
alternative
to
methyl
bromide,
and/
or
the
presence
of
sensitive
electronic
equipment
subject
to
corrosivity
c)
Kraft
Foods
with
one
or
more
of
the
following
limiting
critical
conditions:
older
structures
that
can
not
be
properly
sealed
to
use
an
alternative
to
methyl
bromide,
and/
or
the
presence
of
sensitive
electronic
equipment
subject
to
corrosivity
d)
Members
of
the
North
American
Millers'
Association
with
one
or
more
of
the
following
limiting
critical
conditions:
older
structures
that
can
not
be
properly
sealed
to
use
an
alternative
to
methyl
bromide,
and/
or
the
presence
of
sensitive
electronic
equipment
subject
to
corrosivity
Commodity
Storage
a)
Gwaltney
of
Smithfield
for
smokehouse
ham
curing
facilities
owned
by
the
company
­
55­
b)
California
entities
storing
walnuts,
beans,
dried
plums,
and
pistachios
in
California
with
one
or
more
of
the
following
limiting
critical
conditions:
rapid
fumigation
is
required
to
meet
a
critical
market
window,
such
as
during
the
holiday
season,
rapid
fumigation
is
required
when
a
buyer
provides
short
(
2
days
or
less)
notification
for
a
purchase,
and/
or
there
is
a
short
period
after
harvest
in
which
to
fumigate
and
there
is
limited
silo
availability
for
using
alternatives
