  SEQ CHAPTER \h \r 1 ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA- HQ-OAR-2005-0538; FRL-]

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

AGENCY:  Environmental Protection Agency (EPA).

ACTION:   Final Rule.

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 [Insert date of publication] 

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   HYPERLINK "http://www/regulations.gov" 
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   HYPERLINK
"http://www.regulations.gov"  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 in Washington, DC is
temporarily closed due to construction.   

FOR FURTHER INFORMATION CONTACT:  Marta Montoro, Office of Atmospheric
Programs, Stratospheric Protection Division, Mail Code 6205J,
Environmental Protection Agency, 1200 Pennsylvania Ave N.W., Washington
DC 20460; telephone number (202) 343-9321; fax number (202) 343-2338;
email 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 proposed 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 [Insert date of
publication].  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

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.	A.	Background of the Process	

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

	C.	Critical Uses and Adjustment 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:

Category		Examples of Regulated Entities

Industry	Producers, Importers and Exporters of methyl bromide;
Applicators, Distributors of methyl bromide; Users of methyl bromide,
e.g., farmers of vegetable crops, fruits and seedlings; and owners of
stored food commodities and structures such as grain mills and
processors, agricultural researchers.

	

The above table is not intended to be exhaustive, but rather to provide
a guide for readers regarding entities likely to be regulated by this
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
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 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 available stocks 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 both legal and political 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 economical 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.

	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 E-docket 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 –
which would result in a price increase 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
representative 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 will be made up from available 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:

reductions to accommodate uptake of sulfuryl fluoride in 2007

reductions to account for unused critical use methyl bromide at the end
of 2005

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 Critical Use
Nomination (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 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,.  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 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 pro-rated 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, 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 and with the original proposed rule.  However, EPA agrees
with the commenter and believes that an amount of methyl bromide for
research purposes should be available from new production in order to
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.

	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 Location of Use
Limiting Critical Conditions 

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

	(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 Forest Nursery
Management Cooperative limited to growing locations in Alabama,
Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina,
Oklahoma, South Carolina, Tennessee, Texas, and Virginia 	Moderate to
severe yellow or purple nutsedge infestation 

Moderate to severe disease infestation

	(b) International Paper and its subsidiaries limited to growing
locations in Alabama, Arkansas, Georgia, South Carolina, and Texas 
Moderate to severe yellow or purple nutsedge infestation  Moderate to
severe disease infestation

	(c) Public (government-owned) seedling nurseries in Illinois,  Indiana,
Kentucky, Maryland, Missouri, New Jersey, Ohio, Pennsylvania, West
Virginia, and Wisconsin	Moderate to severe weed infestation including
purple and yellow nutsedge infestation

Moderate to severe Canada thistle infestation

Moderate to severe nematodes

Moderate to severe fungal disease infestation

	(d) Weyerhaeuser Company and its subsidiaries limited to growing
locations in Alabama, Arkansas, North Carolina, and South Carolina 
Moderate to severe yellow or purple nutsedge infestation 

Moderate to severe disease infestation

Moderate to severe nematodes and worms 

	(e) Weyerhaeuser Company and its subsidiaries limited to growing
locations in Oregon and Washington 	Moderate to severe yellow nutsedge
infestation

Moderate to severe fungal disease infestation

	(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 perennials growers	Moderate to severe nematodes

Moderate to severe fungal disease infestation

Moderate to severe  yellow nutsedge and other weed infestation

Orchard Nursery Seedlings	(a) Members of the Western Raspberry Nursery
Consortium limited to growing locations in California and Washington
(Driscoll’s Raspberries and their contract growers in California and
Washington)	Moderate to severe nematode infestation

Presence of medium to heavy clay 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) Members of the California Association of Nurserymen-Deciduous Fruit
and Nut Tree Growers	Moderate to severe nematode infestation

Presence of medium to heavy clay 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

	(c) California rose nurseries	Moderate to severe nematode infestation

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 Carolina, and Tennessee growers	Moderate to severe
black root rot

Moderate to severe root-knot nematodes

Moderate to severe yellow and purple nutsedge infestation

A need for methyl bromide for research purposes

Orchard Replant	(a) California stone fruit growers	Moderate to severe
nematodes

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 raisin grape growers 	Moderate to severe
nematodes

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 growers	Moderate to severe nematodes

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 growers	Moderate to severe nematodes

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 growers	Moderate to severe nematodes

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, Kentucky, Louisiana, North Carolina, South
Carolina, Tennessee, and Virginia growers	Moderate to severe yellow or
purple nutsedge infestation Moderate to severe nematodes

Moderate to severe pythium root, collar, crown 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, Georgia, Illinois, Kentucky, Louisiana,
Maryland, New Jersey, North Carolina, Ohio, South Carolina, Tennessee,
and Virginia growers	Moderate to severe yellow or purple nutsedge

Moderate to severe nematodes

Moderate to severe black root and crown rot

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

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, Florida, Georgia, Kentucky, Louisiana, North
Carolina, South Carolina, Tennessee, and Virginia growers	Moderate to
severe yellow or purple nutsedge infestation Moderate to severe disease
infestation

Moderate to severe nematodes

Presence of an occupied structure within 100 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 nursery producers who are members of
Turfgrass Producers International (TPI)	Production of industry certified
pure sod 

Moderate to severe bermudagrass

Moderate to severe nutsedge 

Moderate to severe white grub infestation

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 locations in the U.S. who are
members of the USA Rice Millers Association.	Moderate to severe
infestation of beetles, weevils or moths

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

	(b) Pet food manufacturing facilities in the U.S. who are active
members of the Pet Food Institute  (For this proposed rule, “pet
food” refers to domestic dog and cat food).  	Moderate to severe
infestation or beetles, moths, or cockroaches

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

	(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 American Millers’ Association in the U.S.
Moderate to severe beetle infestation

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

	(e) 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. 	Moderate to severe beetle or moth 
infestation

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

Commodity Storage	(a) California entities storing walnuts, beans, dried
plums, figs, raisins, dates (in Riverside county only), and pistachios
in California	Rapid fumigation is required to meet a critical market
window, such as during the holiday season, rapid fumigation is required
when a buyer provides short (2 working days or less) notification for a
purchase or there is a short period after harvest in which to fumigate
and there is limited silo availability for using alternatives

A need for methyl bromide for research purposes

Dry Cured Pork Products	(a) Members of the National Country Ham
Association	Moderate to severe red legged ham beetle infestation

Moderate to severe cheese/ham skipper infestation

Moderate to severe dermested beetle infestation

Ham mite infestation

	(b) Members of the American Association of Meat Processors	Moderate to
severe red legged ham beetle infestation

Moderate to severe cheese/ham skipper infestation

Moderate to severe dermested beetle infestation

Ham mite infestation

	(c) Nahunta Pork Center (North Carolina)	Moderate to severe red legged
ham beetle 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 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 critical use nominations (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 critical use
nominations 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 (NMS) submitted to the Ozone Secretariat in December
2005 and in on-going consultations with industry.  The NMS 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 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 6,230,654 kilograms (24.4% of baseline) with 4,316,054 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

Company	2007 Critical use allowances for pre-plant uses* (kilograms)
2007 Critical use allowances for post-harvest uses* (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 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 proposal that would
have a greater amount of critical use material coming from the
pre-phaseout inventory than the minimum amount specified in Decision
XVII/9 by the Parties to the Protocol.  Five of these commenters believe
the increased reliance on the pre-phaseout inventory “puts critical
use sectors in jeopardy” because it is being proposed at a time when
this inventory is decreasing.  One commenter supports 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 believes that EPA has 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 note 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
suggest 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 although
reliance on stocks in the proposed rule is increased from previous
years, the amount remains too low.  These two commenters believe 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 and that an additional amount may be
necessary in the event of unforeseen interruptions 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.’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 (July 6, 2006, 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.  At this rate of drawdown (12 percentage
points per year) the amount of estimated inventory at the beginning of
2007 will not exceed the U.S. critical use need.  

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, 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 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 stocks 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 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 corresponding proposal for this action, which followed
the Decisions taken at the 18th Meeting of the Parties, held during
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

	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 in the corresponding
proposal, 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   SEQ CHAPTER \h \r 1 (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.    SEQ CHAPTER \h \r 1   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.

	  SEQ CHAPTER \h \r 1 In addition, EPA prepared an analysis of the
potential costs and benefits associated with this action.  This analysis
is contained in the document titled “Economic Analysis for Methyl
Bromide Allocation in the U.S., and a Regulatory Impact Anaylsis 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.,
N.W., Washington, DC 20460 or by calling (202) 566-1672.  A copy may
also be downloaded off the internet at   HYPERLINK
"http://www.regulations.gov"  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
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.

Category	NAICS code	SIC code	Small Business Administration size
standards (in number of employees or millions of dollars)

Agricultural production

Storage Uses

Distributors and Applicators

Producers and Importers	1112- Vegetable and Melon farming

1113- Fruit and Nut Tree Farming

1114- Greenhouse, Nursery, and Floriculture Production

115114- Postharvest Crop activities (except Cotton Ginning)

311211- Flour Milling

311212- Rice Milling

493110- General Warehousing and Storage

493130- Farm Product Warehousing and Storage

115112- Soil Preparation, Planting and Cultivating

325320- Pesticide and Other Agricultural Chemical Manufacturing	0171-
Berry Crops

0172- Grapes

0173- Tree Nuts

0175- Deciduous Tree Fruits (except apple orchards and farms)

0179- Fruit and Tree Nuts, NEC

0181- Ornamental Floriculture and Nursery Products

0831- Forest Nurseries and Gathering of Forest Products

2041- Flour and Other Grain Mill Products

2044- Rice Milling

4221- Farm Product Warehousing and Storage

4225- General Warehousing and Storage

0721- Crop Planting, Cultivation, and Protection

2879- Pesticides and Agricultural Chemicals, NEC	$0.75 million

$6 million

$21.5 million

$6 million

500 employees



	Agricultural producers of minor crops and entities that store
agricultural commodities are categories of affected entities that
contain small entities.  This rule 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 USC 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), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with "Federal mandates" that may
result in expenditures 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 proposed
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 [Insert date of publication].

			

List of Subjects in 40 CFR Part 82

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

Dated:  ____________________

______________________________________________

Stephen L. Johnson, Administrator.

For the reasons stated in the preamble, 40 CFR Part 82 is proposed to
be amended as follows:

PART 82- PROTECTION OF STRATOSPHERIC OZONE

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

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

2. Section 82.8 is amended by revising the table in paragraph (c)(1) and
paragraph (c)(2) to read as follows:

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

*   *   *   *   *

(c) * * *

(1) * * * 

Company	2007 Critical use allowances for pre-plant uses* (kilograms)
2007 Critical use allowances for post-harvest uses* (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

	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 

	

3. Appendix L to 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 Location of Use
Limiting Critical Conditions that either 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. limited to growing locations in Alabama,
Arkansas, Kentucky, Louisiana, North Carolina, South Carolina,
Tennessee, and Virginia  	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

	(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 Forest Nursery
Management Cooperative limited to growing locations in Alabama,
Arkansas, Florida, Georgia ,Louisiana, Mississippi, North Carolina,
Oklahoma, South Carolina, Tennessee, Texas, and Virginia	Moderate to
severe yellow or purple nutsedge infestation 

Moderate to severe disease infestation

	(b) International Paper and its subsidiaries limited to growing
locations in Alabama, Arkansas, Georgia, South Carolina, and Texas 
Moderate to severe yellow or purple nutsedge infestation  Moderate to
severe disease infestation

	(c) Public (government-owned) seedling nurseries in Illinois,  Indiana,
Kentucky, Maryland, Missouri, New Jersey, Ohio, Pennsylvania, West
Virginia, and Wisconsin	Moderate to severe weed infestation including
purple and yellow nutsedge infestation

Moderate to severe Canada thistle infestation

Moderate to severe nematodes

Moderate to severe fungal disease infestation

	(d) Weyerhaeuser Company and its subsidiaries limited to growing
locations in Alabama, Arkansas, North Carolina, and South Carolina 
Moderate to severe yellow or purple nutsedge infestation

Moderate to severe disease infestation

Moderate to severe nematodes and worms 

	(e) Weyerhaeuser Company and its subsidiaries limited to growing
locations in Oregon and Washington	Moderate to severe yellow nutsedge
infestation

Moderate to severe fungal disease infestation

	(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 perennials growers	Moderate to severe nematodes

Moderate to severe fungal disease infestation

Moderate to severe  yellow nutsedge and other weed infestation

Orchard Nursery Seedlings	(a) Members of the Western Raspberry Nursery
Consortium limited to growing locations in California and Washington
(Driscoll’s Raspberries and their contract growers in California and
Washington)	Moderate to severe nematode infestation

Presence of medium to heavy clay 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) Members of the California Association of Nurserymen-Deciduous Fruit
and Nut Tree Growers	Moderate to severe nematode infestation

Presence of medium to heavy clay 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

	(c) California rose nurseries	Moderate to severe nematode infestation

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 Carolina, and Tennessee growers	Moderate to severe
black root rot

Moderate to severe root-knot nematodes

Moderate to severe yellow and purple nutsedge infestation

A need for methyl bromide for research purposes

Orchard Replant	(a) California stone fruit growers	Moderate to severe
nematodes

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 raisin grape growers 	Moderate to severe
nematodes

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 growers	Moderate to severe nematodes

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 growers	Moderate to severe nematodes

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 growers	Moderate to severe nematodes

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, Kentucky, Louisiana, North Carolina, South
Carolina, Tennessee, and Virginia growers	Moderate to severe yellow or
purple nutsedge infestation Moderate to severe nematodes

Moderate to severe pythium root, collar, crown 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, Georgia, Illinois, Kentucky, Louisiana,
Maryland, New Jersey, North Carolina, Ohio, South Carolina, Tennessee,
and Virginia growers	Moderate to severe yellow or purple nutsedge

Moderate to severe nematodes

Moderate to severe black root and crown rot

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

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, Florida, Georgia, Kentucky, Louisiana, North
Carolina, South Carolina, Tennessee, and Virginia growers	Moderate to
severe yellow or purple nutsedge infestation Moderate to severe disease
infestation

Moderate to severe nematodes

Presence of an occupied structure within 100 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 nursery producers who are members of
Turfgrass Producers International (TPI)	Production of industry certified
pure sod 

Moderate to severe bermudagrass

Moderate to severe nutsedge 

Moderate to severe white grub infestation

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 locations in the U.S. who are
members of the USA Rice Millers Association.	Moderate to severe
infestation of beetles, weevils, or moths

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

	(b) Pet food manufacturing facilities in the U.S. who are active
members of the Pet Food Institute (For this proposed rule, “pet
food” refers to domestic dog and cat food).  	Moderate to severe
infestation or beetles, moths, or cockroaches

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

	(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 American Millers’ Association in the U.S.
Moderate to severe beetle infestation

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

	(e) 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.	Moderate to severe beetle or moth 
infestation

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

Commodity Storage	(a) California entities storing walnuts, beans, dried
plums, figs, raisins,  dates (in Riverside county only), and pistachios
in California	Rapid fumigation is required to meet a critical market
window, such as during the holiday season, rapid fumigation is required
when a buyer provides short (2 working days or less) notification for a
purchase or there is a short period after harvest in which to fumigate
and there is limited silo availability for using alternatives

A need for methyl bromide for research purposes

Dry Cured Pork Products	(a) Members of the National Country Ham
Association	Moderate to severe red legged ham beetle infestation

Moderate to severe cheese/ham skipper infestation

Moderate to severe dermested beetle infestation

Ham mite infestation

	(b) Members of the American Association of Meat Processors	Moderate to
severe red legged ham beetle infestation

Moderate to severe cheese/ham skipper infestation

Moderate to severe dermested beetle infestation

Ham mite infestation

	(c) Nahunta Pork Center (North Carolina)	Moderate to severe red legged
ham beetle infestation

Moderate to severe cheese/ham skipper infestation

Moderate to severe dermested beetle infestation

Ham mite infestation



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