

[Federal Register: December 14, 2006 (Volume 71, Number 240)]
[Rules and Regulations]               
[Page 75385-75406]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14de06-14]                         


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Part III





Environmental Protection Agency





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40 CFR Part 82



 Protection of Stratospheric Ozone: The 2007 Critical Use Exemption 
From the Phaseout of Methyl Bromide; Final Rule


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2005-0538; FRL-8257-2]
RIN 2060-AN54

 
Protection of Stratospheric Ozone: The 2007 Critical Use 
Exemption From the Phaseout of Methyl Bromide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing an exemption to the phaseout of methyl 
bromide to meet the needs of 2007 critical uses. Specifically, EPA is 
authorizing uses that will qualify for the 2007 critical use exemption 
and the amount of methyl bromide that may be produced, imported, or 
supplied from inventory for those uses in 2007. EPA is taking action 
under the authority of the Clean Air Act to reflect recent consensus 
Decisions taken by the Parties to the Montreal Protocol on Substances 
that Deplete the Ozone Layer (Protocol) at the 17th Meeting of the 
Parties (MOP).

DATES: This final rule is effective on December 14, 2006.

ADDRESSES: EPA has established a docket for this action identified 
under Docket ID No. EPA-HQ-OAR-2005-0538. All documents in the docket 
are listed on the http://www.regulations.gov site. Although listed in 

the index, some information is not publicly available, e.g., 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 only through 
http://www.regulations.gov or in hard copy. To obtain copies of materials in 

hard copy, please call the EPA Docket Center at (202) 564-1744 between 
the hours of 8:30am-4:30pm E.S.T., Monday-Friday, excluding legal 
holidays, to schedule an appointment. The EPA Docket Center's Public 
Reading Room address is EPA/DC, EPA West, Room 3334, 1301 Constitution 
Ave. NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Marta Montoro, Office of Atmospheric 
Programs, Stratospheric Protection Division, Mail Code 6205J, 
Environmental Protection Agency, 1200 Pennsylvania Ave, NW., 
Washington, DC 20460; telephone number (202) 343-9321; fax number (202) 
343-2338; e-mail address: montoro.marta@epa.gov.

SUPPLEMENTARY INFORMATION: This final rule concerns Clean Air Act (CAA) 
restrictions on the consumption, production, and use of methyl bromide 
(a class I, Group VI controlled substance) for critical uses during 
calendar year 2007. Under the CAA, methyl bromide consumption 
(consumption is defined under the CAA as production plus imports minus 
exports) and production was phased out on January 1, 2005 apart from 
allowable exemptions, namely the critical use exemption and the 
quarantine and preshipment exemption. With this action, EPA is 
authorizing the uses that will qualify for the 2007 critical use 
exemption as well as specific amounts of methyl bromide that may be 
produced, imported, or made available from stocks for critical uses in 
2007.
    Section 553(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. EPA is 
issuing this final rule under section 307(d) of the Clean Air Act, 
which states: ``The provisions of section 553 through 557 * * * of 
Title 5 shall not, except as expressly provided in this section, 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 is 
nevertheless acting consistently with the policies underlying APA 
section 553(d) in making this rule effective on December 14, 2006. APA 
section 553(d) provides an exception for any action that grants or 
recognizes an exemption or relieves a restriction. This final rule 
grants an exemption from the phaseout of methyl bromide.

Table of Contents

I. General Information
    A. Regulated Entities
II. What Is the Background to the Phaseout Regulations for Ozone-
Depleting Substances?
III. What Is Methyl Bromide?
IV. What Is the Legal Authority for Exempting the Production and 
Import of Methyl Bromide for Critical Uses Authorized by the Parties 
to the Montreal Protocol?
V. What Is the Critical Use Exemption Process?
    A. Background of the Process
    B. How Does This Final Rulemaking Relate to Previous Critical 
Use Exemption Rulemakings?
    C. Critical Uses and Adjustments to Critical Use Amounts
    D. The Criteria in Decisions IX/6 and Ex. I/4
    E. Emissions Minimization
    F. Critical Use Allowance Allocations
    G. Critical Stock Allowance Allocations and Inventory of Methyl 
Bromide
VI. Statutory and Executive Order Reviews
    A. Executive Order No. 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order No. 13132: Federalism
    F. Executive Order No. 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order No. 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order No. 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act

I. General Information

A. Regulated Entities

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

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           Category                  Examples of regulated entities
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Industry.....................  Producers, Importers and Exporters of
                                methyl bromide; Applicators,
                                Distributors of methyl bromide; Users of
                                methyl bromide, e.g., farmers of
                                vegetable crops, fruits and seedlings;
                                and owners of stored food commodities
                                and structures such as grain mills and
                                processors, agricultural researchers.
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    The above table is not intended to be exhaustive, but rather to 
provide a guide for readers regarding entities likely to be regulated 
by this action. This table lists the types of entities that EPA is 
aware could potentially be regulated by this action. To determine 
whether your facility, company, business, or organization is regulated 
by this action, you should carefully examine the regulations 
promulgated at 40 CFR part 82, subpart A. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person

[[Page 75387]]

listed in the preceding FOR FURTHER INFORMATION CONTACT section.

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

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

III. What Is Methyl Bromide?

    Methyl bromide is an odorless, colorless, toxic gas which is used 
as a broad-spectrum pesticide and is controlled under the CAA as a 
class I ozone-depleting substance (ODS). Methyl bromide is used in the 
U.S. and throughout the world as a fumigant to control a wide variety 
of pests such as insects, weeds, rodents, pathogens, and nematodes. 
Additional characteristics and details about the uses of methyl bromide 
can be found in the proposed rule on the phaseout schedule for methyl 
bromide published in the Federal Register on March 18, 1993 (58 FR 
15014) and the final rule published in the Federal Register on December 
10, 1993 (58 FR 65018).
    The phaseout schedule for methyl bromide production and consumption 
was revised in a direct final rulemaking on November 28, 2000 (65 FR 
70795), which allowed for the phased reduction in methyl bromide 
consumption and extended the phaseout to 2005. The revised phaseout 
schedule was again amended to allow for an exemption for quarantine and 
preshipment purposes on July 19, 2001 (66 FR 37751) with an interim 
final rule and with a final rule on January 2, 2003 (68 FR 238). 
Information on methyl bromide can be found at http://www.epa.gov/ozone/mbr and http://www.unep.org/ozone or by contacting the Stratospheric 

Ozone Hotline at 1-800-296-1996.
    Because it is a pesticide, methyl bromide is also regulated by EPA 
under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) 
and other statutes and regulatory authority, as well as by States under 
their own statutes and regulatory authority. Under FIFRA, methyl 
bromide is a restricted use pesticide 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 this action are 
intended only to implement the CAA restrictions on the production, 
consumption and use of methyl bromide for critical uses exempted from 
the phaseout of methyl bromide.

IV. What Is the Legal Authority for Exempting the Production and Import 
of Methyl Bromide for Critical Uses Authorized by the Parties to the 
Montreal Protocol?

    Methyl bromide was added to the Protocol as an ozone-depleting 
substance in 1992 through the Copenhagen Amendment to the Protocol. The 
Parties agreed that each industrialized country's level of methyl 
bromide production and consumption in 1991 should be the baseline for 
establishing a freeze in the level of methyl bromide production and 
consumption for industrialized countries. EPA published a final rule in 
the Federal Register on December 10, 1993 (58 FR 65018), listing methyl 
bromide as a class I, Group VI controlled substance, freezing U.S. 
production and consumption at this 1991 level, and, in 40 CFR 82.7, 
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. This phaseout 
date was established in response to a petition filed in 1991 under 
sections 602(c)(3) and 606(b) of the CAAA of 1990, requesting that EPA 
list methyl bromide as a class I substance and phase out its production 
and consumption. This date was consistent with section 602(d) of the 
CAAA of 1990, which for newly listed class I ozone-depleting substances 
provides that ``no extension [of the phaseout schedule in section 604] 
under this subsection may extend the date for termination of production 
of any class I substance to a date more than 7 years after January 1 of 
the year after the year in which the substance is added to the list of 
class I substances.'' EPA based its action on scientific assessments 
and actions by the Parties to the Montreal Protocol to freeze the level 
of methyl bromide production and consumption for industrialized 
countries at the 1992 Meeting of the Parties in Copenhagen.
    At their 1995 meeting, the Parties made adjustments to the methyl 
bromide control measures and agreed to reduction steps and a 2010 
phaseout date for industrialized countries with exemptions permitted 
for critical uses. At that time, the U.S. continued to have a 2001 
phaseout date in accordance with the CAAA of 1990 language. At their 
1997 meeting, the Parties agreed to further adjustments to the phaseout 
schedule for methyl bromide in industrialized countries, with reduction 
steps leading to a 2005 phaseout for industrialized countries. The 
controls on methyl bromide appear in Article 2H of the Protocol. 
Critical use exemptions are addressed in Article 2H(5), which provides 
that the 2005 methyl bromide phaseout shall not apply ``to the extent 
the Parties decide to permit the level of production or consumption 
that is necessary to satisfy uses agreed by them to be critical uses.''
    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. The amendment 
that specifically addresses the critical use exemption appears at 
Section 604(d)(6), 42 U.S.C. 7671c(d)(6). Section 604(d)(6) provides 
that ``[t]o the extent consistent with the

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Montreal Protocol, the Administrator, after notice and the opportunity 
for public comment, and after consultation with other departments or 
instrumentalities of the Federal Government having regulatory authority 
related to methyl bromide, including the Secretary of Agriculture, may 
exempt the production, importation, and consumption of methyl bromide 
for critical uses.'' More generally, Section 614(b) provides that Title 
VI of the CAAA of 1990 ``shall be construed, interpreted, and applied 
as a supplement to the terms and conditions of the Montreal Protocol.''
    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 (the ``Framework 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 pre-phaseout inventory and new production or import to meet the 
needs of approved critical uses. EPA then published a second final rule 
that added additional uses to the exemption program for 2005 and 
allocated additional critical stock allowances (70 FR 73604). EPA 
published a final rule on February 6, 2006 to exempt production and 
import of methyl bromide for 2006 critical uses and to indicate which 
uses met the criteria for the exemption program for that year (71 FR 
5985). A Technical Correction amending the critical use allowances was 
published on April 28, 2006 (71 FR 25077). With this action, under 
authority of section 604(d)(6) of the CAA, EPA is listing the uses that 
will qualify as approved critical uses in 2007 and the amount of methyl 
bromide required to satisfy those uses.
    This action reflects Decision XVII/9, taken at the Parties' 
Seventeenth Meeting in December 2005. In accordance with Article 2H(5), 
the Parties have issued several Decisions pertaining to the critical 
use exemption. These include Decisions IX/6 and Ex. I/4, which set 
forth criteria for review of proposed critical uses. The status of 
Decisions is addressed in the recent D.C. Circuit opinion, NRDC v. 
EPA., D.C. Cir. No. 04-1438 (August 29, 2006), 2006 U.S. App. LEXIS 
22074, and in EPA's ``Supplemental Brief for the Respondent,'' filed in 
NRDC v. EPA and available on Docket No. EPA-HQ-OAR-2005-0538. In this 
final rule, EPA is honoring commitments made by the United States in 
the Montreal Protocol context.

V. What Is the Critical Use Exemption Process?

A. Background of the Process

    Starting in 2002, EPA began notifying applicants of the process for 
obtaining a critical use exemption to the methyl bromide phaseout. On 
May 10, 2002, the Agency published its first notice in the Federal 
Register (67 FR 31798) announcing the availability of the application 
for a critical use exemption and the deadline for submission of the 
requisite data. Applicants were informed that 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 that 
establish a critical need for methyl bromide). EPA has repeated this 
process annually since then. The critical use exemption is designed to 
permit production and import of methyl bromide for uses that do not 
have technically and economically feasible alternatives.
    The criteria for the exemption initially appeared in Decision IX/6 
of the Parties to the Protocol. In that Decision, the Parties agreed 
that ``a use of methyl bromide should qualify as 'critical' only if the 
nominating Party determines that: (i) The specific use is critical 
because the lack of availability of methyl bromide for that use would 
result in a significant market disruption; and (ii) there are no 
technically and economically feasible alternatives or substitutes 
available to the user that are acceptable from the standpoint of 
environment and public health and are suitable to the crops and 
circumstances of the nomination.'' These criteria are reflected in 
EPA's definition of ``critical use'' at 40 CFR 82.3.
    In response to the yearly requests for critical use exemption 
applications published in the Federal Register, applicants have 
provided data on the technical and economic feasibility of using 
alternatives to methyl bromide. Applicants further submit data on their 
use of methyl bromide, on research programs into the use of 
alternatives to methyl bromide, and on efforts to minimize use and 
emissions of methyl bromide.
    EPA's Office of Pesticide Programs reviews the data submitted by 
applicants, as well as data from governmental and academic sources, to 
establish whether there are technically and economically feasible 
alternatives available for a particular use of methyl bromide and 
whether there would be significant market disruption if no exemption 
were available. In addition, EPA reviews other parameters of the 
exemption applications such as dosage and emissions minimization 
techniques and applicants' research or transition plans. This 
assessment process culminates with the development of a document 
referred to as the ``Critical Use Nomination'' or CUN. The CUN is 
submitted annually by the U.S. Department of State to the United 
Nations Environment Programme (UNEP)'s Ozone Secretariat. The CUNs of 
various countries are subsequently reviewed by the Methyl Bromide 
Technical Options Committee (MBTOC) and the Technical and Economic 
Assessment Panel (TEAP), which are independent advisory bodies to 
Parties to the Montreal Protocol. These bodies make recommendations to 
the Parties on the nominations. The Parties then take a Decision to 
authorize a critical use exemption for a particular country. The 
Decision also identifies how much methyl bromide may be supplied for 
the exempted critical uses. Finally, for each exemption period, EPA 
provides an opportunity for comment on the amounts of methyl bromide 
that the Agency has determined to be necessary for critical uses and 
the uses that the Agency has determined meet the criteria of the 
critical use exemption.
    For more information on the domestic review process and methodology 
employed by the Office of Pesticide Programs, please refer to a 
detailed memo titled ``Development of 2003 Nomination for a Critical 
Use Exemption for Methyl Bromide for the United States of America'' 
available on the docket for this rulemaking. While the particulars of 
the data continue to evolve and clerical matters are further 
streamlined, the technical review itself has remained the same since 
the inception of the program.
    On January 31, 2005, the U.S. Government submitted the third U.S. 
Nomination for a Critical Use Exemption for Methyl Bromide to UNEP's 
Ozone Secretariat. This nomination contained the request for 2007 
critical uses. On March 16 and 18, 2005, and June 10 and 13, 2005, 
MBTOC sent questions to the U.S. Government concerning technical and 
economic issues in the nomination. The U.S. Government transmitted 
responses to these requests for clarification on April 8, 2005 and 
August 18, 2005. These documents, together with reports by the advisory 
bodies noted above, can be accessed in the docket for this rulemaking. 
The determination in this final rule reflects the analysis contained in 
those documents.

[[Page 75389]]

    EPA received one comment requesting it not exempt any methyl 
bromide for critical uses. The CAA allows the Agency to create an 
exemption for critical uses from the production and consumption 
phaseout of methyl bromide. Although the Act does not require EPA to 
establish an exemption, EPA believes the lack of suitable alternatives 
for the uses listed as approved critical uses in this rulemaking 
warrants the continuation of the exemption process begun in 2005.
    The history of ozone protection programs has been the transition of 
industries away from production, import, and use of ozone-depleting 
substances to alternatives. In some instances a successful transition 
was possible within the allotted time. In other instances, additional 
time has been required to allow for the development and market 
penetration of alternatives. In fact, more than ten years after the 
phaseout of chlorofluorocarbons (CFCs), the U.S. Government is still 
exempting the production of CFCs for essential uses in metered dose 
inhalers. In the instance of critical uses where suitable alternatives 
are not yet available for all uses, EPA believes it would be 
inconsistent with the history and the goals of the ozone protection 
program not to allow for a safety valve in accordance with the 
provisions of both international and domestic law.

B. How Does This Final Rulemaking Relate to Previous Critical Use 
Exemption Rulemakings?

    The December 23, 2004 Framework Rule (69 FR 76982) established the 
bulk of the framework for the critical use exemption in the U.S. 
including trading provisions and recordkeeping and reporting 
obligations. In this action, EPA is not changing the framework of the 
exemption program but rather is establishing a list of approved 
critical uses for 2007 and is issuing allowances that will determine 
the amount of methyl bromide available for those uses consistent with 
the Framework Rule.
    In the proposed rulemaking, published on July 6, 2006 (71 FR 
38325), EPA sought comment on the proposed critical use exemptions for 
the 2007 calendar year. No major changes to the operational framework 
were proposed. Some commenters, however, requested that EPA re-examine 
significant portions of the operational framework identified in the 
December 23, 2004 Framework Rule. In this action, EPA is only 
addressing comments within the scope of the proposal, but may consider 
additional suggestions pertaining to other areas in future critical use 
exemption rulemakings. With respect to the comments on the operational 
framework, EPA has already addressed similar points in the Response to 
Comments document for the Framework Rule, accessible on Docket No. EPA-
HQ-OAR-2005-0538.
    EPA received three comments concerning the term significant market 
disruption, as described in Decision IX/6. One commenter requested a 
proper definition of the term, in addition to the terms ``technical 
feasibility'' and ``economic feasibility.'' Another commenter stated 
that the proposal lacked a market disruption finding and that EPA did 
not provide support for its claims of market disruption. The other 
commenter noted that the critical use exemption application for the 
Florida Golf Course Superintendents Association was rejected because of 
a failure to demonstrate that the loss of methyl bromide would result 
in significant market disruption, and believes the term is undefined by 
EPA. These comments are addressed in the separate response to comments 
document, available on the docket for this action. A description of 
EPA's application of this concept is available in the memo titled 
``Development of the 2003 Nomination for a Critical Use Exemption for 
Methyl Bromide for the United States of America,'' on Docket Nos. EPA-
HQ-OAR-2003-0017, EPA-HQ-OAR-2004-0506, EPA-HQ-OAR-2005-0122, and EPA-
HQ-OAR-2005-0538. One commenter stated that a ``significant market 
disruption'' refers to ``a decrease or delay in supply or an increase 
in price of a commodity produced with methyl bromide.'' EPA views this 
as one possible type of market disruption. As stated in the memo 
available on EPA-HQ-OAR-2004-0506, ``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 market, demand or supply, would result 
in market disruption.'' For example, if the loss of methyl bromide in 
strawberry production resulted in significant production decreases, 
followed by an increase in the price of strawberries--and, depending on 
the price elasticity of strawberries, potential loss of grower income--
EPA could determine that it constituted a significant market 
disruption.
    In determining whether a change in supply or demand is significant, 
EPA considers several dimensions of which two are key: (1) Individual 
versus aggregate and (2) absolute versus relative. EPA typically 
evaluates losses at the individual level, e.g., on a per-acre basis. We 
then extrapolate to the aggregate loss by multiplying this loss by the 
number of acres affected, using crop budgets and other relevant 
information. EPA balances the two measures to determine whether impacts 
are significant. For example, if the loss of methyl bromide in Michigan 
for vegetable production results in high prices in the upper Midwest, 
EPA may determine that it constitutes a significant market disruption, 
even if producers and consumers in the rest of the country are 
unaffected.
    The other key dimension is absolute versus relative impacts. The 
loss of a single processing plant may not seem significant. However, if 
there are only three such plants, the loss of one could still result in 
significant market disruption. EPA relies on detailed crop budgets and 
other sources of information for data on production costs, gross 
revenues, and other measures.

C. Critical Uses and Adjustments to Critical Use Amounts

    In Decision XVII/9, taken in December 2005, the Parties to the 
Protocol agreed as follows: ``for the agreed critical-use categories 
for 2007, set forth in table C to the annex to the present decision for 
each Party, to permit, subject to the conditions set forth in the 
present decision and decision Ex.I/4, the levels of production and 
consumption for 2007 set forth in table D of the annex to the present 
decision which are necessary to satisfy critical uses * * *''
    The following uses are those set forth in table C of the annex to 
Decision XVII/9: cucurbits; dry commodities/structures cocoa beans; 
dried fruit and nuts; NPMA dry commodities/structures (processed foods, 
herbs & spices, dried milk and cheese processing facilities); dry cure 
pork products (building and product); eggplant (field); forest nursery 
seedlings; mills and processors; nursery stock-fruit trees, 
raspberries, roses; orchard replant; ornamentals; peppers (field); 
strawberry fruit (field); strawberry runners; tomato (field) and turf 
grass. When added together, the agreed critical-use levels for 2007 
total 6,749,060 kilograms, which is equivalent to 26.4% of the U.S. 
1991 methyl bromide consumption baseline of 25,528,000 kilograms. 
However, the maximum amount of allowable new production or import as 
set forth in table D of Decision XVII/9 is 5,149,060 kilograms, which 
is equivalent to 20% of the 1991 methyl bromide consumption baseline. 
The difference between allowable new production or import and the total 
critical use amount

[[Page 75390]]

will be made up from pre-phaseout inventory. EPA further discusses the 
breakout between new production or import and stocks in section V.G. of 
this preamble.
    EPA is establishing the following reductions to the amount of newly 
produced or imported methyl bromide authorized in Decision XVII/9 to 
satisfy critical uses:
    (a) Reductions to accommodate uptake of sulfuryl fluoride in 2007;
    (b) Reductions to account for unused critical use methyl bromide at 
the end of 2005;
    (c) Reductions to accommodate increased allocation of critical 
stock allowances (CSAs).
    Eleven commenters objected to EPA's proposed reductions and stated 
that EPA should grant the full amount of new production allowed by the 
Parties to the Montreal Protocol in Decision XVII/9. However, another 
commenter stated that new production and import should be decreased 
further to account for large inventory. The comments on EPA's proposed 
reductions are addressed in the subsequent section of this preamble, 
and the comments on inventory are addressed in Section F.
    In the 2006 CUE Rule (71 FR 5985), EPA allocated less methyl 
bromide for critical uses than was authorized by the Parties, in order 
to account for the recent registration of sulfuryl fluoride. The Agency 
based those reductions on the data contained in the 2008 CUN, which was 
submitted to the Ozone Secretariat in January 2006. The 2008 CUN is 
available in the docket for the July 6, 2006 proposed rule. The 
nomination indicated that sulfuryl fluoride is registered to control 
the relevant pests in all post-harvest sectors except for cheese and 
dry cured ham use categories and that between 12 percent and 18 percent 
of the industry, depending on the use category, could feasibly 
transition to this alternative each year. This analysis still 
represents the best available data on the transition to sulfuryl 
fluoride including factors such as potential obstacles in the export of 
treated commodities. The report of the Methyl Bromide Technical Options 
Committee (MBTOC) indicated that the MBTOC did not make any reductions 
in these use categories for the uptake of sulfuryl fluoride in 2007 
because the United States Government indicated that it would do so in 
its domestic allocation procedures. Therefore, EPA is reducing the 
total volume of critical use methyl bromide by 53,703 kilograms to 
reflect the continuing transition to sulfuryl fluoride. The July 6, 
2006 proposed rule sought comment on the transition rates for sulfuryl 
fluoride described in the 2008 CUN. In particular, the Agency sought 
comment on the ability of certain end users, such as dried fruit and 
nut processors, to use sulfuryl fluoride given the progress made by 
importing countries in establishing and approving tolerance levels for 
the use of sulfuryl fluoride. A copy of the 2008 analysis is available 
in the rulemaking docket for comment.
    EPA received 26 comments on the availability of sulfuryl fluoride. 
Nine commenters stated that EPA's transition estimates of 12%-18% were 
not justified and were premature, and five commenters contended that 
the proposed reduction had no factual basis. Four commenters cited the 
Motion of Stay of Effectiveness of Sulfuryl Fluoride Tolerances, 
described in the Request For Stay of Tolerances notice published in the 
Federal Register on July 5, 2006 (71 FR 38125). The commenters also 
cited concerns with the regulatory status of sulfuryl fluoride. One 
commenter noted that data collection on the efficacy of sulfuryl 
fluoride is just beginning this year and will continue over the next 
three years. This commenter requested that EPA not make any additional 
reductions in methyl bromide allocations until sulfuryl fluoride and 
other alternatives have been more thoroughly studied. One commenter 
stated that sulfuryl fluoride is not meeting expectations as an 
alternative and another questioned the viability of sulfuryl fluoride 
as a commercial use. Another commenter provided supporting documents, 
available on the docket for this action, explaining why sulfuryl 
fluoride uptake has not kept pace with EPA's transition estimates. 
Similar comments expressed concerns relating to the safety, efficacy, 
and/or trade limitations associated with sulfuryl fluoride.
    In contrast, eight commenters stated that sulfuryl fluoride is a 
satisfactory alternative to methyl bromide because of its excellent 
results in application, pest population control, and aeration timing, 
among other reasons, and supported the use of sulfuryl fluoride in 
post-harvest applications. Two commenters noted that sulfuryl fluoride 
could replace all methyl bromide in the post-harvest sector by December 
31, 2007. One commenter noted that sulfuryl fluoride provides pest 
control at all life stages and does not deplete the ozone layer. The 
commenter provided nineteen supporting documents. Another commenter 
stated that the market penetration of sulfuryl fluoride is inhibited by 
the continued availability of methyl bromide through the critical use 
exemption process.
    The Agency sought comments on the ability of certain end-users, 
such as dried fruit and nut processors, to use sulfuryl fluoride given 
the progress made by importing countries in establishing and approving 
tolerance levels for the use of sulfuryl fluoride. One commenter 
responded by noting that Maximum Residue Levels (MRLs) have been 
established in Japan, Canada, the European Union, and the U.S. The 
commenter also noted that sulfuryl fluoride is registered in eight 
nations. Three other commenters noted that there were few or no 
tolerances for sulfuryl fluoride.
    One commenter suggested EPA poll industries that have the 
opportunity to use sulfuryl fluoride to identify those able to 
transition. On August 23, 2006, EPA issued letters to a sample of 
fumigation and flour milling operations under Section 114 of the CAA in 
order to obtain better data on sulfuryl fluoride transition estimates. 
However, the data received from the Section 114 responses did not 
result in significantly comparable data points and therefore EPA is 
making no additional sulfuryl fluoride reductions at this time. 
However, EPA may use the data obtained from the Section 114 responses 
in future rulemakings and in conjunction with information that EPA may 
receive in the future.
    After considering the comments received, in this final rule, EPA is 
reducing the amount of newly produced or imported critical use methyl 
bromide by 53,703 kilograms to reflect the continuing transition to 
sulfuryl fluoride. The July 6, 2006 proposed rule sought to reduce the 
amount of newly produced or imported methyl bromide by 68,170 
kilograms. However, one post-harvest sub-sector had been double-counted 
in the original post-harvest calculations. EPA has placed the revised 
spreadsheet demonstrating the revised calculation on the docket. 
Responses to specific comments appear in the separate Response To 
Comment document, available on the docket for this rulemaking.
    As described in the December 23, 2004 Framework Rule (69 FR 76997), 
EPA is deducting the amount of unused methyl bromide from the total 
number of allowances issued for the control period following the 
control period immediately after the control period when the methyl 
bromide was unused for critical uses. For example, all unused methyl 
bromide that was produced or imported under the critical use exemption 
in 2005 was reported to EPA in 2006 and would be reduced from the total 
allowable levels of new production/import in 2007. EPA's July

[[Page 75391]]

6, 2006 proposed rule proposed to reduce the total level of new 
production and import for critical uses by 443,000 kilograms to reflect 
the total level of unused material available at the end of 2005. As 
described in the Framework Rule, after applying this reduction to the 
total volumes of allowable new production or import, EPA allocates 
prorated critical use allowances (CUAs) to each company based on their 
1991 baseline market share in the corresponding proposal.
    EPA received fourteen comments objecting to EPA's proposal to 
reduce the level of new production and import for critical uses by 
443,000 kilograms to reflect the total level of unused material at the 
end of 2005. The commenters contend that the unused amount described in 
the proposal was largely attributed to the delay in finalizing the 2005 
supplemental rule and that stakeholders should not be penalized.
    EPA notes that the accumulation of inventory is not allowed under 
the critical use exemption program, and that the unused amount consists 
of material that was produced but was never sold to critical users. The 
2005 supplemental rule only authorized an additional 610,655 kilograms 
of pre-phaseout inventory to be made available for critical uses (70 FR 
73604) and did not authorize additional new production or import for 
the 2005 calendar year. Thus, the 2005 supplemental rule did not affect 
the carryover amount. Therefore, to account for carryover of inventory, 
EPA is reducing the level of new production and import for critical 
uses by 443,000 kilograms as proposed.
    Decision XVII/9, paragraph 7, ``request[s] Parties to endeavor to 
use stocks, where available, to meet any demand for methyl bromide for 
the purposes of research and development.'' EPA then proposed to reduce 
the total supply of new production and import for critical uses by an 
amount equivalent to the total amount authorized for research purposes, 
which is 21,702 kilograms. The calculations used by the Agency for the 
research adjustment are available for public comment in the docket for 
this action. Further, EPA encouraged methyl bromide suppliers to sell 
pre-phaseout inventory to researchers and encouraged researchers to 
purchase stocks of methyl bromide.
    EPA received three comments stating that research amounts should 
come from new production amounts because such research is critical to 
the long-term acceptance of alternatives, and allowing new production 
for this use will facilitate the transition to non-ozone-depleting 
substances.
    EPA's allocation for the 2007 control period is consistent with the 
above Decision. To account for research amounts, in this final rule EPA 
is reducing the amount of methyl bromide available for new production 
and import by 21,702 kilograms but notes that use of methyl bromide for 
research purposes will facilitate the transition to alternatives. In 
response to Decision XVII/9, EPA continues to encourage methyl bromide 
suppliers to sell inventory to researchers and encourages researchers 
to purchase inventory. Additional discussion can be found in Section 
V.F of this final rule.
    Lastly, the Agency proposed to allocate critical stock allowances 
(CSAs) for 2007 critical uses in an amount equal to either 6.2% or 7.5% 
of baseline. The Agency is allocating CSAs equal to 7.5% of baseline in 
this final rule. In section V.G. of this preamble, the Agency describes 
the reasons for this action. Having chosen the larger CSA amount, the 
Agency is making a corresponding reduction in the amount of new 
production and import under the exemption program.
    On February 6, 2006, EPA amended the label for 1,3-dichloropropene 
(1,3-D) regarding karst restrictions. Copies of the amended labels are 
available in the docket for this action. The previous label states ``Do 
not apply in areas overlying karst geology'' whereas the new label 
states ``Do not apply this product within 100 feet of karst 
topographical features.'' The new label language is more instructive on 
the use of 1,3-D in areas with karst topography, while still protecting 
the environment, than the previous label language. EPA's assessment of 
the amount of methyl bromide that may be displaced by the use of 1,3-D 
over karst areas in the 2007 technical analysis was already based on 
the revised label language now in place. Therefore, EPA did not propose 
to make further reductions to the volumes of pre-plant methyl bromide 
based on the label change. A more detailed explanation of this matter 
appears in the responses to the MBTOC, available in the docket for this 
rulemaking. A copy of the label amendment is available in the docket as 
well. EPA received one comment on the karst label restriction, which is 
addressed in the Response to Comments document for this action.
    With this final rule, EPA is amending Columns B and C of Appendix L 
to 40 CFR Part 82, Subpart A to reflect the agreed critical-use 
categories identified in Decision XVII/9 for the 2007 control period 
(calendar year). The Agency is amending the table of critical uses 
based, in part, on the technical analysis contained in the 2007 U.S. 
nomination that assesses data submitted by applicants to the critical 
use exemption program as well as public and proprietary data on the use 
of methyl bromide and its alternatives. EPA sought comment on the 
aforementioned analysis and, in particular, any information regarding 
changes to the registration or use of alternatives that may have 
transpired after the 2007 U.S. nomination was written. Such information 
has the potential to alter the technical or economic feasibility of an 
alternative and could thus cause EPA to modify the analysis that 
underpins EPA's determination as to which uses and what amounts of 
methyl bromide qualify for the critical use exemption. EPA did not 
receive any comments regarding changes to the registration of an 
alternative, but did receive five comments stating that it is 
inappropriate for EPA to revisit the technical analysis contained in 
the 2007 nomination at this time because the Parties have already 
authorized critical use amounts for the 2007 calendar year. While EPA 
is not revising the technical analysis at this time due to the lack of 
new information regarding the registration or use of alternatives, EPA 
will continue to consider such information in future rulemakings. Based 
on the information described above, EPA is determining that the uses in 
Table I: Approved Critical Uses, with the limiting critical conditions 
specified, qualify to obtain and use critical use methyl bromide in 
2007.

                                        Table I.--Approved Critical Uses
----------------------------------------------------------------------------------------------------------------
              Column A                         Column B                              Column C
----------------------------------------------------------------------------------------------------------------
Approved Critical Uses.............  Approved Critical User and   Limiting Critical Conditions that either
                                      Location of Use.             exist, or that the approved critical user
                                                                   reasonably expects could arise without methyl
                                                                   bromide fumigation:
----------------------------------------------------------------------------------------------------------------

[[Page 75392]]


                                                 PRE-PLANT USES
----------------------------------------------------------------------------------------------------------------
Cucurbits..........................  (a) Michigan growers.......  Moderate to severe soilborne fungal disease
                                                                   infestation.
                                                                  Moderate to severe disease infestation.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (b) Southeastern U.S.        Moderate to severe yellow or purple nutsedge
                                      limited to growing           infestation.
                                      locations in Alabama,       Moderate to severe fungal disease infestation.
                                      Arkansas, Kentucky,         Moderate to severe root knot nematodes.
                                      Louisiana, North Carolina,  A need for methyl bromide for research
                                      South Carolina, Tennessee,   purposes.
                                      and Virginia.
                                     (c) Georgia growers........  Moderate to severe yellow or purple nutsedge
                                                                   infestation.
                                                                  Moderate to severe fungal disease infestation.
                                                                  Moderate to severe root knot nematodes.
                                                                  A need for methyl bromide for research
                                                                   purposes.
Eggplant...........................  (a) Florida growers........  Moderate to severe yellow or purple nutsedge
                                                                   infestation.
                                                                  Moderate to severe nematodes.
                                                                  Moderate to severe disease infestation.
                                                                  Restrictions on alternatives due to karst
                                                                   geology.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (b) Georgia growers........  Moderate to severe yellow or purple nutsedge
                                                                   infestation.
                                                                  Moderate to severe nematodes.
                                                                  Moderate to severe pythium root, collar, crown
                                                                   and root rot.
                                                                  Moderate to severe disease infestation.
                                                                  Moderate to severe southern blight
                                                                   infestation.
                                                                  Restrictions on alternatives due to karst
                                                                   geology.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (c) Michigan growers.......  Moderate to severe soilborne fungal disease
                                                                   infestation.
                                                                  A need for methyl bromide for research
                                                                   purposes.
Forest Nursery Seedlings...........  (a) Members of the Southern  Moderate to severe yellow or purple nutsedge
                                      Forest Nursery Management    infestation.
                                      Cooperative limited to      Moderate to severe disease infestation.
                                      growing locations in
                                      Alabama, Arkansas,
                                      Florida, Georgia,
                                      Louisiana, Mississippi,
                                      North Carolina, Oklahoma,
                                      South Carolina, Tennessee,
                                      Texas, and Virginia.
                                     (b) International Paper and  Moderate to severe yellow or purple nutsedge
                                      its subsidiaries limited     infestation.
                                      to growing locations in     Moderate to severe disease infestation.
                                      Alabama, Arkansas,
                                      Georgia, South Carolina,
                                      and Texas.
                                     (c) Public (government-      Moderate to severe weed infestation including
                                      owned) seedling nurseries    purple and yellow nutsedge infestation.
                                      in Illinois, Indiana,       Moderate to severe Canada thistle infestation.
                                      Kentucky, Maryland,         Moderate to severe nematodes.
                                      Missouri, New Jersey,       Moderate to severe fungal disease infestation.
                                      Ohio, Pennsylvania, West
                                      Virginia, and Wisconsin.
                                     (d) Weyerhaeuser Company     Moderate to severe yellow or purple nutsedge
                                      and its subsidiaries         infestation.
                                      limited to growing          Moderate to severe disease infestation.
                                      locations in Alabama,       Moderate to severe nematodes and worms.
                                      Arkansas, North Carolina,
                                      and South Carolina.
                                     (e) Weyerhaeuser Company     Moderate to severe yellow nutsedge
                                      and its subsidiaries         infestation.
                                      limited to growing          Moderate to severe fungal disease infestation.
                                      locations in Oregon and
                                      Washington.
                                     (f) Michigan growers.......  Moderate to severe disease infestation.
                                                                  Moderate to severe Canada thistle infestation.
                                                                  Moderate to severe nutsedge infestation.
                                                                  Moderate to severe nematodes.
                                     (g) Michigan herbaceous      Moderate to severe nematodes.
                                      perennials growers.         Moderate to severe fungal disease infestation.
                                                                  Moderate to severe yellow nutsedge and other
                                                                   weed infestation.
Orchard Nursery Seedlings..........  (a) Members of the Western   Moderate to severe nematode infestation.
                                      Raspberry Nursery           Presence of medium to heavy clay soils.
                                      Consortium limited to       Prohibition on use of 1,3-dichloropropene
                                      growing locations in         products because local township limits on use
                                      California and Washington    of this alternative have been reached.
                                      (Driscoll's Raspberries     A need for methyl bromide for research
                                      and their contract growers   purposes.
                                      in California and
                                      Washington).
                                     (b) Members of the           Moderate to severe nematode infestation.
                                      California Association of   Presence of medium to heavy clay soils.
                                      Nurserymen--Deciduous       Prohibition on use of 1,3-dichloropropene
                                      Fruit and Nut Tree Growers.  products because local township limits on use
                                                                   of this alternative have been reached.
                                                                  A need for methyl bromide for research
                                                                   purposes.

[[Page 75393]]


                                     (c) California rose          Moderate to severe nematode infestation.
                                      nurseries.                  Prohibition on use of 1,3-dichloropropene
                                                                   products because local township limits on use
                                                                   of this alternative have been reached.
                                                                  A need for methyl bromide for research
                                                                   purposes.
Strawberry Nurseries...............  (a) California growers.....  Moderate to severe disease infestation.
                                                                  Moderate to severe yellow or purple nutsedge
                                                                   infestation.
                                                                  Moderate to severe nematodes.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (b) Maryland, North          Moderate to severe black root rot.
                                      Carolina, and Tennessee     Moderate to severe root-knot nematodes.
                                      growers.                    Moderate to severe yellow and purple nutsedge
                                                                   infestation.
                                                                  A need for methyl bromide for research
                                                                   purposes.
Orchard Replant....................  (a) California stone fruit   Moderate to severe nematodes.
                                      growers.                    Moderate to severe fungal disease infestation.
                                                                  Replanted (non-virgin) orchard soils to
                                                                   prevent orchard replant disease.
                                                                  Presence of medium to heavy soils.
                                                                  Prohibition on use of 1,3-dichloropropene
                                                                   products because local township limits on use
                                                                   of this alternative have been reached.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (b) California table and     Moderate to severe nematodes.
                                      raisin grape growers.       Moderate to severe fungal disease infestation.
                                                                  Replanted (non-virgin) orchard soils to
                                                                   prevent orchard replant disease.
                                                                  Medium to heavy soils.
                                                                  Prohibition on use of 1,3-dichloropropene
                                                                   products because local township limits for
                                                                   this alternative have been reached.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (c) California wine grape    Moderate to severe nematodes.
                                      growers.                    Moderate to severe fungal disease infestation.
                                                                  Replanted (non-virgin) orchard soils to
                                                                   prevent orchard replant disease.
                                                                  Medium to heavy soils.
                                                                  Prohibition on use of 1,3-dichloropropene
                                                                   products because local township limits for
                                                                   this alternative have been reached.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (d) California walnut        Moderate to severe nematodes.
                                      growers.                    Moderate to severe fungal disease infestation.
                                                                  Replanted (non-virgin) orchard soils to
                                                                   prevent orchard replant disease.
                                                                  Medium to heavy soils.
                                                                  Prohibition on use of 1,3-dichloropropene
                                                                   products because local township limits for
                                                                   this alternative have been reached.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (e) California almond        Moderate to severe nematodes.
                                      growers.                    Moderate to severe fungal disease infestation.
                                                                  Replanted (non-virgin) orchard soils to
                                                                   prevent orchard replant disease.
                                                                  Medium to heavy soils.
                                                                  Prohibition on use of 1,3-dichloropropene
                                                                   products because local township limits for
                                                                   this alternative have been reached.
                                                                  A need for methyl bromide for research
                                                                   purposes.
Ornamentals........................  (a) California growers.....  Moderate to severe disease infestation.
                                                                  Moderate to severe nematodes.
                                                                  Prohibition on use of 1,3-dichloropropene
                                                                   products because local township limits for
                                                                   this alternative have been reached.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (b) Florida growers........  Moderate to severe weed infestation.
                                                                  Moderate to severe disease infestation.
                                                                  Moderate to severe nematodes.
                                                                  Karst topography.
                                                                  A need for methyl bromide for research
                                                                   purposes.
Peppers............................  (a) California growers.....  Moderate to severe disease infestation.
                                                                  Moderate to severe nematodes.
                                                                  Prohibition on use of 1,3-dichloropropene
                                                                   products because local township limits for
                                                                   this alternative have been reached.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (b) Alabama, Arkansas,       Moderate to severe yellow or purple nutsedge
                                      Kentucky, Louisiana, North   infestation.
                                      Carolina, South Carolina,   Moderate to severe nematodes.
                                      Tennessee, and Virginia     Moderate to severe pythium root, collar, crown
                                      growers.                     and root rots.
                                                                  Presence of an occupied structure within 100
                                                                   feet of a grower's field the size of 100
                                                                   acres or less.
                                                                  A need for methyl bromide for research
                                                                   purposes.

[[Page 75394]]


                                     (c) Florida growers........  Moderate to severe yellow or purple nutsedge
                                                                   infestation.
                                                                  Moderate to severe disease infestation.
                                                                  Moderate to severe nematodes.
                                                                  Karst topography.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (d) Georgia growers........  Moderate to severe yellow or purple nutsedge
                                                                   infestation.
                                                                  Moderate to severe nematodes, or moderate to
                                                                   severe pythium root and collar rots.
                                                                  Moderate to severe southern blight
                                                                   infestation, crown or root rot.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (e) Michigan growers.......  Moderate to severe fungal disease infestation.
                                                                  A need for methyl bromide for research
                                                                   purposes.
Strawberry Fruit...................  (a) California growers.....  Moderate to severe black root rot or crown
                                                                   rot.
                                                                  Moderate to severe yellow or purple nutsedge
                                                                   infestation.
                                                                  Moderate to severe nematodes.
                                                                  Prohibition on use of 1,3-dichloropropene
                                                                   products because local township limits for
                                                                   this alternative have been reached.
                                                                  Time to transition to an alternative.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (b) Florida growers........  Moderate to severe yellow or purple nutsedge.
                                                                  Moderate to severe nematodes.
                                                                  Moderate to severe disease infestation.
                                                                  Carolina geranium or cut-leaf evening primrose
                                                                   infestation.
                                                                  Karst topography and to a lesser extent a need
                                                                   for methyl bromide for research purposes.
                                     (c) Alabama, Arkansas,       Moderate to severe yellow or purple nutsedge.
                                      Georgia, Illinois,          Moderate to severe nematodes.
                                      Kentucky, Louisiana,        Moderate to severe black root and crown rot.
                                      Maryland, New Jersey,       Presence of an occupied structure within 100
                                      North Carolina, Ohio,        feet of a grower's field the size of 100
                                      South Carolina, Tennessee,   acres or less.
                                      and Virginia growers.       A need for methyl bromide for research
                                                                   purposes.
Tomatoes...........................  (a) Michigan growers.......  Moderate to severe disease infestation.
                                                                  Moderate to severe fungal pathogen
                                                                   infestation.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (b) Alabama, Arkansas,       Moderate to severe yellow or purple nutsedge
                                      Florida, Georgia,            infestation.
                                      Kentucky, Louisiana, North  Moderate to severe disease infestation.
                                      Carolina, South Carolina,   Moderate to severe nematodes.
                                      Tennessee, and Virginia     Presence of an occupied structure within 100
                                      growers.                     feet of a grower's field the size of 100
                                                                   acres or less.
                                                                  Karst topography.
                                                                  A need for methyl bromide for research
                                                                   purposes.
Turfgrass..........................  (a) U.S. turfgrass sod       Production of industry certified pure sod.
                                      nursery producers who are   Moderate to severe bermudagrass.
                                      members of Turfgrass        Moderate to severe nutsedge.
                                      Producers International     Moderate to severe white grub infestation.
                                      (TPI).                      Control of off-type perennial grass
                                                                   infestation.
                                                                  A need for methyl bromide for research
                                                                   purposes.
----------------------------------------------------------------------------------------------------------------
                                                POST-HARVEST USES
----------------------------------------------------------------------------------------------------------------
Food Processing....................  (a) Rice millers in all      Moderate to severe infestation of beetles,
                                      locations in the U.S. who    weevils or moths.
                                      are members of the USA      Older structures that can not be properly
                                      Rice Millers Association.    sealed to use an alternative to methyl
                                                                   bromide.
                                                                  Presence of sensitive electronic equipment
                                                                   subject to corrosivity.
                                                                  Time to transition to an alternative.
                                     (b) Pet food manufacturing   Moderate to severe infestation of beetles,
                                      facilities in the U.S. who   moths, or cockroaches.
                                      are active members of the   Older structures that can not be properly
                                      Pet Food Institute (For      sealed to use an alternative to methyl
                                      this rulemaking, ``pet       bromide.
                                      food'' refers to domestic   Presence of sensitive electronic equipment
                                      dog and cat food).           subject to corrosivity.
                                                                  Time to transition to an alternative.
                                     (c) Kraft Foods in the U.S.  Older structures that can not be properly
                                                                   sealed to use an alternative to methyl
                                                                   bromide.
                                                                  Presence of sensitive electronic equipment
                                                                   subject to corrosivity.
                                                                  Time to transition to an alternative.
                                     (d) Members of the North     Moderate to severe beetle infestation.
                                      American Millers'           Older structures that can not be properly
                                      Association in the U.S.      sealed to use an alternative to methyl
                                                                   bromide.
                                                                  Presence of sensitive electronic equipment
                                                                   subject to corrosivity.
                                                                  Time to transition to an alternative.

[[Page 75395]]


                                     (e) Members of the National  Moderate to severe beetle or moth infestation.
                                      Pest Management             Older structures that can not be properly
                                      Association treating cocoa   sealed to use an alternative to methyl
                                      beans in storage and         bromide.
                                      associated spaces and       Presence of sensitive electronic equipment
                                      equipment and processed      subject to corrosivity.
                                      food, cheese, dried milk,   Time to transition to an alternative.
                                      herbs, and spices and
                                      spaces and equipment in
                                      associated processing
                                      facilities.
Commodity Storage..................  (a) California entities      Rapid fumigation is required to meet a
                                      storing walnuts, beans,      critical market window, such as during the
                                      dried plums, figs,           holiday season, rapid fumigation is required
                                      raisins, dates (in           when a buyer provides short (2 working days
                                      Riverside county only),      or less) notification for a purchase or there
                                      and pistachios in            is a short period after harvest in which to
                                      California.                  fumigate and there is limited silo
                                                                   availability for using alternatives.
                                                                  A need for methyl bromide for research
                                                                   purposes.
Dry Cured Pork Products............  (a) Members of the National  Moderate to severe red legged ham beetle
                                      Country Ham Association.     infestation.
                                                                  Moderate to severe cheese/ham skipper
                                                                   infestation.
                                                                  Moderate to severe dermested beetle
                                                                   infestation.
                                                                  Ham mite infestation.
                                     (b) Members of the American  Moderate to severe red legged ham beetle
                                      Association of Meat          infestation.
                                      Processors.                 Moderate to severe cheese/ham skipper
                                                                   infestation.
                                                                  Moderate to severe dermested beetle
                                                                   infestation.
                                                                  Ham mite infestation.
                                     (c) Nahunta Pork Center      Moderate to severe red legged ham beetle
                                      (North Carolina).            infestation.
                                                                  Moderate to severe cheese/ham skipper
                                                                   infestation.
                                                                  Moderate to severe dermested beetle
                                                                   infestation.
                                                                  Ham mite infestation.
----------------------------------------------------------------------------------------------------------------

    EPA received five comments on the proposed critical uses for 2007. 
Four commenters noted that the Southern Forest Nursery Management 
Cooperative was not listed in the way the consortium had been in 
previous allocation rules, although the member states were described. 
In response, EPA agrees with the commenters and is adding ``Southern 
Forest Nursery Management Cooperative'' to column B under ``Approved 
Critical Users'' for the Forest Nursery Seedling sector. However, EPA 
is not adding the State of Kentucky to the consortium description in 
Column B at this time, which was requested by the commenters, as the 
corresponding exemption application filed did not list Kentucky as a 
consortium member. One other commenter requested that the language 
describing the National Pest Management Association be changed to 
``Members of the National Pest Management Association treating cocoa 
beans in storage and associated spaces and equipment and processed 
food, cheese, dried milk, herbs and spices and spaces and equipment in 
associated processing facilities.'' EPA has incorporated this revised 
language describing the National Pest Management Association because it 
clarifies that commodities will be fumigated as part of space 
fumigations, as indicated in the application.
    EPA received one set of comments on the pre-plant limiting critical 
conditions. The commenter requested that karst restriction be removed 
from the final rule and that the U.S. Government conduct a post-harvest 
evaluation of the regulatory impact of the 1,3-D label change. However, 
as stated above, EPA's analysis already took the change in the label 
language into account when conducting the 2007 analysis, and EPA is not 
making further reductions in this area. For responses to the remaining 
pre-plant comments on limiting critical conditions, please see the 
corresponding Response to Comments document in the docket for this 
action.
    EPA received two comments stating that some post-harvest limiting 
critical conditions are no longer relevant and should be removed. One 
commenter also notes that sulfuryl fluoride has superseded phosphine 
and heat as the preferred alternative in post-harvest use categories. 
The conditions that the commenter requested be removed are:
     Older structures that cannot be properly sealed
     Presence of sensitive electronic equipment subject to 
corrosivity
     Rapid fumigation
     Time to transition to an alternative
    However, EPA believes these limiting critical conditions are 
appropriate under certain circumstances. For example, EPA notes that 
phosphine is a registered alternative and therefore will continue to 
consider phosphine when conducting future analyses of the post-harvest 
sector, and the presence of electronic equipment subject to corrosivity 
is a factor to consider when evaluating this alternative. As per the 
critical use requirements, EPA will continue to consider heat a non-
chemical alternative, as non-chemical alternative information is 
requested in the application. EPA also notes the sulfuryl fluoride is 
not registered on beans in California. Additional information on the 
limiting critical conditions is in the corresponding Response to 
Comments document for this action.
    EPA is finalizing the proposed changes amending the table in 40 CFR 
part 82, subpart A, Appendix L, as reflected above. Specifically, EPA 
is adding one reference to column B and deleting seven references. EPA 
is adding cheese processing facilities to NPMA dry commodities to 
reflect the authorization of this use in Decision XVII/9 and removing 
Idaho, Kansas, Nebraska, Oregon, Utah, and Washington from the approved 
public nursery locations in the Forest Nursery Sector because a 2007 
application for these locations was not submitted.
    The categories listed in Table I above have been designated 
critical uses for 2007 in Decision XVII/9 of the Parties. The amount of 
methyl bromide approved for research purposes is included in the amount 
of methyl bromide approved by the Parties for the commodities for which 
``research'' is indicated as a limiting critical condition in the table 
above. However, consistent with the approach taken in the 2006 CUE 
Rule, the Agency is not setting

[[Page 75396]]

aside a specific quantity of methyl bromide to be associated with 
research activities. Methyl bromide is needed for research purposes 
including experiments that require methyl bromide as a standard control 
treatment with which to compare the trial alternatives' results. EPA is 
permitting the following sectors to use critical use methyl bromide for 
research purposes: cucurbits, dried fruit and nuts, nursery stock, 
strawberry nurseries, turfgrass, eggplant, peppers, strawberry fruit, 
tomatoes, and orchard replant. In their applications to EPA, these 
sectors identified research programs that require the use of methyl 
bromide.

D. The Criteria in Decisions IX/6 and Ex. I/4

    Paragraphs 2 and 5 of Decision XVII/9 request Parties to ensure 
that the conditions or criteria listed in Decisions Ex. I/4 and IX/6, 
paragraph 1, are applied to exempted critical uses for the 2007 control 
period. A discussion of the Agency's application of the criteria in 
paragraph 1 of Decision IX/6 appears in sections V.A. and V.C. of this 
preamble. In section V.C. of the original proposal, the Agency 
solicited comments from the public on the technical basis for 
determining that the uses listed in this proposed rule meet the 
criteria of the critical use exemption. The CUNs detail how each 
proposed critical use meets the criteria listed in paragraph 1 of 
Decision IX/6, apart from the criterion located at (b)(ii), as well as 
the criteria in paragraphs 5 and 6 of Decision Ex. I/4. EPA has 
addressed these comments in the Response to Comments document, 
available on the docket for this final rule.
    The criterion in Decision IX/6(1)(b)(ii), which refers to the use 
of available stocks of methyl bromide, is addressed in sections V.G. of 
this preamble. The Agency has previously provided its interpretation of 
the criterion in Decision IX/6(1)(a)(i) regarding the presence of 
significant market disruption in the absence of an exemption, and EPA 
refers readers to the 2006 CUE final rule (71 FR 5989) as well as to 
the memo on the docket on the CUE process, in addition to Section V.A 
above, for further elaboration.
    The remaining considerations, including the lack of available 
technically and economically feasible alternatives under the 
circumstance of the nomination, efforts to minimize use and emissions 
of methyl bromide where technically and economically feasible, the 
development of research and transition plans, and the requests in 
Decision Ex. I/4(5) that Parties consider and implement MBTOC 
recommendations, where feasible, on reductions in the critical use of 
methyl bromide and in paragraph 6 for Parties that submit CUNs to 
include information on the methodology they use to determine economic 
feasibility are all addressed in the nomination documents.
    Some of these criteria are evaluated in other documents as well. 
For example, the U.S. has further considered matters regarding the 
adoption of alternatives and research into methyl bromide alternatives, 
criterion (1)(b)(iii) in Decision IX/6, in the development of the 
National Management Strategy submitted to the Ozone Secretariat in 
December 2005 and in on-going consultations with industry. The National 
Management Strategy addresses all of the aims specified in Decision 
Ex.I/4(3) to the extent feasible and is available in the docket for 
this rulemaking.

E. Emissions Minimization

    EPA notes for the regulated community the reference to emission 
minimization techniques in paragraph 6 of Decision XVII/9, which states 
that Parties shall request critical users to employ ``emission 
minimization techniques such as virtually impermeable films, barrier 
film technologies, deep shank injection and/or other techniques that 
promote environmental protection, whenever technically and economically 
feasible.'' In addition, EPA understands that research is being 
conducted on the potential to reduce rates and emissions using newly 
available high-barrier films and that these studies show promising 
results. Users of methyl bromide should make every effort to decrease 
overall emissions of methyl bromide by implementing measures such as 
the ones listed above, to the extent consistent with state and local 
laws and regulations. The Agency encouraged researchers and users who 
are successfully utilizing such techniques to inform EPA of their 
experiences as part of their comments on the July 6, 2006 proposed rule 
and to provide such information with their critical use applications. 
In addition, the Agency welcomed comments on the implementation of 
emission minimization techniques and whether and how further emission 
and use minimization could be achieved.
    EPA received five comments on emissions minimization. Two 
commenters stated that EPA should continue to encourage emissions 
minimization without mandating emissions control technology. EPA 
strongly encourages emissions minimization techniques, as stated above, 
and notes that the critical use exemption application contains an 
emission reduction worksheet.
    One commenter suggested that EPA facilitate improvements by 
communicating beneficial alternatives and publicizing research in a 
timely manner. EPA agrees with the commenter and will examine ways to 
improve this communication in the future.
    Another commenter asserted that a phaseout of methyl bromide will 
not contribute to a reduction in ozone depletion, and cited the 2002 
World Meteorological Organization's Scientific Assessment of Ozone 
Depletion. However, the recently published Executive Summary of the 
Scientific Assessment of Ozone Depletion: 2006 contains the following 
paragraphs that refute the commenter's conclusions:
    ``Both the recently observed decline and the 20th Century increase 
inferred for atmospheric methyl bromide were larger than expected. 
Although industrial emissions of methyl bromide were thought to account 
for 20% (range 10-40%) of atmospheric methyl bromide during 1992-1998 
(i.e., before production was reduced), observed concentrations are 
consistent with this fraction having been 30% (range 20-40%). This 
suggests that fumigation-related emissions could have a stronger 
influence on atmospheric methyl bromide mixing ratios than estimated in 
past Assessments, though uncertainties in the variability of natural 
emission rates and loss, and in the magnitude of methyl bromide banked 
in recent years, limit our understanding of this sensitivity.
    ``The percentage reduction in integrated equivalent effective 
stratospheric chlorine for methyl bromide in Column A is larger than 
previously reported. This is because of the upward revision of the 
fraction of anthropogenic emissions relative to total methyl bromide 
emissions, as well as upward revision in the ozone-depletion 
effectiveness of bromine atoms compared with chlorine atoms mentioned 
earlier.
    ``If critical-use methyl bromide exemptions continue indefinitely 
at the 2006 level compared to a cessation of these exemptions in 2010 
or 2015, midlatitude integrated equivalent effective stratospheric 
chlorine would increase by 4.7% or 4.0%, respectively.''
    Another commenter notes that the main barrier to adoption of 
emissions controls is the lack of commercial incentives for industry to 
use emissions control technology for pre-plant, post-harvest, or QPS 
applications. EPA

[[Page 75397]]

believes that by reducing supply through the phaseout will provide an 
incentive for use minimization and therefore limit emissions. Other 
points discussed by this commenter can be found in the corresponding 
Response to Comments document for this action. The Executive Summary is 
available on the docket for this action, and the full report will be 
released in December 2006.

F. Critical Use Allowance Allocations

    Each critical use allowance (CUA) is equivalent to 1 kg of critical 
use methyl bromide. These allowances expire at the end of the control 
period and, as explained in the Framework Rule, are not bankable from 
one year to the next. This allocation of pre-plant and post-harvest 
CUAs to the entities listed below is subject to the trading provisions 
at 40 CFR 82.12, which are discussed in section V.G. of the preamble to 
the Framework Rule (69 FR 76982).
    In the July 6, 2006 proposed rule, EPA proposed that the amount to 
come from pre-phaseout inventory be either 6.2% of baseline (which is 
the difference between the agreed U.S. critical use level and the 
amount of allowable new production and import) or 7.5% of baseline. 
However, in the proposed rule, both the high and low end of the 
proposed ranges included an additional amount that had been adjusted to 
account for the proposed reduced research amount of 21,702 kilograms. 
As a result, the proposed high end of the CSA range amounted to 
1,936,302 kilograms, or 7.6% of baseline. However, EPA is finalizing 
the CSA amount so that the CSAs reflect exactly 7.5% of baseline, or 
1,914,600 kilograms. Similarly, the proposed low end of the range was 
1,621,702 kilograms but should have been expressed as 1,600,000 
kilograms, which equals 6.2% of baseline. As noted in Section V.C 
above, the authorized research amount of 21,702 kilograms will be 
deducted from the amount of newly produced or imported methyl bromide 
in response to Decision XVII/9. These adjustments do not affect the 
calculation of the critical use allowances. The calculation spreadsheet 
is available on Docket ID No. EPA-HQ-OAR-2005-0538. The total critical 
use exemption amount for 2007 is 6,230,655 kilograms (24.4% of 
baseline) with 4,316,055 kilograms (16.9% of baseline) of critical use 
allowances (CUAs) available from new production or import and the 
remaining amount, 1,914,600 kilograms (7.5% of baseline), available 
through CSAs. Therefore, the CUAs are allocated as follows:

            Table II.--Allocation of Critical Use Allowances
------------------------------------------------------------------------
                                           2007 Critical   2007 Critical
                                                use             use
                                          allowances for  allowances for
                 Company                     pre-plant      post-harvest
                                               uses*           uses*
                                            (kilograms)     (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp...............       2,401,699         221,167
Albemarle Corp..........................         987,633          90,949
Ameribrom, Inc..........................         545,787          50,260
TriCal, Inc.............................          16,994           1,565
                                         -------------------------------
    Total...............................       3,952,114         363,941
------------------------------------------------------------------------
* For production or import of class I, Group VI controlled substance
  exclusively for the Pre-Plant or Post-Harvest uses specified in
  Appendix L to 40 CFR Part 82.

    Paragraph four of Decision XVII/9 states ``that Parties shall 
endeavor to license, permit, authorize, or allocate quantities of 
critical use methyl bromide as listed in tables A and C of the annex to 
the present decision.'' This is similar to language in Decisions Ex. I/
3(4) and Ex. II/1(4) regarding 2005 and 2006 critical uses, 
respectively. The language from these Decisions calls on Parties to 
endeavor to allocate critical use methyl bromide on a sector basis.
    In establishing the critical use exemption program, the Agency 
endeavored to allocate directly on a sector-by-sector basis by 
analyzing and proposing this option among others in the August 2004 
proposed Framework Rule (69 FR 52366). EPA solicited comment on both 
universal and sector-based allocation of critical use allowances. The 
Agency evaluated the various options based on their economic, 
environmental and practical effects. After receiving comments, EPA 
determined in the final Framework Rule (69 FR 76989) that a lump-sum, 
or universal, allocation, modified to include distinct caps for pre-
plant and post-harvest uses, was the most efficient and least 
burdensome approach that would achieve the desired environmental 
results, and that a sector-specific approach would pose significant 
administrative and practical difficulties. Although the approach 
adopted in the Framework Rule does not directly allocate allowances to 
each category of use, the Agency anticipates that reliance on market 
mechanisms will achieve similar results indirectly. The TEAP 
recommendations are based on data submitted by the U.S. which in turn 
are based on recent historic use data in the current methyl bromide 
market. In other words, the TEAP recommendations agreed to by the 
Parties are based on current use and the current use patterns take 
place in a market where all pre-plant and post-harvest methyl bromide 
uses compete for a lump sum supply of critical use material. Therefore, 
the Agency believes that under a system of universal allocations, 
divided into pre-plant and post-harvest sectors, the actual critical 
use will closely follow the sector breakout listed by the TEAP. These 
issues were addressed in the previous rule and EPA is not aware of any 
factors that would alter the analysis performed during the development 
of the Framework Rule. EPA did not propose to change the approach 
adopted in the Framework Rule for the allocation of CUAs but, in an 
endeavor to address Decision XVII/9(4), EPA considered additional 
comment on the Agency's allocation of CUAs in the two groupings (pre-
plant and post-harvest) that the Agency has employed in the past. A 
summary of the options analysis conducted by EPA is available in the 
docket for this rulemaking.
    EPA received six comments on the allocation approach. Five 
commenters believe the current two-group approach is preferable and 
should be maintained by EPA because it is consistent with the way the 
market currently operates. One commenter stated that the allocations

[[Page 75398]]

should be made directly to each sector, as requested by the Parties, 
and noted that other countries have established use-specific allocation 
systems. The commenter also stated that the ``lump sum'' approach 
delays the transition to alternatives but requested that if EPA does 
not adopt a use-specific approach, that the current allocation system 
be maintained. In response, EPA agrees with the majority of the 
commenters and intends to continue differentiating between ``pre-
plant'' and ``post-harvest'' uses as defined in the Framework Rule (69 
FR 76982) for the 2007 control period.

G. Critical Stock Allowance Allocations and Inventory of Methyl Bromide

    As discussed above and in the December 23, 2004 Framework Rule, an 
approved critical user may obtain access to exempted production/import 
of methyl bromide and to limited inventories of pre-phaseout methyl 
bromide, the combination of which constitute the supply of ``critical 
use methyl bromide'' intended to meet the needs of agreed critical 
uses.
    In developing this action, the Agency noted that Decision XVII/9 
(para. 5) contains the following language: ``that each Party which has 
an agreed critical use renews its commitment to ensure that the 
criteria in paragraph 1 of decision IX/6 are applied when licensing, 
permitting or authorizing critical use of methyl bromide and that such 
procedures take into account available stocks of banked or recycled 
methyl bromide.'' This language is similar to language in Decision XVI/
2 authorizing 2006 critical uses. Language calling on Parties to 
address stocks also appears in Decision Ex. I/3, which authorized 2005 
critical uses.
    In the Framework Rule, which established the architecture of the 
critical use exemption program and set out the exempted levels of 
critical use for 2005, EPA interpreted paragraph 5 of Decision Ex. I/3 
``as meaning that the U.S. should not authorize critical use exemptions 
without including provisions addressing drawdown from stocks for 
critical uses'' (69 FR 76987). The Framework Rule established 
provisions governing the sale of pre-phaseout inventories for critical 
uses, including the concept of CSAs and a prohibition on sale of pre-
phaseout inventories for critical uses in excess of the amount of CSAs 
held by the seller. In addition, EPA noted that inventories were 
further taken into account through the trading provisions that allow 
critical use allowances to be converted into CSAs. Under this action, 
no significant changes would be made to those provisions.
    In the February 6, 2006 final rule that determined the amount to 
come from inventory during the 2006 control period, EPA stated that 
``bearing in mind the United States' `renewed commitment' as stated in 
Decision Ex II/1, and its experience with the 2005 critical use 
nomination,'' EPA would exercise its discretion to reduce production/
import and authorize an additional amount from inventory (71 FR 5998). 
For the 2006 control period, EPA authorized 1,136,008 kilograms (5% of 
baseline) to be supplied from pre-phaseout methyl bromide inventories. 
EPA noted that ``continued drawdown of inventory for critical uses at 
the level authorized in the Framework Rule for 2005'' (i.e., 5% of 
baseline) was an appropriate means, for the 2006 control period, ``of 
continuing the commitment previously made, in light of our 
understanding of current inventory and our analysis of the current 
needs of users.'' In addition, EPA responded to stakeholder concerns 
that taking 5% of baseline from inventory in 2006 and 6.2% in 2007 
would result in shortages. EPA reported that the Agency ``has re-
examined the available inventory data and has projected multiple 
scenarios concerning levels of consumption of existing inventory. Based 
on these efforts, EPA believes that critical users will continue to be 
able to meet their needs throughout 2006 and 2007 through the 
anticipated combination of new production and import and inventory 
drawdown'' (71 FR 6000).
    After EPA published the 2006 final rule, it received data on 
holdings of pre-2005 stocks from methyl bromide suppliers as part of 
routine reporting under the CUE program. This data enabled EPA to track 
and project inventory drawdown. For 2007, EPA proposed that the amount 
to come from stocks be either 6.2% of baseline (which is the difference 
between the agreed U.S. critical use level and the amount of allowable 
new production and import) or 7.5% of baseline. Both amounts are larger 
than the amount of CSAs in the preceding year of the exemption program 
and take into account Decisions of the Parties including Decision XVII/
9(5). EPA also sought comment on whether some other number in this 
range would be appropriate.
    EPA also noted in the proposed rule that an alternative means of 
addressing stocks appeared in a recent Federal Register notice relating 
to the essential use exemption program (71 FR 18264). In that context, 
the relevant Decision stated that ``Parties shall take into account * * 
* stocks of controlled substances * * * such that no more than a one-
year operational supply is maintained by that manufacturer.'' This 
Decision refers to another exemption program, one that is analogous but 
structured differently from the CUE, and operating for different 
applications and circumstances. EPA sought comment on whether, in the 
critical use exemption context, it would be appropriate to adjust the 
level of new production and import with the goal of maintaining a 
stockpile of some specified duration and how many months of inventory 
of methyl bromide would be appropriate to maintain non-disruptive 
management of this chemical in the supply chain for purposes of 
determining availability as inventories are reduced over time.
    EPA proposed to allocate critical stock allowances (CSAs) to the 
entities listed below in Table III for the control period of 2007 in 
the range of between 6.2% of baseline and 7.5% of baseline. EPA is 
employing the same methodology and baselines for allocating CSAs as in 
previous critical use rulemakings (69 FR 76982). The Agency sought 
comment on the amount of critical use methyl bromide to come from 
inventory.
    EPA received fourteen comments expressing concern about the 
increased reliance on inventory. These commenters stated that the 
proposed increase in the amount of methyl bromide to come from 
inventory is beyond the level approved by the Parties and that an 
adequate emergency inventory must be maintained. Several commenters 
stated that increased reliance on inventory puts critical users in 
jeopardy and noted the possibility of increased competition for this 
inventory with non-critical users. Commenters also noted the reduction 
in inventory reserves since 2002.
    Two commenters stated that inventory should only be for critical 
use needs and that existing inventory is sufficient to cover both 
proposed amounts of CSAs.
    EPA received 15 comments on the proportion of critical use methyl 
bromide that would come from pre-phaseout inventories (allocated as 
CSAs) and the proportion of new production or import (allocated as 
CUAs). Fourteen commenters were concerned with the option under which a 
greater amount of critical use material would come from the pre-
phaseout inventory than the minimum amount specified in Decision XVII/9 
by the Parties to the Protocol. Five of these commenters stated that 
the increased reliance on the pre-phaseout inventory

[[Page 75399]]

``puts critical use sectors in jeopardy'' because it was being proposed 
at a time when this inventory is decreasing. One commenter supported 
the concept of applying a ``strategic reserve'' approach to the 
critical use exemption program in order to mitigate a potential failure 
at the single methyl bromide production facility in the U.S. and to 
support unforeseen demand increases. One commenter stated that EPA 
underestimated the amount of methyl bromide needed to respond in the 
event of an emergency, stating that at least a nine-month supply would 
be needed to bring a currently closed methyl bromide factory back 
online as opposed to EPA's 100-day estimate. Six commenters said that 
the strategic inventory should at a minimum equal one year of the 
critical use need. Three commenters noted that the one-year stockpile 
should be a minimum standard because the time period is based on the 
standard used in the ``essential use program'' for CFCs and unlike 
alternatives to other ozone depleting substances, alternatives to 
methyl bromide are not universally effective in all geographic 
locations, even on the same crop, because of the large number of 
variables involved. Two commenters suggested a 24-month stockpile to 
maintain non-disruptive management in the methyl bromide supply chain. 
In contrast with concerns from commenters about taking too much of the 
2007 authorized amount from pre-phaseout inventory, which they claim 
would leave too little in the necessary strategic reserve, EPA received 
two comments that said although reliance on stocks in the proposed rule 
is increased from previous years, the amount remains too low. These two 
commenters believed that EPA should preferentially use the existing 
stockpiles to support CUEs and not allow any new production or 
importation unless the stocks are not sufficient to meet critical 
needs.
    EPA believes that allocating CSAs at a level of 7.5% of baseline 
(1,914,600 kg) is a reasonable drawdown from pre-phaseout inventory for 
critical uses, recognizing that some amount of methyl bromide must 
remain in the supply chain. This level accounts for past practice in 
CSA allocations, the range contained in the proposed rule, and Decision 
XVII/9, especially given the U.S. role as one of the world's largest 
suppliers to meet global methyl bromide needs.
    Since publication of the proposal for 2007 methyl bromide critical 
use exemptions (71 FR 38325) EPA released information on the pre-
phaseout aggregate inventory at the end of 2003, 2004 and 2005, which 
is available on the docket for this action. The release of the 
aggregate end-of-year inventory follows resolution of the two court 
cases blocking disclosure of a smaller aggregate and an EPA 
determination that the larger aggregates are not entitled to 
confidential treatment. EPA notes that some of the inventory available 
at the end of 2004 was exported to meet Article 5 countries' basic 
domestic needs during 2005, and some of this inventory was exported to 
meet a non-Article 5 country's critical use needs in 2005. The 
inventory has decreased significantly over the three years that EPA has 
collected data. The average annual drawdown of the inventory has been 
approximately 12% of baseline.
    EPA believes the finalized CSAs for 2007 are appropriate given the 
U.S.'s commitment to the Montreal Protocol and the history of Decisions 
of the Parties to the Montreal Protocol. In the Decisions for the 2005 
control period, the Parties authorized a total of 7.5% of the 1991 
baseline for critical uses in the U.S. beyond the allowable level of 
new production, which was 30% of baseline. While those Decisions have 
no direct application to other control periods, they do provide some 
indication that the drawdown in this final rule is reasonable under the 
Montreal Protocol.
    In addition, Decision XVII/9, which directly addresses critical 
uses for 2007, states: ``each Party which has an agreed critical use 
renews its commitment to ensure that the criteria in paragraph 1 of 
decision IX/6 are applied when licensing, permitting or authorizing 
critical use of methyl bromide and that such procedures taken into 
account available stocks of banked or recycled methyl bromide.'' 
Decision XVII/9 authorizes a critical use exemption level for the U.S. 
that is equivalent to 26.4% of baseline, and states that the U.S. may 
produce or import at a level equivalent to 20.2% of baseline. It also 
states that the difference between the two levels may be made up ``by 
using quantities of methyl bromide from stocks that the Party has 
recognized to be available.'' Therefore, EPA proposed that the total 
number of CSAs would be at least 6.2% of baseline. EPA is exercising 
its discretion in setting the total number of CSAs at 7.5% of baseline, 
or 1,914,600 kilograms. The Agency believes that using an amount of 
pre-phaseout inventory greater than the amount that appears on the face 
of the Decision, when feasible, is an appropriate means of implementing 
the continuing U.S. commitment as reflected in Decision XVII/9. More 
specifically, EPA has selected 7.5% for 2007 because of the Parties' 
earlier agreement to this number and because, under the current 
circumstances, this level of inventory drawdown for critical uses is 
feasible. The aggregate inventory data as of December 31, 2005, 
indicate that pre-phaseout inventory amounts to 39% of baseline and 
therefore EPA does not anticipate a shortage during 2007.
    However, EPA notes that the pre-phaseout inventory is decreasing 
over time and if the Agency is informed of a severe inventory shortage, 
it may consider various options including, but not limited to, 
promulgating a final version of the petition process proposed on 
October 27, 2005 (70 FR 62030), taking into account comments received 
on that proposal; proposing a different administrative mechanism to 
serve the same purpose; or authorizing conversion of a limited number 
of CSAs to CUAs through a rulemaking, bearing in mind the upper limit 
on U.S. production/import for critical uses.
    EPA appreciates the comments received to date on the appropriate 
level of inventory and intends to continue exploring the issue in 
future rulemakings. EPA notes that the Parties have not taken a 
decision on an appropriate amount of inventory for reserve. Nor has EPA 
reached any conclusion regarding what amount might be appropriate. 
Given this uncertainty, and the continuing decline in inventory levels, 
EPA is exercising caution in this year's CSA allocation. EPA will 
consider various approaches to this issue in the future based on the 
data received during this notice and comment rulemaking process and 
other information obtained by the Agency. While EPA believes that 7.5% 
is an appropriate amount for 2007, the Agency will revisit whether this 
is the appropriate figure to use in future allocation rules taking into 
account the feasibility of such drawdowns and other relevant factors 
and data presented to the Agency.
    Two commenters stated that stocks should be only for critical use 
needs, and that therefore access to pre-phaseout methyl bromide stocks 
should be denied to non-critical users and restricted for critical 
users to prevent ``double dipping,'' as per the Montreal Protocol and 
Decisions. EPA does not believe the language in the Protocol or 
subsequent Decisions of the Parties indicates that inventory should be 
reserved for critical users, nor did EPA request comment on this issue. 
EPA addressed similar comments in its Response to Comments for the 
Framework Rule, which is included in the docket for this action. EPA 
believes that some sectors have relied on pre-phaseout inventories of 
methyl bromide to test, and perform commercial trials on, alternatives 
to methyl bromide

[[Page 75400]]

instead of pursuing critical use exemptions. This is an appropriate 
strategy that is consistent with the Protocol. The inventory is 
assisting both critical use sectors and non-critical use sectors during 
this period of transition in the U.S. to methyl bromide alternatives 
that are verifiably feasible from a technical and economic standpoint. 
The inventory has also helped the world's methyl bromide supply chain 
make the transition to the post-phaseout controls without interruptions 
to the amount available for export to Article 5 countries and without 
interruptions to the shipments of CUE material to other CUE countries.
    EPA continues to consider the use of pre-phaseout inventories and 
will revisit the issue again. In addition, EPA received a set of late 
comments on the proposed rule, after the Parties took Decisions at the 
18th Meeting held October 30-November 3, 2006. The comments describe 
issues related to accelerated inventory drawdown and access to 
inventories by critical and non-critical users, stating that only 
critical users should have inventory access. While these comments 
arrived too late for consideration in this rulemaking, EPA has noted 
these comments and may explore the merits of the particular points 
raised by the commenter. These issues were discussed in depth at the 
18th Meeting of the Parties as well and the Agency intends to consider 
the concerns raised by meeting participants.

           Table III.--Allocation of Critical Stock Allowances
------------------------------------------------------------------------
                  Company                              Company
------------------------------------------------------------------------
Albemarle.................................  Industrial Fumigation
                                             Company.
Ameribrom, Inc............................  J.C. Ehrlich Co.
Bill Clark Pest Control, Inc..............  Pacific Ag.
Blair Soil Fumigation.....................  Pest Fog Sales Corp.
Burnside Services, Inc....................  Prosource One.
Cardinal Professional Products............  Reddick Fumigants.
Carolina Eastern, Inc.....................  Royster-Clark, Inc.
Degesch America, Inc......................  Southern State Cooperative,
                                             Inc.
Dodson Bros...............................  Trical Inc.
Great Lakes Chemical Corp.................  Trident Agricultural
                                             Products.
Harvey Fertilizer & Gas...................  UAP Southeast (NC).
Helena Chemical Co........................  UAP Southeast (SC).
Hendrix & Dail............................  Univar.
Hy Yield Bromine..........................  Vanguard Fumigation Co.
                                            Western Fumigation.
------------------------------------------------------------------------
Total--1,914,600 kilograms.

    Several companies that receive very small amounts of CSAs from EPA 
have contacted the Agency and requested that they be permitted to 
permanently retire their allowances. Some companies receive as few as 3 
allowances which allow the holder to sell up to 3 kilograms of methyl 
bromide to critical uses. Due to the small allocation and because they 
typically do not sell critical use methyl bromide, they find the 
allocation of CSAs, and associated record-keeping and reporting 
requirements, to be unduly burdensome. In response to this concern, EPA 
proposed to allow CSA holders, on a voluntary basis, to permanently 
relinquish their allowances through written notification to EPA. Such 
companies would not receive CSA allocations and would be excluded from 
future allocations. All allowances forfeited by companies through the 
written notification process would be reallocated to the remaining 
companies on a pro-rata basis. However, during the comment period, EPA 
did not receive any notification from CSA holders wishing to relinquish 
their allowances. Therefore, the CSA holders listed in the July 6, 2006 
proposal will continue to be CSA holders during the 2007 calendar year, 
but EPA may extend the option of relinquishing allowances in future 
rulemakings.
    In sections V.F. and V.G. of the preamble of the proposed rule, EPA 
sought comment on the amount of critical use methyl bromide to come 
from stocks compared to new production and import. EPA addressed these 
comments in Sections V.C and V.F above but will continue to consider 
other approaches in the future.

VI. Statutory and Executive Order Reviews

A. Executive Order No. 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action'' because it raises 
novel or legal policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order. Accordingly, EPA submitted this action to the Office of 
Management and Budget (OMB) for review under EO 12866 and any changes 
made in response to OMB recommendations have been documented in the 
docket for this action.
    In addition, EPA prepared an analysis of the potential costs and 
benefits associated with the CUE process. This analysis is contained in 
the document titled ``Economic Analysis for Methyl Bromide Allocation 
in the U.S., and a Regulatory Impact Analysis was also prepared. A copy 
of the analysis is available in the docket for this action and the 
analysis is briefly summarized here.
    The Economic Impact Analysis (EIA) provided an analysis of the 
costs of regulating the distribution of critical use exemption (CUE) 
methyl bromide allocated to the United States by the Parties to the 
Montreal Protocol. The analysis presented the impacts associated with 
the proposed continued use of methyl bromide through the implementation 
of the CUE process under two allocation options (each with two 
allocation methods) and briefly analyzes a third auction option, and 
compared these results to a complete phaseout in 2005. The sections 
provide a brief overview on the background of the methyl bromide 
phaseout and the regulated community, a description of the baseline 
phaseout analysis and a comparison to the allocation analysis used for 
this report, an overview of the allocation options, and a description 
of the costs and overall cost savings to industry participants for the 
two options.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
The recordkeeping and reporting requirements included in this action 
are already included in an existing information collection burden and 
this action does not make any changes that would affect the burden. 
However, the Office of Management and Budget (OMB) has previously 
approved the information collection requirements contained in the 
existing regulations, 40 CFR part 82, under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB 
control number 2060-0564, EPA ICR number 2179.03. A copy of the OMB 
approved ICR may be obtained from Susan Auby, Collection Strategies 
Division; U.S. Environmental Protection Agency (2822T); 1200 
Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-
1672. A copy may also be downloaded off the internet at http://www.regulations.gov
.

    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

[[Page 75401]]

information, processing and maintaining information, and disclosing and 
providing information; adjust the existing ways to comply with any 
previously applicable instructions and requirements; train personnel to 
be able to respond to a collection of information; search data sources; 
complete and review the collection of information; and transmit or 
otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business that is 
identified by the North American Industry Classification System (NAICS) 
Code in the Table below; (2) a small governmental jurisdiction that is 
a government of a city, county, town, school district or special 
district with a population of less 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 number of
              Category                     NAICS code               SIC code           employees or millions of
                                                                                               dollars)
----------------------------------------------------------------------------------------------------------------
Agricultural Production............  1112--Vegetable and     0171--Berry Crops.      $0.75 million.
                                      Melon farming..
                                     1113--Fruit and Nut     0172--Grapes.
                                      Tree Farming..
                                     1114--Greenhouse,       0173--Tree Nuts.
                                      Nursery, and           0175--Deciduous Tree
                                      Floriculture            Fruits (except apple
                                      Production.             orchards and farms)..
                                                             0181--Ornamental        $6 million.
                                                              Floriculture and
                                                              Nursery products.
                                                             0831--Forest Nurseries
                                                              and Gathering of
                                                              Forest Products.
Storage Uses.......................  115114--Post-harvest    4221--Farm Product      $21.5 million.
                                      crop activities         Warehousing and
                                      (except Cotton          Storage.
                                      Ginning).
                                     493110--General         4225--General           ...........................
                                      Warehousing and         Warehousing and
                                      Storage.                Storage.
                                     493130--Farm product                            ...........................
                                      Warehousing Storage.
Distributors and Applicators.......  115112--Soil            0721--Crop Planting,    $6 million.
                                      Preparation,            Cultivation, and
                                      Planting, and           Protection.
                                      Cultivating.
Producers and Importers............  325320--Pesticide and   2879--Pesticides and    500 employees.
                                      Other Agricultural      Agricultural
                                      Chemical                Chemicals, NEC.
                                      Manufacturing.
----------------------------------------------------------------------------------------------------------------

    Agricultural producers of minor crops and entities that store 
agricultural commodities are categories of affected entities that 
contain small entities. This rule will only affect entities that 
applied to EPA for a de-regulatory exemption. In most cases, EPA 
received aggregated requests for exemptions from industry consortia. On 
the exemption application, EPA asked consortia to describe the number 
and size distribution of entities their application covered. EPA 
estimated that 3,218 entities petitioned EPA for an exemption for the 
2005 control period. EPA received requests from a comparable number of 
entities for the 2006 and 2007 control periods. Since many applicants 
did not provide information on the distribution of sizes of entities 
covered in their applications, EPA estimated that, based on the above 
definition, between one-fourth and one-third of the entities may be 
small businesses. 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 final rule on 
small entities, EPA certifies that this action will not have a 
significant economic impact on a substantial number of small entities. 
In determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule. Since this final rule 
exempts methyl bromide for approved critical uses after the phaseout 
date of January 1, 2005, this is a de-regulatory action which will 
confer a benefit to users of methyl bromide. EPA believes that the 
estimated de-regulatory value for users of methyl bromide is between 
$20 million and $30 million annually. We have therefore concluded that 
today's final rule will relieve regulatory burden for all affected 
small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules

[[Page 75402]]

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.
    This final rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector. This action is deregulatory and does 
not impose any new requirements on any entities. Thus, this final 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.

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. This final rule is expected to 
primarily affect producers, suppliers, importers, 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 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 13175. This final 
rule does not impose any enforceable duties on communities of Indian 
tribal governments. Thus, Executive Order 13175 does not apply to this 
rule.

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

    Executive Order 13045: ``Protection of Children from Environmental 
health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under 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 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 final rule 
does not pertain to any segment of the energy production economy nor 
does it regulate any manner of energy use. Further, we have concluded 
that this rule is not likely to have any adverse energy effects.

I. National Technology Transfer and Advancement Act

    As noted in the proposed rule, Section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law 
No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., materials 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standards bodies. The NTTAA directs EPA to provide Congress, through 
OMB, explanations when the Agency decides not to use available and 
applicable voluntary consensus standards. This 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 not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective December 14, 2006.

[[Page 75403]]

List of Subjects in 40 CFR Part 82

    Environmental protection, Ozone depletion, Chemicals, Exports, 
Imports.

    Dated: December 11, 2006.
Stephen L. Johnson,
Administrator.

0
For the reasons stated in the preamble, 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 82.8 is amended by revising the table in paragraph (c)(1) 
and paragraph (c)(2) to read as follows:


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

* * * * *
    (c) * * *
    (1) * * *

------------------------------------------------------------------------
                                           2007 Critical   2007 Critical
                                                use             use
                                          allowances for  allowances for
                 Company                     pre-plant      post-harvest
                                               uses*           uses*
                                            (kilograms)     (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp...............       2,401,699         221,167
Albemarle Corp..........................         987,633          90,949
Ameribrom, Inc..........................         545,787          50,260
TriCal, Inc.............................          16,994           1,565
                                         -------------------------------
    Total...............................       3,952,114        363,941
------------------------------------------------------------------------
*For production or import of class I, Group VI controlled substance
  exclusively for the Pre-Plant or Post-Harvest uses specified in
  appendix L to this subpart.

    (2) Allocated critical stock allowances granted for specified 
control period. The following companies are allocated critical stock 
allowances for 2007 on a pro-rata basis in relation to the inventory 
held by each.

------------------------------------------------------------------------
                  Company                              Company
------------------------------------------------------------------------
Albemarle.................................  Industrial Fumigation
                                             Company.
Ameribrom, Inc............................  J.C. Ehrlich Co.
Bill Clark Pest Control, Inc..............  Pacific Ag.
Blair Soil Fumigation.....................  Pest Fog Sales Corp.
Burnside Services, Inc....................  Prosource One.
Cardinal Professional Products............  Reddick Fumigants.
Carolina Eastern, Inc.....................  Royster-Clark, Inc.
Degesch America, Inc......................  Southern State Cooperative,
                                             Inc.
Dodson Bros...............................  Trical Inc.
Great Lakes Chemical Corp.................  Trident Agricultural
                                             Products.
Harvey Fertilizer & Gas...................  UAP Southeast (NC).
Helena Chemical Co........................  UAP Southeast (SC).
Hendrix & Dail............................  Univar.
Hy Yield Bromine..........................  Vanguard Fumigation Co.
                                            Western Fumigation.
------------------------------------------------------------------------
Total--1,914,600 kilograms.


0
3. Appendix L to part 82, subpart A is revised to read as follows:

Appendix L to Part 82 Subpart A--Approved Critical Uses and Limiting 
Critical Conditions for Those Uses for the 2007 Control Period

----------------------------------------------------------------------------------------------------------------
              Column A                         Column B                              Column C
----------------------------------------------------------------------------------------------------------------
Approved Critical Uses.............  Approved Critical User and   Limiting Critical Conditions that either
                                      Location of Use.             exist, or that the approved critical user
                                                                   reasonably expects could arise without methyl
                                                                   bromide fumigation:
----------------------------------------------------------------------------------------------------------------
                                                 PRE-PLANT USES
----------------------------------------------------------------------------------------------------------------
Cucurbits..........................  (a) Michigan growers.......  Moderate to severe soilborne fungal disease
                                                                   infestation.
                                                                  Moderate to severe disease infestation.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (b) Southeastern U.S.        Moderate to severe yellow or purple nutsedge
                                      limited to growing           infestation.
                                      locations in Alabama,       Moderate to severe fungal disease infestation.
                                      Arkansas, Kentucky,         Moderate to severe root knot nematodes.
                                      Louisiana, North Carolina,  A need for methyl bromide for research
                                      South Carolina, Tennessee,   purposes.
                                      and Virginia.
                                     (c) Georgia growers........  Moderate to severe yellow or purple nutsedge
                                                                   infestation.
                                                                  Moderate to severe fungal disease infestation.
                                                                  Moderate to severe root knot nematodes.
                                                                  A need for methyl bromide for research
                                                                   purposes.
Eggplant...........................  (a) Florida growers........  Moderate to severe yellow or purple nutsedge
                                                                   infestation.
                                                                  Moderate to severe nematodes.
                                                                  Moderate to severe disease infestation.
                                                                  Restrictions on alternatives due to karst
                                                                   geology.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (b) Georgia growers........  Moderate to severe yellow or purple nutsedge
                                                                   infestation.
                                                                  Moderate to severe nematodes.
                                                                  Moderate to severe pythium root, collar, crown
                                                                   and root rot.
                                                                  Moderate to severe disease infestation.
                                                                  Moderate to severe southern blight
                                                                   infestation.
                                                                  Restrictions on alternatives due to karst
                                                                   geology.
                                                                  A need for methyl bromide for research
                                                                   purposes.

[[Page 75404]]


                                     (c) Michigan growers.......  Moderate to severe soilborne fungal disease
                                                                   infestation.
                                                                  A need for methyl bromide for research
                                                                   purposes.
Forest Nursery Seedlings...........  (a) Members of the Southern  Moderate to severe yellow or purple nutsedge
                                      Forest Nursery Management    infestation.
                                      Cooperative limited to      Moderate to severe disease infestation.
                                      growing locations in
                                      Alabama, Arkansas,
                                      Florida, Georgia,
                                      Louisiana, Mississippi,
                                      North Carolina, Oklahoma,
                                      South Carolina, Tennessee,
                                      Texas, and Virginia.
                                     (b) International Paper and  Moderate to severe yellow or purple nutsedge
                                      its subsidiaries limited     infestation.
                                      to growing locations in     Moderate to severe disease infestation.
                                      Alabama, Arkansas,
                                      Georgia, South Carolina,
                                      and Texas.
                                     (c) Public (government-      Moderate to severe weed infestation including
                                      owned) seedling nurseries    purple and yellow nutsedge infestation.
                                      in Illinois, Indiana,       Moderate to severe Canada thistle infestation.
                                      Kentucky, Maryland,         Moderate to severe nematodes.
                                      Missouri, New Jersey,       Moderate to severe fungal disease infestation.
                                      Ohio, Pennsylvania, West
                                      Virginia, and Wisconsin.
                                     (d) Weyerhaeuser Company     Moderate to severe yellow or purple nutsedge
                                      and its subsidiaries         infestation.
                                      limited to growing          Moderate to severe disease infestation.
                                      locations in Alabama,       Moderate to severe nematodes and worms.
                                      Arkansas, North Carolina,
                                      and South Carolina.
                                     (e) Weyerhaeuser Company     Moderate to severe yellow nutsedge
                                      and its subsidiaries         infestation.
                                      limited to growing          Moderate to severe fungal disease infestation.
                                      locations in Oregon and
                                      Washington.
                                     (f) Michigan growers.......  Moderate to severe disease infestation.
                                                                  Moderate to severe Canada thistle infestation.
                                                                  Moderate to severe nutsedge infestation.
                                                                  Moderate to severe nematodes.
                                     (g) Michigan herbaceous      Moderate to severe nematodes.
                                      perennials growers.         Moderate to severe fungal disease infestation.
                                                                  Moderate to severe yellow nutsedge and other
                                                                   weed infestation.
Orchard Nursery Seedlings..........  (a) Members of the Western   Moderate to severe nematode infestation
                                      Raspberry Nursery           Presence of medium to heavy clay soils.
                                      Consortium limited to       Prohibition on use of 1,3-dichloropropene
                                      growing locations in         products because local township limits on use
                                      California and Washington    of this alternative have been reached.
                                      (Driscoll's Raspberries     A need for methyl bromide for research
                                      and their contract growers   purposes.
                                      in California and
                                      Washington).
                                     (b) Members of the           Moderate to severe nematode infestation.
                                      California Association of   Presence of medium to heavy clay soils.
                                      Nurserymen--Deciduous       Prohibition on use of 1,3-dichloropropene
                                      Fruit and Nut Tree Growers.  products because local township limits on use
                                                                   of this alternative have been reached.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (c) California rose          Moderate to severe nematode infestation.
                                      nurseries.                  Prohibition on use of 1,3-dichloropropene
                                                                   products because local township limits on use
                                                                   of this alternative have been reached.
                                                                  A need for methyl bromide for research
                                                                   purposes.
Strawberry Nurseries...............  (a) California growers.....  Moderate to severe disease infestation.
                                                                  Moderate to severe yellow or purple nutsedge
                                                                   infestation.
                                                                  Moderate to severe nematodes.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (b) Maryland, North          Moderate to severe black root rot.
                                      Carolina, and Tennessee     Moderate to severe root-knot nematodes.
                                      growers.                    Moderate to severe yellow and purple nutsedge
                                                                   infestation.
                                                                  A need for methyl bromide for research
                                                                   purposes.
Orchard Replant....................  (a) California stone fruit   Moderate to severe nematodes.
                                      growers.                    Moderate to severe fungal disease infestation.
                                                                  Replanted (non-virgin) orchard soils to
                                                                   prevent orchard replant disease.
                                                                  Presence of medium to heavy soils.
                                                                  Prohibition on use of 1,3-dichloropropene
                                                                   products because local township limits for
                                                                   this alternative have been reached.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (b) California table and     Moderate to severe nematodes.
                                      raisin grape growers.       Moderate to severe fungal disease infestation.
                                                                  Replanted (non-virgin) orchard soils to
                                                                   prevent orchard replant disease.
                                                                  Medium to heavy soils.
                                                                  Prohibition on use of 1,3-dichloropropene
                                                                   products because local township limits for
                                                                   this alternative have been reached.
                                                                  A need for methyl bromide for research
                                                                   purposes.

[[Page 75405]]


                                     (c) California wine grape    Moderate to severe nematodes.
                                      growers.                    Moderate to severe fungal disease infestation.
                                                                  Replanted (non-virgin) orchard soils to
                                                                   prevent orchard replant disease.
                                                                  Medium to heavy soils.
                                                                  Prohibition on use of 1,3-dichloropropene
                                                                   products because local township limits for
                                                                   this alternative have been reached.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (d) California walnut        Moderate to severe nematodes.
                                      growers.                    Moderate to severe fungal disease infestation.
                                                                  Replanted (non-virgin) orchard soils to
                                                                   prevent orchard replant disease.
                                                                  Medium to heavy soils.
                                                                  Prohibition on use of 1,3-dichloropropene
                                                                   products because local township limits for
                                                                   this alternative have been reached.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (e) California almond        Moderate to severe nematodes.
                                      growers.                    Moderate to severe fungal disease infestation.
                                                                  Replanted (non-virgin) orchard soils to
                                                                   prevent orchard replant disease.
                                                                  Medium to heavy soils.
                                                                  Prohibition on use of 1,3-dichloropropene
                                                                   products because local township limits for
                                                                   this alternative have been reached.
                                                                  A need for methyl bromide for research
                                                                   purposes.
Ornamentals........................  (a) California growers.....  Moderate to severe disease infestation.
                                                                  Moderate to severe nematodes.
                                                                  Prohibition on use of 1,3-dichloropropene
                                                                   products because local township limits for
                                                                   this alternative have been reached.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (b) Florida growers........  Moderate to severe weed infestation.
                                                                  Moderate to severe disease infestation.
                                                                  Moderate to severe nematodes.
                                                                  Karst topography.
                                                                  A need for methyl bromide for research
                                                                   purposes.
Peppers............................  (a) California growers.....  Moderate to severe disease infestation.
                                                                  Moderate to severe nematodes.
                                                                  A prohibition on the use of 1,3-
                                                                   dichloropropene products because local
                                                                   township limits for this alternative have
                                                                   been reached.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (b) Alabama, Arkansas,       Moderate to severe yellow or purple nutsedge
                                      Kentucky, Louisiana, North   infestation.
                                      Carolina, South Carolina,   Moderate to severe nematodes.
                                      Tennessee, and Virginia     Moderate to severe pythium root, collar, crown
                                      growers.                     and root rots.
                                                                  Presence of an occupied structure within 100
                                                                   feet of a grower's field the size of 100
                                                                   acres or less.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (c) Florida growers........  Moderate to severe yellow or purple nutsedge
                                                                   infestation.
                                                                  Moderate to severe disease infestation.
                                                                  Moderate to severe nematodes.
                                                                  Karst topography.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (d) Georgia growers........  Moderate to severe yellow or purple nutsedge
                                                                   infestation.
                                                                  Moderate to severe nematodes, or moderate to
                                                                   severe pythium root and collar rots.
                                                                  Moderate to severe southern blight
                                                                   infestation, crown or root rot.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (e) Michigan growers.......  Moderate to severe fungal disease infestation.
                                                                  A need for methyl bromide for research
                                                                   purposes.
Strawberry Fruit...................  (a) California growers.....  Moderate to severe black root rot or crown
                                                                   rot.
                                                                  Moderate to severe yellow or purple nutsedge
                                                                   infestation.
                                                                  Moderate to severe nematodes.
                                                                  Prohibition on use of 1,3-dichloropropene
                                                                   products because local township limits for
                                                                   this alternative have been reached.
                                                                  Time to transition to an alternative.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (b) Florida growers........  Moderate to severe yellow or purple nutsedge.
                                                                  Moderate to severe nematodes.
                                                                  Moderate to severe disease infestation.
                                                                  Carolina geranium or cut-leaf evening primrose
                                                                   infestation.
                                                                  Karst topography and to a lesser extent a need
                                                                   for methyl bromide for research purposes.
                                     (c) Alabama, Arkansas,       Moderate to severe yellow or purple nutsedge.
                                      Georgia, Illinois,          Moderate to severe nematodes.
                                      Kentucky, Louisiana,        Moderate to severe black root and crown rot.
                                      Maryland, New Jersey,       Presence of an occupied structure within 100
                                      North Carolina, Ohio,        feet of a grower's field the size of 100
                                      South Carolina, Tennessee,   acres or less.
                                      and Virginia growers.       A need for methyl bromide for research
                                                                   purposes.

[[Page 75406]]


Tomatoes...........................  (a) Michigan growers.......  Moderate to severe disease infestation.
                                                                  Moderate to severe fungal pathogen
                                                                   infestation.
                                                                  A need for methyl bromide for research
                                                                   purposes.
                                     (b) Alabama, Arkansas,       Moderate to severe yellow or purple nutsedge
                                      Florida, Georgia,            infestation.
                                      Kentucky, Louisiana, North  Moderate to severe disease infestation.
                                      Carolina, South Carolina,   Moderate to severe nematodes.
                                      Tennessee, and Virginia     Presence of an occupied structure within 100
                                      growers.                     feet of a grower's field the size of 100
                                                                   acres or less.
                                                                  Karst topography.
                                                                  A need for methyl bromide for research
                                                                   purposes.
Turfgrass..........................  (a) U.S. turfgrass sod       Production of industry certified pure sod.
                                      nursery producers who are   Moderate to severe bermudagrass.
                                      members of Turfgrass        Moderate to severe nutsedge.
                                      Producers International     Moderate to severe white grub infestation.
                                      (TPI).                      Control of off-type perennial grass
                                                                   infestation.
                                                                  A need for methyl bromide for research
                                                                   purposes.
----------------------------------------------------------------------------------------------------------------
                                                POST-HARVEST USES
----------------------------------------------------------------------------------------------------------------
Food Processing....................  (a) Rice millers in all      Moderate to severe infestation of beetles,
                                      locations in the U.S. who    weevils, or moths.
                                      are members of the USA      Older structures that can not be properly
                                      Rice Millers Association.    sealed to use an alternative to methyl
                                                                   bromide.
                                                                  Presence of sensitive electronic equipment
                                                                   subject to corrosivity.
                                                                  Time to transition to an alternative.
                                     (b) Pet food manufacturing   Moderate to severe infestation of beetles,
                                      facilities in the U.S. who   moths, or cockroaches.
                                      are active members of the   Older structures that can not be properly
                                      Pet Food Institute (For      sealed to use an alternative to methyl
                                      this final rule, ``pet       bromide.
                                      food'' refers to domestic   Presence of sensitive electronic equipment
                                      dog and cat food).           subject to corrosivity.
                                                                  Time to transition to an alternative.
                                     (c) Kraft Foods in the U.S.  Older structures that can not be properly
                                                                   sealed to use an alternative to methyl
                                                                   bromide.
                                                                  Presence of sensitive electronic equipment
                                                                   subject to corrosivity.
                                                                  Time to transition to an alternative.
                                     (d) Members of the North     Moderate to severe beetle infestation.
                                      American Millers'           Older structures that can not be properly
                                      Association in the U.S.      sealed to use an alternative to methyl
                                                                   bromide.
                                                                  Presence of sensitive electronic equipment
                                                                   subject to corrosivity.
                                                                  Time to transition to an alternative.
                                     (e) Members of the National  Moderate to severe beetle or moth infestation.
                                      Pest Management             Older structures that can not be properly
                                      Association treating cocoa   sealed to use an alternative to methyl
                                      beans in storage and         bromide.
                                      associated spaces and       Presence of sensitive electronic equipment
                                      equipment and processed      subject to corrosivity.
                                      food, cheese, dried milk,   Time to transition to an alternative.
                                      herbs, and spices and
                                      spaces and equipment in
                                      associated processing
                                      facilities.
Commodity Storage..................  (a) California entities      Rapid fumigation is required to meet a
                                      storing walnuts, beans,      critical market window, such as during the
                                      dried plums, figs,           holiday season, rapid fumigation is required
                                      raisins, dates (in           when a buyer provides short (2 working days
                                      Riverside county only),      or less) notification for a purchase or there
                                      and pistachios in            is a short period after harvest in which to
                                      California.                  fumigate and there is limited silo
                                                                   availability for using alternatives.
                                                                  A need for methyl bromide for research
                                                                   purposes.
Dry Cured Pork Products............  (a) Members of the National  Moderate to severe red legged ham beetle
                                      Country Ham Association.     infestation.
                                                                  Moderate to severe cheese/ham skipper
                                                                   infestation.
                                                                  Moderate to severe dermested beetle
                                                                   infestation.
                                                                  Ham mite infestation.
                                     (b) Members of the American  Moderate to severe red legged ham beetle
                                      Association of Meat          infestation.
                                      Processors.                 Moderate to severe cheese/ham skipper
                                                                   infestation.
                                                                  Moderate to severe dermested beetle
                                                                   infestation.
                                                                  Ham mite infestation.
                                     (c) Nahunta Pork Center      Moderate to severe red legged ham beetle
                                      (North Carolina).            infestation.
                                                                  Moderate to severe cheese/ham skipper
                                                                   infestation.
                                                                  Moderate to severe dermested beetle
                                                                   infestation.
                                                                  Ham mite infestation.
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 [FR Doc. E6-21399 Filed 12-13-06; 8:45 am]

BILLING CODE 6560-50-P
