

[Federal Register: August 27, 2007 (Volume 72, Number 165)]
[Proposed Rules]               
[Page 48956-48981]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27au07-12]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2006-1016; FRL-8461-2]
RIN 2060-A030

 
Protection of Stratospheric Ozone: The 2008 Critical Use 
Exemption From the Phaseout of Methyl Bromide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing an exemption to the phaseout of methyl 
bromide to meet the needs of 2008 critical uses. Specifically, EPA is 
proposing uses that qualify for the 2008 critical use exemption and the 
amount of methyl bromide that may be produced, imported, or supplied 
from existing stocks for those uses in 2008. 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 18th Meeting of the 
Parties (MOP). EPA is seeking comment on the list of critical uses and 
on EPA's determination of the amounts of methyl bromide needed to 
satisfy those uses.

DATES: Comments must be submitted by September 26, 2007. Any party 
requesting a public hearing must notify the contact person listed below 
by 5 p.m. Eastern Standard Time on September 4, 2007. If a hearing is 
requested it will be held on September 11, 2007 and comments will be 
due to the Agency October 11, 2007. EPA will post information regarding 
a hearing, if one is requested, on the Ozone Protection Web site http://www.epa.gov/ozone.
 Persons interested in attending a public hearing 

should consult with the contact person below regarding the location and 
time of the hearing.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2006-1016, by one of the following methods:
     http://www.regulations.gov: Follow the on-line instructions for 

submitting comments.
     E-mail: a-and-r-Docket@epa.gov.
     Fax: 202-566-1741.
     Mail: Docket , Air and Radiation Docket and 
Information Center, U.S. Environmental Protection Agency, Mail Code: 
6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: Docket  EPA-HQ-OAR-2006-1016, Air 
and Radiation Docket at EPA West, 1301 Constitution Avenue, NW., Room 
B108, Mail Code 6102T, Washington, DC 20460. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2006-1016. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information provided, 

unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through http://www.regulations.gov or e-mail. 

The http://www.regulations.gov Web site is an ``anonymous access'' system, 

which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov 

your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. If EPA cannot read 
your comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.


FOR FURTHER INFORMATION CONTACT: For further information about this 
proposed rule, contact Aaron Levy by telephone at (202) 343-9215, or by 
e-mail at levy.aaron@epa.gov or by mail at Aaron Levy, U.S. 
Environmental Protection Agency, Stratospheric Protection Division, 
Stratospheric Program Implementation Branch (6205J), 1200 Pennsylvania 
Avenue, NW., Washington, DC 20460. You may also visit the Ozone 
Depletion Web site of EPA's Stratospheric Protection Division at 
http://www.epa.gov/ozone for further information about EPA's Stratospheric 

Ozone Protection regulations, the science of ozone layer depletion, and 
other related topics.

SUPPLEMENTARY INFORMATION: This proposed rule concerns Clean Air Act

[[Page 48957]]

(CAA) restrictions on the consumption, production, and use of methyl 
bromide (a class I, Group VI controlled substance) for critical uses 
during calendar year 2008. Under the Clean Air Act, 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 pre-shipment exemption. With this action, EPA is 
proposing and seeking comment on the uses that will qualify for the 
2008 critical use exemption as well as specific amounts of methyl 
bromide that may be produced, imported, or sold from stocks for 
proposed critical uses in 2008.

Table of Contents

I. General Information
    A. Regulated Entities
    B. What Should I Consider When Preparing My Comments?
II. What Is Methyl Bromide?
III. What Is the Background to the Phaseout Regulations for Ozone 
Depleting Substances?
IV. What Is the Legal Authority for Exempting the Production and 
Import of Methyl Bromide for Critical Uses Authorized by the Parties 
to the Montreal Protocol?
V. What Is the Critical Use Exemption Process?
    A. Background of the Process
    B. How Does This Proposed Rulemaking Relate to Previous Critical 
Use Exemption Rulemakings?
    C. Proposed Critical Uses
    D. Proposed Critical Use Amounts
    1. Background of Proposed Critical Use Amounts
    2. Calculation of Available Stocks
    3. Proposed Approach for Determining Critical Use Amounts
    4. Treatment of Carry-Over Material
    5. Amounts for Research Purposes
    6. Methyl Bromide Alternatives
    E. The Criteria in Decisions IX/6 and Ex. I/4
    F. Emissions Minimization
    G. Critical Use Allowance Allocations
    H. Critical Stock Allowance Allocations and Total Volumes of 
Critical Use Methyl Bromide
    I. Stocks of Methyl Bromide
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

A. Regulated Entities

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

------------------------------------------------------------------------
               Category                  Examples of regulated entities
------------------------------------------------------------------------
Industry.............................  Producers, importers and
                                        exporters of methyl bromide;
                                        applicators, distributors of
                                        methyl bromide; users of methyl
                                        bromide, e.g., farmers of
                                        vegetable crops, fruits and
                                        seedlings, owners of stored food
                                        commodities and structures such
                                        as grain mills and processors,
                                        and 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 proposed action. This table lists the types of entities that 
EPA is aware could potentially be regulated by this proposed action. To 
determine whether your facility, company, business, or organization is 
regulated by this proposed action, you should carefully examine the 
regulations promulgated at 40 CFR 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 section.

B. What Should I Consider When Preparing My Comments?

    1. Confidential Business Information. Do not submit this 
information to EPA through http://www.regulations.gov or e-mail. Clearly mark 

the part or all of the information that you claim to be CBI. For CBI 
information in a disk or CD-ROM that you mail to EPA, mark the outside 
of the disk or CD-ROM as CBI and then identify electronically within 
the disk or CD-ROM the specific information that is claimed as CBI. In 
addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR Part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. 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 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). 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.

[[Page 48958]]

    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. Restricted use pesticides are 
subject to certain Federal and State requirements governing their sale, 
distribution, and use. Nothing in this proposed 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 proposal 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 proposed 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.

III. 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.
    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 of 25,528,270 kilograms, 
and, in 40 CFR 82.7 of the rule, setting forth the percentage of 
baseline allowances for methyl bromide granted to companies in each 
control period (each calendar year) until 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.

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?

    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). EPA revised the phaseout 
schedule for methyl bromide production and consumption 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. EPA again amended the revised phaseout 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).
    On December 23, 2004 (69 FR 76982), EPA published a final rule 
titled ``Protection of Stratospheric Ozone: Process for Exempting 
Critical Uses From the Phaseout of Methyl Bromide'' (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 stocks and new production or import to meet the needs of 
approved critical uses. EPA then promulgated a second rule that added 
additional uses to the exemption program for 2005 and allocated 
additional 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 indicated which uses met the criteria for 
the exemption program for that year (71 FR 5985). EPA published another 
final rule on December 14, 2006, to exempt production and import of 
methyl bromide for critical uses in 2007 and indicated which uses met 
the criteria for critical uses for that year (71 FR 75386). Under 
authority of section 604(d)(6) of the CAA, EPA is proposing in this

[[Page 48959]]

action the uses that will qualify as approved critical uses in 2008 and 
the amount of methyl bromide required to satisfy those uses.
    This proposed action reflects Decision XVIII/13, taken at the 
Eighteenth Meeting of the Parties in October 2006. 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 NRDC v. EPA, (464 F.3d 1, D.C. Cir. 
2006) and in EPA's ``Supplemental Brief for the Respondent,'' filed in 
NRDC v. EPA and available in the docket for this action. In this 
proposed rule, EPA is honoring commitments made by the United States in 
the Montreal Protocol context.

V. What Is the Critical Use Exemption Process?

A. Background of the Process

    Starting in 2002, EPA began notifying applicants of the process for 
obtaining a critical use exemption to the methyl bromide phaseout. On 
May 8, 2003, the Agency published its first notice in the Federal 
Register (68 FR 24737) announcing the availability of the application 
for a critical use exemption and the deadline for submission of the 
requisite data. Applicants were informed that they may apply as 
individuals or as part of a group of users (a ``consortium'') who face 
the same limiting critical conditions (i.e. specific conditions that 
establish a critical need for methyl bromide). EPA has repeated this 
process annually since then. The critical use exemption is designed to 
permit production and import of methyl bromide for uses that do not 
have technically and economically feasible alternatives.
    The criteria for the exemption initially appeared in Decision IX/6 
of the Parties to the Protocol. In that Decision, the Parties agreed 
that ``a use of methyl bromide should qualify as 'critical' only if the 
nominating Party determines that: (i) The specific use is critical 
because the lack of availability of methyl bromide for that use would 
result in a significant market disruption; and (ii) there are no 
technically and economically feasible alternatives or substitutes 
available to the user that are acceptable from the standpoint of 
environment and public health and are suitable to the crops and 
circumstances of the nomination.'' These criteria are reflected in 
EPA's definition of ``critical use'' at 40 CFR 82.3.
    In response to the yearly requests for critical use exemption 
applications published in the Federal Register, applicants have 
provided data on the technical and economic feasibility of using 
alternatives to methyl bromide. Applicants further submit data on their 
use of methyl bromide, on research programs into the use of 
alternatives to methyl bromide, and on efforts to minimize use and 
emissions of methyl bromide.
    EPA's Office of Pesticide Programs reviews the data submitted by 
applicants, as well as data from governmental and academic sources, to 
establish whether there are technically and economically feasible 
alternatives available for a particular use of methyl bromide and 
whether there would be significant market disruption if no exemption 
were available. In addition, EPA reviews other parameters of the 
exemption applications such as dosage and emissions minimization 
techniques and applicants' research or transition plans. This 
assessment process culminates with the development of a document 
referred to as the ``Critical Use Nomination'' or CUN. The U.S. 
Department of State submits the CUN annually to the United Nations 
Environment Programme (UNEP) 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. As required in Section 604(d)(6) of the Clean Air Act, 
for each exemption period, EPA consults with the United States 
Department of Agriculture and other departments and institutions of the 
Federal government that have regulatory authority related to methyl 
bromide, and provides an opportunity such as this for public 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 exemption program.
    On January 24, 2006, the U.S. Government (USG) submitted the fourth 
Nomination for a Critical Use Exemption for Methyl Bromide for the 
United States of America to the Ozone Secretariat of the United Nations 
Environment Programme. This fourth nomination contained the request for 
2008 critical uses. In March 2006, MBTOC sent questions to the USG 
concerning technical and economic issues in the nomination. In April 
2006 the USG transmitted responses to MBTOC's requests for 
clarification. The USG received MBTOC's second-round of questions in 
June 2006, and sent responses to MBTOC in August 2006. These documents, 
together with reports by the advisory bodies noted above, can be 
accessed in the public docket for this rulemaking. The determination in 
this proposed rule reflects the analysis contained in those documents.

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

    The December 23, 2004 Framework Rule (69 FR 76982) established the 
operational framework for the critical use exemption program in the 
U.S., including trading provisions and recordkeeping and reporting 
obligations. The Framework Rule defined the terms ``critical use 
allowances'' (CUAs) and ``critical stock allowances'' (CSAs) at 40 CFR 
82.3. Today's action proposes the uses that will qualify as critical 
uses for 2008 and the amounts of CUAs and CSAs to be allocated for 
those uses. The uses that EPA is proposing to qualify as 2008 critical 
uses are the uses which USG included in the fourth CUN, and which were 
approved by the Parties in Decision XVIII/13. In this action, EPA is 
also proposing to refine its approach for determining the amount of 
CSAs to allocate in 2008 and each year thereafter. EPA discusses this 
proposal in detail in Section V.D. of this preamble.

C. Proposed Critical Uses

    In Decision XVIII/13, taken in October 2006, the Parties to the 
Protocol agreed as follows: ``For the agreed critical-use categories 
for 2008, set forth in table C of 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, to the extent that those 
conditions are applicable, the levels of production and consumption for 
2008 set forth in table

[[Page 48960]]

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 XVIII/13: Commodities, Cocoa beans (NPMA \1\ subset), NPMA 
food processing structures (cocoa beans removed), Mills and processors, 
Smokehouse ham, Cucurbits--field, Eggplant--field, Forest nursery, 
Nursery stock--fruit, nut, flower, Orchard replant, Ornamentals, 
Peppers--field, Strawberry--field, Strawberry runners, Tomatoes--field, 
Sweet potato slips. The agreed critical-use levels for 2008 total 
5,355,946 kilograms (kg), which is equivalent to 21.0% of the U.S. 1991 
methyl bromide consumption baseline of 25,528,270 kg. However, the 
maximum amount of allowable new production and import as set forth in 
table D of Decision XVIII/13 is 4,595,040 kg (18.0% of baseline). For 
the reasons described in Section V.D. of this preamble, EPA is 
proposing to allow limited amounts of new production or import of 
methyl bromide for critical uses for 2008 up to the amount of 3,101,076 
kg (12.2% of baseline), with 1,715,438 kg (6.7% of baseline) coming 
from stocks. To clarify, while the Parties require only 760,906 kg of 
stockpile consumption if the entire U.S. allotment is utilized, EPA is 
proposing consumption of 1,715,438 kg of stockpiles for critical uses.
---------------------------------------------------------------------------

    \1\ NPMA stands for National Pest Management Association.
---------------------------------------------------------------------------

    In this proposed rule, EPA is proposing to modify Columns B and C 
of Appendix L to 40 CFR Part 82, Subpart A to reflect the agreed 
critical-use categories identified in Decision XVIII/13 for the 2008 
control period (calendar year). The Agency is proposing to amend the 
table of critical uses based, in part, on the technical analysis 
contained in the 2008 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 
is seeking comment on the technical analysis (which is provided in the 
docket) and seeks information regarding changes to the registration or 
use of alternatives that may have transpired after the 2008 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 notes that while we may, in response to 
comments, reduce the proposed quantities of critical use methyl 
bromide, or decide not to approve uses authorized by the Parties, we do 
not intend to increase the quantities or add new uses in the final rule 
beyond those authorized by the Parties. Therefore, if there has been a 
change in registration of an alternative that results in that 
alternative no longer being available to a particular use, EPA does not 
intend to add uses or amounts of methyl bromide to the critical use 
exemption program beyond those identified here. Under such 
circumstances, the user should apply to EPA, requesting that the U.S. 
nominate its use for a critical use exemption in the future. Based on 
the information described above, EPA is proposing 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 
2008.

                    Table I.--Approved Critical Uses
------------------------------------------------------------------------
          Column A                  Column B              Column C
------------------------------------------------------------------------
                                                      Limiting critical
                                                      conditions--that
                                                      either exist, or
                                Approved critical     that the approved
   Approved critical uses     user and location of      critical user
                                       use           reasonably expects
                                                     could arise without
                                                       methyl bromide
                                                         fumigation:
------------------------------------------------------------------------
Pre-Plant Uses:
    Cucurbits...............  (a) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) Southeastern      Moderate to severe
                               U.S. limited to       yellow or purple
                               growing locations     nutsedge
                               in Alabama,           infestation.
                               Arkansas, Kentucky,  Moderate to severe
                               Louisiana,            soilborne disease
                               Mississippi, North    infestation.
                               Carolina, South      Moderate to severe
                               Carolina,             root knot nematode
                               Tennessee, and        infestation.
                               Virginia.            A need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     root knot nematode
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Eggplant................  (a) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Moderate to severe
                                                     pythium collar,
                                                     crown and root rot.
                                                    Moderate to severe
                                                     southern blight
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.

[[Page 48961]]


    Forest Nursery Seedlings  (a) Growers in        Moderate to severe
                               Alabama, Arkansas,    yellow or purple
                               Georgia, Louisiana,   nutsedge
                               Mississippi, North    infestation.
                               Carolina, Oklahoma,  Moderate to severe
                               South Carolina,       soilborne disease
                               Tennessee, Texas,     infestation.
                               and Virginia.        Moderate to severe
                                                     nematode
                                                     infestation.
                              (b) International     Moderate to severe
                               Paper and its         yellow or purple
                               subsidiaries          nutsedge
                               limited to growing    infestation.
                               locations in         Moderate to severe
                               Alabama, Arkansas,    soilborne disease
                               Georgia, South        infestation.
                               Carolina, and Texas.
                              (c) Public            Moderate to severe
                               (government-owned)    weed infestation
                               seedling nurseries    including purple
                               in Illinois,          and yellow nutsedge
                               Indiana, Kentucky,    infestation.
                               Maryland, Missouri,  Moderate to severe
                               New Jersey, Ohio,     Canada thistle
                               Pennsylvania, West    infestation.
                               Virginia, and        Moderate to severe
                               Wisconsin.            nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                              (d) Weyerhaeuser      Moderate to severe
                               Company and its       yellow or purple
                               subsidiaries          nutsedge
                               limited to growing    infestation.
                               locations in         Moderate to severe
                               Alabama, Arkansas,    soilborne disease
                               North Carolina, and   infestation.
                               South Carolina.      Moderate to severe
                                                     nematode or worm
                                                     infestation.
                              (e) Weyerhaeuser      Moderate to severe
                               Company and its       yellow nutsedge
                               subsidiaries          infestation.
                               limited to growing   Moderate to severe
                               locations in Oregon   soilborne disease
                               and Washington.       infestation.
                              (f) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     Canada thistle
                                                     infestation.
                                                    Moderate to severe
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                              (g) Michigan          Moderate to severe
                               herbaceous            nematode
                               perennials growers.   infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     yellow nutsedge and
                                                     other weed
                                                     infestation.
    Orchard Nursery           (a) Members of the    Moderate to severe
     Seedlings.                Western Raspberry     nematode
                               Nursery Consortium    infestation.
                               limited to growing   Presence of medium
                               locations in          to heavy clay
                               California and        soils.
                               Washington.          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    Moderate to severe
                               California            nematode
                               Association of        infestation.
                               Nursery and Garden   Presence of medium
                               Centers               to heavy clay
                               representing          soils.
                               Deciduous Tree       Prohibition on use
                               Fruit Growers.        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   Moderate to severe
                               nurseries.            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        Moderate to severe
                               growers.              soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) North Carolina    Moderate to severe
                               and Tennessee         black root rot.
                               growers.             Moderate to severe
                                                     root-knot nematode
                                                     infestation.
                                                    Moderate to severe
                                                     yellow and purple
                                                     nutsedge
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Orchard Replant.........  (a) California stone  Moderate to severe
                               fruit growers.        nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne 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.

[[Page 48962]]


                              (b) California table  Moderate to severe
                               and raisin grape      nematode
                               growers.              infestation.
                                                    Moderate to severe
                                                     soilborne 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.
                              (c) California wine   Moderate to severe
                               grape growers.        nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne 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.
                              (d) California        Moderate to severe
                               walnut growers.       nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne 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.
                              (e) California        Moderate to severe
                               almond growers.       nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne 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.
    Ornamentals.............  (a) California        Moderate to severe
                               growers.              soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    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
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Peppers.................  (b) Alabama,          Moderate to severe
                               Arkansas, Kentucky,   yellow or purple
                               Louisiana,            nutsedge
                               Mississippi, North    infestation.
                               Carolina, South      Moderate to severe
                               Carolina,             nematode
                               Tennessee, and        infestation.
                               Virginia growers.    Moderate to severe
                                                     pythium root,
                                                     collar, crown and
                                                     root rots.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (d) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation, 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
                                                     soilborne disease
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.

[[Page 48963]]


    Strawberry Fruit........  (a) California        Moderate to severe
                               growers.              black root rot or
                                                     crown rot.
                                                    Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    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
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Carolina geranium or
                                                     cut-leaf evening
                                                     primrose
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation
                                                     a need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) Alabama,          Moderate to severe
                               Arkansas, Georgia,    yellow or purple
                               Illinois, Kentucky,   nutsedge
                               Louisiana,            infestation.
                               Maryland,            Moderate to severe
                               Mississippi,          nematode
                               Missouri, New         infestation.
                               Jersey, North        Moderate to severe
                               Carolina, Ohio,       black root and
                               South Carolina,       crown rot.
                               Tennessee, and       A need for methyl
                               Virginia growers.     bromide for
                                                     research purposes.
    Sweet Potato Slips......  (a) California        Prohibition on use
                               growers.              of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits for this
                                                     alternative have
                                                     been reached.
    Tomatoes................  (a) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     fungal pathogen
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) Alabama,          Moderate to severe
                               Arkansas, Florida,    yellow or purple
                               Georgia, Kentucky,    nutsedge
                               Louisiana,            infestation.
                               Mississippi, North   Moderate to severe
                               Carolina, South       soilborne disease
                               Carolina,             infestation.
                               Tennessee, and       Moderate to severe
                               Virginia growers.     nematodes.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features, and in
                                                     Florida, soils not
                                                     supporting seepage
                                                     irrigation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
Post-Harvest Uses:
    Food Processing.........  (a) Rice millers in   Moderate to severe
                               all locations in      infestation of
                               the U.S. who are      beetles, weevils or
                               members of the USA    moths.
                               Rice Millers         Older structures
                               Association.          that can not be
                                                     properly sealed to
                                                     use an alternative
                                                     to methyl bromide.
                                                    Presence of
                                                     sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.
                              (b) Pet food          Moderate to severe
                               manufacturing         infestation of
                               facilities in the     beetles, moths, or
                               U.S. who are active   cockroaches.
                               members of the Pet   Older structures
                               Food Institute (For   that can not be
                               this proposed rule,   properly sealed to
                               ``pet food'' refers   use an alternative
                               to domestic dog and   to methyl bromide.
                               cat food).           Presence of
                                                     sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosion.
                                                     Time to transition
                                                     to an alternative.
                              (c) Bakeries in the   Older structures
                               U.S.                  that can not be
                                                     properly sealed to
                                                     use an alternative
                                                     to methyl bromide.
                                                    Presence of
                                                     sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.
                              (d) Members of the    Moderate to severe
                               North American        beetle infestation.
                               Millers'             Older structures
                               Association in the    that can not be
                               U.S.                  properly sealed to
                                                     use an alternative
                                                     to methyl bromide.
                                                    Presence of
                                                     sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.

[[Page 48964]]


                              (e) Members of the    Moderate to severe
                               National Pest         beetle or moth
                               Management            infestation.
                               Association          Older structures
                               associated with dry   that can not be
                               commodity structure   properly sealed to
                               fumigation (cocoa)    use an alternative
                               and dry commodity     to methyl bromide.
                               fumigation           Presence of
                               (processed food,      sensitive
                               herbs and spices,     electronic
                               dried milk and        equipment subject
                               cheese processing     to corrosion.
                               facilities).         Time to transition
                                                     to an alternative.
    Commodities.............  (a) California        Rapid fumigation is
                               entities storing      required to meet a
                               walnuts, beans,       critical market
                               dried plums, figs,    window, such as
                               raisins, dates (in    during the holiday
                               Riverside county      season, rapid
                               only), and            fumigation is
                               pistachios in         required when a
                               California.           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    Red legged ham
                               National Country      beetle infestation.
                               Ham Association.     Cheese/ham skipper
                                                     infestation.
                                                    Dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.
                              (b) Members of the    Red legged ham
                               American              beetle infestation.
                               Association of Meat  Cheese/ham skipper
                               Processors.           infestation.
                                                    Dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.
                              (c) Nahunta Pork      Red legged ham
                               Center (North         beetle infestation.
                               Carolina).           Cheese/ham skipper
                                                     infestation.
                                                    Dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.
                              (d) Gwaltney and      Red legged ham
                               Smithfield Inc.       beetle infestation.
                                                    Cheese/ham skipper
                                                     infestation.
                                                    Dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.
------------------------------------------------------------------------

    EPA is proposing to amend the table in 40 CFR part 82, subpart A, 
Appendix L, as reflected above. Specifically, EPA is adding six 
references and deleting four references in column B. The changes are as 
follows: Adding Mississippi to the approved locations for cucurbit 
growers because that location was included in the approved Southeast 
Cucurbit Consortium application for 2008; removing Florida from the 
approved forest seedling locations because a 2008 application for that 
location was not submitted to EPA; removing Maryland from the approved 
strawberry nursery locations because a 2008 application for that 
location was not submitted to EPA; removing California from the 
approved locations for pepper growers because the United States 
Government did not reflect this location in its 2008 Critical Use 
Nomination; adding Mississippi to the approved locations for pepper 
growers because that location was included in the approved Southeast 
Pepper Consortium application for 2008; adding Mississippi and Missouri 
to the approved locations for strawberry fruit growers because those 
locations were included in the approved Southeastern Strawberry 
Consortium application for 2008; adding California sweet potato slip 
growers to reflect the authorization of that use in Decision XVIII/13; 
adding Mississippi to the approved locations for tomato growers because 
that location was included in the approved Southeastern Tomato 
Consortium application for 2008; removing turfgrass because that use 
was not agreed to by the Parties in Decision XVIII/13; adding Gwaltney 
and Smithfield Inc. to the approved entities for dry cured pork 
products because their application was approved for 2008.
    The categories listed in Table I above have been designated 
critical uses for 2008 in Decision XVIII/13 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 purposes'' is indicated as a limiting critical 
condition in the table above. As explained in Section V.D.5., EPA is 
allowing sale of 15,491 kg of methyl bromide from existing stocks for 
research purposes.
    In accordance with the recommendations in Table 9 of the TEAP's 
September 2006 Final Report titled ``Evaluations of 2006 Critical Use 
Nominations for Methyl Bromide and Related Matters,'' available on the 
docket for this rulemaking, EPA is proposing that the following sectors 
be allowed to use critical use methyl bromide for research purposes: 
Commodities, cucurbits (field), eggplant (field), nursery stock (fruit, 
nut, flower), ornamentals, peppers (field), strawberry (field), 
strawberry runners, and tomatoes (field). In their applications to EPA, 
these sectors identified research programs that require the use of 
methyl bromide.

D. Proposed Critical Use Amounts

    Section V.C. of this preamble explains that Table C of the annex to 
Decision XVIII/13 lists critical uses and amounts agreed to by the 
Parties to the Montreal Protocol. When added together, the authorized 
critical use amounts for 2008 total 5,355,946 kilograms (kg), which is 
equivalent to 21.0% of the U.S. 1991 methyl bromide consumption 
baseline of 25,528,270 kg as defined at 40 CFR 82.3. However, the 
maximum amount of authorized new production or import as set forth in 
Table D of the annex to Decision XVIII/13 is 4,595,040 kg (18.0% of 
baseline).

[[Page 48965]]

    EPA is proposing to exempt limited amounts of new production and 
import of methyl bromide for critical uses for 2008 up to the amount of 
3,101,076 kg (12.2% of baseline) as shown in Table II. EPA is also 
proposing to allow sale of 1,715,438 kg (6.7% of baseline) of existing 
inventories for critical uses in 2008. EPA is seeking comment on the 
proposed total levels of exempted new production and import for 
critical uses and the amount of material that may be sold from stocks 
for critical uses. The subsections below explain EPA's reasons and 
refined approach for proposing the above critical use amounts for 2008.
1. Background of Proposed Critical Use Amounts
    The Framework Rule and subsequent CUE rules each took note of 
language regarding stocks of methyl bromide in relevant decisions of 
the Parties. In developing this proposed action, the Agency notes that 
paragraph six of Decision XVIII/13 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, in particular, the 
criterion laid down in paragraph 1(b)(ii) of decision IX/6.'' Language 
calling on Parties to address stocks also appears in prior Decisions 
related to the critical use exemption.
    In the Framework Rule, which established the architecture of the 
CUE program and set out the exempted levels of critical use for 2005, 
EPA interpreted paragraph 5 of Decision Ex. I/3, which is similar to 
Decision XVIII/13(6), ``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). Consistent with 
that interpretation, The Framework Rule (69 FR 52366) established 
provisions governing the sale of pre-phaseout inventories for critical 
uses, including the concept of CSAs and a prohibition on the sale of 
pre-phaseout inventories for critical uses in excess of the amount of 
CSAs held by the seller. In addition, EPA noted that stocks were 
further taken into account through the trading provisions that allow 
CUAs to be converted into CSAs. EPA is not proposing changes to these 
basic CSA provisions for calendar year 2008.
    In the August 25, 2004 Proposed Framework Rule (69 FR 52366), EPA 
proposed to adjust the authorized level of new production and 
consumption for critical uses by the amount of ``available'' stocks. 
The methodology for determining the amount of ``available'' stocks 
considered exports, methyl bromide for feedstock uses, and the need for 
a buffer in case of catastrophic events. However, EPA did not adopt the 
proposed methodology for determining available stocks in the final 
Framework Rule. Instead, EPA issued CSAs in an amount equal to the 
difference between the total authorized CUE amount and the amount of 
new production or import authorized by the Parties (Total Authorized 
CUE Amount--Authorized New Production and Import).
    In the 2006 CUE Rule, published February 6, 2006 (71 FR 5997), EPA 
applied the approach described in the Framework Rule by allocating as 
CSAs the difference between the total authorized CUE amount and the 
amount of new production and import authorized by the Parties (2.0% of 
baseline), as well as the small supplemental allocation in Decision 
XVII/9 (0.4% of baseline). EPA also issued CSAs allowing additional 
amounts of existing stocks to be sold for critical uses (roughly 3.0% 
of baseline). In the 2006 CUE Rule EPA issued a total of 1,136,008 
CSAs, equivalent to 5.0% of baseline. Similarly, in the 2007 CUE Rule, 
EPA issued a number of CSAs that represented not only the difference 
between the total authorized CUE amount and the amount of authorized 
new production and import (6.2% of baseline), but also an additional 
amount (1.3% of baseline) for a total of 1,915,600 CSAs (7.5% of 
baseline). By allocating additional CSAs, EPA adjusted the portion of 
CUE methyl bromide to come from new production and import as compared 
to the proportion to come from stocks so that the total amount of 
methyl bromide exempted for critical uses did not exceed the total 
amount authorized by the Parties for that year.
    EPA viewed the additional CSA amounts as an appropriate exercise of 
its discretion. EPA reasoned that the Agency was not required to 
allocate the full amount of authorized new production and consumption. 
The Parties agreed to ``permit'' a particular level of production and 
consumption; they did not--and could not--mandate that the U.S. 
authorize this level of production and consumption domestically. Nor 
does the CAA require EPA to exempt the full amount permitted by the 
Parties. Section 604(d)(6) of the Clean Air Act (CAA) does not require 
EPA to exempt any amount of production and consumption for critical 
uses, but instead specifies that the Agency ``may'' exempt amounts for 
production, importation, and consumption, thus providing EPA with 
substantial discretion in creating critical use exemptions.
    In the July 6, 2006 Proposed 2007 CUE Rule (71 FR 38325), 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 on how many months of methyl bromide inventory would be 
appropriate, in order to maintain non-disruptive management of this 
chemical in the supply chain'' (71 FR 38339). In the Final 2007 CUE 
Rule, EPA noted that ``the Parties have not taken a decision on an 
appropriate amount of inventory for reserve. Nor has EPA reached any 
conclusion regarding what amount might be appropriate. Given this 
uncertainty, and the continuing decline in inventory levels, EPA is 
exercising caution in this year's CSA allocation. EPA will consider 
various approaches to this issue in the future based on the data 
received during this notice and comment rulemaking process and other 
information obtained by the Agency'' (71 FR 75399).
    Data on the aggregate amount of methyl bromide held in inventory at 
the end of calendar years 2003, 2004, 2005, and 2006 is available in 
the public docket for this rulemaking. Using this aggregated inventory 
data, and other data gathered by EPA, the Agency estimates that on 
January 1, 2008 the aggregate inventory will be less than one-year's 
supply of critical use methyl bromide.
    The benefits of pre-phaseout methyl bromide inventories for 
critical uses were discussed at the 18th Meeting of the Parties (MOP). 
The Parties did not take a decision at the 18th MOP on whether it would 
be appropriate to allow some specific amount of pre-phaseout stocks to 
remain in inventory, or what amount that might be. Instead, they left 
the matter for future discussion, and left open the possibility that a 
decision related to the issue might be taken at the 19th Meeting of the 
Parties in September 2007. EPA notes, however, that in another 
instance--namely the Essential Use Exemption process for CFC inhalers--
the Parties have allowed companies to maintain working stocks up to one 
year's supply. As explained in the ``FDA determination letter'' 
available on the public docket for this rulemaking, FDA bases its 
determination of the amount of CFC production that is necessary for 
medical devices ``on an estimate of the

[[Page 48966]]

quantity of CFCs that would allow manufacturers to maintain as much as 
a 12-month stockpile.'' However, neither FDA nor EPA maintains a CFC 
reserve on behalf of any essential use manufacturer, or guarantees that 
a certain amount of CFCs will always be held in inventory.
    Similarly, in this action, EPA is not proposing to maintain a 
reserve of methyl bromide for critical uses, or to guarantee that a 
certain amount of methyl bromide would always be held in inventory. EPA 
is, however, proposing to calculate the amount of existing methyl 
bromide stocks that is available for critical uses in 2008, and to 
consider this amount in the Agency's determination of how much sale of 
existing stocks and how much production and importation to allow for 
critical uses in 2008. Section V.D.2. describes EPA's proposed method 
to calculate the amount of existing stocks that is available for 
critical use in 2008. Section V.D.3. explains how EPA proposes to apply 
the calculated amount of available stocks in the Agency's critical use 
amount determinations.
    The proposed methods for determining the critical use amounts, 
described in Section V.D.2. and V.D.3. of this preamble, refine the 
Agency's approach for determining how much critical use methyl bromide 
may be produced and imported and how much may be sold to critical users 
from existing inventories in a given year. EPA proposes to use these 
refinements in 2008 and, as feasible and appropriate, each year 
thereafter. Through data collection and experience, EPA has gained 
information about the CUE program that the Agency did not have when the 
program began. The pre-phaseout inventory has gradually declined to the 
point where, for the first time, EPA estimates that at the start of 
next year (2008) inventory will represent less than a one-year supply 
of critical use methyl bromide. The proposed approach for determining 
CUE production and import levels addresses the decline in methyl 
bromide inventories by considering in a more transparent manner the 
amount of existing stocks that is available for critical uses. As 
described below, the proposed approach establishes a clear and 
repeatable process for the Agency to make allocations that reflect a 
reasonable estimate of the amount of inventory available in a future 
control period based on data collected from earlier control periods. 
Thus, while EPA does not view refinements to its approach as legally 
required, EPA does view them as an appropriate discretionary action for 
the reasons given here. EPA seeks comment on the refined approach for 
determining critical use methyl bromide levels, which is described in 
detail in Sections V.D.2. and V.D.3. of this preamble, and also in a 
Technical Support Document available on the public docket for this 
rulemaking (EPA-HQ-OAR-2006-1016).

2. Calculation of Available Stocks

    In this action, EPA is proposing to adjust the authorized level of 
new production and consumption for critical uses to account for the 
amount of existing stocks that is ``available'' for critical uses. This 
section explains how EPA proposes to calculate the amount of existing 
stocks that is available for critical uses in 2008. As described in 
more detail in Section V.D.3. of this preamble, EPA proposes to allow 
sale of the amount of existing inventory that the Agency has determined 
to be available for critical uses by issuing an equivalent number of 
critical stock allowances (CSAs), on a one-CSA-per-one-kilogram-of-
methyl-bromide basis. EPA wants to be clear that in this action the 
Agency is not proposing to create a methyl bromide reserve or strategic 
inventory of any kind, or to guarantee that a certain amount of methyl 
bromide would always be held in inventory. Furthermore, in this action 
EPA is not proposing to add any new restrictions on sales of methyl 
bromide inventories.
    The Parties to the Protocol recognized in their Decisions that the 
level of existing stocks may differ from the level of available stocks 
as discussed in the Proposed Framework Rule. Most recently, Decision 
XVIII/13(4) states, ``That a Party with a critical use exemption level 
in excess of permitted levels of production and consumption for 
critical uses is to make up any such differences between those levels 
by using quantities of methyl bromide from stocks that the Party has 
recognized to be available.'' Thus, in Decisions XVIII/13, XVII/9, Ex. 
II/1, XVI/2, Ex. I/3 and IX/6 the Parties recognized that not all 
existing stocks may be available to meet critical needs. Section 
604(d)(6) of the Clean Air Act does not require that EPA adjust the 
amount of new production and import to reflect the availability of 
stocks: However, making such an adjustment is a reasonable exercise of 
EPA's discretion under this provision. Section 604(d)(6) provides that, 
``to the extent consistent with the Montreal Protocol'' EPA ``may'' 
exempt production, importation, and consumption of methyl bromide for 
critical uses, thus providing the Agency substantial discretion to 
determine whether, and to what extent, production and import is 
appropriate for critical uses.
    One commenter disagreed with EPA's interpretation in the Proposed 
Framework Rule that the Agency has the authority, as recognized by the 
Parties in Decision Ex. I/3 and similar Decisions, to ``assess how much 
methyl bromide is available from existing inventories'' (69 FR 52373). 
According to the commenter, EPA was making a ``false distinction'' 
between the terms ``available'' stocks and ``existing'' stocks of 
methyl bromide. The commenter submitted that the only difference 
between ``available'' and ``existing'' is the deduction to reflect 
developing country needs. The commenter based this argument on the 
language in Decision IX/6(1)(b)(ii), which states the condition that 
methyl bromide ``is not available in sufficient quality and quantity 
from existing stocks of banked or recycled methyl bromide, also bearing 
in mind the developing countries' need for methyl bromide.'' Thus, the 
commenter argued that Dec. Ex.I/3 does not create a new meaning for 
``available'' that encompasses more deductions than for the developing 
country needs.
    EPA disagrees with the commenter's broad application of the 
language in Decision IX/6(1)(b)(ii). EPA believes that in Dec. IX/
6(1)(b)(ii) the Parties were stressing the importance of developing 
countries' needs, and not precluding the consideration of other factors 
in each individual Party's determination of available stocks of methyl 
bromide. Dec. IX/6(1)(b)(ii) says * * * ``also bearing in mind 
developing countries'' need,'' it does not say ``only bearing in mind * 
* *'' Furthermore, EPA underscores Dec. XVIII/13(4) and similar 
decisions which use the phrasing, ``quantities of methyl bromide from 
stocks that the Party has recognized to be available.'' EPA believes 
that in that Decision, and in similar language in other decisions, the 
Parties acknowledged that individual Parties have the discretion to 
determine their level of available stocks. For these reasons, EPA 
believes it is acting consistently with the relevant decisions. In 
addition, given the substantial discretion afforded by Congress under 
section 604(d)(6) of the Clean Air Act, EPA believes it has the 
authority to determine, through a notice and comment rulemaking 
process, what factors to include in the method for estimating the 
amount of existing stocks that is available.
    Today's proposed approach is a logical extension of the approach 
used in EPA's 2006 and 2007 CUE allocation rules where EPA concluded 
that it was reasonable to adjust the proportion of

[[Page 48967]]

CUE methyl bromide to come from new production and import as compared 
to the proportion to come from stocks. Furthermore, it is appropriate 
for EPA to refine its approach in light of new information.
    EPA is considering new information it has gathered about the 
availability of stocks for critical uses. That information is included 
in a Technical Support Document available in the docket for this 
rulemaking. EPA is proposing, and seeking comment on, the following 
approach to calculate the amount of existing stocks that is available 
for critical uses. EPA's proposed methodology for calculating the 
amount of available stocks can be expressed as follows: AS = ES-D-SCF, 
where AS = available stocks on January 1, 2008; ES = existing pre-
phaseout stocks of methyl bromide held in the United States by 
producers, importers, and distributors on January 1, 2007; D = 
estimated drawdown of existing stocks during calendar year 2007; and 
SCF = a supply chain factor, the calculation of which is described 
below and in more detail in the Technical Support Document. Using the 
above method, EPA calculates that 1,715,438 kg (6.7% of baseline) of 
existing pre-phaseout stocks of methyl bromide will be ``available'' 
for critical uses on January 1, 2008. EPA seeks comment on the amount 
of the pre-phaseout stock that it estimates will be available for 
critical uses on January 1, 2008.
    In the above formula ``existing stocks'' refers to pre-phaseout 
inventory--i.e., methyl bromide that was produced before January 1, 
2005 that is still held by domestic producers, distributors and third-
party applicators. January 1, 2005 was the phaseout date for production 
and import of methyl bromide in the United States. ES does not include 
critical use methyl bromide that was produced after January 1, 2005 and 
carried over into subsequent years. That ``carry-over'' amount is 
treated separately as described in Section V.D.4. of this preamble. For 
the reasons discussed in Section V.D.4., EPA deducts an amount 
equivalent to the carry-over amount from the amount of allowable new 
production for the control period in question. ES also does not include 
methyl bromide produced under the exemption for quarantine and 
preshipment (QPS), methyl bromide produced with Article 5 allowances to 
meet the basic domestic needs of Article 5 countries, or methyl bromide 
produced for feedstock or transformation purposes. Such amounts have 
been removed from the calculation of the amount of ``available stocks'' 
for critical uses. Methyl bromide produced for QPS uses or for export 
to Article 5 countries may not be sold to domestic entities for 
critical uses. That methyl bromide, therefore, is separate from the CUE 
program.
    To estimate the drawdown of existing stocks during 2007, the ``D'' 
term in the above method, EPA proposes to project the size of the pre-
phaseout methyl bromide inventory on January 1, 2008 with a simple 
linear fit estimation using EPA data about the size of that inventory 
on January 1 of the years for which EPA has data: 2004, 2005, 2006, and 
2007. Using a simple linear fit, EPA projects that the pre-phaseout 
methyl bromide inventory, which was 7,671,091 kg on January 1, 2007, 
will be drawn down by 3,224,351 kg during 2007. Therefore, EPA 
estimates that the size of the pre-phaseout inventory will be 4,447,740 
kg on January 1, 2008. EPA's methodology for estimating the inventory 
drawdown is described in more detail in the Technical Support Document 
available on the public docket for this rulemaking.
    EPA's proposed method for determining the amount of existing stocks 
that is available for critical uses includes a ``supply chain factor.'' 
The supply chain factor represents EPA's technical estimate of the 
amount of methyl bromide inventory that would be adequate to meet a 
need for critical use methyl bromide after an unforeseen domestic 
production failure. For 2008, EPA proposes to use a supply chain factor 
equal to 2,731,211 kg in the Agency's calculation of the amount of 
available stocks. EPA wants to be very clear that in this action the 
Agency is not proposing to create a ``reserve'' or ``strategic 
inventory'' of any kind. The supply chain factor is merely a more 
transparent analytical tool that will foster greater understanding of 
the Agency's process in determining CSA amounts.
    There is one active methyl bromide production facility in the 
United States. EPA estimates that following an unforeseen shutdown of 
that facility (e.g., due to an explosion, fire, hurricane), it would 
take 6-12 months to restart production, but only 15 weeks for 
significant imports of methyl bromide to reach the U.S. As discussed in 
the Technical Support Document, EPA estimates that after 15 weeks, U.S. 
demand for critical use methyl bromide could be adequately supplied 
with imported material. In Decision XVIII/13, the Parties authorized 
5,355,946 kg for U.S. critical uses in 2008. If supply is evenly 
distributed across each 15-week period of 2008, then a supply 
disruption would cause a 15-week shortfall of 1,544,984 kg (15 weeks/52 
weeks * 5,355,946 kg). However, EPA data--collected pursuant to the 
reporting requirements at 40 CFR 82.13--shows that a disproportionate 
amount of critical use methyl bromide is produced in the first 15 weeks 
of each year. EPA's analysis in the Technical Support Document suggests 
that heavy production at the beginning of each year is related to peak 
demand during the spring planting season. Therefore, EPA estimates that 
a supply disruption at or near the beginning of 2008 would cause a 
supply shortfall greater than 1,544,984 kg.
    EPA proposes a conservative estimate of the supply chain factor 
that considers a supply disruption during the estimated peak 15-week 
period of critical use supply. As explained in more detail in the 
Technical Support Document, EPA estimates that since the beginning of 
the CUE program on January 1, 2005, critical use methyl bromide 
production in the first 15 weeks of each year has accounted for 51.0% 
of annual critical use methyl bromide production. EPA, therefore, 
estimates that the peak 15-week shortfall in 2008 could be 2,731,211 kg 
(51.0% * 5,355,946 kg). For the reasons discussed above, EPA proposes 
to include a supply chain factor of 2,731,211 kg in its calculation of 
the amount of available stocks in 2008. EPA's analysis considers many 
factors including foreign production capacity, shipping container 
capacity, shipping logistics and market dynamics. EPA seeks comment on 
the proposed supply chain factor in its calculation of the amount of 
available stocks in 2008, and on its methods and reasoning for this 
proposal as described in the Technical Support Document.
    This estimate of a 15 week supply disruption assumes that 
registrants of methyl bromide products have equal access to all sources 
of available methyl bromide. The Agency recognizes that not all 
registrants are allowed to access alternative sources of methyl 
bromide. Therefore, registrants may need to submit applications to 
amend their existing registrations to legally allow alternative sources 
of methyl bromide to be used in formulating methyl bromide end-use 
products. Because such applications may require the submission of 
product chemistry and acute toxicology data, registrants should plan 
accordingly, bearing in mind the registration requirements under FIFRA 
and the Pesticide Registration Improvement Act (PRIA). As it is 
uncertain how the amendment process would affect the estimate of supply 
disruption, EPA will use the 15 week

[[Page 48968]]

figure unless other information becomes available.
    There are other limitations associated with EPA's 15 week supply 
disruption estimate, which are discussed in the Technical Support 
Document. One of these limitations is that under the reporting 
requirements at 40 CFR 82.13, EPA collects information about the amount 
of pre-phaseout inventory and which entities own it, but the Agency 
does not collect information about the characteristics of that 
inventory. These unknown characteristics, such as the purity of the 
pre-phaseout inventory, could affect users' ability to use this 
inventory to meet their critical needs. For example, inventory intended 
for pre-plant uses may be pre-mixed with chloropicrin in compressed gas 
cylinders and therefore could not be used for post-harvest fumigations 
that require pure methyl bromide. EPA seeks information about the 
characteristics of the pre-phaseout inventory, because that information 
could help EPA refine its proposed CSA allocation amount. For example, 
if EPA were to obtain verifiable information that none of the pre-
phaseout inventory was of the necessary composition for post-harvest 
uses, the Agency might decide not to allocate CSAs for post-harvest 
sectors and could instead allocate that amount of CSAs as post-harvest 
CUAs.
    EPA believes there is precedent for allowing a reasonable amount of 
a chemical that has been phased out to remain in the supply chain to 
meet the needs of exempted uses. For example, in the context of the 
essential use exemption, as explained in the ``FDA determination 
letter'' available on the public docket for this rulemaking, FDA bases 
its determination of the amount of CFC production that is necessary for 
medical devices ``on an estimate of the quantity of CFCs that would 
allow manufacturers to maintain as much as a 12-month stockpile.'' That 
action is consistent with Decision XVI/12(3), which specifies that 
``Parties, when preparing essential use nominations for CFCs, should 
give due consideration to existing stocks, whether owned or agreed to 
be acquired from a metered-dose inhaler manufacturer, of banked or 
recycled controlled substances as described in paragraph 1(b) of 
decision IV/25, with the objective of maintaining no more than one 
year's operational supply.'' As stated previously, however, neither EPA 
nor FDA maintains a reserve on behalf of any essential use 
manufacturer, or guarantees that a certain amount of CFCs will always 
be held in inventory. Likewise, EPA is not proposing to maintain a 
reserve of methyl bromide for critical uses, or to guarantee that a 
certain amount of methyl bromide would always be held in inventory.
    Given that today's proposal is to make methyl bromide available for 
critical uses in 2008, the small number of methyl bromide production 
facilities around the world, and the continued drawdown of existing 
methyl bromide inventories make a major supply disruption an important 
issue for Agency consideration. The fact that EPA is not aware of a 
major methyl bromide supply disruption does not mean that such a 
disruption is impossible or even improbable in the future.
    The Technical Support Document discusses in detail the efficacy and 
limitations of importing methyl bromide from abroad in the event of a 
domestic production plant failure. In fact, EPA estimates that in the 
event of a plant production failure, importing methyl bromide from 
abroad is likely to be the fastest and most practical short-term way to 
replace the lost production. Therefore, issues such as foreign excess 
production capacity, shipping container capacity, shipping logistics, 
and market dynamics are the primary focus of EPA's analysis.
    As explained above, EPA is not proposing to set aside, or 
physically separate, stocks as an inventory reserve. By including a 
supply chain factor in its calculation of available stocks EPA is 
considering the drawdown of stocks and allocating critical use amounts 
that reflect the size of the existing stockpile of pre-phaseout 
material. Under EPA's proposed approach, stocks of methyl bromide may 
be used to ``fill the distribution chain'' and simultaneously provide 
some buffer in case of a major supply disruption.
    Exports were an important consideration in EPA's inclusion of the 
supply chain factor. The U.S. faces different circumstances from many 
other Parties because it is a methyl bromide producing country as well 
as a user country. In fact, historically the U.S. has been the world's 
largest supplier of methyl bromide. Since U.S. companies supply a 
significant portion of the world demand for methyl bromide, a supply 
disruption in the U.S. would not only affect U.S. users, but would 
probably affect users with agreed critical uses in developed countries 
as well as users in developing countries that have basic domestic needs 
for methyl bromide. Therefore, depending on how domestic suppliers 
manage their inventories, the supply chain factor could indirectly 
reduce the risks for entities in other countries which need methyl 
bromide.
    As explained in the Technical Support Document, EPA did not 
directly consider domestic demand for methyl bromide for QPS uses in 
its estimation of the possible shortfall of methyl bromide supplies in 
the event of a major supply disruption. Congress provided separate 
grants of authority to EPA for the quarantine and preshipment exemption 
and the critical use exemption in CAA sections 604(d)(5) and 604(d)(6), 
respectively. Therefore, methyl bromide produced for QPS uses is 
regulated under a completely separate exemption program from the CUE. 
On January 2, 2003 EPA published the QPS Rule in the Federal Register 
(68 FR 2138), which established the framework and guidelines for 
regulating methyl bromide produced for uses that meet the definition of 
QPS uses, as defined in that rule and at 40 CFR 82.3. The QPS exemption 
program does not restrict the amount of methyl bromide that is newly 
produced and imported for QPS purposes. In addition, existing 
regulations allow manufacturers and distributors of QPS methyl bromide 
to manage stockpiles of QPS methyl bromide.
    EPA is acting consistently with the Montreal Protocol by not 
including QPS methyl bromide in calculating consumption and inventory 
levels related to the phase-out of methyl bromide and the CUE. Article 
2H(6) of the Protocol states that the 1991 baseline level of 
consumption and production ``shall not include the amounts used by the 
Party for quarantine and pre-shipment purposes.''
    Similarly, EPA did not consider domestic demand for methyl bromide 
for feedstock and transformation purposes in its calculation of the 
supply chain factor. As with the QPS exemption, methyl bromide 
producers are allowed to responsibly manage inventories of feedstock 
methyl bromide. Therefore, EPA does not find compelling reasons to 
account for domestic demand for feedstock methyl bromide in the supply 
chain factor. In this action, EPA is not proposing to change or add 
restrictions on methyl bromide produced for feedstock and 
transformation purposes.
    In the past, stakeholders have raised concerns about their ability 
to understand exactly how EPA derives CSA amounts. One of EPA's 
motivations for introducing the refined methodology, described above in 
this section, is to provide more clarity about how proposed amounts are 
derived, and to make EPA's calculations more transparent. For these 
reasons, EPA tried to make the terms in the proposed method for 
calculating available stocks

[[Page 48969]]

proposed in this preamble as clear and definitive as possible. Since 
the original proposed rule, EPA has gained significant experience and 
information pertaining to the CUE program, and the methyl bromide 
industry more generally. EPA is using its added knowledge to propose a 
more transparent and definitive method for calculating the amount of 
available stocks. Further detail about the factors in the method 
proposed in this preamble is provided in the Technical Support Document 
available on the public docket for this rulemaking.
3. Proposed Approach for Determining Critical Use Amounts
    EPA estimates that, as of January 1, 2008, 1,715,438 kg of pre-
phaseout inventory will meet the definition of ``available stocks'' as 
calculated using the approach described in Section V.D.2. of this 
preamble. Based on these calculated figures and the allocation approach 
described in this Section, and after making reductions for carry-over 
amounts as explained in Section V.D.4. of this preamble, EPA proposes 
to allocate critical use allowances (CUAs) permitting 3,101,076 kg of 
new methyl bromide production and import for critical uses in 2008, and 
to allow sale of 1,715,438 kg from existing stocks for critical uses by 
allocating an equivalent number of critical stock allowances (CSAs). 
EPA's proposed allocation amounts will result in CSAs that exceed the 
difference between the total critical use amount and the new production 
amount in the Parties' decision. As discussed above, this is similar to 
the approach taken in EPA's rules for the previous two years. EPA seeks 
comment on the amount of CUAs and CSAs that the Agency is proposing to 
distribute in 2008. EPA also seeks comment on the more refined 
allocation approach that the Agency is proposing to use in 2008 and 
beyond, as described below in this Section.
    In this action, EPA is proposing to refine its allocation approach 
for 2008 and beyond. EPA proposes that in 2008 and in each year 
thereafter, when appropriate and feasible, it will allocate CSAs in an 
amount equal to the number of kilograms of available stocks on January 
1 of the year in question, as estimated by EPA using the method 
described in Section V.D.2. of this preamble. As in past years, EPA 
intends to allocate a total number of CUAs such that the total number 
of CUAs and CSAs is not greater than the total critical use amount 
authorized by the Parties for the year in question. To account for 
carry-over amounts of methyl bromide, amounts for research purposes, or 
for other appropriate reasons, including updated information on 
alternatives, EPA may allocate a total number of CUAs and CSAs that is 
less than the total critical use amount authorized by the Parties for 
the year in question. As in previous CUE rules, if EPA does allow less 
than the total amount authorized by the Parties, the Agency will 
propose and seek comment on the reasons for, and amounts of, each 
reduction before finalizing any such reductions. In this action EPA is 
not proposing to create a methyl bromide reserve or strategic inventory 
of any kind, or to guarantee that a certain amount of methyl bromide 
would always be held in inventory. Furthermore, EPA is not proposing to 
add any restrictions on sales of methyl bromide inventories.
    EPA recognizes that in a future CUE allocation rule proposal, the 
Agency could estimate, using the method described in Section V.D.2., 
that the amount of available stocks at the beginning of a future year 
is less than the difference between the total critical use amount 
authorized by the Parties and the amount of new production and imports 
authorized by the Parties for the year in question. This scenario can 
be described with the following inequality: Available Stocks <  (Total 
CUE Amount Authorized--New Production and Imports Authorized). Under 
the refined approach described above, in such a case EPA would propose 
to allow the maximum amount of new production and imports authorized by 
the Parties, minus any reductions as described below. EPA would also 
allow critical users to access a limited amount of existing stocks by 
allocating a number of CSAs equal to the difference between the total 
CUE amount authorized by the Parties and the amount of new production 
and imports authorized for the year in question (CSA = Total CUE Amount 
Authorized--New Production and Imports Authorized), again minus any 
reductions as discussed here. EPA will continue to collect inventory 
data and make critical use allocations on an annual basis. Similarly, 
unless the Parties approve multi-year critical use exemptions, EPA 
proposes to calculate the amount of available stocks on an annual basis 
and to explain those calculations in the annual CUE allocation 
rulemaking process. To account for carry-over amounts of methyl 
bromide, amounts for research purposes, or for other appropriate 
reasons, including updated information on alternatives, EPA could 
allocate a total number of CUAs and CSAs that is less than the total 
critical use amount authorized by the Parties for the year in question. 
As in previous CUE rules, if EPA does allow less than the total amount 
authorized by the Parties, the Agency will propose and seek comment on 
the reasons for, and amounts of, each reduction before finalizing any 
such reductions.
    Finally, for completeness, EPA recognizes that as a theoretical 
matter it could estimate, using the method described in Section V.D.2., 
that the amount of available stocks at the beginning of a future year 
is greater than the total critical use amount authorized by the Parties 
for the year in question. This scenario can be described with the 
following inequality: Available Stocks > Total CUE Amount Authorized. 
In that theoretical scenario, EPA would propose to allocate a number of 
CSAs that is equivalent to the total CUE amount authorized by the 
Parties for the year in question. However, EPA could still make 
reductions, such as for amounts of carry-over CUE material. Therefore, 
in the situation described by the above inequality, EPA would not 
allocate any CUAs for the year in question.
4. Treatment of Carry-Over Material
    As described in the December 23, 2004 Framework Rule (69 FR 76997), 
EPA is not permitting entities to build stocks of methyl bromide 
produced or imported after January 1, 2005 under the critical use 
exemption. Under the current regulations, quantities of methyl bromide 
produced, imported, exported, or sold to end-users under the critical 
use exemption in a calendar year must be reported to EPA the following 
year. These reporting requirements appear at Sections 82.13(f)(3), 
82.13(g)(4), 82.13(h)(1), 82.13(bb)(2), and 82.13(cc)(2). EPA uses the 
reported information to calculate the amount of methyl bromide produced 
or imported under the critical use exemption, but not exported or sold 
to end-users in that year. An amount equivalent to this ``carry-over,'' 
whether pre-plant or post-harvest, is then deducted from the total 
level of allowable new production and import in the year following the 
year of the data report. For example, the amount of carry-over from 
2005, which was reported in 2006, was deducted from the allowable 
amount of production or import for critical uses in 2007. As discussed 
in Section V.D.2., carry over material is not included in EPA's 
definition of existing stocks (ES) as it applies to the proposed 
formula for determining the amount of available stocks (AS). EPA is not 
including carry-over amounts as part of ES, because doing so could lead 
to a double-

[[Page 48970]]

counting of carry-over amounts, and thus a double reduction of critical 
use allowances (CUAs).
    In 2007, 53 entities reported information to EPA under the 
reporting requirements at 40 CFR 82.13 about critical use methyl 
bromide production, imports, exports, sales and/or inventory holdings 
in 2006. 6,923,926 kg of critical use methyl bromide was acquired 
through production or import in 2006. The information reported to EPA 
indicates that 6,384,493 kg of critical use methyl bromide was exported 
or sold to end-users in 2006. EPA calculates that the carry-over amount 
at the end of 2006 was 539,433 kg, which is the difference between the 
reported amount of critical use methyl bromide acquired in 2006 and the 
reported amount of exports or sales of that material to end users in 
2006 (6,923,926 kg - 6,384,493 kg = 539,433 kg). EPA's calculation of 
the amount of carry-over at the end of 2006 is consistent with the 
method used in the final 2007 CUE Rule, and with the method agreed to 
by the Parties in Decision XVI/6, which established the Accounting 
Framework for critical use methyl bromide, for calculating column L of 
the U.S. the Accounting Framework. The 2006 U.S. Accounting Framework 
is available in the public docket for this rulemaking. EPA seeks 
comment on its method for calculating the amount of carry-over critical 
use material at the end of each year. Commenters suggesting alternative 
methods for calculating the amount of carry-over material at the end of 
each year should be detailed and comprehensive; address what changes 
would be needed to the reporting requirements; and the degree of 
administrative burden that alternative practice might impose. EPA also 
seeks comment on ways to improve the completeness of data reporting by 
affected companies. It is important for stakeholders to recognize that 
the process for calculating the amount of carry-over CUE material each 
year relies on sales to end-user data reported to EPA by distributors 
and applicators. EPA specifically requests comment on whether requiring 
producers, importers, and distributors to report to the Agency the 
names of distributors and third-party applicators to whom they have 
sold critical-use methyl bromide would result in more complete 
reporting of sales to end-user data, and whether this would justify the 
additional burden of such requirements.
    In previous CUE rules, EPA has used the approach described in the 
Framework Rule for implementing carry-over reductions. Consistent with 
that approach, EPA is proposing to reduce the total level of new 
production and import for critical uses by 539,432 kg to reflect the 
total level of carry-over material available at the end of 2006. After 
applying this reduction to the total volumes of allowable new 
production or import, EPA pro-rated CUAs to each company based on their 
1991 baseline market share.
    Chemtura Corporation has submitted a petition available on the 
public docket for this rulemaking that recommends alternative methods 
for apportioning carry-over reductions among CUA holders. Some of 
Chemtura's proposals would require increases to existing reporting 
requirements for producers, distributors or third-party applicators. 
EPA encourages interested parties to consult Chemtura's petition. EPA 
seeks comment on the recommendations in that petition, as well as any 
additional suggestions regarding the apportionment of carry-over among 
companies. Comments suggesting alternative methods for implementing 
carry-over reductions should be detailed and comprehensive; address 
what changes, if any, would be needed to the reporting requirements; 
and the degree of burden the alternative practice might impose.
5. Amounts for Research Purposes
    Decision XVII/9(7) ``request[ed] Parties to endeavor to use stocks, 
where available, to meet any demand for methyl bromide for the purposes 
of research and development.'' Consistent with that Decision, in the 
2007 CUE Rule, EPA reduced the amount of new production and import by 
21,702 kilograms, which was the amount needed for research. Consistent 
with Decision XVII/9, EPA continued to encourage methyl bromide 
suppliers to sell inventory to researchers and encouraged researchers 
to purchase inventory.
    Decision XVIII/15(1) authorizes ``the production and consumption of 
[methyl bromide] necessary to satisfy laboratory and analytical 
critical uses.'' Paragraph 2 of that decision states that methyl 
bromide produced under the exemption for laboratory and analytical uses 
may be used as a reference or standard; in laboratory toxicology 
studies; to compare the efficacy of methyl bromide and its alternatives 
inside a laboratory; and as a laboratory agent which is destroyed in a 
chemical reaction in the manner of feedstock. In a separate notice-and-
comment rulemaking titled the ``Global Essential Laboratory and 
Analytical Use Exemption,'' EPA is proposing to implement the exemption 
authorized in Decision XVIII/15. More information about that rulemaking 
process is available on the docket for that rule (EPA-HQ-OAR-2007-
0384).
    There continues to be a need for methyl bromide for research 
purposes that do not meet the criteria for laboratory and analytical 
uses, as defined in Decision XVIII/15. A common example is an outdoor 
field experiment that requires methyl bromide as a standard control 
treatment with which to compare the trial alternatives' results. The 
critical use sectors that were approved by the Parties to use methyl 
bromide for research purposes in 2008 are listed in Section V.C. and 
have ``research purposes'' listed in their limiting critical conditions 
in Table I of this preamble.
    In this action, EPA is proposing to allow sale of 15,491 kg of 
existing stocks for research purposes in 2008 to account for the amount 
authorized for those purposes. EPA proposes to allow methyl bromide 
sale from stocks for exempted research purposes by expending CSAs. An 
explanation of what amounts of methyl bromide and of what sectors 
qualify for research purposes can be found in Section V.C. of this 
preamble. If EPA adopts this proposal it will continue to encourage 
methyl bromide suppliers to sell inventory to researchers and to 
encourage researchers to purchase inventory for research purposes. EPA 
seeks comment on its proposal to issue CSAs for sale of methyl bromide 
stocks for exempted research purposes.
6. Methyl Bromide Alternatives
    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 
allocation reductions in that rule reflected transition rates that were 
included for the first time in the 2007 U.S. Critical Use Nomination 
(CUN). In the 2007 CUE Rule, EPA explained why a similar reduction was 
made in that rule: ``The report of the Methyl Bromide Technical Options 
Committee (MBTOC) indicated that the MBTOC did not make any reductions 
in these [post-harvest] 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'' 
(75 FR 75390).
    The United States continues to make progress transitioning to 
alternatives to methyl bromide fumigation. Preliminary results of a 
study (forthcoming) indicate

[[Page 48971]]

that the cost of post-harvest cocoa fumigation with sulfuryl fluoride 
is not substantially greater than the cost of using methyl bromide for 
that fumigation. As a result the National Pest Management Association 
(NPMA) decided to withdraw its nomination request for critical use 
methyl bromide for cocoa for calendar year 2009 and not to seek 
critical use methyl bromide for cocoa at all in calendar year 2010.
    NPMA, however, has expressed the need for some critical use methyl 
bromide for cocoa in 2008 as the sector transitions to sulfuryl 
fluoride. NPMA explained to EPA that some larger companies have already 
begun integrating sulfuryl fluoride into their operations. However, 
there are other companies that have not begun that transition. NPMA 
believes that those companies would be unprepared if EPA does not allow 
a portion of the 50,188 kg of critical use methyl bromide for cocoa 
approved by the Parties for 2008. Given the circumstances discussed 
above, EPA seeks comment on how much of the 50,188 kg of critical use 
methyl bromide approved by the Parties for cocoa for 2008 should be 
allowed by the Agency. Commenters on this topic should recommend 
specific amounts of critical use methyl bromide for cocoa in 2008, and 
provide detailed justifications for their recommendations.
    Besides the issues regarding post-harvest cocoa fumigation 
discussed above, EPA is not proposing to make any other reductions in 
post-harvest or pre-plant critical use allowances to account for the 
uptake of sulfuryl fluoride, or any other pre-plant or post-harvest 
alternatives. In the 2008 CUN the Agency applied transition rates for 
all critical use sectors. The MBTOC report of September 2006 included 
reductions in its recommendations for critical use categories based on 
the transition rates in the 2008 CUN. MBTOC's recommendations were then 
considered in the Parties' 2008 authorization amounts, as listed in 
Decision XVIII/13. Therefore, transition rates, which account for the 
uptake of alternatives, have already been applied for authorized 2008 
critical use amounts. Furthermore, the 2009 CUN, which represents the 
most recent analysis and the best available data for methyl bromide 
alternatives, does not conclude that transition rates should be 
increased for 2008.
    As the 2009 CUN reflects, besides the post-harvest cocoa issue 
discussed above in this section, the United States Government has not 
found new information that supports changing the 2008 transition rates 
included in the 2008 CUN and applied by MBTOC. EPA continues to gather 
information about methyl bromide alternatives through the CUE 
application process, and by other means. For example, in August 2006, 
under the authority of Section 114 of the Clean Air Act, EPA collected 
information from a group of millers and fumigators about their 
experiences with sulfuryl fluoride and methyl bromide.
    EPA seeks comment on its proposal not to make further reductions in 
2008 to account for the uptake of methyl bromide alternatives, because 
the Agency has already accounted for alternatives' transition rates. 
EPA continues to support research and adoption of methyl bromide 
alternatives, and to request information about the economic and 
technical feasibility of all existing and potential alternatives.

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

    Paragraphs 2 and 6 of Decision XVIII/13 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 2008 control 
period. A discussion of the Agency's application of the criteria in 
paragraph 1 of Decision IX/6 appears in sections V.A., V.C., V.D., and 
V.H. of this preamble. In section V.C. the Agency is soliciting 
comments from the public on the technical and economic basis for 
determining that the uses listed in this proposed rule meet the 
criteria of the critical use exemption (CUE). 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.
    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.D., 
V.G., and V.H. 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 titled ``Development of 2003 
Nomination for a Critical Use Exemption for Methyl Bromide for the 
United States of America'' 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.

F. Emissions Minimization

    EPA notes for the regulated community the reference to emission 
minimization techniques in paragraph 8 of Decision XVIII/13, 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 minimize 
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 encourages researchers and users who 
are successfully utilizing such techniques to inform EPA of their 
experiences as part of their comments on this proposed rule and to 
provide such information with their critical use applications. In 
addition, the Agency welcomes comments on the implementation of 
emission minimization techniques and whether and how further emission 
minimization could be achieved.

F. Critical Use Allowance Allocations

    EPA is proposing to allow limited amounts of new production or 
import of methyl bromide for critical uses for

[[Page 48972]]

2008 up to the amount of 3,101,076 kg (12.2% of baseline) as shown in 
Table II below. EPA is seeking comment on the total levels of exempted 
new production or import for pre-plant and post-harvest critical uses 
in 2008. 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 proposal for allocating the 
following number 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).

        Table II.--Proposed Allocation of Critical Use Allowances
------------------------------------------------------------------------
                                           2008 Critical   2008 Critical
                                          use allowances  use allowances
                 Company                   for pre-plant     for post-
                                              uses *      harvest uses *
                                            (kilograms)     (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp.--A Chemtura         1,691,276         193,248
 Company................................
Albemarle Corp..........................         695,491          79,468
Ameribrom, Inc..........................         384,343          43,916
TriCal, Inc.............................          11,967           1,367
                                         -------------------------------
    Total...............................    ** 2,783,078      ** 317,998
------------------------------------------------------------------------
* 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.
** Due to rounding, numbers do not add exactly.

    Paragraph five of Decision XVIII/13 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), Ex. II/1(4) and VII/9(4) regarding 2005, 2006 and 2007 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 
Framework Rule notice (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. A summary of the options analysis conducted by 
EPA is available in the docket for this rulemaking.
    EPA is not proposing to change the approach adopted in the 
Framework Rule for the allocation of CUAs but, in an endeavor to 
address Decision XVIII/13(5), EPA will consider 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.

H. Critical Stock Allowance Allocations and Total Volumes of Critical 
Use Methyl Bromide

    For the reasons described in Section V.D., EPA is proposing to 
allocate critical stock allowances (CSAs) to the entities listed below 
in Table III for the 2008 control period in the amount of 1,715,438 
kilograms (kg) (6.7% of U.S. 1991 baseline). This proposed amount of 
CSA allowances is consistent with the proposed approach described in 
Section V.D.4. and in a Technical Support Document available on the 
public docket for this rulemaking (Docket ID: EPA-HQ-OAR-2006-
1016).
    In 2006 the United States District Court for the District of 
Columbia upheld EPA's treatment of company-specific methyl bromide 
inventory information as confidential. NRDC v. Leavitt, 2006 WL 667327 
(D.D.C. March 14, 2006). EPA's allocation of CSAs is based on each 
company's proportionate share of the aggregate inventory. Therefore, 
the documentation regarding company-specific allocation of CSAs is in 
the confidential portion of the rulemaking docket and the individual 
CSA allocations are not listed in the table below. EPA will inform the 
listed companies of their CSA allocations in a letter following 
publication of the final rule.

           Table III.--Allocation of Critical Stock Allowances
------------------------------------------------------------------------
                                 Company
-------------------------------------------------------------------------
Albemarle
Ameribrom, Inc.
Bill Clark Pest Control, Inc.
Blair Soil Fumigation
Burnside Services, Inc.
Cardinal Professional Products
Carolina Eastern, Inc.
Degesch America, Inc.
Dodson Bros.
Great Lakes Chemical Corp.
Harvey Fertilizer & Gas
Helena Chemical Co.
Hendrix & Dail
Hy Yield Bromine

[[Page 48973]]


Industrial Fumigation Company
J.C. Ehrlich Co.
Pacific Ag
Pest Fog Sales Corp.
Prosource One
Reddick Fumigants
Royster-Clark, Inc.
Southern State Cooperative, Inc.
Trical Inc.
Trident Agricultural Products
UAP Southeast (NC)
UAP Southeast (SC)
Univar
Vanguard Fumigation Co.
Western Fumigation
    Total--1,715,438 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, in 
the Proposed 2007 CUE rule EPA proposed to allow CSA holders, on a 
voluntary basis, to permanently relinquish their allowances through 
written notification to the Agency. EPA received no adverse comments. 
However, no CSA holders contacted EPA to take advantage of that 
voluntary opportunity.
    For purposes of the 2008 CUE rule and beyond, EPA is again allowing 
CSA holders, on a voluntary basis, to permanently relinquish their 
allowances through written notification to the person indicated in the 
``addresses'' section of this preamble during the comment period for 
this rulemaking. Such companies would not receive CSA allocations and 
would be excluded from future allocations. All allowances forfeited by 
companies through the written notification process will be reallocated 
to the remaining companies on a pro-rata basis. EPA strongly encourages 
CSA holders to take advantage of this voluntary opportunity to retire 
their CSA allocations in order to reduce their administrative burden.

I. Stocks of Methyl Bromide

    As discussed above and in the December 23, 2004 Framework Rule, an 
approved critical user may obtain access to exempted production and 
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. The Framework Rule established provisions governing the 
sale of pre-phaseout inventories for critical uses, including the 
concept of CSAs and a prohibition on the sale of pre-phaseout 
inventories for critical uses in excess of the amount of CSAs held by 
the seller. In the Framework Rule EPA also established trading 
provisions that allow critical use allowances (CUAs) to be converted 
into CSAs. Under this proposed action, no significant changes would be 
made to those provisions.
    EPA believes that the refined approach proposed in Section V.D. of 
this preamble includes important measures that could reduce the risks 
of methyl bromide shortages for critical uses. For example, this 
transparent approach allows improved stakeholder comment regarding the 
amount of available stocks and resulting adjustments to the CUA 
amounts. However, as in prior years, the Agency will continue to 
closely monitor CUA and CSA data. Further, as stated in the final 2006 
CUE rule, safety valves continue to exist. If an inventory shortage 
occurs, EPA 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. In sections V.D. and V.G. 
of this preamble, EPA seeks comment on the amount of critical use 
methyl bromide to come from stocks compared to new production and 
import.
    With regard to information about stocks of methyl bromide, EPA has 
requested such information since late 2003. On December 11, 2003, EPA 
initially requested information on the amount of methyl bromide held in 
inventory from a group of five methyl bromide producers, importers, and 
distributors. The information submitted in response to that Section 114 
request was subsequently requested under the Freedom of Information Act 
(``FOIA''). On August 26, 2004, EPA issued a final determination 
concerning the confidentiality of that information. In the 
determination, EPA found that aggregated data on the amount of methyl 
bromide that had been stockpiled and maintained in inventory in 2002 
and 2003 by the group of five businesses (``5-business aggregate'') 
could not be withheld pursuant to any FOIA exemption. Part of the basis 
for EPA's determination was that entities' individual information could 
not be deduced from aggregate stockpile data, and therefore, the 5-
business aggregate was not confidential.
    Subsequent to the August 26, 2004 determination, two of the 
businesses whose information was included in the five-business 
aggregate filed suit to prevent EPA from releasing this information. 
Ameribrom v. Leavitt et al., 2:04-cv-04393 (D.N.J.), was filed 
September 9, 2004 and Hendrix and Dail v. Leavitt, et al., 04-CV-134 
(E.D.N.C.), was filed September 14, 2004. However, both companies 
subsequently filed for voluntary dismissal.
    In addition to 2002 and 2003 methyl bromide inventory data for the 
group of five entities, EPA has collected similar information for a 
broader group of entities for the years 2003, 2004, 2005 and now 2006. 
2003 stockpile data for all entities that held stocks of methyl bromide 
for sale or for transfer was collected in accordance with a notice 
published on August 25, 2004 (69 FR 52403) titled ``Request for 
Information on Existing and Available Stocks of Methyl Bromide.'' 2004 
stockpile data for all methyl bromide producers, importers, exporters, 
distributors, and applicators was collected pursuant to a Section 114 
request dated April 15, 2005. 2005 and 2006 stockpile data for all 
methyl bromide producers, importers, distributors, and applicators was 
collected pursuant to a rule published on December 13, 2005 (70 FR 
73604) that amended methyl bromide reporting requirements at 40 CFR 
82.13 in a manner that enables EPA to calculate the aggregate stockpile 
for each calendar year. On September 7, 2006 the Agency released data 
on the aggregate amount of methyl bromide held in inventory at the end 
of calendar years 2003, 2004 and 2005.
    On April 23, 2007 EPA sent letters to all entities which had 
reported holding methyl bromide inventory at the end of 2003, 2004, 
2005, or 2006. The letters confirmed EPA's intention to treat the 
aggregate of the methyl bromide stockpile information reported to the 
Agency for calendar year 2006 in the same manner as similar aggregates 
calculated from information for the years 2003, 2004, and 2005. The 
letters explained that under EPA regulations at 40 CFR 2.204(d)(2), the 
aggregate of the methyl bromide stockpile information

[[Page 48974]]

for calendar year 2006 reported to the Agency under the requirements at 
40 CFR 82.13 is clearly not eligible for confidential treatment. This 
determination was based in part on the great difficulty (due to the 
number of submitters) of ascertaining the size of any individual 
entity's methyl bromide stockpile from the information submitted under 
the reporting requirements at 40 CFR 82.13, as aggregated by the 
Agency. EPA did not receive any objections to releasing the aggregate 
information for 2006 and proceeded to release that information on May 
14, 2007. The aggregate information for 2003, 2004, 2005, and 2006 is 
available in the docket for this rulemaking.
    In this action, EPA is proposing to release the aggregate of methyl 
bromide stockpile information reported to the Agency under the 
reporting requirements at 40 CFR 82.13 for the end of 2007, and each 
year thereafter. For the reasons given in the April 23, 2007 letters, 
which are available in the docket, this aggregate information is 
clearly not entitled to confidential treatment. EPA proposes to release 
the aggregate of this stockpile data in future years without first 
notifying entities by letter, as EPA has done in the past two years. 
EPA seeks comment on this proposal. If the Agency does not receive any 
comments opposing this proposal, the aggregate of methyl bromide 
stockpile data collected under the reporting requirements at 40 CFR 
82.13 will not be treated as confidential information and may be 
released in future without further notice.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action proposes a ``significant regulatory action.'' This action 
is likely to result in a rule that may raise novel legal or policy 
issues. 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.

B. Paperwork Reduction Act

    This proposed action does not impose any new information collection 
burden. The Office of Management and Budget (OMB) has previously 
approved the information collection requirements contained in the 
existing regulations at 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, and EPA ICR number 2179.03. A copy of the OMB 
approved Information Collection Request (ICR) may be obtained from 
Susan Auby, Collection Strategies Division; U.S. Environmental 
Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 
20460 or by calling (202) 566-1672.
    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 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 
this proposed rule on small entities, small entity is defined as: (1) A 
small business that is identified by the North American Industry 
Classification System (NAICS) Code in the Table below; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less that 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.

----------------------------------------------------------------------------------------------------------------
                                                                                           NAICS Small business
                                                                                            size standard  (in
               Category                       NAICS code                SIC code          number of employees or
                                                                                           millions of dollars)
----------------------------------------------------------------------------------------------------------------
Agricultural production..............  1112--Vegetable and       0171--Berry Crops,      $0.75 million.
                                        Melon farming, 1113--    0172--Grapes, 0173--
                                        Fruit and Nut Tree       Tree Nuts, 0175--
                                        Farming, 1114--          Deciduous Tree Fruits
                                        Greenhouse, Nursery,     (except apple orchards
                                        and Floriculture         and farms), 0179--
                                        Production.              Fruit and Tree Nuts,
                                                                 NEC, 0181--Ornamental
                                                                 Floriculture and
                                                                 Nursery Products,
                                                                 0831--Forest Nurseries
                                                                 and Gathering of
                                                                 Forest Products.
Storage Uses.........................  115114--Postharvest      2041--Flour and Other    $6.5 million.
                                        Crop activities          Grain Mill Products,    500 employees.
                                        (except Cotton           2044--Rice Milling,     $23.5 million.
                                        Ginning), 311211--       4221--Farm Product
                                        Flour Milling, 311212--  Warehousing and
                                        Rice Milling, 493110--   Storage, 4225--General
                                        General Warehousing      Warehousing and
                                        and Storage, 493130--    Storage.
                                        Farm Product
                                        Warehousing and
                                        Storage.

[[Page 48975]]


Distributors and Applicators.........  115112--Soil             0721--Crop Planting,     $6.5 million.
                                        Preparation, Planting    Cultivation, and
                                        and Cultivating.         Protection.
Producers and Importers..............  325320--Pesticide and     2879--Pesticides and    500 employees.
                                        Other Agricultural       Agricultural
                                        Chemical Manufacturing.  Chemicals, NEC.
----------------------------------------------------------------------------------------------------------------

    Agricultural producers of minor crops and entities that store 
agricultural commodities are categories of affected entities that 
contain small entities. This proposed 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 this proposed rule on 
small entities, EPA certifies that this action will not have a 
significant economic impact on a substantial number of small entities. 
In determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities.'' (5 U.S.C. 
603-604). Thus, an Agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves a regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule. Since 
this rule exempts methyl bromide for approved critical uses after the 
phaseout date of January 1, 2005, this is a de-regulatory action which 
will confer a benefit to users of methyl bromide. EPA believes the 
estimated de-regulatory value for users of methyl bromide is between 
$20 million and $30 million annually. We have therefore concluded that 
this proposed rule will relieve regulatory burden for all small 
entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    This proposed 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 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
The phrase ``policies that have federalism implications'' is defined in 
the Executive Order to include regulations that have ``substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This proposed rule is expected 
to primarily affect producers, suppliers, importers and exporters and 
users of methyl bromide. Thus, Executive Order 13132 does not apply to 
this proposed rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by

[[Page 48976]]

tribal officials in the development of regulatory policies that have 
tribal implications.'' This proposed rule does not have tribal 
implications, as specified in Executive Order 13175. This proposed rule 
does not significantly or uniquely affect the communities of Indian 
tribal governments. The proposed rule does not impose any enforceable 
duties on communities of Indian tribal governments. Thus, Executive 
Order 13175 does not apply to this proposed rule.

G. Executive Order 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 proposed rule is not 
subject to Executive Order 13045 because it does not establish an 
environmental standard intended to mitigate health or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed 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 proposed 
rule does not pertain to any segment of the energy production economy 
nor does it regulate any manner of energy use. Therefore, we have 
concluded that this proposed rule is not likely to have any adverse 
energy effects.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, Section 12(d) (15 
U.S.C. 272 note) directs EPA to use voluntary consensus standards in 
its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
rulemaking does not involve technical standards. Therefore, EPA is not 
considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations, because it effects the 
level of environmental protection equally for all affected populations 
without having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. Any ozone depletion that results from this proposed 
rule will impact all affected populations equally because ozone 
depletion is a global environmental problem with environmental and 
human effects that are, in general, equally distributed across 
geographical regions.

List of Subjects in 40 CFR Part 82

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

    Dated: August 17, 2007.
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:


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

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

------------------------------------------------------------------------
                                           2008 Critical   2008 Critical
                                          use allowances  use allowances
                 Company                   for pre-plant     for post-
                                               uses*       harvest uses*
                                            (kilograms)     (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp.--A Chemtura         1,691,276         193,248
 Company................................
Albemarle Corp..........................         695,491          79,468
Ameribrom, Inc..........................         384,343          43,916
TriCal, Inc.............................          11,967           1,367
                                         -------------------------------
    Total...............................       2,783,078         317,998
------------------------------------------------------------------------
* 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.


[[Page 48977]]

    (2) Allocated critical stock allowances granted for specified 
control period. The following companies are allocated critical stock 
allowances for 2008 on a pro-rata basis in relation to the inventory 
held by each.

------------------------------------------------------------------------
                                 Company
-------------------------------------------------------------------------
Albemarle
Ameribrom, Inc.
Bill Clark Pest Control, Inc.
Blair Soil Fumigation
Burnside Services, Inc.
Cardinal Professional Products
Carolina Eastern, Inc.
Degesch America, Inc.
Dodson Bros.
Great Lakes Chemical Corp.
Harvey Fertilizer & Gas
Helena Chemical Co.
Hendrix & Dail
Hy Yield Bromine
Industrial Fumigation Company
J.C. Ehrlich Co.
Pacific Ag
Pest Fog Sales Corp.
Prosource One
Reddick Fumigants
Royster-Clark, Inc.
Southern State Cooperative, Inc.
TriCal, Inc.
Trident Agricultural Products
UAP Southeast (NC)
UAP Southeast (SC)
Univar
Vanguard Fumigation Co.
Western Fumigation
    Total--1,715,438 kilograms.
------------------------------------------------------------------------

    3. Appendix L to Subpart A is revised to read as follows:

Appendix L to Subpart A of Part 82--Approved Critical Uses and Limiting 
Critical Conditions for Those Uses for the 2008 Control Period

------------------------------------------------------------------------
          Column A                  Column B              Column C
------------------------------------------------------------------------
                                                      Limiting critical
                                                      conditions--that
                                                      either exist, or
                                Approved critical     that the approved
   Approved critical uses     user and location of      critical user
                                       use           reasonably expects
                                                     could arise without
                                                       methyl bromide
                                                         fumigation:
------------------------------------------------------------------------
Pre-Plant Uses:
    Cucurbits...............  (a) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) Southeastern      Moderate to severe
                               U.S. limited to       yellow or purple
                               growing locations     nutsedge
                               in Alabama,           infestation.
                               Arkansas, Kentucky,  Moderate to severe
                               Louisiana,            soilborne disease
                               Mississippi, North    infestation.
                               Carolina, South      Moderate to severe
                               Carolina,             root knot nematode
                               Tennessee, and        infestation.
                               Virginia.            A need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     root knot nematode
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Eggplant................  (a) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Moderate to severe
                                                     pythium collar,
                                                     crown and root rot.
                                                    Moderate to severe
                                                     southern blight
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Forest Nursery Seedlings  (a) Growers in        Moderate to severe
                               Alabama, Arkansas,    yellow or purple
                               Georgia, Louisiana,   nutsedge
                               Mississippi, North    infestation.
                               Carolina, Oklahoma,  Moderate to severe
                               South Carolina,       soilborne disease
                               Tennessee, Texas,     infestation.
                               and Virginia.        Moderate to severe
                                                     nematode
                                                     infestation.
                              (b) International     Moderate to severe
                               Paper and its         yellow or purple
                               subsidiaries          nutsedge
                               limited to growing    infestation.
                               locations in         Moderate to severe
                               Alabama, Arkansas,    soilborne disease
                               Georgia, South        infestation.
                               Carolina, and Texas.
                              (c) Public            Moderate to severe
                               (government-owned)    weed infestation
                               seedling nurseries    including purple
                               in Illinois,          and yellow nutsedge
                               Indiana, Kentucky,    infestation.
                               Maryland, Missouri,  Moderate to severe
                               New Jersey, Ohio,     Canada thistle
                               Pennsylvania, West    infestation.
                               Virginia, and        Moderate to severe
                               Wisconsin.            nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                              (d) Weyerhaeuser      Moderate to severe
                               Company and its       yellow or purple
                               subsidiaries          nutsedge
                               limited to growing    infestation.
                               locations in         Moderate to severe
                               Alabama, Arkansas,    soilborne disease
                               North Carolina, and   infestation.
                               South Carolina.      Moderate to severe
                                                     nematode or worm
                                                     infestation.
                              (e) Weyerhaeuser      Moderate to severe
                               Company and its       yellow nutsedge
                               subsidiaries          infestation.
                               limited to growing   Moderate to severe
                               locations in Oregon   soilborne disease
                               and Washington.       infestation.
                              (f) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     Canada thistle
                                                     infestation.
                                                    Moderate to severe
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.

[[Page 48978]]


                              (g) Michigan          Moderate to severe
                               herbaceous            nematode
                               perennials growers.   infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     yellow nutsedge and
                                                     other weed
                                                     infestation.
    Orchard Nursery           (a) Members of the    Moderate to severe
     Seedlings.                Western Raspberry     nematode
                               Nursery Consortium    infestation.
                               limited to growing   Presence of medium
                               locations in          to heavy clay
                               California and        soils.
                               Washington.          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    Moderate to severe
                               California            nematode
                               Association of        infestation.
                               Nursery and Garden   Presence of medium
                               Centers               to heavy clay
                               representing          soils.
                               Deciduous Tree       Prohibition on use
                               Fruit Growers.        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   Moderate to severe
                               nurseries.            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        Moderate to severe
                               growers.              soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) North Carolina    Moderate to severe
                               and Tennessee         black root rot.
                               growers.             Moderate to severe
                                                     root-knot nematode
                                                     infestation.
                                                    Moderate to severe
                                                     yellow and purple
                                                     nutsedge
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Orchard Replant.........  (a) California stone  Moderate to severe
                               fruit growers.        nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne 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.
                              (b) California table  Moderate to severe
                               and raisin grape      nematode
                               growers.              infestation.
                                                    Moderate to severe
                                                     soilborne 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.
                              (c) California wine   Moderate to severe
                               grape growers.        nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne 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.
                              (d) California        Moderate to severe
                               walnut growers.       nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne 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.

[[Page 48979]]


                              (e) California        Moderate to severe
                               almond growers.       nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne 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.
    Ornamentals.............  (a) California        Moderate to severe
                               growers.              soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    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
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Peppers.................  (b) Alabama,          Moderate to severe
                               Arkansas, Kentucky,   yellow or purple
                               Louisiana,            nutsedge
                               Mississippi, North    infestation.
                               Carolina, South      Moderate to severe
                               Carolina,             nematode
                               Tennessee, and        infestation.
                               Virginia growers.    Moderate to severe
                                                     pythium root,
                                                     collar, crown and
                                                     root rots.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (d) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation, 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
                                                     soilborne disease
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Strawberry Fruit........  (a) California        Moderate to severe
                               growers.              black root rot or
                                                     crown rot.
                                                    Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    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
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Carolina geranium or
                                                     cut-leaf evening
                                                     primrose
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation
                                                     a need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) Alabama,          Moderate to severe
                               Arkansas, Georgia,    yellow or purple
                               Illinois, Kentucky,   nutsedge
                               Louisiana,            infestation.
                               Maryland,            Moderate to severe
                               Mississippi,          nematode
                               Missouri, New         infestation.
                               Jersey, North        Moderate to severe
                               Carolina, Ohio,       black root and
                               South Carolina,       crown rot.
                               Tennessee, and       A need for methyl
                               Virginia growers.     bromide for
                                                     research purposes.
    Sweet Potato Slips......  (a) California        Prohibition on use
                               growers.              of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits for this
                                                     alternative have
                                                     been reached.

[[Page 48980]]


    Tomatoes................  (a) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     fungal pathogen
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) Alabama,          Moderate to severe
                               Arkansas, Florida,    yellow or purple
                               Georgia, Kentucky,    nutsedge
                               Louisiana,            infestation.
                               Mississippi, North   Moderate to severe
                               Carolina, South       soilborne disease
                               Carolina,             infestation.
                               Tennessee, and       Moderate to severe
                               Virginia growers.     nematodes.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features, and in
                                                     Florida, soils not
                                                     supporting seepage
                                                     irrigation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
Post-Harvest Uses:
    Food Processing.........  (a) Rice millers in   Moderate to severe
                               all locations in      infestation of
                               the U.S. who are      beetles, weevils or
                               members of the USA    moths.
                               Rice Millers         Older structures
                               Association.          that can not be
                                                     properly sealed to
                                                     use an alternative
                                                     to methyl bromide.
                                                    Presence of
                                                     sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.
                              (b) Pet food          Moderate to severe
                               manufacturing         infestation of
                               facilities in the     beetles, moths, or
                               U.S. who are active   cockroaches.
                               members of the Pet   Older structures
                               Food Institute (For   that can not be
                               this proposed rule,   properly sealed to
                               ``pet food'' refers   use an alternative
                               to domestic dog and   to methyl bromide.
                               cat food).           Presence of
                                                     sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.
                              (c) Bakeries in the   Older structures
                               U.S.                  that can not be
                                                     properly sealed to
                                                     use an alternative
                                                     to methyl bromide.
                                                    Presence of
                                                     sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.
                              (d) Members of the    Moderate to severe
                               North American        beetle infestation.
                               Millers'             Older structures
                               Association in the    that can not be
                               U.S.                  properly sealed to
                                                     use an alternative
                                                     to methyl bromide.
                                                    Presence of
                                                     sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.
                              (e) Members of the    Moderate to severe
                               National Pest         beetle or moth
                               Management            infestation.
                               Association          Older structures
                               associated with dry   that can not be
                               commodity structure   properly sealed to
                               fumigation (cocoa)    use an alternative
                               and dry commodity     to methyl bromide.
                               fumigation           Presence of
                               (processed food,      sensitive
                               herbs and spices,     electronic
                               dried milk and        equipment subject
                               cheese processing     to corrosion.
                               facilities).         Time to transition
                                                     to an alternative.
    Commodities.............  (a) California        Rapid fumigation is
                               entities storing      required to meet a
                               walnuts, beans,       critical market
                               dried plums, figs,    window, such as
                               raisins, dates (in    during the holiday
                               Riverside county      season, rapid
                               only), and            fumigation is
                               pistachios in         required when a
                               California.           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    Red legged ham
                               National Country      beetle infestation.
                               Ham Association.     Cheese/ham skipper
                                                     infestation.
                                                    Dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.
                              (b) Members of the    Red legged ham
                               American              beetle infestation.
                               Association of Meat  Cheese/ham skipper
                               Processors.           infestation.
                                                    Dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.
                              (c) Nahunta Pork      Red legged ham
                               Center (North         beetle infestation.
                               Carolina).           Cheese/ham skipper
                                                     infestation.
                                                    Dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.
                              (d) Gwaltney and      Red legged ham
                               Smithfield Inc.       beetle infestation.
                                                    Cheese/ham skipper
                                                     infestation.
                                                    Dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.
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[[Page 48981]]

[FR Doc. E7-16896 Filed 8-24-07; 8:45 am]

BILLING CODE 6560-50-P
