[Federal Register Volume 69, Number 155 (Thursday, August 12, 2004)]
[Proposed Rules]
[Pages 49824-49829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18445]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 69, No. 155 / Thursday, August 12, 2004 / 
Proposed Rules  

[[Page 49824]]



DEPARTMENT OF AGRICULTURE

Animal and Plant Health Inspection Service

7 CFR Part 304

[Docket No. 02-086-1]
RIN 0579-AB54


Methyl Bromide; Official Quarantine Uses

AGENCY: Animal and Plant Health Inspection Service, USDA.

ACTION: Proposed rule.

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

SUMMARY: We are proposing to establish regulations to provide for the 
submission of requests by State, local, or tribal authorities for a 
determination whether methyl bromide treatments or applications 
required by the State, local, or tribal authorities to prevent the 
introduction, establishment, or spread of plant pests or noxious weeds 
should be authorized as official quarantine uses. These proposed 
regulations are necessary to comply with a recent amendment to the 
Plant Protection Act that requires the Secretary to publish and 
maintain a registry of authorized State, local, and tribal requirements 
for methyl bromide treatments or applications. This proposed rule would 
establish a process by which State, local, or tribal authorities could 
request and, if warranted, receive, a determination that their methyl 
bromide requirements should be authorized as official quarantine uses.

DATES: We will consider all comments that we receive on or before 
October 12, 2004.

ADDRESSES: You may submit comments by any of the following methods:
     Postal Mail/Commercial Delivery: Please send four copies 
of your comment (an original and three copies) to Docket No. 02-086-1, 
Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 
River Road Unit 118, Riverdale, MD 20737-1238. Please state that your 
comment refers to Docket No. 02-086-1.
     E-mail: Address your comment to 
[email protected]. Your comment must be contained in the body 
of your message; do not send attached files. Please include your name 
and address in your message and ``Docket No. 02-086-1'' on the subject 
line.
     Agency Web Site: Go to http://www.aphis.usda.gov/ppd/rad/cominst.html for a form you can use to submit an e-mail comment through 
the APHIS Web site.
     Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the instructions for locating this 
docket and submitting comments.
    Reading Room: You may read any comments that we receive on this 
docket in our reading room. The reading room is located in room 1141 of 
the USDA South Building, 14th Street and Independence Avenue, SW., 
Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., 
Monday through Friday, except holidays. To be sure someone is there to 
help you, please call (202) 690-2817 before coming.
    Other Information: You may view APHIS documents published in the 
Federal Register and related information, including the names of groups 
and individuals who have commented on APHIS dockets, on the Internet at 
http://www.aphis.usda.gov/ppd/rad/webrepor.html.

FOR FURTHER INFORMATION CONTACT: Dr. Inder P. Gadh, Treatment 
Specialist, Phytosanitary Issues Management, PPQ, APHIS, 4700 River 
Road Unit 140, Riverdale, MD 20737; (301) 734-6799.

SUPPLEMENTARY INFORMATION: 

Background

    Methyl bromide is a broad-spectrum pesticide used as a fumigant to 
control insect pests, nematodes, weeds, and pathogens. Its primary uses 
are for soil fumigation, post-harvest protection, and quarantine 
treatments.
    In the United States, production, consumption, and trade of methyl 
bromide are regulated by the Environmental Protection Agency (EPA) 
under the Clean Air Act, as amended (42 U.S.C. 7401 et seq.). The Clean 
Air Act provides the basic framework to regulate air quality through 
air pollution control, and it has been amended to reflect changes in 
U.S. obligations under the 1987 Montreal Protocol on Substances that 
Deplete the Ozone Layer (the Montreal Protocol). EPA also regulates 
methyl bromide under the Federal Insecticide, Fungicide, and 
Rodenticide Act (FIFRA) (7 U.S.C. 136 et seq.).
    The United States is a Party to the Montreal Protocol, an 
international treaty that provides a schedule to reduce and eventually 
eliminate the emissions of various manmade, ozone-depleting substances, 
including methyl bromide. The Montreal Protocol requires a phaseout of 
methyl bromide production and consumption in developed countries, 
including the United States, by the year 2005 and in developing 
countries by the year 2015. However, the Montreal Protocol exempts 
quarantine and pre-shipment (QPS) applications of methyl bromide from 
these phaseout requirements.
    The Farm Security and Rural Investment Act of 2002 amended the 
Plant Protection Act (PPA) by adding a new sec. 419 (7 U.S.C. 7719) 
that pertains specifically to methyl bromide. Among other things, the 
amendment requires the Secretary of Agriculture, upon request of State, 
local, or tribal authorities, to determine whether a methyl bromide 
treatment or application required by those authorities to prevent the 
introduction, establishment, or spread of plant pests (including 
diseases) or noxious weeds should be authorized as an official control 
or official requirement. The Secretary may not make such a 
determination unless she finds that there is no other registered, 
effective, and economically feasible alternative available. The 
amendment also directs the Secretary to publish and maintain a registry 
of those State, local, and tribal requirements for methyl bromide 
treatments and applications that she has determined should be 
authorized as an official control or official requirement.
    We are proposing to establish regulations to comply with the 
requirements of this amendment to the PPA. Specifically, we are 
proposing to add a new part 304 to our regulations in title 7 of the 
Code of Federal Regulations that would establish procedures that State, 
local, and tribal authorities would have to follow when submitting a 
request to the Administrator of the Animal and Plant Health Inspection 
Service (APHIS), acting on behalf of the Secretary of Agriculture, to 
have a required methyl

[[Page 49825]]

bromide application or treatment recognized as an official control or 
official requirement. The proposed regulations also describe the 
criteria that the Administrator would use to evaluate such requests.

Definitions

    Section 304.1 of the proposed regulations includes three standard 
definitions that are consistent with those used elsewhere in our 
regulations. We would define Administrator as the Administrator of the 
Animal and Plant Health Inspection Service or any individual authorized 
to act for the Administrator; Animal and Plant Health Inspection 
Service (APHIS) as the Animal and Plant Health Inspection Service of 
the U.S. Department of Agriculture (USDA); and State as any of the 
several States of the United States, the Commonwealth of the Northern 
Mariana Islands, the Commonwealth of Puerto Rico, the District of 
Columbia, Guam, the Virgin Islands of the United States, or any other 
territory or possession of the United States. The section would also 
include definitions of control and requirement. Control would be 
defined as ``suppression, containment, or eradication of a pest 
population,'' which is the same definition found in the International 
Plant Protection Convention's Glossary of Phytosanitary Terms. 
Requirement would be defined as ``a treatment or application to prevent 
the introduction, establishment or spread of pests.'' This proposed 
definition is drawn from the common EPA and Montreal Protocol 
definition of the term ``quarantine applications.''
    Proposed Sec.  304.1 also includes a definition of official 
quarantine use, under which the terms ``official control'' and 
``official requirement'' would be subsumed. We believe that defining 
and using the single term official quarantine use would aid officials 
of State, local, and tribal authorities by succinctly characterizing 
the type of methyl bromide application or treatment for quarantine 
purposes that would qualify as an official control or official 
requirement.
    We would define official quarantine use in Sec.  304.1 as: ``A 
methyl bromide treatment or application that the Administrator 
determines to be an official control or official requirement, based on 
information that the treatment or application is required by a State, 
local, or tribal authority for either of the following reasons: (1) For 
the management of plant pests or noxious weeds of potential importance 
to the area endangered thereby and not yet present there, or present 
but not widely distributed; or (2) to meet official quarantine 
requirements for the management of economic plant pests in plant 
material intended for propagation.''
    In contrast, in its January 3, 2003, final rule titled ``Protection 
of Stratospheric Ozone: Process for Exempting Quarantine and 
Preshipment Applications of Methyl Bromide'' (68 FR 237-254), under 
authority of section 604(d)(5) of the Clean Air Act, the EPA defined 
the term quarantine applications, in part, as ``treatments to prevent 
the introduction, establishment and/or spread of quarantine pests 
(including diseases), or to ensure their official control, where: (1) 
Official control is that performed by, or authorized by, a national 
(including state, tribal or local) plant, animal or environmental 
protection or health authority; (2) quarantine pests are pests of 
potential importance to the areas endangered thereby and not yet 
present there, or present but not widely distributed and being 
officially controlled. This definition excludes treatments of 
commodities not entering or leaving the United States or any State (or 
political subdivision thereof).'' With the exception of the last 
sentence, this definition tracked the definition of ``quarantine 
application'' with respect to methyl bromide agreed among parties to 
the Montreal Protocol, including the United States, in 1995 (Decisions 
VII/5).
    There are differences between our proposed definition of official 
quarantine use and EPA's definition of quarantine applications because 
we believe that it is important for our definition to explicitly 
provide for those instances where the treatment of plant material 
intended for propagation may be required by a particular State, local, 
or tribal authority for quarantine purposes. We welcome any suggestions 
or specific comments regarding our proposed definition of official 
quarantine use.
    As noted earlier in this document, the EPA, under the authority of 
the Clean Air Act, regulates the production, consumption, and trade of 
methyl bromide in the United States. It should also be noted that 
paragraph (d)(2) of the new sec. 419 of the PPA provides that 
``[n]othing in this section shall be construed to alter or modify the 
authority of the Administrator of the Environmental Protection Agency 
or to provide any authority to the Secretary of Agriculture under the 
Clean Air Act or regulations promulgated under the Clean Air Act.'' We 
wish to make it clear that in issuing this proposed rule, our intent is 
to fulfill our responsibilities under sec. 419, not to establish a 
parallel or alternative regulatory mechanism governing the consumption 
of methyl bromide. As we note in proposed Sec.  304.2(e), the 
Administrator of the Environmental Protection Agency will continue to 
exempt, consistent with the Montreal Protocol and under the authority 
of the Clean Air Act, quarantine applications of methyl bromide. In 
addition, the proposed regulations are not intended to have any effect 
on requirements issued by EPA under FIFRA.

Requests for Determination; Review of Determinations

    Section 304.2 of the proposed regulations, ``Requests for 
determination,'' contains general provisions pertaining to requests for 
authorization of methyl bromide uses as official quarantine uses, 
criteria that the Administrator would use in evaluating such requests, 
and a description of the process by which a previously authorized 
official quarantine use may be removed from the registry when 
appropriate.
    Paragraph (a) would indicate that a State, local, or tribal 
authority may request that the Administrator determine whether a methyl 
bromide treatment or application required by the State, local, or 
tribal authority should be authorized as an official quarantine use. 
Paragraph (b) would provide that the Administrator will make a 
determination in response to a request not later than 90 days after its 
receipt. The Administrator would issue a favorable determination if the 
methyl bromide treatment or application under consideration conformed 
to the definition of official quarantine use in Sec.  304.1 and if he 
or she found that no other registered, effective, and economically 
feasible alternative to methyl bromide existed for that treatment or 
application. This paragraph would also provide that if the 
Administrator determined that a methyl bromide treatment or application 
should not be authorized as an official quarantine use, the 
Administrator would provide to the requestor, in writing, the reasons 
for his or her determination.
    Given that the terms ``registered, effective, and economically 
feasible'' are not defined in sec. 419, we expect that these terms, as 
they would apply to the consideration of requests, would have their 
commonly understood meanings, i.e.:
     ``Registered'' means a pesticide registered or otherwise 
approved by EPA for a specific use;
     ``Effective'' means that there is a body of science with 
sufficient rigor and

[[Page 49826]]

specificity to show that an alternative treatment would meet the 
efficacy requirements to allow its consideration as a quarantine 
treatment; and
     ``Economically feasible'' means that the costs of the 
alternative quarantine treatment would not be so high as to make the 
trade in the treated good prohibitively expensive.
    We welcome any suggestions or specific comments regarding our 
interpretation of these criteria, particularly with respect to factors 
that you believe could or should be taken into account while 
considering the economic feasibility of a potential alternative to 
methyl bromide.
    While the proposed regulations themselves do not address research, 
we wish to note that the Administrator's determination that a 
particular treatment or application should be authorized as an official 
quarantine use has the effect of spurring further research into 
alternatives to that treatment or application. Specifically, paragraph 
(b) of sec. 419 provides, in part, that ``[f]or uses where no 
registered, effective, economically feasible alternatives available can 
currently be identified, the Secretary shall initiate research programs 
to develop alternative methods of control and treatment.'' Ongoing USDA 
research activities led by the Agricultural Research Service are 
investigating alternatives for major uses of methyl bromide. The 
research requirements of sec. 419 may influence the allocation of 
research resources, to the extent that it provides specific statutory 
justification for research on alternatives to methyl bromide used for 
quarantine purposes, and may influence the areas of emphasis within the 
array of federally funded research programs on alternatives. State, 
local, or tribal authorities may value federally mandated efforts to 
develop registered, effective and economically feasible alternatives to 
quarantine uses of methyl bromide. This interest could be expected to 
strengthen as the cost of methyl bromide use increases.
    Proposed paragraph (c) provides for the review of authorized uses. 
As proposed, a review would be triggered by the registration by EPA of 
a new pesticide, or a new use for an existing pesticide, that could 
serve as an alternative to the treatment or application authorized as 
an official quarantine use. We believe that registration is a logical 
trigger for such a review, given that it would serve as an indication 
of the likely availability of a new treatment or application that could 
serve as an alternative to an official quarantine use of methyl 
bromide. In its review, APHIS would consider the effectiveness and 
economic feasibility of the alternative, just as we would in our review 
of a new request for a determination under proposed Sec.  304.2(b). The 
State, local, or tribal authority that had requested and received the 
determination that the methyl bromide treatment or application under 
review was an official quarantine use would be invited to participate 
in the review. If, as a result of the review, APHIS finds that the 
registered alternative is effective and economically feasible, we would 
rescind the determination that the methyl bromide treatment or 
application was an official quarantine use. While this proposed review 
process is not explicitly called for by sec. 419, we believe that it is 
in keeping with the objectives of the section to provide for such a 
review.
    While the regulations in proposed Sec.  304.2(c) would provide that 
the Administrator may rescind the determination that a methyl bromide 
treatment or application is an official quarantine use when a 
registered, effective, and economically feasible alternative becomes 
available, we wish to acknowledge the possibility that an alternative 
may become available that is effective and economically feasible, but 
that is not subject to registration by EPA (non-chemical treatments 
such as irradiation have been cited as an example). We are explicitly 
seeking comment on whether our regulations should take such a 
possibility into account. Mainly, we are interested in learning if this 
is a practical consideration, i.e., whether or not you believe that 
there may actually be instances where an alternative that is not 
subject to registration by EPA could prove to be an effective and 
economically feasible application for a particular use, and thus might 
serve as a desirable alternative to methyl bromide. If indeed this is a 
practical consideration, should the regulations provide some mechanism 
for the review, voluntary or otherwise, of a listed treatment or 
application such as that provided for by proposed Sec.  304.2(c)? We 
welcome all comments on this subject.
    Under proposed paragraph (d), a State, local, or tribal authority 
that has submitted a request for a determination would, in the event 
that the Administrator determines that the particular methyl bromide 
treatment or application should not be authorized as an official 
quarantine use, have the opportunity to request that the Administrator 
reconsider his or her determination. This same opportunity would be 
provided in the event that, as a result of the review process described 
in the previous paragraph, the Administrator rescinds the determination 
that a methyl bromide treatment or application was an official 
quarantine use. In its request for reconsideration, the State, local, 
or tribal authority would have to provide, in writing, the facts and 
reasons upon which it is relying to show that the treatment or 
application should be authorized as an official quarantine use or that 
the determination should remain in effect. The Administrator would take 
into account the information provided in the request for 
reconsideration and any other relevant facts, including the information 
provided in the original request for determination, and would render a 
decision as promptly as circumstances permitted. The Administrator's 
decision, and his or her reasons for that decision, would be 
communicated to the requestor in writing.
    APHIS will consult with EPA as appropriate in the course of 
evaluating requests to determine whether methyl bromide uses should be 
authorized as official quarantine uses and whether and when a 
previously authorized official quarantine use may be removed from the 
registry.

Submission of Requests

    Proposed Sec.  304.3 describes the information that would have to 
be included in any request to the Administrator for a determination 
that a methyl bromide application or treatment should be authorized as 
an official quarantine use. Paragraph (a) would state that the request 
must be submitted and signed by the executive official or a plant 
protection official of the State, local, or tribal authority seeking 
the determination, and must include a copy of the State, local, or 
tribal regulation or mandatory quarantine procedures under which the 
methyl bromide treatment or application is required; the name of the 
crop/use for which the methyl bromide treatment or application is 
required; the name of the plant pests or noxious weeds targeted for 
control with methyl bromide; and the location(s) where the methyl 
bromide treatment or application is carried out. We believe that this 
specific information, which would be considered along with more general 
information available to APHIS, would be necessary for the 
Administrator to be able to make a determination regarding the methyl 
bromide treatment or application that is the subject of the request. 
Paragraph (b) would provide an address for the submission of requests.

[[Page 49827]]

Registry

    Finally, as required by sec. 419(c) of the amended PPA, proposed 
Sec.  304.4 would state that all State, local, and tribal requirements 
for methyl bromide applications or treatments that are determined by 
the Administrator to be official quarantine uses will appear on a 
registry of such treatments or applications that will be published and 
maintained by the Administrator. This section would provide an address 
to which one could write to receive a copy of the registry, as well as 
an Internet Web site (http://www.aphis.usda.gov/ppq/bromide/) where the 
registry would be posted.

Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been reviewed under Executive Order 12866. 
The rule has been determined to be significant for the purposes of 
Executive Order 12866 and, therefore, has been reviewed by the Office 
of Management and Budget.
    For this rule, we have prepared an economic analysis. The economic 
analysis provides a cost-benefit analysis as required by Executive 
Order 12866, as well as an analysis of the potential economic effects 
of this proposed rule on small entities, as required under 5 U.S.C. 
603. The economic analysis is summarized below. Copies of the full 
analysis are available by contacting the person listed under FOR 
FURTHER INFORMATION CONTACT.
    We do not have enough data for a comprehensive analysis of the 
economic effects of this proposed rule on small entities. Therefore, in 
accordance with 5 U.S.C. 603, we have performed an initial regulatory 
flexibility analysis for this proposed rule. We are inviting comments 
about this proposed rule as it relates to small entities. In 
particular, we are interested in determining the number and kind of 
small entities who may incur benefits or costs from implementation of 
this proposed rule and the economic impact of those benefits or costs.
    This proposed rule would establish procedures to implement an 
amendment to the PPA added as part of the Farm Security and Rural 
Investment Act of 2002. The amendment, a new sec. 419, calls for the 
Secretary of Agriculture, upon request of State, local, or tribal 
authorities, to determine whether methyl bromide treatments or 
applications required by those authorities to prevent the introduction, 
establishment, or spread of plant pests (including diseases) or noxious 
weeds should be authorized as official controls or official 
requirements. The amendment also requires the Secretary to publish and 
maintain a registry of these authorized uses and to initiate research 
programs to develop viable methyl bromide alternatives.
    A methyl bromide use included in the registry would be termed an 
official quarantine use. It would be an official quarantine requirement 
or control of a State, local, or tribal authority for either of the 
following purposes: (i) For the management of plant pests or noxious 
weeds of potential importance to the area endangered thereby and not 
yet present there, or present but not widely distributed; or (ii) to 
meet official quarantine requirements for the management of economic 
plant pests in plant material intended for propagation.
    Much of U.S. agriculture, especially horticultural production, is 
currently dependent upon methyl bromide for the control of insects, 
rodents, nematodes, weeds, and pathogens for quarantine and other 
purposes. Most methyl bromide is used as a soil fumigant, with 
significant quantities applied to soils for the production of crops in 
California and Florida, in particular. Methyl bromide is also applied 
in post-harvest treatments, both for quarantine purposes and to meet 
sanitation standards, and as a structural fumigant. Production and 
consumption of methyl bromide by the United States is to be phased out 
in 2005, except for uses exempted under the Montreal Protocol and Clean 
Air Act, including quarantine applications.
    Under sec. 419, a determination that a treatment or application 
should be authorized as an official control or official requirement 
requires that USDA continue research on alternatives to such uses. 
USDA, under Agricultural Research Service leadership, is conducting 
research programs on alternatives for many methyl bromide uses. Section 
419 may provide additional focus for new research initiatives on 
alternatives to methyl bromide used for quarantine purposes, and may 
bolster ongoing research programs. State, local, or tribal authorities 
may value federally mandated efforts to develop registered, effective 
and economically feasible alternatives to quarantine uses of methyl 
bromide. This interest could be expected to strengthen as the cost of 
methyl bromide use increases. Section 419 may influence the allocation 
of research resources, to the extent that it provides specific 
statutory justification for research on alternatives to methyl bromide 
used for quarantine purposes.
    As a part of the rulemaking process, APHIS evaluates whether 
proposed regulations are likely to have a significant economic impact 
on a substantial number of small entities, as required by the 
Regulatory Flexibility Act. Many, if not most, of the agricultural 
enterprises that use methyl bromide are small entities. However, the 
effects of this proposed rule on small, as well as large, entities is 
not expected to be significant. The new sec. 419 and the proposed 
regulations would not affect the exemption of quarantine applications 
from the methyl bromide phaseout. The Administrator of the 
Environmental Protection Agency will continue to exempt, consistent 
with the Montreal Protocol and under the authority of the Clean Air 
Act, quarantine applications of methyl bromide. At most, the 
requirements of sec. 419 may influence the focus of research on methyl 
bromide alternatives.
    Implementation of sec. 419 will require administering the registry 
and continuing research programs on alternatives to the official 
quarantine uses. Under this proposed rule, a determination that a use 
should be authorized as an official quarantine use would require 
confirming that a registry candidate is an official quarantine 
requirement or control of the requesting State, local, or tribal 
authority and that no registered, effective, and economically feasible 
alternative is available. Requests for a determination would have to 
identify the quarantine need for the treatment or application and 
document the State, local, or tribal regulation or mandatory procedures 
under which the methyl bromide treatment or application is required.
    This proposed rule contains various recordkeeping and reporting 
requirements. These requirements are described in this document under 
the heading ``Paperwork Reduction Act.''

Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic 
Assistance under No. 10.025 and is subject to Executive Order 12372, 
which requires intergovernmental consultation with State and local 
officials. (See 7 CFR part 3015, subpart V.)

Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, 
Civil Justice Reform. If this proposed rule is adopted: (1) All State 
and local laws and regulations that are inconsistent with this rule 
will be preempted; (2) no retroactive effect will be given to this 
rule; and (3) administrative proceedings will not be required before 
parties may file suit in court challenging this rule.

[[Page 49828]]

National Environmental Policy Act

    An environmental assessment has been prepared for this proposed 
rule. The environmental assessment documents our review of the 
environmental impacts associated with this proposed rule. We are making 
the environmental assessment available to the public for review and 
comment.
    The environmental assessment was prepared in accordance with: (1) 
The National Environmental Policy Act of 1969 (NEPA), as amended (42 
U.S.C. 4321 et seq.), (2) regulations of the Council on Environmental 
Quality for implementing the procedural provisions of NEPA (40 CFR 
parts 1500-1508), (3) USDA regulations implementing NEPA (7 CFR part 
1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).
    Copies of the environmental assessment are available for public 
inspection in our reading room (information on the location and hours 
of the reading room is provided under the heading ADDRESSES at the 
beginning of this document). In addition, copies may be obtained by 
writing to the person listed under FOR FURTHER INFORMATION CONTACT. The 
environmental assessment is also available on the Internet at http://www.aphis.usda.gov/ppq/enviro_docs/mb.html.

Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection or 
recordkeeping requirements included in this proposed rule have been 
submitted for approval to the Office of Management and Budget (OMB). 
Please send written comments to the Office of Information and 
Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, 
DC 20503. Please state that your comments refer to Docket No. 02-086-1. 
Please send a copy of your comments to: (1) Docket No. 02-086-1, 
Regulatory Analysis and Development, PPD, APHIS, Station 3C71, 4700 
River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance 
Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue, 
SW., Washington, DC 20250. A comment to OMB is best assured of having 
its full effect if OMB receives it within 30 days of publication of 
this proposed rule.
    Under this proposed rule, State, local, or tribal authorities 
seeking determinations that methyl bromide treatments or applications 
qualify as official quarantine uses would have to submit written 
requests to APHIS. These requests would need to include information on 
the nature and location of the methyl bromide use under consideration 
and the plant pests or noxious weeds that methyl bromide is needed to 
control.
    We are soliciting comments from the public (as well as affected 
agencies) concerning our proposed information collection and 
recordkeeping requirements. These comments will help us:
    (1) Evaluate whether the proposed information collection is 
necessary for the proper performance of our agency's functions, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of our estimate of the burden of the 
proposed information collection, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the information collection on those who 
are to respond (such as through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology; e.g., permitting electronic 
submission of responses).
    Estimate of burden: Public reporting burden for this collection of 
information is estimated to average 0.5 hours per response.
    Respondents: State, local, and tribal authorities.
    Estimated annual number of respondents: 10.
    Estimated annual number of responses per respondent: 1.
    Estimated annual number of responses: 10.
    Estimated total annual burden on respondents: 5 hours. (Due to 
averaging, the total annual burden hours may not equal the product of 
the annual number of responses multiplied by the reporting burden per 
response.)
    Copies of this information collection can be obtained from Mrs. 
Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 
734-7477.

Government Paperwork Elimination Act Compliance

    The Animal and Plant Health Inspection Service is committed to 
compliance with the Government Paperwork Elimination Act (GPEA), which 
requires government agencies in general to provide the public the 
option of submitting information or transacting business electronically 
to the maximum extent possible. For information pertinent to GPEA 
compliance related to this proposed rule, please contact Mrs. Celeste 
Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

List of Subjects in 7 CFR 304

    Plant diseases and pests, Quarantine, Reporting and recordkeeping 
requirements.

    Accordingly, we are proposing to amend 7 CFR chapter III by adding 
a new part 304 to read as follows:

PART 304--METHYL BROMIDE

Sec.
304.1 Definitions.
304.2 Requests for determination; review of determinations.
304.3 Submission of requests.
304.4 Registry.

    Authority: 7 U.S.C. 7719; 7 CFR 2.22, 280, and 371.3.


Sec.  304.1  Definitions.

    Administrator. The Administrator of the Animal and Plant Health 
Inspection Service or any individual authorized to act for the 
Administrator.
    Animal and Plant Health Inspection Service (APHIS). The Animal and 
Plant Health Inspection Service of the United States Department of 
Agriculture.
    Control. Suppression, containment, or eradication of a pest 
population.
    Official quarantine use. A methyl bromide treatment or application 
that the Administrator determines to be an official control or official 
requirement, based on information that the treatment or application is 
required by a State, local, or tribal authority for either of the 
following reasons:
    (1) For the management of plant pests or noxious weeds of potential 
importance to the area endangered thereby and not yet present there, or 
present but not widely distributed; or
    (2) To meet official quarantine requirements for the management of 
economic plant pests in plant material intended for propagation.
    Requirement. A treatment or application to prevent the 
introduction, establishment or spread of pests.
    State. Any of the several States of the United States, the 
Commonwealth of the Northern Mariana Islands, the Commonwealth of 
Puerto Rico, the District of Columbia, Guam, the Virgin Islands of the 
United States, or any other territory or possession of the United 
States.


Sec.  304.2  Requests for determination; review of determinations.

    (a) A State, local, or tribal authority may request that the 
Administrator determine whether a methyl bromide treatment or 
application required by the

[[Page 49829]]

State, local, or tribal authority should be authorized as an official 
quarantine use.
    (b) The Administrator will issue a determination not later than 90 
days after the receipt of a request submitted in accordance with Sec.  
304.3. A methyl bromide treatment or application will be determined by 
the Administrator to be an official quarantine use if the treatment or 
application conforms to the definition of that term in Sec.  304.1, and 
if the Administrator finds that there is no other registered, 
effective, and economically feasible alternative available. If the 
Administrator determines that a methyl bromide treatment or application 
should not be authorized as an official quarantine use, the 
Administrator will provide to the requestor, in writing, the reasons 
for his or her determination.
    (c) If a registered alternative to methyl bromide becomes available 
for a treatment or application that the Administrator has determined to 
be an official quarantine use, the Administrator will initiate a review 
to consider the effectiveness and economic feasibility of the 
alternative. The State, local, or tribal authority that requested and 
received the determination that the methyl bromide treatment or 
application under review was an official quarantine use will be invited 
to participate in the review. If the Administrator finds that the 
registered alternative is effective and economically feasible, the 
Administrator will rescind the determination that the methyl bromide 
treatment or application is an official quarantine use.
    (d) If the Administrator determines that a methyl bromide treatment 
or application should not be authorized as an official quarantine use 
(see paragraph (b) of this section) or that a determination should be 
rescinded (see paragraph (c) of this section), the affected State, 
local, or tribal authority may request that the Administrator 
reconsider his or her determination. Requests for reconsideration may 
be submitted to the address provided in Sec.  304.3(b). In its request 
for reconsideration, the State, local, or tribal authority must 
provide, in writing, the facts and reasons upon which it is relying to 
show that the treatment or application should be determined to be an 
official quarantine use or that a determination should remain in 
effect. The Administrator will take into account the information 
provided in the request for reconsideration and any other relevant 
facts, including the information provided in the original request for 
determination, and will render a decision as promptly as circumstances 
permit. The Administrator's decision, and his or her reasons for that 
decision, will be communicated to the requestor in writing.
    (e) Consistent with the Montreal Protocol and under the authority 
of the Clean Air Act, the Administrator of the Environmental Protection 
Agency (EPA) shall exempt quarantine applications of methyl bromide. 
APHIS will consult with EPA as appropriate in the course of evaluating 
requests to determine whether methyl bromide uses should be authorized 
as official quarantine uses and whether and when a previously 
authorized official quarantine use may be removed from the registry.


Sec.  304.3  Submission of requests.

    (a) A request for a determination under Sec.  304.2 must be 
submitted and signed by the executive official or a plant protection 
official of the State, local, or tribal authority seeking the 
determination, and must include the following:
    (1) A copy of the State, local, or tribal regulation or mandatory 
quarantine procedures under which the methyl bromide treatment or 
application is required;
    (2) The name of the crop/use for which the methyl bromide treatment 
or application is required;
    (3) The name(s) of the plant pests or noxious weeds targeted for 
control with methyl bromide; and
    (4) The location(s) where the methyl bromide treatment or 
application is being carried out.
    (b) All requests must be submitted to [address to be added in final 
rule].


Sec.  304.4  Registry.

    All State, local, and tribal requirements for methyl bromide 
applications or treatments that are determined by the Administrator to 
be official quarantine uses will appear on a registry of such 
treatments or applications that will be published and maintained by the 
Administrator. A copy of the registry may be obtained by writing to 
[address to be added in final rule]. The registry may also be viewed on 
the Internet at http://www.aphis.usda.gov/ppq/bromide/.

    Done in Washington, DC, this 9th day of August 2004.
Bill Hawks,
Under Secretary for Marketing and Regulatory Programs.
[FR Doc. 04-18445 Filed 8-11-04; 8:45 am]
BILLING CODE 3410-34-P