

[Federal Register: December 13, 2005 (Volume 70, Number 238)]
[Rules and Regulations]               
[Page 73604-73618]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13de05-14]                         

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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-8007-9]
RIN 2060-AN13

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: With this action EPA is authorizing the use of 610,665 
kilograms of methyl bromide for supplemental critical uses in 2005 
through the allocation of additional critical stock allowances (CSAs). 
This allocation supplements the critical use allowances (CUAs) and CSAs 
previously allocated for 2005, as published in the Federal Register on 
December 23, 2004 (69 FR 76982). Further, EPA is amending the existing 
list of exempted critical uses to add uses authorized by the Parties to 
the Montreal Protocol at their Sixteenth Meeting in November 2004. 
Today's

[[Page 73605]]

action is authorized under the Clean Air Act (CAA or the Act) and is in 
accordance with the Montreal Protocol on Substances that Deplete the 
Ozone Layer (Protocol).

DATES: Effective Date: This final rule is effective on December 9, 
2005.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. OAR-2004-0506. All documents in the docket are listed in the 
EDOCKET index at http://www.epa.gov/edocket. Although listed in the 

index, some information is not publicly available, i.e, CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available, only in hard copy form. Publicly 
available docket materials are available either electronically in 
EDOCKET or in hard copy at the Air Docket, EPA/DC, EPA West, Room B102, 
1301 Constitution Ave., NW., Washington, DC. This Docket Facility is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is (202) 566-1744, and the telephone 
number for the Air Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Hodayah Finman, U.S. Environmental 
Protection Agency, Office of Air and Radiation, Stratospheric 
Protection Division (6205J), 1200 Pennsylvania Avenue, NW., Washington, 
DC 20460; telephone number: (202) 343-9246; fax number: (202) 343-2338; 
finman.hodayah@epa.gov. You may also visit the EPA's Ozone Depletion 

Web site at http://www.epa.gov/ozone for further information about 

EPA's Stratospheric Ozone Protection regulations, the science of ozone 
layer depletion, and other related topics.

SUPPLEMENTARY INFORMATION: This action concerns regulation of methyl 
bromide, a class I, Group VI ozone-depleting substance. Under the Clean 
Air Act, as amended in 1990 and 1998, methyl bromide production and 
consumption (defined as production plus imports minus exports) were 
phased out on January 1, 2005, apart from certain exemptions, including 
the critical use exemption which is the subject of today's rule. In a 
final rule published December 23, 2004 (69 FR 76982), EPA established 
the framework for the critical use exemption; set forth a list of 
approved critical uses for 2005; and specified the amount of methyl 
bromide that could be supplied in 2005 from stocks and new production 
or import to meet approved critical uses. As part of that rule, EPA 
issued critical use allowances (CUAs) for new production and import and 
critical stock allowances (CSAs) for sale of methyl bromide stocks.
    On August 30, 2005, EPA issued a direct final rule and parallel 
proposal to add additional uses of methyl bromide to the list of 
approved critical uses and to issue additional CSAs for the 2005 
control period (70 FR 51270). These actions were taken to reflect a 
decision by the Parties to the Montreal Protocol at their sixteenth 
meeting to authorize supplemental critical uses and amounts. Due to the 
receipt of adverse comment, EPA withdrew the direct final rule, and it 
did not go into effect (70 FR 60443). Today EPA is taking final action 
based on the August 30, 2005 proposal. Today's final action is in 
accordance with Decision XVI/2 taken by the Montreal Protocol Parties 
at their November 2004 meeting and with prior decisions of the parties 
on critical uses.
    Section 533(d) of the Administrative Procedure Act (APA), 5 U.S.C., 
Chapter 5, generally provides that rules may not take effect earlier 
than 30 days after they are published in the Federal Register. Today's 
final rule is issued under section 307(d) of the CAA, which states: 
``The provisions of section 553 through 557 * * * of Title 5 shall not, 
except as expressly provided in this subsection, apply to actions to 
which this subsection applies.'' CAA section 307(d)(1). Thus, section 
553(d) of the APA does not apply to this rule. EPA nevertheless is 
acting consistently with the policies underlying APA section 553(d) in 
making this rule effective on December 9, 2005. APA section 553(d) 
provides an exception for any action that grants or recognizes an 
exemption or relieves a restriction. Today's final rule grants an 
exemption from the phaseout of methyl bromide. Because the allowances 
issued through this action will expire at the end of 2005, EPA is 
making this rule effective immediately to provide allowance holders an 
opportunity to expend the allowances before they expire.

Table of Contents

I. Background on the Montreal Protocol and the Critical Use Exemption
II. Background on the Critical Use Exemption Process
III. Today's Action
IV. Statutory and Executive Order Reviews
    A. Executive Order No. 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order No. 13132: Federalism
    F. Executive Order No. 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order No. 13045: Protection of Children From 
Environmental Health & Safety Risks
    H. Executive Order No. 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Congressional Review Act

I. Background on the Montreal Protocol and the Critical Use Exemption

    The Montreal Protocol on Substances that Deplete the Ozone Layer 
(Protocol) is an international agreement aimed at reducing and 
eliminating the production and consumption of stratospheric ozone 
depleting substances (ODS).\1\ The elimination of production and 
consumption of ODSs is accomplished through adherence to phase-out 
schedules for specific class I ODSs \2\, including: chlorofluorocarbons 
(CFCs), halons, carbon tetrachloride, and methyl chloroform. The Clean 
Air Act, as amended in 1990 and 1998, requires EPA to promulgate 
regulations implementing the Protocol's phaseout schedules in the 
United States. Those regulations are codified at 40 CFR Part 82. As of 
January 1, 1996, production and import of most class I ODSs were phased 
out in developed countries, including the United States. Production and 
import of methyl bromide were phased out in those countries as of 
January 1, 2005. However, the Protocol provides exemptions that allow 
for the continued import and/or production of ODSs, including methyl 
bromide.
---------------------------------------------------------------------------

    \1\ ``Consumption'' is defined as the amount of a substance 
produced in the United States, plus the amount imported into the 
United States, minus the amount exported to Parties to the Montreal 
Protocol (see Section 601(6) of the Clean Air Act). Stockpiles of 
class I ODSs produced or improted prior to the 1996 phase out may be 
used for purposes not expressly banned at 40 CFR part 82.
    \2\ Class I ozone depleting substances are listed at 40 CFR Part 
82 subpart A, appendix A.
---------------------------------------------------------------------------

    Methyl bromide was added to the Protocol as an ODS in 1992 through 
the Copenhagen amendment to the Protocol. The Parties agreed that each 
industrialized country's level of methyl bromide production and 
consumption in 1991 should be the baseline for establishing a freeze in 
the level of methyl bromide production and consumption for 
industrialized countries. EPA published a final rule in the Federal 
Register on December 10, 1993 (58 FR 65018), listing methyl

[[Page 73606]]

bromide as a class I, Group VI controlled substance, freezing U.S. 
production and consumption at this 1991 level, and, in Section 82.7 of 
the rule, setting forth the percentage of baseline allowances for 
methyl bromide granted to companies in each control period (each 
calendar year) until the year 2001, when the complete phaseout would 
occur (58 FR 65018).
    The 2001 phaseout date was established in response to a petition 
filed in 1991 under sections 602 (c)(3) and 606 (b) of the Clean Air 
Act Amendments (CAAA) of 1990, requesting that EPA list methyl bromide 
as a class I substance and phase out its production and consumption. 
This date was consistent with section 602(d) of the CAAA of 1990, which 
for newly-listed class I ODSs provides that ``no extension [of the 
phaseout schedule in section 604] under this subsection may extend the 
date for termination of production of any class I substance to a date 
more than 7 years after January 1 of the year after the year in which 
the substance is added to the list of class I substances.'' EPA based 
its action on scientific assessments and actions by the Parties to the 
Montreal Protocol at their 1992 Meeting in Copenhagen to freeze the 
level of methyl bromide production and consumption for industrialized 
countries.
    At their 1995 meeting, the Parties made adjustments to the methyl 
bromide control measures and agreed to reduction steps and a 2010 
phaseout date for industrialized countries along with certain allowable 
exemptions such as the critical use exemption. At the time the Parties 
adopted this phasedown schedule for methyl bromide, the U.S. continued 
to have a 2001 phaseout date in accordance with the language of the 
1990 CAAA. At their 1997 meeting, the Parties agreed to further 
adjustments to the phaseout schedule for methyl bromide in 
industrialized countries, with reduction steps leading to a 2005 
phaseout for industrialized countries. In October 1998, the U.S. 
Congress amended the CAA to prohibit the termination of production of 
methyl bromide prior to January 1, 2005; to require EPA to bring the 
U.S. phaseout of methyl bromide in line with the schedule specified 
under the Protocol; and to authorize EPA to provide exemptions for 
critical uses. These amendments were contained in Section 764 of the 
1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act 
(Pub. L. 105-277, October 21, 1998) and were codified in Section 604 of 
the CAA, 42 U.S.C. 7671c. On November 28, 2000, EPA issued regulations 
to amend the phaseout schedule for methyl bromide and extend the 
complete phaseout of production and consumption to 2005 (65 FR 70795).
    On December 23, 2004 (69 FR 76982), EPA published a final rule in 
the Federal Register that established the framework for the critical 
use exemption, set forth a list of approved critical uses for 2005, and 
specified the amount of methyl bromide that could be supplied in 2005 
from available stocks and new production or import to meet approved 
critical uses. Today, EPA is authorizing sale of additional amounts of 
methyl bromide from inventory for critical uses in the 2005 control 
period. In addition, EPA is amending the existing list of approved 
critical uses to add uses authorized by the Parties at their sixteenth 
meeting in Prague under Decision XVI/2.
    In accordance with Article 2H(5), the Parties have issued several 
Decisions pertaining to the critical use exemption. These include 
Decision IX/6, which set forth criteria for review of proposed critical 
uses; Decision Ex. I/3, which addressed agreed critical uses, critical-
use exemption levels, and allowable levels of new production and 
consumption for critical uses in 2005; and Decision XVI/2, which, in 
part, supplements the critical use categories and exemption levels 
discussed in Decision Ex. I/3.
    For a discussion of the relationship between the relevant 
provisions of the CAA, as amended in 1990 and 1998, and Article 2H of 
the Protocol, and the extent to which EPA takes into account Decisions 
of the Parties that interpret Article 2H, refer to the December 23, 
2004, final rule (69 FR 76984-76985). Briefly, EPA regards certain 
provisions of Decisions IX/6, Ex. I/3, and XVI/2 as subsequent 
consensus agreements of the Parties that address the interpretation and 
application of the critical use provision in Article 2H(5) of the 
Protocol. In today's action, EPA is following the terms of these 
Decisions. This will ensure consistency with the Montreal Protocol, 42 
U.S.C. 7671c(d)(6).
    Because it is a pesticide, methyl bromide is also regulated by EPA 
under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) 
and other statutes and regulatory authority and by States under their 
own statutes and regulatory authority. Under FIFRA, methyl bromide is a 
restricted use pesticide and therefore subject to certain Federal and 
State requirements governing its sale, distribution, and use. Nothing 
in this final rule implementing the Clean Air Act is intended to 
derogate from provisions in any other Federal, State, or Local laws or 
regulations governing actions including, but not limited to, the sale, 
distribution, transfer, and use of methyl bromide. All entities that 
would be affected by provisions of this final rule must continue to 
comply with FIFRA and other pertinent statutory and regulatory 
requirements for pesticides (including, but not limited to, 
requirements pertaining to restricted use pesticides) when importing, 
exporting, acquiring, selling, distributing, transferring, or using 
methyl bromide for critical uses. The regulations in today's action are 
intended only to implement the critical use exemption under the CAA.

II. Background on the Critical Use Exemption Process

    Starting in 2002, EPA began informing applicants of the 
availability of an application process for a critical use exemption to 
the methyl bromide phaseout. The Agency published a notice in the 
Federal Register (68 FR 24737) announcing the deadline to apply, and 
directing applicants to announcements posted on EPA's methyl bromide 
Web site at http://www.epa.gov/ozone/mbr. On May 8, 2003 (68 FR 24737), 

EPA published a notice in the Federal Register announcing the August 6, 
2003, deadline for applications for 2005. Applicants were told they may 
apply as individuals or as part of a group of users (a ``consortium'') 
who face the same limiting critical conditions (i.e. specific 
conditions which establish a critical need for methyl bromide). This 
process has been repeated annually since 2002.
    In response to the yearly requests for critical use exemption 
applications published in the Federal Register, applicants have 
provided information supporting their position that they have no 
technically and economically feasible alternatives to methyl bromide 
available to them. Applicants for the exemption have submitted 
information on their use of methyl bromide, on research into the use of 
alternatives to methyl bromide, on efforts to minimize use of methyl 
bromide and efforts to reduce emissions and on the specific technical 
and economic research results of testing alternatives to methyl 
bromide.
    The CAA, as amended in 1990 and 1998, allows the Agency to create 
an exemption for critical uses to the extent consistent with the 
Protocol. The critical use exemption process is designed to meet the 
needs of methyl bromide users who do not have technically and 
economically feasible alternatives available. EPA's December 23, 2004, 
final rule describing the

[[Page 73607]]

operational framework for the critical use exemption (69 FR 76982) 
established the majority of critical uses for the 2005 calendar year. 
In today's action, EPA is establishing supplemental critical uses 
available in the U.S. for the 2005 calendar year.
    A detailed explanation of the development of the nomination, 
including the criteria used by expert reviewers, is available in a memo 
titled ``2003 Nomination Process: Development of 2003 Nomination for a 
Critical Use Exemption for Methyl Bromide from the United States of 
America'' on E-Docket OAR-2003-0230 (document 104) and E-Docket OAR-
2004-0506. The process described in this memo applies equally to the 
2004 nomination process. The 2004 nomination included the supplemental 
request for 2005 critical uses which are the subject of today's action.
    All critical use exemption applications, including those described 
in the supplemental request for 2005, underwent a rigorous review by 
highly qualified technical experts. The CUE applications (except to the 
extent claimed confidential) are available on E-Docket OAR-2004-0506. 
Data from the applications served as the basis for the nomination and 
was augmented by multiple other sources, including but not limited to 
the National Agricultural Statistics Service of the U.S. Department of 
Agriculture, the State of California Department of Pesticide 
Regulation, peer-reviewed articles, and crop budgets.
    After submission of the first U.S. Nomination for a Critical Use 
Exemption for Methyl Bromide, in February 2003, the U.S. Government 
decided to request additional critical uses for 2005 in the second 
nomination sent to the Ozone Secretariat in February 2004. The U.S. 
decided to do so, in part, because certain sectors were not able to 
apply for an exemption in time for the 2003 nomination.
    With the second nomination submitted to the Ozone Secretariat in 
February 2004, most of which referred to uses for the 2006 control 
period, the U.S. Government included some limited supplemental requests 
for 2005. These requests may be found in Appendix B of each chapter of 
the U.S. nomination and are available on E-docket OAR-2004-0506 and 
http://www.epa.gov/mbr/nomination_2006.html.

    The U.S. originally nominated the following applicants for 
supplemental 2005 consideration: California Cut Flower Commission, 
National Country Ham Association, Wayco Ham Company, California Date 
Commission, California Strawberry Commission, California Tomato 
Commission, National Pest Management Association, Michigan Pepper 
Growers, Michigan Eggplant Growers, Burley & Dark Tobacco USA--
transplant trays, Burley & Dark Tobacco USA--field grown, Virginia 
Tobacco Growers--transplant trays, Michigan Herbaceous Perennials, 
Ozark Country Hams, Nahunta Pork Center and, American Association of 
Meat Processors. Subsequent to the submission of the supplemental 
nomination, all of the tobacco applicants withdrew their CUE requests 
for the 2005 control period and beyond. In addition, the U.S. requested 
correction to the amounts for two other sectors.
    The Ozone Secretariat referred the U.S. nomination to the Technical 
and Economic Assessment Panel (TEAP) and its subsidiary body, the 
Methyl Bromide Technical Options Committee (MBTOC) for review. The TEAP 
and the MBTOC reviewed the nominations, asked clarifying questions of 
the U.S. Government, and provided recommendations on the requested 
exemptions to the Parties to the Montreal Protocol for their 
consideration at the Sixteenth Meeting of the Parties.
    In June 2004, the MBTOC sent questions to the U.S. Government 
concerning technical and economic issues in the nomination. These 
questions, as well as the U.S. Government's response, can be accessed 
on E-docket OAR-2004-0506. The U.S. Government's response was 
transmitted on August 13, 2005. When responding to these questions, the 
U.S. Government explained that critical use exemptions were being 
sought only in areas with moderate-to-severe pest pressure, where the 
use of alternatives would result in substantial yield losses, or where 
regulatory restrictions or geophysical conditions prohibit the adoption 
of alternatives. There were questions on all of the sectors described 
in today's action; however, many questions focused on alternatives in 
the overall sector instead of the specific supplemental requested 
amount.
    In October, 2004, the MBTOC and the TEAP issued a final report on 
critical use nominations for methyl bromide. This report, issued by the 
United Nations Environment Programme (UNEP) and TEAP, is titled 
``Critical Use Nominations for Methyl Bromide: Final Report'' and can 
be accessed at http://www.unep.ch/ozone/teap/Reports/MBTOC or on E-

docket OAR-2004-0506. In Annex I of the report, the advisory bodies 
recommended an additional 584,093 kilograms of methyl bromide for U.S. 
critical uses in 2005. The additional kilograms were recommended for 
the following sectors: dried fruit and nuts (dates); dry commodities/
structures (cocoa beans); dry commodities/structures (processed foods, 
herbs and spices, dried milk and cheese processing facilities); 
eggplant; ornamentals; peppers; smokehouse ham; strawberry fruit; and 
tomatoes.
    Based on the recommendations from the advisory bodies, the Parties 
authorized 610,655 kilograms of methyl bromide for 2005 supplemental 
uses in the U.S., in Decision XVI/2. The authorization adds 26,562 
kilograms to the TEAP recommendation by restoring the full amount of 
the U.S. request for dry commodities/structures (cocoa beans). The 
Parties approved the above-mentioned uses referenced in the MBTOC/TEAP 
report.
    More information on each of the nominated sectors, including 
calculations of production losses and other technical data, can be 
found in the annual nomination on E-docket OAR-2004-0506.

I. Today's Action

    With today's action, EPA has determined that an additional 610,665 
kg of methyl bromide are required to satisfy critical uses for the 
2005. EPA is allocating an additional 610,665 critical stock allowances 
(CSAs) to companies that hold pre-phaseout inventories of methyl 
bromide. These allowances, consistent with the CUE framework rule 
published on December 23, 2004, allow the holder to sell pre-phaseout 
inventories of methyl bromide to critical uses. In addition, with 
today's action, EPA is amending the list of approved critical uses 
found at 40 CFR 82 appendix L to include new critical uses authorized 
by the Parties at their sixteenth meeting in November 2004.
    Consistent with the framework for the critical use exemption 
established in the December rulemaking, each CSA is equivalent to one 
kilogram of methyl bromide and all allowances expire at the end of the 
control period. Therefore, the supplemental allowances allocated in 
today's rule expire at the end of 2005.
    The methodology for calculating the amount of CSAs allocated to 
each entity is explained in a memorandum titled ``CSA Description 
Memo,'' available on E-docket OAR-2004-0506. In summary, EPA has used 
its authority under Section 114 of the CAA to require that certain 
regulated entities provide the Agency with information about their 
holdings of methyl bromide.
    EPA is allocating CSAs in this rule on a pro-rated basis, 
calculated as an average of the entities' December 31, 2003, and August 
25, 2004, holdings of

[[Page 73608]]

pre-phaseout methyl bromide. This same baseline was also used to 
calculate CSAs in the framework rule (69 FR 76982). However, EPA notes 
that due to a slight baseline reporting error, one entity was granted 
fewer CSAs in the December 2004 framework rule than it would have been 
allocated had this reporting error not occurred because its relative 
share of the entire stockpile was underreported. The entity has since 
clarified the data submitted to EPA. Based on the new data, EPA was 
able to correctly apportion the ownership of the total stockpile to 
each company to reflect actual holdings of methyl bromide as of an 
average of the December 31, 2003, and August 25, 2004, data. Therefore, 
EPA is granting this entity sufficient CSAs from the 610,665-kg 
supplemental amount to make up the quantity of CSAs it would have 
received had the data been reported correctly, and is distributing the 
remaining allowances using the baselines as previously established but 
reflecting the correct percentage ownership of the total stockpile.
    EPA is allocating CSAs to the following companies for the 2005 
supplemental authorized amounts of critical use methyl bromide.
Company
Albemarle
Ameribrom, Inc.
Bill Clark Pest Control, Inc.
Blair Soil Fumigation
Burnside Services, Inc.
Cardinal Professional Products
Carolina Eastern, Inc.
Degesch America, Inc.
Dodson Bros.
Great Lakes Chemical Corporation
Harvey Fertilizer and Gas
Helena Chemical Co.
Hendrix and Dail
Hy Yield Bromine
Industrial Fumigation Company
J.C. Ehrlich Co.
Pacific Ag
Pest Fog Sales Corporation
ProSource One
Reddick Fumigants
Royster-Clark, Inc.
Southern State Cooperative, Inc.
Trical, Inc.
Trident Agricultural Products
UAP Southeast (NC)
UAP Southeast (SC)
Univar
Vanguard Fumigation Co.
Western Fumigation
    TOTAL 610,665 KILOGRAMS

    EPA has determined that the individual holdings of methyl bromide 
stocks are Confidential Business Information (CBI). Therefore, 
individual baseline data and individual company allocations of CSAs are 
only available in the confidential portion of the docket for this 
rulemaking and do not appear in this Federal Register document. EPA has 
determined that the aggregate stock information is not CBI but is 
currently withholding that information due to the filing of complaints 
seeking to enjoin the Agency from its release.
    EPA received comments on the previously published direct final and 
concurrent proposed rule from four entities. EPA received one comment 
requesting the Agency to finalize the rule before October 31, 2005, 
because even though the supplemental critical uses and amounts will not 
be available until close to the end of the control period, it is better 
to have them late in the year than not at all. EPA understands the 
concerns of the regulated community and is making every effort to 
publish the final rule expeditiously.
    One commenter suggested that EPA must account for language in 
Decision Ex. II/1 in making critical uses available in 2005. Decision 
Ex. II/1 refers to critical uses for the year 2006. EPA addressed 
language in the Decision the notice of proposed rulemaking for 2006 
critical uses (70 FR 62030), published on October 27, 2005.
    This commenter further questioned the process the Agency has 
established to make critical uses available in the U.S. and contested 
EPA's interpretation of decisions related to the critical use 
exemption. The commenter referred repeatedly to Decision IX/6, 
paragraph 1(b), which states in part that ``production and consumption, 
if any, of methyl bromide for critical uses should be permitted only if 
* * * [a]ll technically and economically feasible steps have been taken 
to minimize the critical use and any associated emissions.'' The 
commenter referred to additional Decisions in stating what it believes 
EPA should consider ``in deciding how much new production and 
importation to allow after 2004.'' EPA's interpretation of the cited 
Decisions differs from the commenter's. However, EPA is not responding 
in detail to these comments because they are not relevant to today's 
action. EPA is not authorizing any additional production or import in 
this final rule; it is only authorizing the sale of additional amounts 
of methyl bromide from pre-phaseout inventories.
    In addition, EPA has already responded to many of the points raised 
by the commenter. In particular, the commenter does not agree with 
EPA's accounting of stocks, evaluation of the amount of methyl bromide 
needed to meet critical uses, levels of critical use, and the ability 
of users to access non-critical-use methyl bromide for non-critical 
uses. The commenter raised substantially the same issues in its 
comments on the CUE framework rule proposed on August 25, 2004, and 
finalized on December 23, 2004 (69 FR 76982). EPA addressed these 
comments as part of that rulemaking and refers the public to E-docket 
OAR-2003-0230 to view specific responses to those comments contained in 
the response to comment document for the framework rule. These issues 
are further addressed in briefs filed in NRDC v. EPA, D.C. Cir No. 04-
1438, which have also been placed in E-docket OAR-2004-0506.
    The supplemental critical use amount that we are authorizing today, 
in the form of additional critical stock allowances, is based on the 
information described in this notice and in the August 30, 2005, notice 
of proposed rulemaking. This includes information received from 
applicants as well as other data sources noted above. The approach to 
assessing critical need discussed in the December 23, 2004 framework 
rule and in the response to comments document for the framework rule 
was used for this supplemental amount. Those documents also explain the 
limitations of the 2003 use estimate to which the commenter refers.
    The commenter further stated that EPA should not establish 
additional uses as ``critical'' because the Agency did not find, 
pursuant to Decision IX/6, paragraph 1(a), that the lack of methyl 
bromide for those uses ``would result in a significant market 
disruption.'' However, the Agency did make such a finding, as noted in 
the preamble to the direct final rule on August 30, 2005 (70 FR 51277). 
In addition, EPA's interpretation of the phrase ``significant market 
disruption'' appears in the memorandum entitled ``2003 Nomination 
Process: Development of 2003 Nomination for a Critical use Exemption 
for Methyl Bromide from the United States of America'' which appears in 
docket OAR-2004-0506 and was referenced at 70 FR 51274. As previously 
noted, that memorandum applied equally to the supplemental request for 
2005. Specific discussions of the economic feasibility of alternatives 
for each of the uses addressed in today's action appear in the 
corresponding chapters of the 2004 U.S. Nomination, available on E-
docket OAR-2004-0506.
    The commenter states that a ``significant market disruption'' 
refers to ``a decrease or delay in supply or increase in price of a 
commodity produced with methyl bromide.'' EPA understands the commenter 
to suggest that market disruption is a disruption

[[Page 73609]]

where consumers are unable to obtain a commodity, are delayed in 
obtaining a commodity, or must pay more for that commodity. EPA does 
not disagree with the commenter that the outcome described by the 
commenter could constitute a significant market disruption. However, in 
the aforementioned memorandum available in E-docket OAR-2004-0506, EPA 
outlined additional circumstances which could result in a significant 
market disruption. EPA stated that ``markets are partially defined by 
the interaction between supply and demand, which determines the price 
and quantity of a good traded in a market. EPA's position is that a 
disruption to either side of a commodity market, demand or supply, 
would result in market disruption.'' Therefore, a significant market 
disruption could be experienced on the demand side, as explained by the 
commenter, or on the supply side, should agricultural producers be 
economically harmed as a result of the loss of methyl bromide. For 
example, if the loss of methyl bromide in strawberry production would 
mean that no strawberry farmers in the U.S. would be able to continue 
to produce this crop, the EPA would likely find that such a situation 
constitutes a significant market disruption even if consumers could 
still buy supplies of strawberries from Central and South America.
    Lastly, the commenter has filed a Freedom of Information Act (FOIA) 
request as part of its comment submission for data on 2004 levels of 
methyl bromide use. EPA is responding to this FOIA request through the 
standard Agency process.
    As described in the direct final rule (70 FR 51276), EPA is 
finalizing an amendment to the reporting and recordkeeping requirements 
at 40 CFR 82.13 to require that entities report the amount of pre-
phaseout methyl bromide inventory, held for sale or transfer to another 
entity, to the Agency on an annual basis. Entities will be required to 
differentiate between the amounts owned by them and those owned by 
other entities. Pre-phaseout refers to inventories of methyl bromide 
produced or imported prior to January 1, 2005. This additional 
requirement will allow EPA to track the drawdown of pre-phaseout 
inventories. The Agency did not receive any comments on this amendment 
to the reporting requirements.
    For the reasons stated in the direct final rule, EPA is authorizing 
the sale of additional amounts of methyl bromide for critical uses from 
pre-phaseout inventories and is not authorizing new production or 
import. In the December 23, 2004, framework rule, EPA allocated 
1,283,214 CSAs to satisfy critical uses. Consistent with the framework 
established in the framework rule and with Decisions Ex. I/3 and XVI/2, 
EPA is allocating an additional 610,665 CSAs in today's rule.
    In Decision XVI/2, taken in November 2004, the Parties to the 
Protocol agreed to add the following uses to the list of approved 
critical uses for 2005: Dried fruit and nuts; eggplant, field; peppers, 
field; tomato, field; dry commodities--structures (cocoa); dry 
commodities--processed foods, herbs, spices, dried milk; ornamentals; 
smokehouse ham; strawberry fruit. Some of these uses, such as 
strawberry fruit, were previously authorized by the Parties in Decision 
Ex. I/3, however, in Decision XVI/2 the Parties allowed for new 
portions of the strawberry fruit industry to qualify for the critical 
use exemption. Other uses, such as herbs, spices, and dried milk, are 
new categories of critical use altogether.
    EPA has determined that the uses identified in Decision XVI/2 are 
critical uses and is amending Appendix L to 40 CFR Part 82 to reflect 
the new uses, locations of use, and limiting critical conditions. The 
August 30, 2005, Federal Register notice contained summaries of the 
technical and or economic basis for the Agency's proposed determination 
that these uses are critical uses. More extensive discussions of the 
technical and economic basis can be found in the U.S. Government's 2004 
nomination and responses to questions from MBTOC. In instances where 
the Agency believes the circumstances of the use have changed--for 
example, the registration of a new alternative--EPA would also take 
such developments into account in developing a proposed determination 
on critical uses.
    EPA solicited comments from the public on the proposed critical use 
determination and did not receive any comments that a change in 
circumstance has occurred in a particular critical use category. In 
addition, the Agency did not receive any comments on the technical and 
economic evaluation that led to EPA's critical use determination. 
Therefore, EPA does not have new information which leads the Agency to 
conclude that the proposed determination reached by the Agency in the 
August 30, 2005, Federal Register notice should be altered.
    EPA did receive one comment that states that there are ``no 
critical uses'' for methyl bromide. The CAA does allow for critical 
uses and EPA has used the criteria in Decision IX/6--which include such 
factors as the lack of technically and economically feasible 
alternatives--to assess whether a given use qualifies as critical. The 
Agency, through the nomination process, established that certain uses 
met these criteria. The commenter did not provide any technical data to 
substantiate a claim that there are ``no critical uses'' based on the 
availability of alternatives, thus the Agency is not changing its 
proposed determination.
    Another commenter stated that methyl bromide can cause acute health 
problems and that her family may be suffering from methyl bromide 
exposure. Statutory authority to address issues of exposure and health 
effects lies under FIFRA and other programs run by pesticide licensing 
agencies at the Federal, State, and local level. The commenter further 
states that there are alternatives to methyl bromide and that an 
exemption is therefore not necessary.
    EPA does not dispute that there are alternatives to methyl bromide 
for many uses of this fumigant. However, in some cases the alternative 
may not be registered or otherwise available for use; in other 
instances, the alternative may not be technically feasible under 
certain circumstances; last, an alternative may not be economically 
feasible for certain uses. EPA conducts a detailed analysis of these 
and other factors to determine whether a particular use should be 
designated a critical use. The uses proposed by the agency in the 
August 30, 2005, notice are uses that EPA believes, based on extensive 
analysis, do not have feasible alternatives in the circumstances of the 
use. EPA solicited comments on the specific proposed uses and did not 
receive any information that would change this technical analysis.
    Therefore, in today's action, EPA is finalizing the proposed 
amendments to Appendix L of 40 CFR Part 82 and adding several new uses 
to the list of approved critical uses for 2005 as follows:

Amendments to 40 CFR Part 82, Subpart A, Appendix L

    The following table shows the additions to Appendix L of 40 CFR 
Part 82, Subpart A.

[[Page 73610]]



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

    Lastly, in today's rule EPA is finalizing a clarification to 40 CFR 
82.4(p)(2) proposed in the August 30, 2005, notice (70 FR 51270). In 
the CUE rule published on December 23, 2004 (69 FR 76982), EPA created 
a prohibition as follows. Paragraph (p)(2)(vi) states that, with some 
exceptions: ``No person who purchases critical use methyl bromide 
during the control period shall use that methyl bromide on a field or 
structure for which that person has used non-critical use methyl 
bromide for the same use (as defined in Columns A and B of Appendix L) 
in the same control period.'' However, EPA did not intend this 
prohibition to prevent end users who have been using non-critical use 
methyl bromide during the first part of 2005 from using critical use 
methyl bromide on the same field or structure for the same use if they 
became approved critical users as a result of this supplemental 
rulemaking. Such a result would deprive those end users of the benefit 
of the exemption solely as a result of the timing of the rule. Thus, 
EPA is adding the following exception to paragraph (p)(2)(vi): ``or 
unless, subsequent to that person's use of the non-critical use methyl 
bromide, that person * * * (b) becomes an approved critical user as a 
result of rulemaking.'' EPA is also making a corresponding change to 
Sec.  82.13, paragraph (2)(dd), which describes the self-certification 
process for approved critical users: `` * * * I am aware that any 
agricultural commodity within a treatment chamber, facility, or field I 
fumigate with critical use methyl bromide cannot subsequently be 
fumigated with non-critical use methyl bromide during the same control 
period, excepting a QPS treatment or a treatment for a different use * 
* * unless a local township cap limit now prevents me from using methyl 
bromide alternatives, or I have now become an approved critical user as 
a result of rulemaking.''
    EPA received one comment on this clarification. The commenter 
stated that he did not support the approach outlined above because it 
would allow for ``double dipping'' and he was concerned that critical 
users would be allowed to use more methyl bromide than is set forth in 
Decisions Ex 1/3 and XVI/2. EPA disagrees with the commenter's 
assumptions and notes that the comment inappropriately focuses on 
``users'' as opposed to ``uses.'' Under the framework rule, EPA 
established a system where there are two types of use: critical uses 
and non-critical uses. A single entity may have both critical and non-
critical uses. For example, a particular walnut producer

[[Page 73611]]

may have some silos that require rapid fumigation (a limiting critical 
condition) and therefore have a critical need for methyl bromide, and 
other silos that do not require rapid fumigation and whose fumigation 
therefore does not qualify as a critical use. In addition, an entity 
may become subject to a prohibition on the use of methyl bromide 
alternatives due to the reaching of a local township limit, as provided 
in Appendix L, Column C. There would then be a critical need for methyl 
bromide later in the year that did not occur at the onset of the year. 
As a result, a use that was formerly non-critical may become critical. 
Because a single entity may have both non-critical and critical uses 
and because circumstances of use may change throughout the year causing 
the same site to either be critical or non-critical within the same 
control period, EPA created a framework that controls not the user but 
rather the individual use.
    The commenter contends that if a user can have both non-critical 
and critical uses that more methyl bromide could be used in the U.S. 
than is set forth in the decisions on critical uses. However, the 
critical use exemption level contained in the decisions applies to 
critical uses only; use of methyl bromide for non-critical uses does 
not count against this cap. In addition, there is no corresponding cap 
on use of methyl bromide by non-critical uses. In the U.S., use of 
methyl bromide for critical uses is limited through an allowance system 
that limits the supply of methyl bromide for these uses. Therefore, 
methyl bromide use for critical uses will not exceed the critical use 
exemption level.
    The commenter states that non-critical uses should not have any 
access to methyl bromide whatsoever. EPA understands that the commenter 
disagrees with EPA's approach of allowing non-critical users to have 
access to methyl bromide after 2005, which is a separate issue and one 
that the Agency previously addressed in the framework rule. The Agency 
has not typically banned the use of Class I ozone-depleting substances 
at the same time as production and import but rather has allowed use of 
these substances to decline gradually over a period of time as the 
supply diminishes. This approach was taken, for example, in the 
phaseout of chlorofluorocarbons (CFCs) and halons, two powerful ozone 
depleting substances. A period of continued use of previously produced 
or imported quantities generally helps to ensure a smooth transition to 
alternatives. This same approach has been taken by the Agency in the 
phaseout of methyl bromide, with one narrow exception: a partial 
restriction on access to stocks for critical uses as a condition of new 
production. The issue of not affecting a ban on all non-exempt uses has 
been addressed by the Agency in the framework rule and briefs filed by 
the government in NRDC vs. EPA, D.C. Cir No. 04-1438. EPA refers the 
public to the response to comment document for the framework rule and 
the briefs that are available in E-docket OAR-2004-0560.
    Fumigations may already have occurred in 2005 for uses that today's 
final rule are determining, for the first time, to be critical. In 
fact, since the control period is close to ending, that is the likely 
case. At the time the fumigations occurred, however, the uses did not 
qualify as approved critical uses, and thus any methyl bromide used in 
those fumigations did not count against the total critical use 
exemption level. As of December 9, 2005 these uses may now qualify for 
the critical use exemption. Based on the architecture of the exemption 
program as set forth in the framework rule, these uses are no 
different, for example, than uses that may be non-critical at one point 
during the control period and critical at a later point due to reaching 
of a local township cap on the use of methyl bromide alternatives. 
Therefore, EPA is treating these uses consistently with the Agency's 
treatment under 40 CFR 82.4(p)(2)(vi) of uses affected by the reaching 
of a local township cap. Again, the question of whether non-critical 
uses should be able to use methyl bromide after the date when the U.S. 
was obligated to cease production and import of the chemical is a 
separate issue and one previously addressed in the framework rule.

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

B. Paperwork Reduction Act

    The information collection requirements in this rule have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by EPA has been 
assigned EPA ICR number 2179.03. This rule supplements the rule 
published in the Federal Register on December 23, 2004 (69 FR 76982). 
The information collection under this rule is authorized under Sections 
603(b), 603(d) and 614(b) of the Clean Air Act (CAA).
    The mandatory reporting requirements included in this rule are 
intended to:
    (1) Satisfy U.S. obligations under 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 the Clean 
Air Act mendments 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 the CAAA.
    In this rule, EPA is amending the reporting and recordkeeping 
Requirements in 40 CFR part 82 to require that entities report the 
amount of pre-phaseout methyl bromide

[[Page 73612]]

inventory, held for sale or for transfer to another entity, to the 
Agency on an annual basis. Pre-phaseout refers to inventories of methyl 
bromide produced or imported prior to January 1, 2005. This additional 
requirement will allow EPA to track the drawdown of pre-phaseout 
inventories. The additional burden associated with the new 
recordkeeping and reporting requirements is summarized in the table 
below.

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

    EPA informs respondents that they may assert claims of business 
confidentiality for any of the information they submit. Information 
claimed confidential will be treated in accordance with the procedures 
for handling information claimed as confidential under 40 CFR Part 2, 
Subpart B, and will be disclosed only to the extent, and by means of 
the procedures, set forth in that subpart. If no claim of 
confidentiality is asserted when the information is received by EPA, it 
may be made available to the public without further notice to the 
respondents (40 CFR 2.203).
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information; process and maintain information; disclose and 
provide information; adjust the existing ways to comply with any 
previously applicable instructions and requirements; train personnel to 
be able to respond to a collection of information; search data sources; 
complete and review the collection of information; and transmit or 
otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

C. Regulatory Flexibility Act

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

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

    Agricultural producers of minor crops and entities that store 
agricultural commodities are categories of affected entities that 
contain small entities. This rule only affects entities that applied to 
EPA for a de-regulatory exemption. In most cases, EPA received 
aggregated requests for exemptions from industry consortia. On the 
exemption application, EPA asked consortia to describe the number and 
size distribution of entities their application covered. Based on the 
data provided, EPA estimates that 3,218 entities 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 one-fourth and one-third of the entities may be 
small businesses based on the definition given above. In addition, 
other categories of affected entities do not contain small businesses 
based on the above description.
    After considering the economic impacts of today's rule on small 
entities, EPA has concluded that this action will not have a 
significant economic impact on a substantial number of small entities. 
The small entities directly regulated by this rule are primarily 
agricultural entities, producers, importers, and distributors of methyl 
bromide, as well as any entities holding inventory of methyl bromide.
    In determining whether a rule has a significant economic impact on 
a substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any

[[Page 73613]]

significant economic impact of the rule on small entities.'' (5 U.S.C. 
603-604). Thus, an Agency may conclude that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves a regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule. Since 
this rule will make additional methyl bromide available for approved 
critical uses after the phaseout date of January 1, 2005, this is a de-
regulatory action which will confer a benefit to users of methyl 
bromide. EPA believes the estimated de-regulatory value for users of 
methyl bromide is between $20 million to $30 million annually, as a 
result of the entire critical use exemption program over its projected 
duration. We have therefore concluded that today's final rule will 
relieve regulatory burden for all small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments, in the aggregate, or the private 
sector in any one year. Today's rule creates a recordkeeping and 
reporting burden on the private sector that is estimated to be under 
$200,000 on an annual basis. Thus, today's rule is not subject to the 
requirements of sections 202 and 205 of the UMRA. Further, EPA has 
determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments because it 
does not create any requirements on any State, local, or tribal 
government.

E. Executive Order No. 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.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the National 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the National Government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Today's rule is expected to 
primarily affect producers, suppliers, importers and exporters and 
users of methyl bromide. Thus, Executive Order 13132 does not apply to 
this rule.

F. Executive Order No. 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order No. 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order No. 13175. Today's 
final rule does not significantly or uniquely affect the communities of 
Indian tribal governments. The final rule does not impose any 
enforceable duties on communities of Indian tribal governments. Thus, 
Executive Order No. 13175 does not apply to this final rule.

G. Executive Order No. 13045: Protection of Children From Environmental 
Health & Safety Risks

    Executive Order No. 13045: ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997) applies to any rule that: (1) Is determined to be ``economically 
significant'' as defined under Executive Order 12866, and (2) concerns 
an environmental health or safety risk that EPA has reason to believe 
may have a disproportionate effect on children. If the regulatory 
action meets both criteria, the Agency must evaluate the environmental 
health or safety effects of the planned rule on children, and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under Section 5-501 of the Order has the 
potential to influence the regulation. This final rule is not subject 
to Executive Order 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks.

H. Executive Order No. 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not a ``significant energy action'' as defined in 
Executive Order No. 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. This 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. National Technology Transfer Advancement Act

    As noted in the proposed rule, Section 12(d) of the National

[[Page 73614]]

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

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on December 9, 2005.

List of Subjects in 40 CFR Part 82

    Environmental protection, Administrative practice and procedures, 
Air pollution control, Chemicals, Exports, Imports, Ozone, Production, 
Reporting and recordkeeping requirements, and Treaties.

    Dated: December 7, 2005.
Stephen L. Johnson,
Administrator.

0
40 CFR Part 82 is amended as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

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

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


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


Sec.  82.4  Prohibitions for class I controlled substances.

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

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


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

* * * * *
    (c) * * *
    (2) Allocated critical stock allowances granted for specified 
control period. The following companies are allocated critical stock 
allowances for 2005 on a pro-rata basis in relation to the stocks held 
by each.
Company
Albemarle
Ameribrom, Inc.
Bill Clark Pest Control, Inc.
Blair Soil Fumigation
Burnside Services, Inc.
Cardinal Professional Products
Carolina Eastern, Inc.
Degesch America, Inc.
Dodson Bros.
Great Lakes Chemical Corporation
Harvey Fertilizer and Gas
Helena Chemical Co.
Hendrix and Dail
Hy Yield Bromine
Industrial Fumigation Company
J.C. Ehrlich Co.
Pacific Ag
Pest Fog Sales Corporation
ProSource One
Reddick Fumigants
Royster-Clark, Inc.
 Southern State Cooperative, Inc.
Trical, Inc.
Trident Agricultural Products
UAP Southeast (NC)
UAP Southeast (SC)
Univar
Vanguard Fumigation Co.
Western Fumigation
    TOTAL 1,893,879 KILOGRAMS

0
4.Section 82.13 is amended as follows:
0
a. By revising paragraphs (f)(3) introductory text, (f)(3)(xvii) and by 
adding (f)(3)(xviii).
0
b. By revising paragraph (g)(4) introductory text.
0
c. By adding paragraph (g)(4)(xix).
0
d. By revising paragraph (bb)(2)(iv) and adding paragraph (b)(2)(v).
0
e. By revising paragraph (cc)(2)(iv) and adding paragraph (cc)(2)(v).
0
f. By revising paragraph (dd).


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

* * * * *
    (f) * * *
    (3) Reporting Requirements--Producers. For each quarter, except as 
specified below, each producer of a class I controlled substance must 
provide the Administrator with a report containing the following 
information:
* * * * *
    (xvii) A list of the quantities of class I, Group VI controlled 
substances produced by the producer and exported by the producer and/or 
by other U.S. companies in that control period, solely to satisfy the 
critical uses authorized by the Parties for that control period; and
    (xviii) On an annual basis, the amount of methyl bromide produced 
or imported prior to the January 1, 2005, phaseout date owned by the 
reporting entity, as well as quantities held by the reporting entity on 
behalf of another entity, specifying the name of the entity on whose 
behalf the material is held.
    (g) * * *
    (4) Reporting Requirements--Importers. For each quarter, except as 
specified below, every importer of a class I controlled substance 
(including importers of used, recycled or reclaimed controlled 
substances) must submit to the Administrator a report containing the 
following information:
* * * * *
    (xix) Importers shall report annually the amount of methyl bromide 
produced or imported prior to the January 1, 2005, phaseout date owned 
by the reporting entity, as well as quantities held by the reporting 
entity on behalf of another entity, specifying the name of the entity 
on whose behalf the material is held.
* * * * *
    (bb) * * *
    (2) * * *
    (iv) The number of unexpended and expended critical stock 
allowances;
    (v) The amount of methyl bromide produced or imported prior to the 
January 1, 2005, phaseout date owned

[[Page 73615]]

by the reporting entity, as well as quantities held by the reporting 
entity on behalf of another entity, specifying the name of the entity 
on whose behalf the material is held.
* * * * *
    (cc) * * *
    (2) * * *
    (iv) The number of unexpended and expended critical stock 
allowances;
    (v) The amount of methyl bromide produced or imported prior to the 
January 1, 2005 phaseout date owned by the reporting entity, as well as 
quantities held by the reporting entity on behalf of another entity, 
specifying the name of the entity on whose behalf the material is held.
    (dd) Every approved critical user purchasing an amount of critical 
use methyl bromide or purchasing fumigation services with critical use 
methyl bromide must, for each request, identify the use as a critical 
use and certify that it is an approved critical user. The approved 
critical user certification will state, in part: ``I certify, under 
penalty of law, that I am an approved critical user and I will use this 
quantity of methyl bromide for an approved critical use. My action 
conforms to the requirements associated with the critical use exemption 
published in 40 CFR part 82. I am aware that any agricultural commodity 
within a treatment chamber, facility, or field I fumigate with critical 
use methyl bromide cannot subsequently or concurrently be fumigated 
with non-critical use methyl bromide during the same control period, 
excepting a QPS treatment or a treatment for a different use (e.g., a 
different crop or commodity). I will not use this quantity of methyl 
bromide for a treatment chamber, facility, or field that I previously 
fumigated with non-critical use methyl bromide purchased during the 
same control period, excepting a QPS treatment or a treatment for a 
different use (e.g., a different crop or commodity), unless a local 
township limit now prevents me from using methyl bromide alternatives 
or I have now become an approved critical user as a result of 
rulemaking.'' The certification will also indicate the type of critical 
use methyl bromide purchased, the location of the treatment, the crop 
or commodity treated, the quantity of critical use methyl bromide 
purchased, and the acreage/square footage treated, and will be signed 
and dated by the approved critical user.

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

Appendix L to Subpart A of Part 82--Approved Critical Uses, and 
Limiting Critical Conditions for Those Uses for the 2005 Control Period

------------------------------------------------------------------------
           Column A                  Column B             Column C
------------------------------------------------------------------------
Approved Critical Uses........  Approved Critical  Limiting Critical
                                 User and           Conditions.
                                 Location of Use.
-------------------------------
                             Pre-plant uses
------------------------------------------------------------------------
Cucurbits.....................  (a) Michigan       With a reasonable
                                 growers.           expectation that
                                                    moderate to severe
                                                    fungal pathogen
                                                    infestation either
                                                    already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation.
                                (b) Alabama,       With a reasonable
                                 Arkansas,          expectation that
                                 Georgia, North     moderate to severe
                                 Carolina, South    yellow or purple
                                 Carolina,          nutsedge infestation
                                 Tennessee, and     either already
                                 Virginia growers.  exists or could
                                                    occur without methyl
                                                    bromide fumigation.
Eggplant......................  (a) Georgia        With a reasonable
                                 growers.           expectation that
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge infestation
                                                    either already
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation.
                                (b) Florida        With a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    karst topography.
                                (c) Michigan       With a reasonable
                                 Growers.           expectation that
                                                    moderate to severe
                                                    fungal pathogen
                                                    infestation either
                                                    already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation.
Forest Seedlings..............  (a) Members of     With a reasonable
                                 the Southern       expectation that one
                                 Forest Nursery     or more of the
                                 Management         following imiting
                                 Cooperative        critical conditions
                                 limited to         either already
                                 growing            exists or could
                                 locations in       occur without methyl
                                 Alabama,           bromide fumigation:
                                 Arkansas,          moderate to severe
                                 Florida,           yellow or purple
                                 Georgia,           nutsedge
                                 Louisiana,         infestation, or
                                 Mississippi,       moderate to severe
                                 North Carolina,    disease infestation.
                                 Oklahoma, South
                                 Carolina,
                                 Tennessee,
                                 Texas, and
                                 Virginia.
                                (b) International  With a reasonable
                                 Paper and its      expectation that one
                                 subsidiaries       or more of the
                                 limited to         following limiting
                                 growing            critical conditions
                                 locations in       either already
                                 Alabama,           exists or could
                                 Arkansas,          occur without methyl
                                 Georgia, South     bromide fumigation:
                                 Carolina, and      moderate to severe
                                 Texas.             yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    disease infestation.
                                (c) Weyerhaeuser   With a reasonable
                                 Company and its    expectation that one
                                 subsidiaries       or more of the
                                 limited to         following limiting
                                 growing            critical conditions
                                 locations in       either already
                                 Alabama,           exists or could
                                 Arkansas, North    occur without methyl
                                 Carolina, South    bromide fumigation:
                                 Carolina,          moderate to severe
                                 Oregon, and        yellow or purple
                                 Washington.        nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    disease infestation.
                                (d) Public         With a reasonable
                                 (government-       expectation that one
                                 owned) seedling    or more of the
                                 nurseries in the   following limiting
                                 states of          critical conditions
                                 California,        either already
                                 Idaho, Illinois,   exists or could
                                 Indiana, Kansas,   occur without methyl
                                 Kentucky,          bromide fumigation:
                                 Maryland,          moderate to severe
                                 Missouri,          yellow or purple
                                 Nebraska, New      nutsedge
                                 Jersey, Ohio,      infestation, or
                                 Oregon,            moderate to severe
                                 Pennsylvania,      disease infestation.
                                 Utah,
                                 Washington, West
                                 Virginia,
                                 Wisconsin.
                                (e) Members of     With a reasonable
                                 the Nursery        expectation that one
                                 Technology         or more of the
                                 Cooperative        following limiting
                                 limited to         critical conditions
                                 growing            either already
                                 locations in       exists or could
                                 Oregon and         occur without methyl
                                 Washington.        bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    disease infestation.

[[Page 73616]]


                                (f) Michigan       With a reasonable
                                 seedling           expectation that one
                                 nurseries.         or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    disease infestation.
Ginger........................  Hawaii growers...  With a reasonable
                                                    expectation that
                                                    moderate to severe
                                                    bacterial wilt
                                                    infestation either
                                                    already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation.
Orchard Nursery Seedlings.....  (a) Members of     With a reasonable
                                 the Western        expectation that one
                                 Raspberry          or more of the
                                 Nursery            following limiting
                                 Consortium         critical conditions
                                 limited to         either already
                                 growing            exists or could
                                 locations in       occur without methyl
                                 California and     bromide fumigation:
                                 Washington         moderate to severe
                                 (Driscoll's        nematode
                                 raspberries and    infestation, medium
                                 their contract     to heavy clay soils,
                                 growers in         or a prohibition on
                                 California and     the use of 1,3-
                                 Washington).       dichloropropene
                                                    products because
                                                    local township
                                                    limits on this
                                                    alternative have
                                                    been reached.
                                (b) Members of     With a reasonable
                                 the California     expectation that one
                                 Association of     or more of the
                                 Nurserymen-        following limiting
                                 Deciduous Fruit    critical conditions
                                 and Nut Tree       either already
                                 Growers.           exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    nematode
                                                    infestation, medium
                                                    to heavy clay soils,
                                                    or a prohibition on
                                                    the use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits on this
                                                    alternative have
                                                    been reached.
                                (c) Members of     With a reasonable
                                 the California     expectation that one
                                 Association of     or more of the
                                 Nurserymen--Citr   following limiting
                                 us and Avocado     critical conditions
                                 Growers.           either already
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    nematode
                                                    infestation, medium
                                                    to heavy clay soils,
                                                    or a prohibition on
                                                    the use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits on this
                                                    alternative have
                                                    been reached.
Orchard Replant...............  (a) California     With a reasonable
                                 stone fruit        expectation that one
                                 growers.           or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    replanted (non-
                                                    virgin) orchard
                                                    soils to prevent
                                                    orchard replant
                                                    disease, medium to
                                                    heavy soils, or a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached.
                                (b) California     With a reasonable
                                 table and raisin   expectation that one
                                 grape growers.     or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    replanted (non-
                                                    virgin) orchard
                                                    soils to prevent
                                                    orchard replant
                                                    disease, medium to
                                                    heavy soils, or a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached.
                                (c) California     With a reasonable
                                 walnut growers.    expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    replanted (non-
                                                    virgin) orchard
                                                    soils to prevent
                                                    orchard replant
                                                    disease, medium to
                                                    heavy soils, or a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached.
                                (d) California      With a reasonable
                                 almond growers.    expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    replanted (non-
                                                    virgin) orchard
                                                    soils to prevent
                                                    orchard replant
                                                    disease, medium to
                                                    heavy soils, or a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached.
Ornamentals...................  (a) Yoder          For use in all
                                 Brothers Inc. in   chrysanthemum
                                 Florida.           production.
                                (b) California      With a reasonable
                                 rose nurseries.    expectation that the
                                                    user may be
                                                    prohibited from
                                                    using 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached.
                                (c) California     With a reasonable
                                 Cut Flower         expectation that the
                                 Commission         user may be
                                 growers and        prohibited from
                                 Florida growers.   using 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached.
Peppers.......................  (a) California     With a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    disease infestation,
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached.
                                (b) Alabama,       With a reasonable
                                 Arkansas,          expectation that one
                                 Georgia, North     or more of the
                                 Carolina, South    following limiting
                                 Carolina,          critical conditions
                                 Tennessee and      either already
                                 Virginia growers.  exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or the
                                                    presence of an
                                                    occupied structure
                                                    within 100 feet of a
                                                    grower's field the
                                                    size of 100 acres or
                                                    less.
                                (c) Florida        With a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    karst topography.
                                (d) Michigan       With a reasonable
                                 growers.           expectation that
                                                    moderate to severe
                                                    fungal pathogen
                                                    infestation either
                                                    already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation.

[[Page 73617]]


Strawberry Nurseries..........  (a) California     With a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    black root rot or
                                                    crown rot, or
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation.
                                (b) North          With a reasonable
                                 Carolina and       expectation that the
                                 Tennessee          use will occur in
                                 growers.           the presence of an
                                                    occupied structure
                                                    within 100 feet of a
                                                    grower's field the
                                                    size of 100 acres or
                                                    less.
Strawberry Fruit..............  (a) California     With a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    black root rot or
                                                    crown rot, moderate
                                                    to severe yellow or
                                                    purple nutsedge
                                                    infestation, a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached, or
                                                    time to transition
                                                    to an alternative.
                                (b) Florida        With a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge, or karst
                                                    topography.
                                (c) Alabama,       With a reasonable
                                 Arkansas,          expectation that one
                                 Georgia, New       or more of the
                                 Jersey, North      following limiting
                                 Carolina, Ohio,    critical conditions
                                 South Carolina,    either already
                                 Tennessee, and     exists or could
                                 Virginia growers.  occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge, or the
                                                    presence of an
                                                    occupied structure
                                                    within 100 feet of a
                                                    grower's field the
                                                    size of 100 acres or
                                                    less.
Sweet Potatoes................  California         With a reasonable
                                 growers.           expectation that the
                                                    user may be
                                                    prohibited from
                                                    using 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached.
Tomatoes......................  (a) Michigan       With a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    disease infestation,
                                                    or fungal pathogen
                                                    infestation.
                                (b) Alabama,       With a reasonable
                                 Arkansas,          expectation that one
                                 Georgia, North     or more of the
                                 Carolina, South    following limiting
                                 Carolina,          critical conditions
                                 Tennessee, and     either already
                                 Virginia growers.  exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or the
                                                    presence of an
                                                    occupied structure
                                                    within 100 feet of a
                                                    grower's field the
                                                    size of 100 acres or
                                                    less.
                                (c) Florida        With a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    karst topography.
                                (d) California     With a reasonable
                                 growers in San     expectation that
                                 Diego and          moderate to severe
                                 Ventura counties.  pest pressure exists
                                                    and where
                                                    alternatives are
                                                    ineffective because
                                                    of hilly terrain.
Turfgrass.....................  (a) U.S.           For the production of
                                 turfgrass sod      industry-certified
                                 nursery            pure sod.
                                 producers who
                                 are members of
                                 Turfgrass
                                 Producers
                                 International
                                 (TPI).
                                (b) U.S. golf      For establishing sod
                                 courses.           in the construction
                                                    of new golf courses
                                                    or the renovation of
                                                    putting greens,
                                                    tees, and fairways.
-------------------------------
                            Post-harvest uses
------------------------------------------------------------------------
Food Processing...............  (a) Rice millers   With a reasonable
                                 in all locations   expectation that one
                                 in the U.S. who    or more of the
                                 are members of     following limiting
                                 the USA Rice       critical conditions
                                 Millers            exists: older
                                 Association.       structures that
                                                    cannot be properly
                                                    sealed to use an
                                                    alternative to
                                                    methyl bromide, the
                                                    presence of
                                                    sensitive electronic
                                                    equipment subject to
                                                    corrosivity, or time
                                                    to transition to an
                                                    alternative.
                                (b) Pet food       With a reasonable
                                 manufacturing      expectation that one
                                 facilities in      or more of the
                                 the U.S. who are   following limiting
                                 active members     critical conditions
                                 of the Pet Food    exists; older
                                 Institute. (For    structures that
                                 today's rule,      cannot be properly
                                 ``pet food''       sealed to use an
                                 refers to          alternative to
                                 domestic dog and   methyl bromide, the
                                 cat food).         presence of
                                                    sensitive electronic
                                                    equipment subject to
                                                    corrosivity, or time
                                                    to transition to an
                                                    alternative.
                                (c) Kraft Foods    With a reasonable
                                 in the U.S..       expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    exists: older
                                                    structures that
                                                    cannot be properly
                                                    sealed to use an
                                                    alternative to
                                                    methyl bromide, the
                                                    presence of
                                                    sensitive electronic
                                                    equipment subject to
                                                    corrosivity, or time
                                                    to transition to an
                                                    alternative.
                                (d) Members of     With a reasonable
                                 the North          expectation that one
                                 American           or more of the
                                 Millers'           following limiting
                                 Association in     critical conditions
                                 the U.S.           either already
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    older structures
                                                    that cannot be
                                                    properly sealed to
                                                    use an alternative
                                                    to methyl bromide,
                                                    the presence of
                                                    sensitive electronic
                                                    equipment subject to
                                                    corrosivity, or time
                                                    to transition to an
                                                    alternative.
                                (e) Members of     With a reasonable
                                 the National       expectation that one
                                 Pest Management    or more of the
                                 Association        following limiting
                                 (associated with   critical conditions
                                 dry commodity      either already
                                 structure          exists or could
                                 fumigation         occur without methyl
                                 (cocoa) and dry    bromide fumigation:
                                 commodity          older structures
                                 fumigation         that cannot be
                                 (processed food,   properly sealed in
                                 herbs, spices,     order to use an
                                 and dried milk)).  alternative to
                                                    methyl bromide, the
                                                    presence of
                                                    electronic equipment
                                                    that is subject to
                                                    corrosivity, where
                                                    heat treatment would
                                                    cause rancidity to a
                                                    particular
                                                    commodity, or time
                                                    to transition to an
                                                    alternative is
                                                    needed.
Commodity Storage.............  (a) Gwaltney of    For smokehouse ham
                                 Smithfield in      curing facilities
                                 the U.S.           owned by the
                                                    company.

[[Page 73618]]


                                (b) Dry cured      Pork product
                                 pork products:     facilities who are
                                 Members of the     members of the
                                 National Country   Association.
                                 Ham Association.
                                (c) Dry cured      Pork product
                                 pork products:     facilities who are
                                 Members of the     members of the
                                 American           Association.
                                 Association of
                                 Meat Processors.
                                (d) Dry cured      For facilities owned
                                 pork products:     by the company.
                                 Nahunta Pork
                                 Center.
                                (e) California     With a reasonable
                                 entities storing   expectation that one
                                 walnuts, beans,    or more of the
                                 dried plums,       following limiting
                                 figs, raisins,     critical conditions
                                 and pistachios     exists: rapid
                                 in California.     fumigation is
                                                    required to meet a
                                                    critical market
                                                    window, such as
                                                    during the holiday
                                                    season; when a buyer
                                                    provides short (2
                                                    days or less)
                                                    notification for a
                                                    purchase; or there
                                                    is a short period
                                                    after harvest in
                                                    which to fumigate
                                                    and there is limited
                                                    silo availability
                                                    for using
                                                    alternatives.
                                (f) Growers and    With a reasonable
                                 packers who are    expectation that one
                                 members of the     or more of the
                                 California Date    following limiting
                                 Commission,        critical conditions
                                 whose facilities   exists: rapid
                                 are located in     fumigation is
                                 Riverside County.  required to meet a
                                                    critical market
                                                    window, such as
                                                    during the holiday
                                                    season, when a buyer
                                                    provides short (2
                                                    days or less)
                                                    notification for a
                                                    purchase, or there
                                                    is a short period
                                                    after harvest in
                                                    which to fumigate
                                                    and there is limited
                                                    silo availability
                                                    for using
                                                    alternatives.
------------------------------------------------------------------------

[FR Doc. 05-23971 Filed 12-12-05; 8:45 am]

BILLING CODE 6560-50-P
