[Federal Register Volume 71, Number 24 (Monday, February 6, 2006)]
[Rules and Regulations]
[Pages 5985-6010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-1019]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-8028-2]
RIN 2060-AN18


Protection of Stratospheric Ozone: The 2006 Critical Use 
Exemption From the Phaseout of Methyl Bromide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to exempt methyl bromide production 
and import for 2006 critical uses. Specifically, EPA is authorizing 
uses that will qualify for the 2006 critical use exemption, and the 
amount of methyl bromide that may be produced, imported, or made 
available from inventory for those uses in 2006. EPA's action is taken 
under the authority of the Clean Air Act (CAA) and reflects recent 
consensus Decisions taken by the Parties to the Montreal Protocol on 
Substances that Deplete the Ozone Layer (Protocol) at the 16th and 17th 
Meetings of the Parties (MOPs) and the 2nd Extraordinary Meeting of the 
Parties (ExMOP).

DATES: This final rule is effective on February 1, 2006.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-OAR-2005-0122. All documents in the docket are listed on the 
http://www.regulations.gov web site. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through 
www.regulations.gov or in hard copy at the Air Docket, EPA/DC, EPA 
West, Room B102, 1301 Constitution Ave., NW., Washington DC. This 
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The Docket telephone number is (202) 
566-1742. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, excluding legal holidays. The telephone number 
for the Public Reading Room is (202) 566-1744, and the telephone number 
for the Air Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Marta Montoro, Office of Atmospheric 
Programs, Stratospheric Protection Division, Mail Code 6205 J, 
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460; telephone number: (202) 343-9321; fax number: 
(202) 343-2337; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION: This final rule concerns Clean Air Act 
restrictions on the consumption, production, and use of methyl bromide 
(class I, Group VI controlled substance) for critical uses during 
calendar year 2006. Under the Clean Air Act, methyl bromide consumption 
and production was phased out on January 1, 2005 apart from certain 
exemptions, including the critical use exemption and the quarantine and 
preshipment exemption. With this action, EPA is listing the uses that 
will qualify for the 2006 critical use exemption, as well as 
authorizing specific amounts of methyl bromide that may be produced, 
imported, or made available from inventory for critical uses in 2006.
    Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. 
Chapter 5, generally provides that rules may not take effect earlier 
than 30 days after they are published in the Federal Register. EPA is 
issuing this final rule under section 307(d) of the CAA, which states: 
``The provisions of section 553 through 557 * * * of Title 5 shall not, 
except as expressly provided in this subsection, apply to actions to 
which this subsection applies.'' CAA section 307(d)(1). Thus, section 
553(d) of the APA does not apply to this rule. EPA nevertheless is 
acting consistently with the policies underlying APA section 553(d) in 
making this rule effective on February 1, 2006. APA section 553(d) 
provides an exception for any action that grants or recognizes an 
exemption or relieves a restriction. This final rule grants an 
exemption from the phaseout of methyl bromide.

Table of Contents

I. General Information
    A. Regulated Entities
II. What Is the Background to the Phaseout Regulations for Ozone-
Depleting Substances?
III. What Is Methyl Bromide?
IV. What Is the Legal Authority for Exempting the Production and 
Import of Methyl Bromide for Critical Uses Authorized by the Parties 
to the Montreal Protocol?
V. What Is the Critical Use Exemption Process?
    A. Background of the Process
    B. How Does This Final Rulemaking Relate to Previous Rulemakings 
Regarding the Critical Use Exemption?
    C. What Are the Approved Critical Uses?
    D. What Are the Uses That May Obtain Methyl Bromide for 
Research?
    E. What Amount of Methyl Bromide Is Necessary for Critical Uses?
    F. What Are the Sources of Critical Use Methyl Bromide?
    G. What Are the Critical Use Allowance Allocations?
    H. What Are the Critical Stock Allowance Allocations?
    I. Clarifications to the Framework Rule
    J. Supplemental Critical Use Exemptions for 2006
VI. Statutory and Executive Order Reviews
    A. Executive Order No. 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility
    D. Unfunded Mandates Reform Act
    E. Executive Order No. 13132: Federalism
    F. Executive Order No. 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order No. 13045: Protection of Children From 
Environmental Health & Safety Risks
    H. Executive Order No. 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act

I. General Information

A. Regulated Entities

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

[[Page 5986]]



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

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

    The current regulatory requirements of the Stratospheric Ozone 
Protection Program that limit production and consumption of ozone-
depleting substances can be found at 40 CFR Part 82 Subpart A. The 
regulatory program was originally published in the Federal Register on 
August 12, 1988 (53 FR 30566), in response to the 1987 signing and 
subsequent ratification of the Montreal Protocol on Substances that 
Deplete the Ozone Layer (Protocol). The United States 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 U.S. could satisfy its obligations 
under the Protocol. EPA issued new regulations to implement this 
legislation and has made several amendments to the regulations since 
that time.

III. What Is Methyl Bromide?

    Methyl bromide is an odorless, colorless, toxic gas which is used 
as a broad-spectrum pesticide and is controlled under the CAA as a 
Class I ozone-depleting substance (ODS). Methyl bromide is used in the 
U.S. and throughout the world as a fumigant to control a wide variety 
of pests such as insects, weeds, rodents, pathogens, and nematodes. 
Additional characteristics and details about the uses of methyl bromide 
can be found in the rule on the phaseout schedule for methyl bromide 
published in the Federal Register on March 18, 1993 (58 FR 15014) and 
the final rule published in the Federal Register on December 10, 1993 
(58 FR 65018).
    The phaseout schedule for methyl bromide production and consumption 
was revised in a direct final rulemaking on November 28, 2000 (65 FR 
70795), which allowed for the phased reduction in methyl bromide 
consumption and extended the phaseout to 2005. The revised phaseout 
schedule was again amended to allow for an exemption for quarantine and 
preshipment purposes with a final rule (68 FR 238) on January 2, 2003. 
Information on methyl bromide can be found at http://www.epa.gov/ozone/mbr and http://www.unep.org/ozone or by contacting EPA's Stratospheric 
Ozone Hotline at 1-800-296-1996.
    Because it is a pesticide, methyl bromide is also regulated by EPA 
under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) 
and other statutes and regulatory authority, as well as by States under 
their own statutes and regulatory authority. Under FIFRA, methyl 
bromide is a restricted use pesticide. Because of this status, a 
restricted use pesticide is subject to certain Federal and State 
requirements governing its sale, distribution, and use. Nothing in this 
final rule implementing the Clean Air Act is intended to derogate from 
provisions in any other Federal, State, or local laws or regulations 
governing actions including, but not limited to, the sale, 
distribution, transfer, and use of methyl bromide. All entities that 
would be affected by provisions of this rule must continue to comply 
with FIFRA and other pertinent statutory and regulatory requirements 
for pesticides (including, but not limited to, requirements pertaining 
to restricted use pesticides) when importing, exporting, acquiring, 
selling, distributing, transferring, or using methyl bromide for 
critical uses. The regulations in this action are intended only to 
implement the CAA restrictions on the production, consumption, and use 
of methyl bromide for critical uses exempted from the phaseout of 
methyl bromide.

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

    Methyl bromide was added to the Protocol as an ozone-depleting 
substance in 1992 through the Copenhagen Amendment to the Protocol. The 
Parties authorize critical use exemptions through their Decisions.
    The Parties agreed that each industrialized country's level of 
methyl bromide production and consumption in 1991 should be the 
baseline for establishing a freeze in the level of methyl bromide 
production and consumption for industrialized countries. EPA published 
a final rule in the Federal Register on December 10, 1993 (58 FR 
65018), listing methyl bromide as a class I, Group VI controlled 
substance, freezing U.S. production and consumption at this 1991 level, 
and, in Section 82.7 of the rule, setting forth the percentage of 
baseline allowances for methyl bromide granted to companies in each 
control period (each calendar year) until the year 2001, when the 
complete phaseout would occur. 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 their 1997 meeting, the 
Parties agreed to further adjustments to the phaseout schedule for 
methyl bromide in industrialized countries, with reduction steps 
leading to a 2005 phaseout for industrialized countries. In October 
1998, the U.S. Congress amended the CAA to prohibit the termination of 
production of methyl bromide prior to January 1, 2005, to require EPA 
to bring the U.S. phaseout of methyl bromide in line with the schedule 
specified under the Protocol, and to authorize EPA to provide 
exemptions for critical uses. On November 28, 2000, EPA issued 
regulations to amend the phaseout schedule for methyl bromide and 
extend the complete phaseout of production and consumption to 2005 (65 
FR 70795).
    On December 23, 2004 (69 FR 76982), EPA published a final rule in 
the Federal Register (the ``Framework Rule'') that established the 
framework for the critical use exemption; set forth a list of approved 
critical uses for 2005; and specified the amount of methyl bromide that 
could be supplied in 2005 from available inventory and new production 
or import to meet approved critical uses. With this action, EPA is 
authorizing the uses that will qualify as approved critical uses in 
2006 and the

[[Page 5987]]

amount of the 2006 critical use exemption.
    This action reflects Decision XVI/2, taken at the Parties' 16th 
Meeting in November 2004; Decision Ex.II/I, taken at the Second 
Extraordinary Meeting of the Parties in July 2005; and Decision XVII/9, 
taken at the Parties' 17th Meeting in December 2005. In accordance with 
Article 2H(5), the Parties have issued several Decisions pertaining to 
the critical use exemption. These include Decision IX/6, which sets 
forth criteria for review of proposed critical uses, as well as the 
Decisions noted above. For a discussion of the relationship between the 
relevant provisions of the CAA and Article 2H of the Protocol, and the 
extent to which EPA takes into account Decisions of the Parties that 
interpret Article 2H, refer to the December 23, 2004 Framework Rule (69 
FR 76984-76985). Briefly, EPA regards certain provisions of Decisions 
IX/6, XVI/2, Ex.II/1, and XVII/9 as subsequent consensus agreements of 
the Parties that address the interpretation and application of the 
critical use provision in Article 2H(5) of the Protocol. In this 
action, EPA is following the relevant terms of these Decisions. This 
will ensure consistency with the Montreal Protocol and satisfy the 
requirements of Section 604(d)(6) and Section 614(b) of the Clean Air 
Act.
    In Decision XVI/2, taken in November 2004, the Parties to the 
Protocol agreed as follows: ``for the agreed critical-use categories 
for 2006, set forth in section IIA to the annex to the present Decision 
for each Party, to permit, subject to the conditions set forth in 
Decision Ex.I/4, to the extent those conditions are applicable, the 
levels of production and consumption for 2006 set forth in section IIB 
to the annex to the present Decision which are necessary to satisfy 
critical uses, with the understanding that additional levels of 
production and consumption and categories of uses may be approved by 
the Meeting of the Parties to the Montreal Protocol in accordance with 
Decision IX/6.'' Section IIA of the Annex to Decision XVI/2 lists the 
following critical use categories for the U.S.: Cucurbits--field; dried 
fruit and nuts; forest nursery seedlings; nursery stock--fruit trees, 
raspberries, roses; strawberry runners; turfgrass; dry commodities/
cocoa beans; dry commodities/structures; eggplant/field; mills and 
processors; peppers/field; strawberry fruit/field; tomato/field; and 
orchard replant with a total agreed critical-use level of 6,897,680 
kilograms, which is equivalent to 27% of the U.S. 1991 methyl bromide 
consumption baseline.
    In Decision Ex.II/1, taken in July 2005, the Parties to the 
Protocol agreed as follows: ``for the agreed critical uses for 2006, 
set forth in table A of the annex to the present Decision, to permit, 
subject to the conditions set forth in the present Decision and in 
Decision Ex. I/4, to the extent those conditions are applicable, the 
supplementary levels of production and consumption for 2006 set forth 
in table B of the annex to the present Decision which are necessary to 
satisfy critical uses, with the understanding that additional levels 
and categories of uses may be approved by the Seventeenth Meeting of 
the Parties in accordance with Decision IX/6.'' Table A of the Annex to 
Decision Ex.II/1 lists the following critical use categories for the 
U.S.: Ornamentals; dry-cured ham; dry commodities/structures (cocoa 
beans); dry commodities/structures (processed foods, herbs and spices, 
dried milk and cheese processing facilities); eggplant--field, for 
research only; mills and processors; peppers--field; strawberry fruit--
field; tomato--field with a total agreed critical-use level of 
1,117,003 kilograms, which is equivalent to 5% of the U.S. 1991 methyl 
bromide consumption baseline. When combined, the agreed critical use 
levels for 2006 from Decision XVI/2 and Decision Ex.II/1 total 
8,074,683 kilograms, which is equivalent to 32% of the U.S. 1991 methyl 
bromide consumption baseline. Decision XVII/9, taken at the 17th 
Meeting of the Parties in December 2005, authorizes an additional 26.4% 
of baseline for 6,749,000 kilograms for 2007, and an additional 
supplemental request of 7,070 kilograms for 2006. This supplemental 
amount is discussed more fully in Section J below. Based, in part, on 
the applications underlying the U.S. 2006 nomination, the extensive 
review of those applications culminating in the preparation of that 
nomination, and the Decisions noted above, EPA is modifying Columns B 
and C of Appendix L to 40 CFR Part 82, Subpart A to reflect agreed 
critical use categories, locations of use, and limiting critical 
conditions applicable to the 2006 control period.
    The question of whether, and to what extent, EPA should adjust the 
total critical use level agreed by the Parties for 2006 is addressed in 
Section E below. The question of what amount of the total should come 
from new production or import, and what amount should come from pre-
phaseout inventories, is addressed in Section F below. For the reasons 
given in those sections, and based, in part, on the applications 
underlying the U.S. 2006 nomination, the extensive review of those 
applications culminating in the preparation of that nomination, and the 
Decisions noted above, EPA is modifying the table in 40 CFR 82.8 to 
reflect the amount of methyl bromide that may be produced or imported, 
and sold from pre-phaseout inventories, for the 2006 control period.

V. What Is the Critical Use Exemption Process?

A. Background of the Process

    Starting in 2002, EPA began notifying applicants as to the 
availability of an application process for a critical use exemption to 
the methyl bromide phaseout. On May 8, 2003, the Agency published a 
notice in the Federal Register (68 FR 24737) announcing the deadline to 
apply for critical uses for the 2006 calendar year, and directing 
applicants to announcements posted on EPA's methyl bromide Web site at 
http://www.epa.gov/ozone/mbr. Applicants were told they could apply as 
individuals or as part of a group of users (a ``consortium'') who face 
the same limiting critical conditions (i.e., specific conditions which 
establish a critical need for methyl bromide). This process has been 
repeated on an annual basis since then. The critical use exemption is 
designed to meet the needs of methyl bromide users who do not have 
technically and economically feasible alternatives available.
    The criteria for the exemption are delineated 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 annual requests for critical use exemption 
applications published in the Federal Register, applicants have 
provided information supporting their position that they have no 
technically and economically feasible alternatives to methyl bromide 
available to them. Applicants for the exemption have submitted 
information on their use of methyl bromide, on research into the use of 
alternatives to methyl bromide, on efforts to minimize

[[Page 5988]]

use of methyl bromide and reduce emissions, and on the specific 
technical and economic research results of testing alternatives to 
methyl bromide.
    EPA's December 23, 2004, Framework Rule describing the operational 
framework for the critical use exemption (69 FR 76982) established the 
majority of critical uses for the 2005 calendar year. Today's action 
authorizes exemptions for 2006 reflecting information that the U.S. 
Government submitted to the Protocol's Ozone Secretariat in its annual 
nomination submission in February 2004, as approved by the Parties in 
November 2004, July 2005, and December 2005. The domestic review 
process is discussed in detail in a memo titled ``Development of 2003 
Nomination for a Critical Use Exemption for Methyl Bromide for the 
United States of America'' on Docket ID OAR-2005-0122. Briefly, the 
U.S. Government reviews applications using the criteria in Decision IX/
6 and creates a package for submission to the Ozone Secretariat of the 
Protocol (the ``critical use nomination'' or CUN). The CUNs of various 
countries are then reviewed by the Methyl Bromide Technical Options 
Committee (MBTOC) and the Technical and Economic Assessment Panel 
(TEAP), which are independent advisory bodies to the Parties. These 
bodies make recommendations to the Parties regarding the nominations.
    On February 7, 2004, the U.S. Government submitted the second U.S. 
Nomination for a Critical Use Exemption for Methyl Bromide to the Ozone 
Secretariat of the United Nations Environment Programme. This second 
nomination contained a supplemental request for critical use methyl 
bromide for 2005 and the initial request for 2006. In June 2004, MBTOC 
sent questions to the U.S. Government concerning technical and economic 
issues in the nomination. The U.S. Government transmitted its response 
on August 12, 2004. The U.S. submitted a revised request in conjunction 
with ``The U.S. Nomination for Critical Uses for Methyl Bromide in 2007 
and Beyond.'' This revised request was for an additional amount of 
622,053 kilograms of methyl bromide for a total of 2,844,985 kilograms 
of methyl bromide for the year 2006. This revised request was included 
in the U.S. rebuttal to MBTOC's recommendation issued in its October 
2004 report. These documents, together with reports by the advisory 
bodies noted above, can be accessed on Docket ID OAR-2005-0122.
    EPA received five comments requesting the Agency not to exempt any 
methyl bromide for critical uses. The CAA allows the Agency to create 
an exemption for critical uses from the production and consumption 
phaseout of methyl bromide. In Decisions XVI/2, Ex II/1, and XVII/9, 
the Parties decided to authorize an exemption for uses nominated by the 
United States. EPA, in conjunction with other U.S. Government entities, 
spent substantial time reviewing applications for critical use 
exemptions and preparing a nomination due to the lack of technically 
and economically feasible alternatives for the nominated uses. Although 
the Act does not require EPA to establish an exemption, EPA believes 
the lack of suitable alternatives for the uses listed as approved 
critical uses in this rulemaking warrants the continuation of the 
exemption process begun in 2005.
    The history of ozone protection programs has been the transition of 
industries away from production, import, and use of ozone-depleting 
substances to alternatives. In some instances a successful transition 
was possible within the allotted time. In other instances, additional 
time has been required to allow for the development and market 
penetration of alternatives. In fact, more than ten years after the 
phaseout of chlorofluorocarbons (CFCs), the U.S. Government is still 
exempting the production of CFCs for essential uses in metered dose 
inhalers. In the instance of critical uses where suitable alternatives 
are not yet available for all uses, EPA believes it would be 
inconsistent with the history and the goals of the ozone protection 
program not to allow for a safety valve in accordance with the 
provisions of both international and domestic law.

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

    EPA's December 23, 2004 Framework Rule (69 FR 76982) established 
the framework for the critical use exemption in the U.S., including 
trading provisions and recordkeeping and reporting obligations. The 
Framework Rule defines the terms ``critical use allowances'' (CUAs) and 
``critical stock allowances'' (CSAs) at 40 CFR 82.3. Each allowance 
represents the right to produce or import, or to sell from inventory, 
respectively, one kilogram of methyl bromide for an approved critical 
use. For example, a distributor with 100 CSAs may sell 100 kilograms of 
pre-phaseout methyl bromide from inventory for an approved critical 
use. Today's action authorizes the uses that will qualify as approved 
critical uses for 2006 and allocates CUAs and CSAs for those uses. In 
the future, EPA will continue to undertake rulemakings that address 
both the approved critical uses and the amounts of methyl bromide to be 
allocated for critical uses in specific control periods.
    On August 30, 2005, EPA published a direct final rule and 
concurrent proposal relating to supplemental critical use exemptions 
for 2005 (70 FR 51270). These recent notices in the Federal Register 
addressed three additional uses as well as additional CSAs for 
supplementary amounts of critical use methyl bromide in 2005. EPA 
received adverse comments on the direct final rule and published a 
withdrawal notice in the Federal Register on October 18, 2005 (70 FR 
60443), which stopped the rule from going into effect. EPA addressed 
the comments and published a final rule for supplemental 2005 CSAs and 
uses in the Federal Register on December 13, 2005 (70 FR 73604). In 
this action, the Agency is finalizing: (1) The list of uses that 
qualify for the critical use exemption in 2006; and (2) the amounts of 
methyl bromide that may be produced or imported, or supplied from pre-
phaseout inventories, for those uses in 2006.
    In the proposed rulemaking, published on October 27, 2005 (70 FR 
62030), EPA sought comment on critical use exemptions for the 2006 
calendar year. Only discrete, specific changes to the operational 
framework were proposed. Some commenters, however, requested that EPA 
re-examine significant portions of the operational framework identified 
in the December 23, 2004 Framework Rule. In this action, EPA is only 
addressing comments within the scope of the proposal, but may consider 
additional suggestions pertaining to other areas in future critical use 
exemption rulemakings. With respect to many of the comments on the 
operational framework, EPA has already addressed similar points in the 
Response to Comments document for the Framework Rule, accessible on 
Docket ID OAR-2005-0122.
    With respect to the critical use exemption regulatory process 
generally, EPA received eight comments expressing concern about the 
late publication of the proposed rule. EPA understands this concern but 
notes that the Second Extraordinary Meeting of the Parties, where the 
final 2006 amounts for critical uses in the U.S. were authorized by the 
Parties, did not take place until July 1, 2005.
    EPA received one comment asking how the critical use exemption 
process will be affected by the enforcement of ISPM 15 (the 
international standard for

[[Page 5989]]

trade in wood packaging material, including dunnage). EPA notes that 
ISPM 15 is unrelated to the critical use exemption process.
    EPA received two comments concerning the term significant market 
disruption, as described in Decision IX/6. One commenter stated that 
the proposal was flawed because EPA does not define significant market 
disruption. A description of EPA's application of this concept is 
available in the memo titled ``Development of the 2003 Nomination for a 
Critical Use Exemption for Methyl Bromide for the United States of 
America,'' on E-Dockets OAR-2003-0017, OAR-2004-0506, and OAR-2005-
0122. The commenter states that a ``significant market disruption'' 
refers to ``a decrease or delay in supply or an increase in price of a 
commodity produced with methyl bromide.'' EPA views this as one 
possible type of market disruption. As stated in the memo available on 
E-docket OAR-2004-0506, ``markets are partially defined by the 
interaction between supply and demand, which determines the price and 
quantity of a good traded in a market. EPA's position is that a 
disruption to either side of a commodity market, demand or supply, 
would result in market disruption.'' That is, a significant market 
disruption could be experienced on the demand side as an increase in 
price, as noted by the commenter, or on the supply side if growers or 
processors experience a loss of production or delays in production. For 
example, if the loss of methyl bromide in strawberry production 
resulted in significant production decreases--and loss of grower 
income--EPA could determine that it constitutes a significant market 
disruption.
    In determining whether a change in supply or demand is significant, 
EPA considers several dimensions of which two are key: (1) Individual 
versus aggregate and (2) absolute versus relative. EPA typically 
evaluates losses at the individual level, e.g., on a per-acre basis. We 
then extrapolate to the aggregate loss by multiplying this 
representative loss by the number of acres affected, using crop budgets 
and other relevant information. EPA balances the two measures to 
determine whether impacts are significant. For example, if the loss of 
methyl bromide in Michigan for vegetable production results in 
shortages and high prices in the upper Midwest, EPA may determine that 
it constitutes a significant market disruption, even if producers and 
consumers in the rest of the country are unaffected.
    The other key dimension is absolute versus relative impacts. The 
loss of a single processing plant may not seem significant. However, if 
there are only three such plants, the loss of one could still result in 
significant market disruption. EPA relies on detailed crop budgets and 
other sources of information for data on production costs, gross 
revenues, and other measures.
    One commenter, in requesting a clearer definition of significant 
market disruption, provided an example of a situation that it did not 
believe would constitute a significant market disruption. The example 
was a price increase of less than 1 cent per pound of flour as a result 
of the use of a methyl bromide alternative. In analyzing this example, 
however, EPA would look not only at the market price, but also at the 
effects on users, bearing in mind the dimensions explained above.

C. What Are the Approved Critical Uses?

    In Decision XVI/2, taken in November 2004, the Parties to the 
Protocol agreed as follows: ``for the agreed critical-use categories 
for 2006, set forth in section IIA to the annex to the present Decision 
for each Party, to permit, subject to the conditions set forth in 
Decision Ex.I/4, to the extent those conditions are applicable, the 
levels of production and consumption for 2006 set forth in section IIB 
to the annex to the present Decision which are necessary to satisfy 
critical uses, with the understanding that additional levels of 
production and consumption and categories of uses may be approved by 
the Meeting of the Parties to the Montreal Protocol in accordance with 
Decision IX/6.'' Section IIA of the Annex to Decision XVI/2 lists the 
following critical use categories for the U.S.: Cucurbits--field; dried 
fruit and nuts; forest nursery seedlings; nursery stock--fruit trees, 
raspberries, roses; strawberry runners; turfgrass; dry commodities/
cocoa beans; dry commodities/structures; eggplant field; mills and 
processors; peppers field; strawberry fruit field; tomato field; and 
orchard replant. These categories represent a total agreed critical-use 
level for 2006 of 6,897,680 kilograms, which is equivalent to 27% of 
the U.S. 1991 methyl bromide consumption baseline.
    In Decision Ex.II/1, taken in July 2005, the Parties to the 
Protocol agreed as follows: ``for the agreed critical uses for 2006, 
set forth in table A of the annex to the present Decision, to permit, 
subject to the conditions set forth in the present Decision and in 
Decision Ex. I/4, to the extent those conditions are applicable, the 
supplementary levels of production and consumption for 2006 set forth 
in table B of the annex to the present Decision which are necessary to 
satisfy critical uses, with the understanding that additional levels 
and categories of uses may be approved by the Seventeenth Meeting of 
the Parties in accordance with Decision IX/6.'' Table A of the Annex to 
Decision Ex.II/1 lists the following critical use categories for the 
U.S.: Ornamentals; dry-cured ham; dry commodities/structures (cocoa 
beans); dry commodities/structures (processed foods, herbs and spices, 
dried milk and cheese processing facilities); eggplant--field, for 
research only; mills and processors; peppers--field; strawberry fruit--
field; tomato--field. These categories represent an additional agreed 
critical-use level for 2006 of 1,117,003 kilograms, which is equivalent 
to 5% of the U.S. 1991 methyl bromide consumption baseline. When 
combined, the agreed critical-use levels for 2006 from Decision XVI/2 
and from Decision Ex.II/1 total 8,074,683 kilograms, which is 
equivalent to 32% of the U.S. 1991 methyl bromide consumption baseline. 
Based, in part, on the applications underlying the U.S. 2006 
nomination, the extensive review of those applications culminating in 
the preparation of that nomination, and the Decisions noted above, EPA 
is modifying Columns B and C of Appendix L to 40 CFR Part 82, Subpart A 
to reflect agreed critical-use categories.
    Under the December 23, 2004, Framework Rule (69 FR 76982), an 
approved critical user may obtain access to exempted production/import 
and limited inventories of pre-phaseout methyl bromide inventory, the 
combination of which constitute the supply of ``critical use methyl 
bromide'' intended to meet the needs of agreed critical uses.
    As set out in the Framework Rule, an approved critical user is a 
self-identified entity who meets the following requirements:
    (1) For the applicable control period, applied to EPA for a 
critical use exemption or is a member of a consortium that applied to 
EPA for a critical use exemption for a use and location of use that was 
included in the U.S. nomination, authorized by a Decision of the 
Parties to the Montreal Protocol, and then finally determined by EPA in 
a notice-and-comment rulemaking to be an approved critical use, and
    (2) Has an area in the applicable location of use that requires 
methyl bromide fumigation because the user reasonably expects that the 
area will be subject to a limiting critical condition during the 
applicable control period.

[[Page 5990]]

    Using these criteria, an approved critical user could be a tomato 
farmer in Florida whose farm is over karst topography, but would not 
include a tomato farmer in Oklahoma even if he too has a farm over 
karst topography because no exemption application was filed on behalf 
of Oklahoma tomato farmers. Similarly, a Florida tomato farmer who did 
not have a field with karst topography, or one of the other limiting 
critical conditions specified in this rule, would not be an approved 
critical user because the circumstance of the use is not an approved 
critical use.
    A ``limiting critical condition'' is the basis on which the 
critical need for methyl bromide is demonstrated and authorized. It is 
defined as ``the regulatory, technical, and economic circumstances * * 
* that establish conditions of critical use of methyl bromide in a 
fumigation area.'' 40 CFR 82.3. The limiting critical condition placed 
on a use category reflects certain regulatory, technical, or economic 
factors that either prohibit the use of alternatives or represent the 
lack of a technically or economically feasible alternative for that use 
or circumstance. For example, EPA may determine that a critical use 
exemption for tomatoes is only necessary for areas of tomato production 
in karst topography even if the EPA received applications for all of 
U.S. fresh market tomato production. In this example, not all tomato 
growers would be eligible to acquire exempted critical use methyl 
bromide. Only those growers with production in an area with the 
limiting critical condition of karst topography would have access to 
critical use methyl bromide. Another example is as follows: EPA 
received applications for exemptions for all U.S. grain milling 
companies that are members of the North American Milling Association 
(NAMA). The Parties authorized the exemption because grain milling 
companies have a critical need for methyl bromide because the 
alternatives can not be used, in part, due to corrosivity to electronic 
equipment. Thus, one of the limiting critical conditions for this 
critical use category is the presence of sensitive electronic equipment 
subject to corrosion associated with fumigation with the alternative. 
All grain mills that are members of NAMA that have sensitive electronic 
equipment would be eligible to acquire and use critical use methyl 
bromide.
    EPA is authorizing the critical uses and limiting critical 
conditions for the year 2006 based on its assessment of the technical 
and economic feasibility of alternatives and the potential for a 
significant market disruption if methyl bromide were not available for 
the uses authorized for 2006. This authorization is based on the 
information submitted by CUE applicants, as well as public and 
proprietary data sources. The CUE applications (except to the extent 
claimed confidential), the U.S. nomination, the questions and answers 
between the MBTOC and the U.S. Government about the nomination, and 
procedural memos are all available on Docket ID OAR-2005-0122. Data 
submitted by the CUE applicants served as a basis for the nomination. 
EPA and other government experts also sought data from multiple other 
sources, including but not limited to the National Agricultural 
Statistics Service of the U.S. Department of Agriculture, the State of 
California Department of Pesticide Regulation, and proprietary 
agricultural databases available to EPA. All of the CUE applications 
underwent a rigorous review by highly qualified technical experts. A 
detailed explanation of the nomination process, including the criteria 
used by expert reviewers, is available in a memo titled ``Development 
of the 2003 Nomination for a Critical Use Exemption for Methyl Bromide 
from the United States of America'' on Docket ID OAR-2005-0122. The 
memo was originally written to describe the process leading to the 2005 
critical use exemption rules, but it applies generally to the process 
leading to this action.
    The U.S. Government, in developing the nomination, defined the 
limiting critical conditions for which exempted methyl bromide was 
being sought. The U.S. Government used the information referenced above 
to determine: (a) Whether the lack of availability of methyl bromide 
for a particular use would result in significant market disruption, and 
(b) whether there were any technically and economically feasible methyl 
bromide alternatives available to the user. The analysis was described 
in the U.S. critical use nomination. The nomination was then sent to 
the Parties to the Protocol, and the Parties used the information in 
the nomination and the report from the MBTOC (which was based in part 
on the iterative exchange of questions and answers with the U.S. 
Government) as the basis for the Decisions that authorized critical 
uses.
    Based on the information described above, EPA determined that the 
uses in Table I, with the limiting critical conditions specified, 
qualify to obtain and use critical use methyl bromide in 2006, as 
discussed in Section E. However, as discussed in Section E, some of the 
circumstances for some of the critical use categories have changed due 
to recent registrations of an alternative and therefore EPA is 
decreasing the total CUE level for 2006. EPA has determined, based on 
the U.S. nomination and its supporting documents, that users who are in 
a specific geographic location, identified below, or who are members of 
a specific industry consortium, identified below, or companies 
specifically identified below, are approved critical users provided 
that such users are subject to the specified limiting critical 
condition(s).
    EPA notes the endorsement of emission minimization techniques in 
paragraph 6 of Decision Ex.II/1 and urges the users listed in Table I 
to use ``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.'' Indeed, many emissions minimization 
techniques are already being applied, some of which are required in 
accordance with methyl bromide label requirements. Users should make 
every effort to decrease overall emissions of methyl bromide by 
implementing such measures, to the extent consistent with state and 
local laws and regulations. EPA notes that research continues to be 
conducted on the potential to reduce application rates and emissions 
using high-barrier films.

                    Table I.--Approved Critical Uses
------------------------------------------------------------------------
                                     Column B
  Column A  Approved critical   Approved critical    Column C  Limiting
             uses               user and location   critical conditions
                                      of use
------------------------------------------------------------------------
Pre-Plant Uses:

[[Page 5991]]

 
    Cucurbits.................  (a) Michigan       with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already exist
                                                    or could occur
                                                    without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    soilborne fungal
                                                    disease infestation,
                                                    or moderate to
                                                    severe disease
                                                    infestation could
                                                    occur without methyl
                                                    bromide fumigation;
                                                    or with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (b) Southeastern   with a reasonable
                                 U.S. except        expectation that one
                                 Georgia limited    or more of the
                                 to growing         following limiting
                                 locations in       critical conditions
                                 Alabama,           either already exist
                                 Arkansas,          or could occur
                                 Kentucky,          without methyl
                                 Louisiana, North   bromide fumigation:
                                 Carolina, South    moderate to severe
                                 Carolina,          yellow or purple
                                 Tennessee, and     nutsedge
                                 Virginia.          infestation, or to a
                                                    lesser extent:
                                                    fungal disease
                                                    infestation and root
                                                    knot nematodes; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (c) Georgia        with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already exist
                                                    or could occur
                                                    without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation,
                                                    moderate to severe
                                                    fungal disease
                                                    infestation, or to a
                                                    lesser extent: root
                                                    knot nematodes; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
    Eggplant..................  (a) Florida        with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already exist
                                                    or could occur
                                                    without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    nematodes, or
                                                    moderate to severe
                                                    disease infestation,
                                                    or restrictions on
                                                    alternatives due to
                                                    karst geology; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (b) Georgia        with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already exist
                                                    or could occur
                                                    without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    nematodes, or
                                                    moderate to severe
                                                    pythium root and
                                                    collar rots, or
                                                    moderate to severe
                                                    southern blight
                                                    infestation, and to
                                                    a lesser extent:
                                                    crown and root rot;
                                                    or with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (c) Michigan       with a reasonable
                                 growers.           expectation that
                                                    moderate to severe
                                                    soilborne fungal
                                                    disease infestation
                                                    could occur without
                                                    methyl bromide
                                                    fumigation; or with
                                                    a need for methyl
                                                    bromide for research
                                                    purposes.
    Forest Nursery Seedlings..  (a) Members of     with a reasonable
                                 the Southern       expectation that one
                                 Forest Nursery     or more of the
                                 Management         following limiting
                                 Cooperative        critical conditions
                                 limited to         already either exist
                                 growing            or could occur
                                 locations in       without methyl
                                 Alabama,           bromide fumigation:
                                 Arkansas,          moderate to severe
                                 Florida,           yellow or purple
                                 Georgia,           nutsedge
                                 Louisiana,         infestation, or
                                 Mississippi,       moderate to severe
                                 North Carolina,    disease infestation.
                                 Oklahoma, South
                                 Carolina,
                                 Tennessee, Texas
                                 and Virginia.
                                (b) International  with a reasonable
                                 Paper and its      expectation that one
                                 subsidiaries       or more of the
                                 limited to         following limiting
                                 growing            critical conditions
                                 locations in       already either exist
                                 Alabama,           or could occur
                                 Arkansas,          without methyl
                                 Georgia, South     bromide fumigation:
                                 Carolina and       moderate to severe
                                 Texas.             yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    disease infestation.
                                (c) Public         with a reasonable
                                 (government-       expectation that one
                                 owned) seeding     or more of the
                                 nurseries in the   following limiting
                                 states of          critical conditions
                                 Illinois,          either already exist
                                 Indiana,           or could occur
                                 Kentucky,          without methyl
                                 Maryland,          bromide fumigation:
                                 Missouri, New      moderate to severe
                                 Jersey, Ohio,      weed infestation
                                 Pennsylvania,      including purple and
                                 West Virginia      yellow nutsedge
                                 and Wisconsin.     infestation, or
                                                    moderate to severe
                                                    Canada thistle
                                                    infestation, or
                                                    moderate to severe
                                                    nematodes, and to a
                                                    lesser extent:
                                                    fungal disease
                                                    infestation.
                                (d) Weyerhaeuser   with a reasonable
                                 Company and its    expectation that one
                                 subsidiaries       or more of the
                                 limited to         following limiting
                                 growing            critical conditions
                                 locations in       already either exist
                                 Alabama,           or could occur
                                 Arkansas, North    without methyl
                                 Carolina and       bromide fumigation:
                                 South Carolina.    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation,
                                                    moderate to severe
                                                    disease infestation,
                                                    and to a lesser
                                                    extent: nematodes
                                                    and worms.
                                (e) Weyerhaeuser   with a reasonable
                                 Company and its    expectation that one
                                 subsidiaries       or more of the
                                 limited to         following limiting
                                 growing            critical conditions
                                 locations in       already either exist
                                 Washington and     or could occur
                                 Oregon.            without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    fungal disease
                                                    infestation.
                                (f) Michigan       with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either exist
                                                    or could occur
                                                    without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    disease infestation,
                                                    moderate to severe
                                                    Canada thistle
                                                    infestation,
                                                    moderate to severe
                                                    nutsedge
                                                    infestation, and to
                                                    a lesser extent:
                                                    nematodes.

[[Page 5992]]

 
                                (g) Michigan       with a reasonable
                                 herbaceous         expectation that one
                                 perennials         or more of the
                                 growers.           following limiting
                                                    critical conditions
                                                    already exist or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation: moderate
                                                    to severe nematodes,
                                                    moderate to severe
                                                    fungal disease
                                                    infestation, and to
                                                    a lesser extent:
                                                    yellow nutsedge and
                                                    other weeds
                                                    infestation.
    Orchard Nursery Seedlings.  (a) Members of     with a reasonable
                                 the Western        expectation that one
                                 Raspberry          or more of the
                                 Nursery            following limiting
                                 Consortium         critical conditions
                                 limited to         already either
                                 growing            exists or could
                                 locations in       occur without methyl
                                 California and     bromide fumigation:
                                 Washington         moderate to severe
                                 (Driscoll's        nematode
                                 Raspberries and    infestation, medium
                                 their contract     to heavy clay soils,
                                 growers in         or a prohibition on
                                 California and     the use of 1,3-
                                 Washington).       dichloropropene
                                                    products due to
                                                    reaching local
                                                    township limits on
                                                    the use of this
                                                    alternative; or with
                                                    a need for methyl
                                                    bromide for research
                                                    purposes.
                                (b) Members of     with a reasonable
                                 the California     expectation that one
                                 Association of     or more of the
                                 Nurserymen-        following limiting
                                 Deciduous Fruit    critical conditions
                                 and Nut Tree       already either
                                 Growers.           exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    nematodes, medium to
                                                    heavy clay soils, or
                                                    a prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products due to
                                                    reaching local
                                                    township limits on
                                                    the use of this
                                                    alternative; or with
                                                    a need for methyl
                                                    bromide for research
                                                    purposes.
                                (c) California     with a reasonable
                                 rose nurseries.    expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    nematodes, or user
                                                    may be prohibited
                                                    from using 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
    Strawberry Nurseries......  (a) California     with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    disease infestation,
                                                    or moderate to
                                                    severe yellow or
                                                    purple nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    nematodes; or with a
                                                    need for methyl
                                                    bromide for research
                                                    purposes.
                                (b) North          with a reasonable
                                 Carolina,          expectation that one
                                 Tennessee and      or more of the
                                 Maryland growers.  following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    black root rot, or
                                                    moderate to severe
                                                    root-knot nematodes,
                                                    or moderate to
                                                    severe yellow and
                                                    purple nutsedge
                                                    infestation, and to
                                                    a lesser extent:
                                                    crown rot; or with a
                                                    need for methyl
                                                    bromide for research
                                                    purposes.
    Orchard Replant...........  (a) California     with a reasonable
                                 stone fruit        expectation that one
                                 growers.           or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    nematodes, or
                                                    moderate to severe
                                                    fungal disease
                                                    infestation, or
                                                    replanted (non-
                                                    virgin) orchard
                                                    soils to prevent
                                                    orchard replant
                                                    disease, or medium
                                                    to heavy soils, or a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (b) California     with a reasonable
                                 table and raisin   expectation that one
                                 grape growers.     or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    nematodes, or
                                                    moderate to severe
                                                    fungal disease
                                                    infestation, or
                                                    replanted (non-
                                                    virgin) orchard
                                                    soils to prevent
                                                    orchard replant
                                                    disease, or medium
                                                    to heavy soils, or a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (c) California     with a reasonable
                                 walnut growers.    expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    nematodes, or
                                                    replanted (non-
                                                    virgin) orchard
                                                    soils to prevent
                                                    orchard replant
                                                    disease, or medium
                                                    to heavy soils, or a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.

[[Page 5993]]

 
                                (d) California     with a reasonable
                                 almond growers.    expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    nematodes, or
                                                    replanted (non-
                                                    virgin) orchard
                                                    soils to prevent
                                                    orchard replant
                                                    disease, or medium
                                                    to heavy soils, or a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
    Ornamentals...............  (a) California     with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    disease infestation,
                                                    or moderate to
                                                    severe nematodes, or
                                                    a prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (b) Florida        with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    weed infestation, or
                                                    moderate to severe
                                                    disease infestation,
                                                    or moderate to
                                                    severe nematodes, or
                                                    karst topography; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
    Peppers...................  (a) California     with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    disease infestation,
                                                    or moderate to
                                                    severe nematodes, or
                                                    a prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (b) Alabama,       with a reasonable
                                 Arkansas,          expectation that one
                                 Kentucky,          or more of the
                                 Louisiana, North   following limiting
                                 Carolina, South    critical and
                                 Carolina,          conditions already
                                 Tennessee and      either exists or
                                 Virginia growers.  could occur without
                                                    methyl bromide
                                                    fumigation: moderate
                                                    to severe yellow or
                                                    purple nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    nematodes, or
                                                    moderate to severe
                                                    pythium root,
                                                    collar, crown and
                                                    root rots, or the
                                                    presence of an
                                                    occupied structure
                                                    within 100 feet of a
                                                    grower's field the
                                                    size of 100 acres or
                                                    less; or with a need
                                                    for methyl bromide
                                                    for research
                                                    purposes.
                                (c) Florida        with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    disease infestation,
                                                    or moderate to
                                                    severe nematodes, or
                                                    karst topography; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (d) Georgia        with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already exist
                                                    or could occur
                                                    without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    nematodes, or
                                                    moderate to severe
                                                    pythium root and
                                                    collar rots, or
                                                    moderate to severe
                                                    southern blight
                                                    infestation, and to
                                                    a lesser extent:
                                                    crown and root rot;
                                                    or with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (e) Michigan       with a reasonable
                                 growers.           expectation that
                                                    moderate to severe
                                                    fungal disease
                                                    infestation would
                                                    occur without methyl
                                                    bromide fumigation;
                                                    or with a need for
                                                    methyl bromide for
                                                    research purposes.
    Strawberry Fruit..........  (a) California     with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    black root rot or
                                                    crown rot, or
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    nematodes, or a
                                                    prohibition of the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached, time
                                                    to transition to an
                                                    alternative; or with
                                                    a need for methyl
                                                    bromide for research
                                                    purposes.
                                (b) Florida        with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge, or
                                                    moderate to severe
                                                    nematodes, or
                                                    moderate to severe
                                                    disease infestation,
                                                    or karst topography
                                                    and to a lesser
                                                    extent: carolina
                                                    geranium or cut-leaf
                                                    evening primrose
                                                    infestation; or with
                                                    a need for methyl
                                                    bromide for research
                                                    purposes.

[[Page 5994]]

 
                                (c) Alabama,       with a reasonable
                                 Arkansas,          expectation that one
                                 Georgia,           or more of the
                                 Illinois,          following limiting
                                 Kentucky,          critical conditions
                                 Louisiana,         already either
                                 Maryland, New      exists or could
                                 Jersey, North      occur without methyl
                                 Carolina, Ohio,    bromide fumigation:
                                 South Carolina,    moderate to severe
                                 Tennessee and      yellow or purple
                                 Virginia growers.  nutsedge, or
                                                    moderate to severe
                                                    nematodes, or
                                                    moderate to severe
                                                    black root and crown
                                                    rot, or the presence
                                                    of an occupied
                                                    structure within 100
                                                    feet of a grower's
                                                    field the size of
                                                    100 acres or less;
                                                    or with a need for
                                                    methyl bromide for
                                                    research purposes.
    Tomatoes..................  (a) Michigan       with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    disease infestation,
                                                    or moderate to
                                                    severe fungal
                                                    pathogen
                                                    infestation; or with
                                                    a need for methyl
                                                    bromide for research
                                                    purposes.
                                (b) Alabama,       with a reasonable
                                 Arkansas,          expectation that one
                                 Florida,           or more of the
                                 Georgia,           following limiting
                                 Kentucky,          critical conditions
                                 Louisiana, North   already either
                                 Carolina, South    exists or could
                                 Carolina, and      occur without methyl
                                 Tennessee          bromide fumigation:
                                 growers.           moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    disease infestation,
                                                    or moderate to
                                                    severe nematodes, or
                                                    the presence of an
                                                    occupied structure
                                                    within 100 feet of a
                                                    grower's field the
                                                    size of 100 acres or
                                                    less, or karst
                                                    topography; or with
                                                    a need for methyl
                                                    bromide for research
                                                    purposes.
                                (c) California     with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    disease infestation,
                                                    or moderate to
                                                    severe nematodes; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
    Turfgrass.................  (a) U.S.           for the production of
                                 turfgrass sod      industry certified
                                 nursery            pure sod; with a
                                 producers who      reasonable
                                 are members of     expectation that one
                                 Turfgrass          or more of the
                                 Producers          following limiting
                                 International      critical conditions
                                 (TPI).             already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    bermudagrass,
                                                    nutsedge and off-
                                                    type perennial grass
                                                    infestation, or
                                                    moderate to severe
                                                    white grub
                                                    infestation; or with
                                                    a need for methyl
                                                    bromide for research
                                                    purposes.
Post-Harvest Uses:
    Food Processing...........  (a) Rice millers   with a reasonable
                                 in all locations   expectation that one
                                 in the U.S. who    or more of the
                                 are members of     following limiting
                                 the USA Rice       critical conditions
                                 Millers'           exists: moderate to
                                 Association.       severe infestation
                                                    of beetles, weevils
                                                    or moths, or older
                                                    structures that can
                                                    not be properly
                                                    sealed to use an
                                                    alternative to
                                                    methyl bromide, or
                                                    the presence of
                                                    sensitive electronic
                                                    equipment subject to
                                                    corrosivity, time to
                                                    transition to an
                                                    alternative.
                                (b) Pet food       with a reasonable
                                 manufacturing      expectation that one
                                 facilities in      or more of the
                                 the U.S. who are   following limiting
                                 active members     critical conditions
                                 of the Pet Food    exists: moderate to
                                 Institute. (For    severe infestation
                                 this rule, ``pet   or beetles, moths,
                                 food'' refers to   or cockroaches, or
                                 domestic dog and   older structures
                                 cat food).         that can not be
                                                    properly sealed to
                                                    use an alternative
                                                    to methyl bromide,
                                                    or the presence of
                                                    sensitive electronic
                                                    equipment subject to
                                                    corrosivity, time to
                                                    transition to an
                                                    alternative.
                                (c) Kraft Foods    with a reasonable
                                 in the U.S..       expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    exists: older
                                                    structures that can
                                                    not be properly
                                                    sealed to use an
                                                    alternative to
                                                    methyl bromide, or
                                                    the presence of
                                                    sensitive electronic
                                                    equipment subject to
                                                    corrosivity, time to
                                                    transition to an
                                                    alternative.
                                (d) Members of     with a reasonable
                                 North American     expectation that one
                                 Millers'           or more of the
                                 Association in     following limiting
                                 the U.S.           critical conditions
                                                    already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation: moderate
                                                    to severe beetle
                                                    infestation, or
                                                    older structures
                                                    that can not be
                                                    properly sealed to
                                                    use an alternative
                                                    to methyl bromide,
                                                    or the presence of
                                                    sensitive electronic
                                                    equipment subject to
                                                    corrosivity, time to
                                                    transition to an
                                                    alternative.
                                (e) Members of     with a reasonable
                                 the National       expectation that one
                                 Pest Management    or more of the
                                 Association        following limiting
                                 treating cocoa     critical conditions
                                 beans in storage   already exists or
                                 and associated     could occur without
                                 spaces and         methyl bromide
                                 equipment in       fumigation: moderate
                                 processed food,    to severe pest
                                 cheese, dried      infestation, or
                                 milk, herbs and    older structures
                                 spices and         that can not be
                                 spaces in          properly sealed to
                                 equipment in       use an alternative
                                 associated         to methyl bromide,
                                 processing         or the presence of
                                 facilities.        sensitive electronic
                                                    equipment subject to
                                                    corrosivity, time to
                                                    transition to an
                                                    alternative.

[[Page 5995]]

 
    Commodity Storage.........  (a) California     with a reasonable
                                 entities storing   expectation that one
                                 walnuts, beans,    or more of the
                                 dried plums,       following limiting
                                 figs, raisins,     critical conditions
                                 dates and          exists: rapid
                                 pistachios in      fumigation is
                                 California.        required to meet a
                                                    critical market
                                                    window, such as
                                                    during the holiday
                                                    season, rapid
                                                    fumigation is
                                                    required when a
                                                    buyer provides short
                                                    (2 working days or
                                                    less) notification
                                                    for a purchase, or
                                                    there is a short
                                                    period after harvest
                                                    in which to fumigate
                                                    and there is limited
                                                    silo availability
                                                    for using
                                                    alternatives; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
    Dry Cured Pork Products...  (a) Members of     with a reasonable
                                 the National       expectation that one
                                 Country Ham        or more of the
                                 Association.       following limiting
                                                    critical conditions
                                                    already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation: moderate
                                                    to severe red legged
                                                    ham beetle, cheese/
                                                    ham skipper,
                                                    dermestid beetle or
                                                    ham mite
                                                    infestation.
                                (b) Members of     with a reasonable
                                 the American       expectation that one
                                 Association of     or more of the
                                 Meat Processors.   following limiting
                                                    critical conditions
                                                    already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation: moderate
                                                    to severe red legged
                                                    ham beetle, cheese/
                                                    ham skipper,
                                                    dermestid beetle or
                                                    ham mite
                                                    infestation.
                                (c) Nahunta Pork   with a reasonable
                                 Center (North      expectation that one
                                 Carolina).         or more of the
                                                    following limiting
                                                    critical conditions
                                                    already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation: moderate
                                                    to severe red legged
                                                    ham beetle, cheese/
                                                    ham skipper,
                                                    dermestid beetle or
                                                    ham mite
                                                    infestation.
------------------------------------------------------------------------

    EPA received seven comments on the proposed critical uses. Four 
commenters stated that the ``Southern Forest Nursery Management 
Cooperative'' should have been explicitly identified as an approved 
critical user. EPA has corrected this omission from the proposed rule. 
Another commenter proposed revised language describing the National 
Pest Management Association, discussed the inclusion of dried milk as 
an approved critical use, and noted that the spelling of the scientific 
name of a pest described in the corresponding ``Limiting Critical 
Conditions'' column was incorrect. EPA has changed the incorrect 
spelling of ``dermisted'' beetle to ``dermestid'' beetle, in the last 
three paragraphs of the ``Limiting Critical Conditions'' table. In 
Decision Ex.II/1, issued by the Parties on July 1, 2005, in Table A of 
the Annex, ``dry commodities/structures (processed foods, herbs, and 
spices, dried milk and cheese processing facilities)'' are noted as 
``agreed critical-use categories.'' Since dried milk was authorized by 
the Parties, EPA is including dried milk, as well as cheese processing 
facilities, in the Approved Critical Uses table. EPA has incorporated 
this revised language describing the National Pest Management 
Association because it clarifies that commodities will be fumigated as 
part of space fumigations.
    EPA received one set of comments pertaining to the proposed 
limiting critical conditions. These comments are addressed in the 
Response to Comments document for this action, accessible on Docket ID 
OAR-2005-0122.
    EPA notes that an additional error was made in Column B of the 
Table of Approved Critical Uses concerning the Forest Nursery sector. 
The states of Idaho, Kansas, Nebraska, Oregon, Utah, and Washington 
should not have been included as states where publicly owned nurseries 
are exempted. The corresponding consortia did not apply to EPA for a 
critical use exemption for 2006 and as a result, were not approved by 
the Parties and are not approved critical users. Therefore, EPA is not 
exempting these uses.

D. What Are the Uses That May Obtain Methyl Bromide for Research?

    The categories listed in Section C above were approved for critical 
uses for 2006 in Decisions XVI, Ex.II/1, and XVII/9 of the Parties. The 
amount of methyl bromide approved for research purposes is included in 
the amount of methyl bromide approved by the Parties for the 
commodities for which ``research'' is indicated as a limiting critical 
condition in Table I above. However, the Agency is not setting aside a 
specific quantity of methyl bromide to be associated with research 
activities. Methyl bromide is needed for research purposes including 
experiments that require methyl bromide as a control chemical with 
which to compare the trial alternatives' results. EPA is allowing the 
following sectors to use critical use methyl bromide for research 
purposes: Cucurbits, dried fruit and nuts, nursery stock, strawberry 
nurseries, turfgrass, eggplant, peppers, strawberry fruit, tomatoes, 
ornamentals, and orchard replant. These are the sectors that requested 
methyl bromide for research in their applications to EPA. In Decision 
XVII/9, the Parties requested that Parties ``endeavor to use stocks, 
where available, to meet any demand for methyl bromide for the purposes 
of research and development.'' Although we read this Decision to apply 
prospectively to amounts authorized by that Decision, for the above 
2006 research uses, we nonetheless encourage all relevant research 
users to use pre-phaseout inventory, where available, for research 
purposes.

E. What Amount of Methyl Bromide Is Necessary for Critical Uses?

    In this section, EPA authorizes the amount of methyl bromide that 
may be produced or imported for critical uses in 2006, and the amount 
that may be sold for critical uses from pre-phaseout inventories. 
Section IIB of the Annex to Decision XVI/2 lists a ``permitted level of 
production and consumption'' for the United States in 2006 of 6,897,680 
kilograms, which is equivalent to 27% of the 1991 baseline. Table B of 
the Annex to Decision Ex.II/1 lists a ``permitted level of production 
and consumption'' for the United States in 2006 of 760,585 kilograms, 
which is equivalent to 3% of the 1991 baseline. When combined, the 
permitted level of production and consumption from the two Decisions is 
7,658,265 kilograms, which is equivalent to 30% of the 1991 baseline. 
Paragraph 2 of Decision Ex.II/1 states, ``that a Party with a critical-
use exemption level in excess of permitted levels of exempted 
production and consumption for critical uses is to make up any such 
difference between those levels by using quantities of methyl

[[Page 5996]]

bromide available from existing stocks.'' The difference between the 
agreed 2006 critical-use exemption level of 8,074,683 kilograms and the 
permitted level of exempted production and consumption of 7,658,265 
kilograms is 416,418 kilograms, which is equivalent to 2% of the 1991 
baseline. In accordance with paragraph 2 of Decision Ex.II/1, this 
amount is to come from inventory. The supplemental amount for 2006, 
authorized in Decision XVII/9, is also to come from inventory. In this 
final rule, EPA is determining that an additional amount should come 
from inventory. A further elaboration of the amounts that EPA is 
authorizing to come from inventory and from new exempted production or 
import in 2006 is found below in Sections F and H.
    With this action, the Agency is authorizing critical use levels of 
methyl bromide for 2006 that are slightly less than the amount 
authorized by the Parties because of recent registrations of an 
alternative to methyl bromide, sulfuryl fluoride. As noted above, the 
U.S. Government submitted the nomination for 2006 critical use 
exemptions on February 7, 2004. The information in the U.S. nomination 
reflected the most up-to-date information on alternatives to methyl 
bromide that was available at that time of submission to the Ozone 
Secretariat in February 2004. In addition, through an iterative process 
of questions and answers with the MBTOC, the U.S. Government was able 
to provide new information about the status of methyl bromide 
alternatives in the United States for the nominated sectors up until 
the time the MBTOC issued its final report in the weeks prior to the 
2nd Extraordinary Meeting of the Parties in July 2005. Since the 
MBTOC's final review and report on the 2006 nomination there have been 
several new actions in the U.S. relevant to uses included in Decision 
XVI/2 and Decision Ex.II/1. The most recent Federal action, on July 15, 
2005, was the issuance of an EPA rule establishing new federal 
tolerance levels for residues of sulfuryl fluoride in or on commodities 
in food processing facilities (70 FR 40899). On July 15 EPA also issued 
a Federal registration for these new uses of sulfuryl fluoride. The 
Agency received comments confirming that as many as 48 of 50 states 
subsequently issued state registrations allowing the use of sulfuryl 
fluoride for these new uses. In addition, on May 18, 2005, the state of 
California registered sulfuryl fluoride for use in mills, warehouses, 
stationary transportation vehicles (railcars, trucks, etc.), temporary 
and permanent fumigation chambers, and storage structures containing 
commodities listed on the state-approved label (cereal and small 
grains, dried fruit, and nuts). The state of California has not 
approved the label issued by EPA on July 15, 2005. The Federal label 
permits sulfuryl fluoride use for a wide range of food commodities, 
such as dried fruits, tree nuts, cereals and small grains, and 
processed food products. Prior to these registration actions, EPA did 
not consider sulfuryl fluoride as a technically and economically 
feasible alternative for these uses. In this action, EPA's 
determination of critical amounts of methyl bromide for 2006 reflects 
these changes in the circumstances of the use sectors for which 
sulfuryl fluoride is a newly registered alternative.
    In the Notice of Proposed Rulemaking, EPA estimated that 
approximately 15% of the post-harvest sectors, for which sulfuryl 
fluoride is a newly registered alternative, would transition to 
sulfuryl fluoride during 2006. EPA proposed a 15% reduction in the 
amount of critical use methyl bromide for the newly registered uses in 
California, such as mills, dried fruit, and nuts, as well as a 15% 
reduction in the amount of critical use methyl bromide for the sectors 
in the U.S. nomination that include food processing facilities, such as 
mills and processors. EPA's proposed uptake estimate was based on 
information from a MBTOC report regarding projected uptake of sulfuryl 
fluoride for previously-registered uses, as well as information in the 
U.S. nomination for 2007 critical use exemptions. The uptake estimate 
in the MBTOC report was 10% for the 2005 calendar year for uses for 
which sulfuryl fluoride was registered in early 2004 (not including the 
most recent registration in California or the new Federal registration 
for food processing facilities). EPA also stated in the proposal that 
the 2007 nomination contained a projection that the specific uses 
associated with the new registrations and tolerances would uptake 
sulfuryl fluoride at a rate of 25% per year. However, the 25% projected 
uptake rate was projected over a longer period of time and referred to 
those facilities that would be able to transition at a certain rate. 
The 2007 Bromide Usage Numerical Index contained an adoption rate of 
14% for two sub-sectors of the structures/food facilities sector, which 
is more comparable to the 2008 Bromide Usage Newer Numerical Index 
(BUNNI) range of 12%-18%. EPA recognizes that the proposed uptake rate 
is not necessarily comparable to the MBTOC projection, because the 
MBTOC's estimate was a reduction factor for all facilities included in 
the Nomination. The rates in the current 2008 BUNNI analysis reflect 
the percentage of each structural/food facilities and National Pest 
Management Association (NPMA) sub-sector that is able to transition per 
year.
    EPA received 13 comments on the estimated uptake of sulfuryl 
fluoride. Six commenters stated that EPA did not provide a sufficient 
rationale to justify the 15% reduction in critical use methyl bromide 
for the uses for which sulfuryl fluoride is now a registered 
alternative. Three indicated their belief that there was no factual 
basis for the 15% reduction. Some commenters pointed out that in the 
2005 CUE rulemaking, EPA stated that it lacked data to determine market 
uptake of sulfuryl fluoride. Other commenters noted that actual 2005 
data would be available in early 2006, and that the Agency could then 
propose adequate reductions, based on consumption patterns, when 
allocating exemptions for 2007. Four commenters noted that the U.S. 
nomination for 2007 was reviewed and approved by two panels of experts 
(EPA and the MBTOC) and stated that therefore the uptake estimate 
should not vary from the percentage identified in that nomination 
without sufficient review. Another group of commenters expressed 
concerns that the estimate did not take into account their inability to 
use sulfuryl fluoride in situations where all finished products and the 
majority of the facility's bagged ingredients could not be removed from 
the premises. Two commenters indicated that the pace of transition to 
an alternative should not be left wholly up to the market to determine, 
in view of the environmental benefits from the transition.
    As explained below, for purposes of this final rule, EPA is relying 
on the assessment performed for the U.S. nomination for 2008, rather 
than arriving at an estimate based on the figures in the MBTOC Report 
and U.S. nomination for 2007, since the U.S. nomination for 2008 
reflects recent information. While EPA indicated in the December 23, 
2004 Framework Rule that there was insufficient data at that time to 
conduct an adequate analysis of the uptake of sulfuryl fluoride, EPA 
now possesses additional data on sulfuryl fluoride, as reflected in the 
assessment performed for the U.S. nomination for 2008. This assessment 
also takes into account the concern raised by the commenter regarding 
inability to use sulfuryl fluoride in situations where all

[[Page 5997]]

specified items cannot be removed from the premises.
    In the final rule, EPA is reducing post-harvest critical use 
allowances from the amount that was proposed by 13.66 kilograms to 
account for an uptake of sulfuryl fluoride for certain post-harvest 
sectors, including food processing and structures and sub-sectors of 
the National Pest Management Association (NPMA), of 12-18%. This 
reduction is equal to less than 0.5% of the 1991 baseline. These 
sectors are those for which sulfuryl fluoride is registered, and where 
there are data demonstrating that key pests are controlled by sulfuryl 
fluoride. Although sulfuryl fluoride is registered for certain 
commodities, EPA is not making a reduction based on transitions in the 
commodity sector at this time due to the lack of sulfuryl fluoride food 
tolerances in countries where the commodities are exported, such as the 
European Union and Canada. Because of the complications associated with 
separating quantities of commodities designated for export markets for 
which sulfuryl fluoride is not a registered alternative, there is no 
way to determine at harvest which portion of the commodity will be 
exported. This issue is further discussed in the ``Methyl Bromide CUN 
for Post-Harvest Use for Commodites'' chapter of the 2008 U.S. 
nomination, available on Docket ID OAR-2005-0122.
    Based on the assessment performed for the BUNNI of the 2008 CUN, 
which is available on Docket ID OAR-2005-0122, a transition rate of 
between 12%-18% reflects the best available data on the feasible uptake 
of sulfuryl fluoride in the affected portions of the industry. The 2008 
assessment was conducted in January 2006 and reflects current market 
conditions. The 12%-18% range is based on available data and on 
professional judgment about the uptake of a new chemical in the market. 
EPA believes that the projected uptake in 2008 under a business-as-
usual scenario can be achieved in 2006 by removing the corresponding 
amount of methyl bromide from the approved critical use level, for the 
affected sectors. This is consistent with the environmental goals of 
EPA's stratospheric ozone program and the definition of ``critical 
uses'' in Section 82.3 as uses for which there are no technically and 
economically feasible alternatives. In the proposed rule, EPA noted 
that uptake can be relatively slow in the initial period following new 
registrations. The Agency is only applying this projected uptake factor 
to the structures-food facilities use areas, as well as sub-sectors of 
NPMA, as the Agency has determined that regulatory and/or technical and 
economic barriers exist to the adoption of sulfuryl fluoride in other 
post-harvest critical use areas. (For an additional discussion of 
economic barriers, please see the 2008 CUN, available on Docket ID OAR-
2005-0122). Some technical and/or economic conditions may exist, 
preventing the full adoption of sulfuryl fluoride in the structures-
food facilities sector. For instance, no transition was projected for 
cheese processing plants because there is no information to show that 
sulfuryl fluoride is effective on mites. The Agency will continue to 
review data to better evaluate the potential for sulfuryl fluoride to 
more broadly penetrate the post-harvest market in the future. Such data 
would include studies that encompass multiple years and multiple 
locations, and compare sulfuryl fluoride with methyl bromide. Several 
studies, with similar pests (at high pest pressures), different 
locations, with similar collection data (trap catch/bioassays) would be 
needed in order to conduct such an analysis. Therefore, the best 
available information for the 2006 rule would suggest a rate of 
adoption of between 12% and 18%, depending on the sector.
    During a notice-and-comment rulemaking, EPA responds, in part, to 
evolving market conditions between the time of the nomination and the 
applicable control period. The Agency is taking new registrations of 
sulfuryl fluoride into account in determining the amount of methyl 
bromide needed for critical uses in 2006. In the notice of proposed 
rulemaking, the Agency also recognized that the status of other 
alternatives to methyl bromide could have changed since the 
finalization of the May 2005 MBTOC report and there could be updated 
comparative information regarding alternatives and methyl bromide, as 
well as new data on emission minimization techniques that would allow a 
user to obtain the same results with smaller quantities of methyl 
bromide. The Agency invited the public to submit any such updated 
information.
    EPA received three comments on the issue of post-hoc review. One 
commenter stated concern over the length of the three-year CUE process, 
during which time many technical and regulatory changes may change the 
capacity of methyl bromide alternatives. The commenter requested that 
EPA provide a post-hoc evaluation of alternatives for the pre-plant 
sector, as well as the post-harvest sector. EPA is not providing a 
post-hoc assessment of pre-plant alternatives in this rulemaking but 
may do so in future critical use exemption rulemakings, should the 
situation in pre-plant sectors warrant a post-hoc assessment. In this 
rulemaking, EPA did not receive adequate data to support such an 
assessment. One commenter provided additional information for the post-
harvest sector. An additional commenter suggested that EPA wait until 
all information about methyl bromide use and inventories is available 
in early 2006 before deciding to reduce methyl bromide beyond the 30% 
of baseline. EPA believes sufficient information is available at this 
time to project the uptake of sulfuryl fluoride during 2006. Comments 
regarding the amount to come from inventory are addressed in a separate 
section of this preamble.
    EPA received eight comments concerning the barriers to adopting 
other alternatives to methyl bromide. Two commenters discussed the 
mandated cap on 1,3-Dichloropropene in township caps in California. EPA 
is aware of this situation and accounted for township cap barriers when 
developing the 2006 nomination. Five commenters noted several barriers 
to the adoption of alternatives, such as narrow ranges of climate 
conditions, plant-back delay, and lack of comprehensive pest control. 
EPA considered all of these factors when developing the nomination, and 
also discussed barriers to adoption in the nomination for 2006. In 
addition, EPA's Office of Pesticide Programs is currently evaluating 
all soil fumigants together. More detailed responses to each individual 
comment are available in the Response to Comments document for this 
rule, on Docket ID OAR-2005-0122.
    EPA received one comment expressing concern that EPA is promoting 
various alternatives to methyl bromide which are widely known to have 
severe negative health and environmental impacts. The commenter 
expressed concern about several alternatives and noted that the 
environmental risks must be examined before EPA further promotes their 
use. EPA's Office of Pesticide Programs has a comprehensive 
registration program in place in order to carefully evaluate the safety 
of all chemicals, including alternatives to methyl bromide, prior to 
registration. The Office of Pesticide Programs is currently assessing 
risks and developing risk management decisions for several soil 
fumigants, including methyl bromide, to ensure that human health risk 
assessment approaches are consistent and that the relative risks and 
benefits of each chemical are considered.

[[Page 5998]]

F. What Are the Sources of Critical Use Methyl Bromide?

    As discussed above and in the December 23, 2004 Framework Rule, an 
approved critical user may obtain access to exempted production/import 
of methyl bromide and to limited inventories of pre-phaseout methyl 
bromide, the combination of which constitute the supply of ``critical 
use methyl bromide'' intended to meet the needs of agreed critical 
uses. In Decision XVI/2, Decision Ex.II/1, and Decision XVII/9, the 
Parties to the Protocol authorized agreed critical-use levels for 2006 
of 8,081,753 kilograms, which is equivalent to 32% of the U.S. 1991 
methyl bromide consumption baseline and includes the supplemental 
amount. As noted above, paragraph 2 of Decision Ex.II/1 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 difference between those levels by using quantities of methyl 
bromide available from existing stocks.'' The permitted level of 
production and consumption of critical use methyl bromide in Decision 
XVI/2 and Decision Ex.II/1 is 7,658,265 kilograms, or 30% of the U.S. 
1991 consumption baseline, leaving approximately 2% to come from 
inventory.
    In developing this action, the Agency notes that Decision XVI/2 
(para. 4) states that: ``each Party which has an agreed critical use 
should 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,'' and Decision Ex.II/1 
(para. 5) states 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 quantities of methyl bromide available from existing stocks.''
    The language in these Decisions is similar to language in Decision 
Ex I/3, paragraph 5. In the December 23, 2004 Framework Rule, EPA 
interpreted paragraph 5 of Decision Ex I/3 ``as meaning that the U.S. 
should not authorize critical use exemptions without including 
provisions addressing drawdown from stocks for critical uses'' (69 FR 
76987). The December 23, 2004 rule established provisions governing the 
sale of pre-phaseout inventories for critical uses, including the 
concept of critical stock allowances (CSAs) and a prohibition on sale 
of pre-phaseout inventories in excess of the amount of CSAs held by the 
seller for critical uses. In addition, EPA noted that inventory was 
further taken into account through the trading provisions that allow 
critical use allowances to be converted into critical stock allowances. 
Under today's final action, no significant changes have been made to 
those provisions, which remain part of the framework for the critical 
use exemption and which continue to be in accordance with Decisions of 
the Parties. Bearing in mind the United States' ``renewed commitment'' 
as stated in Decision Ex II/1, and its experience with the 2005 
critical use nomination, EPA is, however, exercising its discretion to 
adjust the portion of critical use methyl bromide to come from exempted 
production or import as compared to the portion to come from inventory. 
This action authorizes 6,821,487 kilograms of methyl bromide (27% of 
baseline) to come from exempted new production or import and 1,136,008 
kilograms (5% of baseline) to be made available from pre-phaseout 
methyl bromide inventories. The percentage of baseline to be taken from 
pre-phaseout inventories (5%) is the same as that authorized in the 
Framework Rule for 2005.
    EPA received 12 comments on the proportion of critical use methyl 
bromide coming from pre-phaseout inventories and from new production or 
import. Eight commenters were concerned with taking only 27% from 
exempt new production, when the Decisions allow for up to 30%. The 
commenters said EPA's assumptions about users' ability to obtain methyl 
bromide from inventory during 2005 were incorrect and indicated that 
the increased depletion of inventory will increase the cost of the 
material. Additional comments are detailed below.
    With regard to authorizing new production, EPA agrees that Decision 
Ex II/1 allows up to 30% of the 1991 baseline to come from new 
production. EPA disagrees, however, that the effect of Decisions XVI/2 
and Ex. II/1 is that ``7658.28 MT must be allowed to be produced and 
imported.'' The Parties agreed to ``permit'' this 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 CAA does not require EPA to exempt 
any amount of production and consumption for critical uses (``the 
Administrator * * * may exempt * * *'').
    As explained above, EPA is continuing to take inventory into 
account in the same manner as set forth in the Framework Rule. However, 
EPA has discretion to take additional actions; such actions would be in 
line with the United States' ``renewed commitment.'' In response to the 
Notice of Proposed Rulemaking, the commenters did not provide a reason 
why the amount of critical use methyl bromide to be taken from 
inventory in 2006 should be less than the amount authorized to be taken 
from inventory during the bulk of the prior control period. The 
commenters believe that Decision Ex II/1 suggests a continuation of the 
commitment previously made, not a new commitment to reduce levels of 
production and consumption. While we agree, EPA views continued 
drawdown of inventory for critical uses at the level authorized in the 
Framework Rule for 2005 as an appropriate means this year of continuing 
the commitment previously made, in light of our understanding of 
current inventory and our analysis of the current needs of users. EPA 
understands that some commenters object to any regulation of pre-
phaseout inventory. The reasons for EPA's limited regulation of such 
inventory are explained in the Framework Rule and the accompanying 
Response to Comments document, on Docket ID OAR-2005-0122. That 
Response to Comments document also responds to the commenters' 
conclusion that the Parties have implicitly accepted the environmental 
effects of the full 30%. As explained in the preamble to the Framework 
Rule, EPA recognizes that certain users elected not to apply for a 
critical use exemption because they reasonably believed they could meet 
their limited transitional needs for methyl bromide from inventory. 
However, during 2005, EPA was not made aware of any evidence that such 
users encountered problems as a result of EPA's allocating CSAs equal 
to 7.5% of baseline. Nor have the commenters provided any compelling 
evidence that such users would be unable to meet their limited 
transitional needs during 2006 due to a continuation of the same 
policy. One commenter stated that it did not have enough CUE pounds of 
methyl bromide to supply customers, so that users had to access 
existing inventory previously purchased. However, the commenter did not 
state that it would not be able to meet their customers' needs during 
2006. Other commenters did state that EPA had no basis to assume that 
critical users have had no difficultly obtaining methyl bromide because 
most users would have

[[Page 5999]]

experienced difficulty during the last quarter of the year, after the 
publication of the proposed rule. Again, EPA is not aware of users 
having difficulty obtaining methyl bromide from inventory through 
December, 2005.
    Nine commenters stated that it is important to preserve sufficient 
existing inventory for use in the event of catastrophic loss or an 
unexpected pest outbreak. EPA agrees with this statement. EPA does 
recognize that natural disasters may cause disruptions in inventory 
supply and distribution, and may address this issue in future 
rulemakings.
    Two commenters noted that the accelerated use of inventory will 
result in inventory being concentrated in the hands of a few large 
entities and may cause market disruption. EPA recognizes that inventory 
may not be uniformly distributed and that at some locations, inventory 
have already been depleted. However, if a particular distributor holds 
CSAs but no longer holds pre-phaseout inventories, that distributor can 
sell the CSAs to another entity that does hold such inventories. 
Depletion of inventory in a particular geographic area does not mean 
that approved critical users in that geographic area will necessarily 
lack access to methyl bromide, as they may be able to obtain methyl 
bromide produced through the expenditure of CUAs.
    Two commenters stated that there may be errors in the amount of 
methyl bromide that was nominated for each sector, and that as a 
result, shifting the source of 3% of baseline from new production and 
import to pre-phaseout inventory may result in insufficient supplies. 
EPA notes that allocating on a universal basis, with a split between 
the pre-plant and post-harvest sectors, allows the market to correct 
for any errors in the amount of methyl bromide estimated to be needed 
in each sector.
    Nine commenters stated a belief that no downward adjustment should 
be made until EPA has fully evaluated actual data for 2005. These 
commenters stated that EPA must have a rational basis for its actions. 
EPA's action is based on its experience with inventory drawdown in 2005 
and on data regarding inventory holdings that has been claimed as 
confidential.
    One commenter stated that increased depletion of inventory will 
increase the cost of methyl bromide. EPA notes that rising costs help 
encourage the transition to non-ozone-depleting substitutes. In the 
Response to Comments document for the December 23, 2004 Framework Rule, 
EPA also stated that economic theory would suggest that an increase in 
the price of critical use methyl bromide would occur should demand for 
critical use methyl bromide exceed supply. However, EPA believes 
critical use demand is not likely to exceed the 32% of baseline 
authorized by the Parties.
    One commenter stated that no CUAs should be permitted if sufficient 
inventory is available for critical uses. Another commenter stated that 
EPA's proposal does not comply with the CAA or the Protocol, 
specifically Decisions XVI/2, Ex II/1, and IX/6, with regard to 
accounting for inventory. The commenter stated that in promulgating the 
Framework Rule, EPA undertook no analysis of how much critical need 
could be met with existing inventory and refused to disclose the total 
amount. As a result, according to the commenter, EPA cannot rely in the 
2006 rule on its assessment of inventory in the 2005 rules. In 
addition, the commenter states that the phrase ``renews its commitment 
to ensure'' in Decision Ex. II/1 clarifies that the language regarding 
accounting for inventory in that Decision constitutes a commitment and 
that similar language in earlier Decisions also constituted a 
commitment.
    To the extent the commenter questions the determinations made as 
part of the Framework Rule, EPA refers the commenter to the preamble to 
that rule and the accompanying Response to Comments document. The 
briefs filed in the litigation concerning the Framework Rule have also 
been placed in Docket ID OAR-2005-0122. Although EPA disagrees with the 
commenter's suggestion that the commitment reflected in Decision Ex. 
II/1 has the legal consequences the commenter suggests, EPA's actions 
in today's rule are an expression of this U.S. ``renewed commitment.'' 
In addition, EPA disagrees with the commenter's assumption that the 
phrase ``take into account quantities of methyl bromide available from 
existing stocks'' is susceptible to only one interpretation. EPA has 
taken available inventory into account both by including stock-related 
provisions in the Framework Rule and by continuing the allocation of 
CSAs at a level equal to 5% of baseline in the CUE allocation for 2006. 
Finally, EPA notes that the earlier Decisions provide some context for 
understanding this ``renewed commitment'; contrary to the commenter's 
suggestion, the more recent Decision does not affect the meaning of the 
earlier ones.
    EPA received one comment stating that reporting requirements are 
being evaded through transfer of legal title to the end users. EPA did 
not specifically solicit comment on this point but may consider the 
issue in future rulemakings. In addition, EPA is now requiring that 
inventory drawdown be reported on an annual basis. This amendment to 
the regulatory text was made in the 2005 supplemental rule.
    Ten commenters stated that EPA has no basis to assume that critical 
users have had no difficulty obtaining methyl bromide from inventory 
during 2005 because most users would only be in need of additional 
methyl bromide after the proposal was issued. However, it does not 
appear that critical users have had difficulty in obtaining methyl 
bromide from inventory during the 2005 control period. While the 
commenters stated that any such difficulty would arise after the 
issuance of the proposed rule, this final rule is based on a full 
calendar year's experience. Up until December 9th approved critical 
users were authorized to obtain up to 30% of baseline from new 
production and import and up to 5% from inventory. As of December 9th, 
approved critical users were authorized to obtain an additional 2.5% of 
baseline from inventory. We recognize that some users might not have 
had time to purchase the material prior to the end of the 2005 control 
period. Therefore, we are relying on the full year's experience with 
the stock amount authorized for approved critical uses in the Framework 
Rule. Drawing on this experience, EPA is granting CSAs equivalent to 5% 
of baseline for the 2006 control period, on the basis that users will 
continue to be able to access this level of inventory during 2006. In 
the proposed rule, we indicated that there was some uncertainty in this 
determination because the 2005 control period had not yet ended. 
However, the 2005 control period has now ended. In the proposed rule, 
we also stated that we anticipated that inventory levels would be lower 
in 2006. While we continue to anticipate a decline in inventory levels, 
we do not anticipate that critical users will be unable to obtain 
needed quantities. We have placed data on inventory holdings in the 
confidential portion of the docket.
    On December 23, 2005, EPA received a letter concerning the impact 
of the Decision of the Parties taken at their 17th Meeting, concerning 
critical uses for 2007 and the impact of this Decision on critical uses 
for the 2006 control period. While this letter did not arrive during 
the comment period, EPA is addressing it in this final rule because of 
the subject matter. The letter stated that in light of the Decisions 
taken at the 17th Meeting, EPA should grant the full 30% of baseline in 
the form of CUAs for the 2006 control period. The industry group that 
wrote the letter observed that

[[Page 6000]]

at the 17th Meeting of the Parties, the Parties authorized up to 
approximately 20% from new production and 6.25% from inventory for 
2007. The letter expressed concerns that taking 5% of baseline from 
inventory in 2006 and 6.25% in 2007 would result in shortages. EPA has 
re-examined the available inventory data and has projected multiple 
scenarios concerning levels of consumption of existing inventory. Based 
on these efforts, EPA believes that critical users will continue to be 
able to meet their needs throughout 2006 and 2007 through the 
anticipated combination of new production and import and inventory 
drawdown. EPA's analysis is based on data that has been claimed as 
confidential and therefore has not been included in the public portion 
of the docket for this rule. While EPA previously determined that 
aggregate inventory information for a prior year was not confidential 
business information, EPA has not made that information public due to 
the filing of complaints by affected businesses. EPA will continue to 
monitor CUA and CSA data very closely. If an inventory shortage occurs, 
EPA may consider various options, including but not limited to 
promulgating a final version of the proposed petition process, taking 
into account comments received; proposing a different administrative 
mechanism to serve the same purpose; or authorizing conversion of a 
limited number of CSAs to CUAs through rulemaking, bearing in mind the 
upper limit on U.S. production for critical uses. EPA may also address 
consideration of inventory to satisfy critical uses for the 2007 
control period in a future rulemaking.
    In the proposed rule, EPA requested comment on a petition process 
that would allow an approved critical user to demonstrate inability to 
acquire sufficient methyl bromide from inventory. Upon receipt of a 
petition that met the specified criteria, EPA would review the petition 
and consider converting a limited number of CSAs to CUAs (up to the 30% 
limit agreed by the Parties).
    EPA received 11 on-time comments opposed to the proposed petition 
process, and one on-time comment in favor. The comments in opposition 
stated that the petition process was cumbersome and would cause 
significant additional burden to end-users. Other commenters stated 
that the October 1 deadline proposed for submittal of a petition would 
be too early in the calendar year, as most potential CSA shortages are 
expected to occur during the latest months of the year. One commenter 
was opposed to the petition process in general but suggested revisions, 
such as reducing EPA's review period from 30 days to 7 days. One 
additional commenter objected to the proposed petition process and 
stated that EPA had no justification for a process that would lead to 
increased production, and that a much greater reduction in production 
and import would be required to comply with Decisions IX/6, XVI/2 and 
Ex. II/1. The one comment in favor of the petitions noted that the 
proposed process would prevent unneeded methyl bromide from entering 
the market, but also stated that the situation would be unlikely to 
occur. Having considered the comments, EPA concludes that approved 
critical users do not view the petition process as providing a 
significant benefit. The petition process was designed to assist 
approved critical users in the unlikely event that they were unable to 
obtain a quantity from inventory equal to the number of CSAs allocated 
in this rulemaking. EPA has received no indication that such a shortage 
will occur during 2006. Therefore, EPA is not finalizing the proposed 
petition process and is withdrawing the information collection request 
(ICR) for this provision that it submitted to OMB under the Paperwork 
Reduction Act.

G. What Are the Critical Use Allowance Allocations?

    For 2006, EPA is authorizing production and import of 6,821,487 
kilograms of critical use methyl bromide, as shown in Table II below. 
With this action, EPA is allocating critical use allowances (CUAs) to 
producers and importers on a pro-rata basis based on their 1991 
consumption baseline levels. Each CUA is equivalent to 1 kilogram of 
critical use methyl bromide. These allowances expire at the end of the 
control period and, as stated in the Framework Rule, are not bankable 
from one year to the next. This action allocates the following number 
of pre-plant and post-harvest critical use allowances (CUAs) to the 
entities listed below. They will be 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).
    As discussed in section V.(E) of the preamble to the Framework Rule 
(69 FR 76990), EPA issues CUEs once a year except in the instance where 
the Parties authorize supplemental amounts or uses for CUEs.
    EPA has modified the CUAs and CSAs that were listed in the October 
27, 2005 Notice of Proposed Rulemaking due to the revised adjustment 
for uptake of sulfuryl fluoride, as well as EPA's determination to 
allow 27% of baseline for new production and 5% of baseline for CSAs. 
These adjustments result in a total of 6,315,237 kilograms for pre-
plant CUAs and 506,250 kilograms for post-harvest CUAs.

            Table II.--Allocation of Critical Use Allowances
------------------------------------------------------------------------
                                                       2006 Critical use
                                    2006 Critical use    allowances for
              Company                 allowances for      post-harvest
                                     pre-plant uses*         uses*
                                       (kilograms)        (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp.........          3,838,070            307,673
Albemarle Corp....................          1,578,274            126,520
Ameribrom, Inc....................            871,872             69,892
TriCal, Inc.......................             27,020              2,166
                                   --------------------
    Total.........................          6,315,237           506,250
------------------------------------------------------------------------
* 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.

    EPA received eight comments identifying a duplication error in the 
proposed critical use allocations for 2006 (70 FR 62030). EPA 
unintentionally duplicated the amount of post-harvest CUAs as ``129,934 
kilograms'' for both Albemarle and Ameribrom. However, the revised 
post-harvest calculations in this final rule

[[Page 6001]]

authorize 126,520 post-harvest CUAs for Albemarle and 69,892 for 
Ameribrom. The revised overall total of post-harvest CUAs is 506,250 
kilograms.
    Paragraph four of Decision Ex. I/3, taken at the 1st Extraordinary 
Meeting of the Parties, stated ``that Parties should endeavor to 
allocate the quantities of methyl bromide recommended by the Technology 
and Economic Assessment Panel as listed in annex II A to the report of 
the First Extraordinary Meeting of the Parties.'' Similarly, paragraph 
four of Decision Ex. II/1 states, ``that Parties that have an agreed 
critical use shall endeavor to license, permit, authorize or allocate 
the quantities of methyl bromide recommended by the Technology and 
Economic Assessment Panel to the specific categories of use shown in 
table A of the annex to the present Decision.'' In accordance with 
Decision Ex.I/3, paragraph four, and consistent with the more recent 
Decision, the Agency endeavored to allocate directly on a sector-by-
sector basis by analyzing this option, among others, in August 2004. In 
the final Framework Rule, the Agency made a reasoned decision as to the 
economic, environmental and practical effects of implementing the 
various proposed approaches, after considering public comment. In the 
August 25, 2004 proposed rulemaking for the allocation framework (69 FR 
52366), EPA solicited comment on both universal and sector-based 
allocation of critical use allowances, as well as more flexible methods 
for determining allocations. 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 there would be significant 
administrative and practical difficulties associated with a sector-
specific approach.
    EPA received two on-time comments concerning use-specific 
allocations. One commenter stated that CSAs and CUAs should be 
allocated specifically to each of the sectors as authorized by the 
Parties, and that the current ``lump sum'' allocation system delays the 
transition to alternatives. However, the commenter also stated that if 
EPA does not implement a use-specific allocation system, the Agency 
should maintain the current system that differentiates ``pre-plant'' 
and ``post-harvest'' uses. EPA intends to continue differentiating 
between ``pre-plant'' and ``post-harvest'' uses as defined in the 
Framework Rule (69 FR 76982) for the 2006 control period. EPA's 
consideration of a use-specific allocation system is summarized below.
    In developing the Framework Rule and allocating CUAs for 2005, EPA 
examined the economic, environmental and administrative effects of 
various allocation options over the projected life of the CUE exemption 
program. The Agency found that a universal approach would offer equal 
environmental protection, at less cost and with easier implementation, 
than other options such as sector-specific allocation. The Agency 
adopted a modified universal approach, separating pre-plant from post-
harvest uses in order to address concerns raised by smaller, less 
frequent, and end-of-year uses.
    In addition, 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. As described in the August 25, 2004 
proposed rulemaking and accompanying regulatory impact analysis (E-
Docket OAR-2003-0230), the Agency believes that under the universal 
approach, as divided into pre-plant and post-harvest sectors, the 
actual critical use will closely follow the sector breakout listed by 
the TEAP and incorporated into the Parties' Decision. EPA will continue 
to monitor use sector by sector. A market-based lump sum system will 
likely operate to mirror a sector-specific allocation over time, and 
should not therefore delay the transition to alternatives. For the 
reasons stated above, and consistent with our current analysis of this 
issue as it relates to 2006, EPA is not changing the approach 
previously adopted in the Framework Rule for the allocation of CUAs.
    EPA notes that the U.S. Government has spent over $150 million on 
alternatives research, and continues to develop research priorities. In 
addition, all critical use exemption applicants are required to have a 
research plan in order for their requests to be included in the annual 
nomination.
    The other commenter supported the allocation of CUAs to the same 
pre-plant and post-harvest groupings because critical users require 
consistency from year to year. EPA is continuing to implement this 
allocation mechanism.

H. What Are the Critical Stock Allowance Allocations?

    EPA is allocating 1,136,008 kilograms of critical stock allowances 
(CSAs) to the entities listed below in Table III for the 2006 control 
period. The amounts are apportioned to each entity in proportion to 
inventory held.
    EPA addressed the issue of access to inventory for approved 
critical uses in the October 27, 2005 Notice of Proposed Rulemaking for 
2006 allocations (70 FR 62044) and in the December 23, 2004 Framework 
Rule. EPA is not changing this aspect of the critical use exemption 
framework through this action.
    EPA currently possesses information on existing inventory of methyl 
bromide that has been claimed as confidential. With regard to data for 
2003, EPA has determined that the aggregate inventory information is 
not confidential business information and may be disclosed but is 
currently withholding that information due to the filing of complaints 
by affected businesses seeking to enjoin the Agency from its release 
(40 CFR 2.205). EPA will continue to follow its own regulations with 
respect to the treatment of this information. EPA received one comment 
requesting that it disclose the amount of inventory held by private 
sector entities on the grounds that the information is relevant to the 
outcome of the rule and should therefore be available for public 
comment under Section 307(d) of the CAA. The commenter refers to 
arguments made in comments on the framework rule and in legal briefs. 
EPA's position on these issues is explained in the preamble to the 
Framework Rule and the responses to comments received on that rule. The 
comment responses, and legal briefs in the case to which the commenter 
refers, are available in Docket ID OAR-2005-0122.

           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
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)

[[Page 6002]]

 
Univar
Vanguard Fumigation Co.
Western Fumigation
    TOTAL--1,136,008 kilograms
------------------------------------------------------------------------

I. Clarifications to the Framework Rule

    EPA is clarifying the Framework Rule regarding consecutive use of 
non-critical use methyl bromide and critical use methyl bromide. Under 
40 CFR 82.13(dd), an approved critical user who purchases a quantity of 
critical use methyl bromide is required to certify, in part: ``I will 
not use this quantity of methyl bromide for a treatment chamber, 
facility, or field that I previously fumigated with non-critical use 
methyl bromide purchased during the same control period'' unless 
certain exceptions apply. This certification, by itself, would not 
preclude the user from using the critical-use methyl bromide for a 
treatment chamber, facility, or field that he or she had fumigated 
earlier that year with non-critical use methyl bromide purchased during 
an earlier control period. However, the prohibition at Sec.  
82.4(p)(2)(vi) states: ``No person who purchases critical use methyl 
bromide during the control period shall use that methyl bromide on a 
field or structure for which that person has used non-critical use 
methyl bromide for the same use (as defined in Columns A and B of 
Appendix L) in the same control period'' unless certain exceptions 
apply. That prohibition does not distinguish between non-critical use 
methyl bromide purchased during the current control period and 
carryover amounts purchased during earlier control periods.
    In deciding how to reconcile these two provisions, EPA considered 
the effect of an amendment contained in the December 13, 2005 Federal 
Register notice concerning the supplemental allocation for 2005. There, 
EPA amended Sec.  82.4(p)(2)(vi) and the certification language in 
Sec.  82.13(dd) so that end users who had been using non-critical use 
methyl bromide during the first part of 2005 would not be prevented 
from using critical use methyl bromide on the same field or structure 
for the same use if they became approved critical users as a result of 
that supplemental rulemaking (70 FR 73604). That change would also 
prevent adverse consequences for end users if the main allocation rule 
for a particular calendar year were delayed. EPA is reconciling the 
language in Sec.  82.4(p)(2)(vi) and Sec.  82.13(dd) by changing the 
language of the certification to omit the word ``purchased'' from the 
sentence that begins ``I will not use this quantity of methyl bromide 
for a treatment chamber, facility, or field that I previously fumigated 
with non-critical use methyl bromide purchased during the same control 
period * * * ''. This approach puts the focus on actions taken during 
the current control period and provides greater clarity and simplicity 
by eliminating the date of purchase of non-critical use methyl bromide 
as an issue.
    EPA received eight comments on how to reconcile these two 
provisions. One commenter was confused about how the proposed change 
related to the change included in the supplemental rule for 2005. The 
change included in the supplemental rule addressed situations in which 
EPA authorizes critical uses during a control period. That change was 
made because the general prohibition on changing from non-critical-use 
methyl bromide to critical-use methyl bromide during a control period 
would otherwise have prevented access to critical-use methyl bromide 
for the newly authorized uses. The October 27, 2005 proposed rule for 
2006 critical uses focused on a separate issue: Whether critical users 
were barred from using critical-use methyl bromide on a field or 
structure previously fumigated, during the same control period, with 
any non-critical-use methyl bromide, or only a field or structure 
previously fumigated, during the same control period, with non-
critical-use methyl bromide purchased during that same control period. 
The commenter states that EPA did not explain why the change was 
necessary. EPA is making the change to make the prohibition in section 
Sec.  82.4(p) consistent with the certification language in Sec.  
82.13(dd). The change made in the supplemental rule ensures that users 
who have uses that will be designated as critical uses upon the 
effective date of this rule will not be prevented from using critical-
use methyl bromide as a result of having used non-critical-use-
inventory of methyl bromide prior to the critical use designation.
    This commenter stated that the proposed rule did not include 
relevant regulatory text on this issue. Because the change described in 
the supplemental rule was pending at the time of the proposed rule for 
this action, EPA chose not to include relevant regulatory text in the 
proposal, as doing so could have caused additional confusion. The 
change was adequately described in the preamble. This final rule 
includes the text of Sec.  82.13(dd) as amended through the 
supplemental rule and through this action.
    One commenter states that the Framework Rule allows users to 
``double-dip'' by dividing fields or structures under common ownership 
into two parts, in order to apply critical-use methyl bromide to the 
first part and non-critical-use methyl bromide to the second part. 
However, EPA is not aware of such double-dipping taking place. In this 
rulemaking for the 2006 control period, we are not revisiting all 
aspects of the Framework Rule. We proposed a small change to reconcile 
language in two different sections of that rule. We welcome specific 
suggestions for improvements to the critical use regulations for 
consideration in future rulemakings. In this action, however, we are 
addressing only the aspects of this comment that relate to the specific 
change proposed. The commenter appears to believe that removing the 
word ``purchased'' from Sec.  82.13(dd) would allow greater overall 
usage of methyl bromide. This is not the case. This change simply 
conforms the language of the end-user certification with the language 
of the prohibition in Sec.  82.4(p)(2)(vi). It clarifies that, except 
in the instances noted in the rule, end-users may not use non-critical-
use methyl bromide on a particular field or structure and then switch 
to critical-use methyl bromide for that same field or structure, 
regardless of when the non-critical-use methyl bromide was purchased.
    EPA received two comments stating that methyl bromide in pre-
phaseout inventory should not be accessed by those without critical 
needs. While EPA has previously discussed this issue in the Framework 
Rule, in summary, Decision Ex. II/1 does not require that individual 
Parties prohibit use of inventory by users whose uses fall outside the 
categories of agreed critical uses. Nothing in the Protocol or CAA 
mandates that EPA limit drawdown from existing inventory for such uses. 
Further details are available in the Response to Comments document for 
the Framework Rule.

J. Supplemental Critical Use Exemptions for 2006

    On January 31, 2005, the U.S. Government submitted a supplemental 
nomination for 2006 critical use exemptions equivalent to 0.03% of the 
1991 U.S. baseline. The supplemental nomination for 7,070 kilograms for 
California dried beans was considered ``unable to assess'' by the MBTOC 
in its May 2005 report because of a need for clarification about the 
label for phosphine and the principal pest, the

[[Page 6003]]

cowpea weevil. The U.S. submitted additional information in August 2005 
to the MBTOC, responding to various questions on critical use 
nominations, including a clarification of the status of the phosphine 
label with regard to its use for dried beans. In December 2005, the 
Parties approved the supplemental nomination for 2006 at their 17th 
Meeting in Dakar, Senegal. In light of the Parties' approval of the 
supplemental 2006 nomination, EPA is including this quantity in the 
critical use levels for 2006.
    EPA received one on-time comment concerning the supplemental 
request for 2006. The commenter objected to granting domestic approval 
to a critical use category not yet fully reviewed or authorized by the 
Parties, and was concerned that the public would not have a second 
opportunity to comment on the supplemental request. EPA was as specific 
as possible in the October 27, 2005 proposed rule regarding the size 
and nature of the supplemental request in order to provide the public a 
full opportunity to comment. There is no significant new information to 
put before the public at this time. Therefore, a second comment period 
is unnecessary. The commenter suggests that EPA take a second look at 
the supplemental amount on the basis of the most up-to-date 
information. However, in this instance the information that formed the 
basis of the Parties' Decision is the most up-to-date information 
available. That information included the U.S. responses to questions 
from MBTOC in August of 2005. The supplemental request is being 
authorized through the allocation of additional CSAs.

VI. Statutory and Executive Order Reviews

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

    Under Executive Order No. 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive Order.
    Pursuant to the terms of Executive Order 12866, OMB has notified 
EPA that it considers this a ``significant regulatory action'' within 
the meaning of the Executive Order. EPA has submitted this action to 
OMB for review. Changes made in response to OMB suggestions or 
recommendations will be documented in the public record.

B. Paperwork Reduction Act

    EPA submitted an information collection request (control number 
2179.04) for OMB approval that pertains to the petitioning requirements 
described in Section E, under the provisions of the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq. However, as described in that section, EPA 
is not finalizing the petitioning requirements in this action and has 
withdrawn 2179.04 from OMB consideration. The information collection 
under this final rule is authorized under Sections 603(b), 603(d) and 
614(b) of the Clean Air Act (CAA).
    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

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

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


[[Page 6004]]

    Agricultural producers of minor crops and entities that store 
agricultural commodities are categories of affected entities that 
contain small entities. This rule only affects entities that applied to 
EPA for a de-regulatory exemption. In most cases, EPA received 
aggregated requests for exemptions from industry consortia. On the 
exemption application, EPA asked consortia to describe the number and 
size distribution of entities their application covered. Based on the 
data provided, EPA estimates that 3,218 entities petitioned EPA for an 
exemption. Since many applicants did not provide information on the 
distribution of sizes of entities covered in their applications, EPA 
estimated that between one-fourth and one-third of the entities may be 
small businesses based on the definition given above. In addition, 
other categories of affected entities do not contain small businesses 
based on the above description.
    After considering the economic impacts of today's rule on small 
entities, EPA has concluded that this action will not have a 
significant economic impact on a substantial number of small entities. 
The small entities directly regulated by this rule are primarily 
agricultural entities, producers, importers, and distributors of methyl 
bromide, as well as any entities holding inventory of methyl bromide.
    In determining whether a rule has a significant economic impact on 
a substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' (5 U.S.C. 603-604). 
Thus, an Agency may conclude that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves a regulatory burden, or otherwise has a positive economic 
effect on all of the small entities subject to the rule. Since this 
rule will make additional methyl bromide available for approved 
critical uses after the phaseout date of January 1, 2005, this is a de-
regulatory action which will confer a benefit to users of methyl 
bromide. EPA believes the estimated de-regulatory value for users of 
methyl bromide is between $20 million to $30 million annually, as a 
result of the entire critical use exemption program over its projected 
duration. We have therefore concluded that today's final rule will 
relieve regulatory burden for all small entities.

D. Unfunded Mandates Reform Act

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

E. Executive Order No. 13132: Federalism

    Executive Order No. 13132, entitled ``Federalism'' (64 FR 43255, 
August 10, 1999), requires EPA to develop an accountable process to 
ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' ``Policies that have federalism implications'' is 
defined in the Executive Order to include regulations that have 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order No. 13132. This final rule is expected 
to primarily affect producers, suppliers, importers, and exporters and 
users of methyl bromide. Thus, Executive Order 13132 does not apply to 
this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicited comment on this rule from State 
and local officials. EPA did not receive comment on this rule from 
State or local officials.

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

    Executive Order No. 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order No. 13175. This 
rule does not significantly or uniquely affect the communities of 
Indian tribal governments, nor does it impose any enforceable duties on 
communities of Indian tribal governments. Thus, Executive Order No. 
13175 does not apply to this rule.

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

    Executive Order No. 13045: ``Protection of Children From

[[Page 6005]]

Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997) applies to any rule that: (1) Is determined to be ``economically 
significant'' as defined under Executive Order 12866, and (2) concerns 
an environmental health or safety risk that EPA has reason to believe 
may have a disproportionate effect on children. If the regulatory 
action meets both criteria, the Agency must evaluate the environmental 
health or safety effects of the planned rule on children, and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under Section 5-501 of the Order has the 
potential to influence the regulation. This final rule is not subject 
to Executive Order 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks.

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

    This final rule is not a ``significant energy action'' as defined 
in Executive Order No. 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. This rule does 
not pertain to any segment of the energy production economy nor does it 
regulate any manner of energy use. Therefore, we have concluded that 
this rule is not likely to have any adverse energy effects.

I. National Technology Transfer and Advancement Act

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

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective on February 1, 2006.

List of Subjects in 40 CFR Part 82

    Environmental protection; Environmental treaty; Montreal Protocol 
on Substances that Deplete the Ozone Layer; Ozone depletion; Methyl 
bromide; Chemicals; Exports, Imports, Production, Reporting and 
recordkeeping requirements.

    Dated: January 30, 2006.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, 40 CFR part 82 is amended as 
follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

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

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


0
2. Section 82.8 is amended by revising paragraphs (c)(1) and (c)(2) to 
read as follows:


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

* * * * *
    (c) * * *
    (1) Allocated critical use allowances granted for specified control 
period.

------------------------------------------------------------------------
                                    2006 Critical use  2006 Critical use
                                      allowances for     allowances for
              Company                pre-plant uses*      post-harvest
                                       (kilograms)     uses* (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp.........          3,838,070            307,673
Albemarle Corp....................          1,578,274            126,520
Ameribrom, Inc....................            871,872             69,892
TriCal, Inc.......................             27,020              2,166
                                   --------------------
    Total.........................          6,315,237           506,250
------------------------------------------------------------------------
* For production or import of class I, Group VI controlled substance
  exclusively for the Pre-Plant or Post-Harvest uses specified in
  Appendix L to this subpart.

    (2) Allocated critical stock allowances granted for specified 
control period. The following companies are allocated critical stock 
allowances for 2006 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. Trical Inc.
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

[[Page 6006]]

 
Royster-Clark, Inc.
Southern State Cooperative, Inc.
Trident Agricultural Products
UAP Southeast (NC)
UAP Southeast (SC)
Univar
Vanguard Fumigation Co.
Western Fumigation
    TOTAL--1,136,008 kilograms
------------------------------------------------------------------------


0
3. Section 82.13 is amended by revising paragraph (dd) to read as 
follows:


Sec.  82.13  Recordkeeping and Reporting Requirements for Class I 
Controlled Substances.

* * * * *
    (dd) Every approved critical user purchasing an amount of critical 
use methyl bromide or purchasing fumigation services with critical use 
methyl bromide must, for each request, identify the use as a critical 
use and certify being an approved critical user. The approved critical 
user certification will state, in part: ``I certify, under penalty of 
law, I am an approved critical user and I will use this quantity of 
methyl bromide for an approved critical use. My action conforms to the 
requirements associated with the critical use exemption published in 40 
CFR part 82. I am aware that any agricultural commodity within a 
treatment chamber, facility or field I fumigate with critical use 
methyl bromide cannot subsequently or concurrently be fumigated with 
non-critical use methyl bromide during the same control period, 
excepting a QPS treatment or a treatment for a different use (e.g., a 
different crop or commodity). I will not use this quantity of methyl 
bromide for a treatment chamber, facility, or field that I previously 
fumigated with non-critical use methyl bromide during the same control 
period, excepting a QPS treatment or a treatment for a different use 
(e.g., a different crop or commodity), unless a local township limit 
now prevents me from using methyl bromide alternatives or I have now 
become an approved critical user as a result of rulemaking.'' The 
certification will also identify the type of critical use methyl 
bromide purchased, the location of the treatment, the crop or commodity 
treated, the quantity of critical use methyl bromide purchased, and the 
acreage/square footage treated, and will be signed and dated by the 
approved critical user.

0
4. Appendix L to Subpart A is revised to read as follows:

Appendix L to Part 82 Subpart A--Approved Critical Uses, and Limiting 
Critical Conditions for Those Uses for the 2006 Control Period

------------------------------------------------------------------------
                                Column B Approved
  Column A Approved critical    critical user and    Column C Limiting
             uses                location of use    critical conditions
------------------------------------------------------------------------
Pre-Plant Uses:
    Cucurbits.................   (a) Michigan       with a reasonable
                                 growers.           expectation that
                                                    moderate to severe
                                                    soilborne fungal
                                                    disease infestation,
                                                    or moderate to
                                                    severe disease
                                                    infestation could
                                                    occur without methyl
                                                    bromide fumigation;
                                                    or with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (b) Southeastern   with a reasonable
                                 U.S. except        expectation that one
                                 Georgia limited    or more of the
                                 to growing         following limiting
                                 locations in       critical conditions
                                 Alabama,           either already exist
                                 Arkansas,          or could occur
                                 Kentucky,          without methyl
                                 Louisiana, North   bromide fumigation:
                                 Carolina, South    moderate to severe
                                 Carolina,          yellow or purple
                                 Tennessee, and     nutsedge
                                 Virginia.          infestation, or to a
                                                    lesser extent:
                                                    fungal disease
                                                    infestation and root
                                                    knot nematodes; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (c) Georgia        with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already exist
                                                    or could occur
                                                    without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation,
                                                    moderate to severe
                                                    fungal disease
                                                    infestation, or to a
                                                    lesser extent: root
                                                    knot nematodes; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
    Eggplant..................  (a) Florida        with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already exist
                                                    or could occur
                                                    without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    nematodes, or
                                                    moderate to severe
                                                    disease infestation,
                                                    or restrictions on
                                                    alternatives due to
                                                    karst geology; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (b) Georgia        with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already exist
                                                    or could occur
                                                    without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    nematodes, or
                                                    moderate to severe
                                                    pythium root and
                                                    collar rots, or
                                                    moderate to severe
                                                    southern blight
                                                    infestation, and to
                                                    a lesser extent:
                                                    crown and root rot;
                                                    or with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (c) Michigan       with a reasonable
                                 growers.           expectation that
                                                    moderate to severe
                                                    soilborne fungal
                                                    disease infestation
                                                    could occur without
                                                    methyl bromide
                                                    fumigation; or with
                                                    a need for methyl
                                                    bromide for research
                                                    purposes.
    Forest Nursery Seedlings..  (a) Members of     with a reasonable
                                 the Southern       expectation that one
                                 Forest Nursery     or more of the
                                 Management         following limiting
                                 Cooperative        critical conditions
                                 limited to         already either exist
                                 growing            or could occur
                                 locations in       without methyl
                                 Alabama,           bromide fumigation:
                                 Arkansas,          moderate to severe
                                 Florida,           yellow or purple
                                 Georgia,           nutsedge
                                 Louisiana,         infestation, or
                                 Mississippi,       moderate to severe
                                 North Carolina,    disease infestation.
                                 Oklahoma, South
                                 Carolina,
                                 Tennessee, Texas
                                 and Virginia.

[[Page 6007]]

 
                                (b) International  with a reasonable
                                 Paper and its      expectation that one
                                 subsidiaries       or more of the
                                 limited to         following limiting
                                 growing            critical conditions
                                 locations in       already either exist
                                 Alabama,           or could occur
                                 Arkansas,          without methyl
                                 Georgia, South     bromide fumigation:
                                 Carolina and       moderate to severe
                                 Texas.             yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    disease infestation.
                                (c) Public         with a reasonable
                                 (government        expectation that one
                                 owned) seedling    or more of the
                                 nurseries in the   following limiting
                                 states of          critical conditions
                                 Illinois,          either already exist
                                 Indiana,           or could occur
                                 Kentucky,          without methyl
                                 Maryland,          bromide fumigation:
                                 Missouri, New      moderate to severe
                                 Jersey, Ohio,      weed infestation
                                 Pennsylvania,      including purple and
                                 West Virginia      yellow nutsedge
                                 and Wisconsin.     infestation, or
                                                    moderate to severe
                                                    Canada thistle
                                                    infestation, or
                                                    moderate to severe
                                                    nematodes, and to a
                                                    lesser extent:
                                                    fungal disease
                                                    infestation.
                                (d) Weyerhaeuser   with a reasonable
                                 Company and its    expectation that one
                                 subsidiaries       or more of the
                                 limited to         following limiting
                                 growing            critical conditions
                                 locations in       already either exist
                                 Alabama,           or could occur
                                 Arkansas, North    without methyl
                                 Carolina and       bromide fumigation:
                                 South Carolina.    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation,
                                                    moderate to severe
                                                    disease infestation,
                                                    and to a lesser
                                                    extent: nematodes
                                                    and worms.
                                (e) Weyerhaeuser   with a reasonable
                                 Company and its    expectation that one
                                 subsidiaries       or more of the
                                 limited to         following limiting
                                 growing            critical conditions
                                 locations in       already either exist
                                 Washington and     or could occur
                                 Oregon.            without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    fungal disease
                                                    infestation.
                                (f) Michigan       with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either exist
                                                    or could occur
                                                    without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    disease infestation,
                                                    moderate to severe
                                                    Canada thistle
                                                    infestation,
                                                    moderate to severe
                                                    nutsedge
                                                    infestation, and to
                                                    a lesser extent:
                                                    nematodes.
                                (g) Michigan       with a reasonable
                                 herbaceous         expectation that one
                                 perennials         or more of the
                                 growers.           following limiting
                                                    critical conditions
                                                    already exist or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation: moderate
                                                    to severe nematodes,
                                                    moderate to severe
                                                    fungal disease
                                                    infestation, and to
                                                    a lesser extent:
                                                    yellow nutsedge and
                                                    other weeds
                                                    infestation.
    Orchard Nursery Seedlings.  (a) Members of     with a reasonable
                                 the Western        expectation that one
                                 Raspberry          or more of the
                                 Nursery            following limiting
                                 Consortium         critical conditions
                                 limited to         already either
                                 growing            exists or could
                                 locations in       occur without methyl
                                 California and     bromide fumigation:
                                 Washington         moderate to severe
                                 (Driscoll's        nematode
                                 Raspberries and    infestation, medium
                                 their contract     to heavy clay soils,
                                 growers in         or a prohibition on
                                 California and     the use of 1,3-
                                 Washington).       dichloropropene
                                                    products due to
                                                    reaching local
                                                    township limits on
                                                    the use of this
                                                    alternative, or with
                                                    a need for methyl
                                                    bromide for research
                                                    purposes.
                                (b) Members of     with a reasonable
                                 the California     expectation that one
                                 Association of     or more of the
                                 Nurserymen-        following limiting
                                 Deciduous Fruit    critical conditions
                                 and Nut Tree       already either
                                 Growers.           exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    nematodes, medium to
                                                    heavy clay soils, or
                                                    a prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products due to
                                                    reaching local
                                                    township limits on
                                                    the use of this
                                                    alternative, or with
                                                    a need for methyl
                                                    bromide for research
                                                    purposes.
                                (c) California     with a reasonable
                                 rose nurseries.    expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    nematodes, or user
                                                    may be prohibited
                                                    from using 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached, or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
    Strawberry Nurseries......  (a) California     with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    disease infestation,
                                                    or moderate to
                                                    severe yellow or
                                                    purple nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    nematodes; or with a
                                                    need for methyl
                                                    bromide for research
                                                    purposes.
                                (b) North          with a reasonable
                                 Carolina,          expectation that one
                                 Tennessee and      or more of the
                                 Maryland growers.  following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    black root rot, or
                                                    moderate to severe
                                                    root-knot nematodes,
                                                    or moderate to
                                                    severe yellow and
                                                    purple nutsedge
                                                    infestation, and to
                                                    a lesser extent:
                                                    crown rot; or with a
                                                    need for methyl
                                                    bromide for research
                                                    purposes.

[[Page 6008]]

 
    Orchard Replant...........  (a) California     with a reasonable
                                 stone fruit        expectation that one
                                 growers.           or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    nematodes, or
                                                    moderate to severe
                                                    fungal disease
                                                    infestation, or
                                                    replanted (non
                                                    virgin) orchard
                                                    soils to prevent
                                                    orchard replant
                                                    disease, or medium
                                                    to heavy soils, or a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (b) California     with a reasonable
                                 table and raisin   expectation that one
                                 grape growers.     or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    nematodes, or
                                                    moderate to severe
                                                    fungal disease
                                                    infestation, or
                                                    replanted (non-
                                                    virgin) orchard
                                                    soils to prevent
                                                    orchard replant
                                                    disease, or medium
                                                    to heavy soils, or a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (c) California     with a reasonable
                                 walnut growers.    expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    nematodes, or
                                                    replanted (non-
                                                    virgin) orchard
                                                    soils to prevent
                                                    orchard replant
                                                    disease, or medium
                                                    to heavy soils, or a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (d) California     with a reasonable
                                 almond growers.    expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    nematodes, or
                                                    replanted (non-
                                                    virgin) orchard
                                                    soils to prevent
                                                    orchard replant
                                                    disease, or medium
                                                    to heavy soils, or a
                                                    prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
    Ornamentals...............  (a) California     with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    disease infestation,
                                                    or moderate to
                                                    severe nematodes, or
                                                    a prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (b) Florida        with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    weed infestation, or
                                                    moderate to severe
                                                    disease infestation,
                                                    or moderate to
                                                    severe nematodes, or
                                                    karst topography; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
    Peppers...................  (a) California     with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    disease infestation,
                                                    or moderate to
                                                    severe nematodes, or
                                                    a prohibition on the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (b) Alabama,       with a reasonable
                                 Arkansas,          expectation that one
                                 Kentucky,          or more of the
                                 Louisiana, North   following limiting
                                 Carolina, South    critical conditions
                                 Carolina,          already either
                                 Tennessee and      exists or could
                                 Virginia growers.  occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    nematodes, or
                                                    moderate to severe
                                                    pythium root,
                                                    collar, crown and
                                                    root rots, or the
                                                    presence of an
                                                    occupied structure
                                                    within 100 feet of a
                                                    grower's field the
                                                    size of 100 acres or
                                                    less; or with a need
                                                    for methyl bromide
                                                    for research
                                                    purposes.
                                (c) Florida        with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    disease infestation,
                                                    or moderate to
                                                    severe nematodes, or
                                                    karst topography; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.

[[Page 6009]]

 
                                (d) Georgia        with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    either already exist
                                                    or could occur
                                                    without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    nematodes, or
                                                    moderate to severe
                                                    pythium root and
                                                    collar rots, or
                                                    moderate to severe
                                                    southern blight
                                                    infestation, and to
                                                    a lesser extent:
                                                    crown and root rot;
                                                    or with a need for
                                                    methyl bromide for
                                                    research purposes.
                                (e) Michigan       with a reasonable
                                 growers.           expectation that
                                                    moderate to severe
                                                    fungal disease
                                                    infestation would
                                                    occur without methyl
                                                    bromide fumigation;
                                                    or with a need for
                                                    methyl bromide for
                                                    research purposes.
    Strawberry Fruit..........  (a) California     with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    black root rot or
                                                    crown rot, or
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    nematodes, or a
                                                    prohibition of the
                                                    use of 1,3-
                                                    dichloropropene
                                                    products because
                                                    local township
                                                    limits for this
                                                    alternative have
                                                    been reached, time
                                                    to transition to an
                                                    alternative; or with
                                                    a need for methyl
                                                    bromide for research
                                                    purposes.
                                (b) Florida        with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    yellow or purple
                                                    nutsedge, or
                                                    moderate to severe
                                                    nematodes, or
                                                    moderate to severe
                                                    disease infestation,
                                                    or karst topography
                                                    and to a lesser
                                                    extent: carolina
                                                    geranium or cut-leaf
                                                    evening primrose
                                                    infestation; or with
                                                    a need for methyl
                                                    bromide for research
                                                    purposes.
                                (c) Alabama,       with a reasonable
                                 Arkansas,          expectation that one
                                 Georgia,           or more of the
                                 Illinois,          following limiting
                                 Kentucky,          critical conditions
                                 Louisiana,         already either
                                 Maryland, New      exists or could
                                 Jersey, North      occur without methyl
                                 Carolina, Ohio,    bromide fumigation:
                                 South Carolina,    moderate to severe
                                 Tennessee and      yellow or purple
                                 Virginia growers.  nutsedge, or
                                                    moderate to severe
                                                    nematodes, or
                                                    moderate to severe
                                                    black root and crown
                                                    rot, or the presence
                                                    of an occupied
                                                    structure within 100
                                                    feet of a grower's
                                                    field the size of
                                                    100 acres or less;
                                                    or with a need for
                                                    methyl bromide for
                                                    research purposes.
    Tomatoes..................  (a) Michigan       with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    disease infestation,
                                                    or moderate to
                                                    severe fungal
                                                    pathogen
                                                    infestation; or with
                                                    a need for methyl
                                                    bromide for research
                                                    purposes.
                                (b) Alabama,       with a reasonable
                                 Arkansas,          expectation that one
                                 Florida,           or more of the
                                 Georgia,           following limiting
                                 Kentucky,          critical conditions
                                 Louisiana, North   already either
                                 Carolina, South    exists or could
                                 Carolina, and      occur without methyl
                                 Tennessee.         growers bromide
                                                    fumigation: moderate
                                                    to severe yellow or
                                                    purple nutsedge
                                                    infestation, or
                                                    moderate to severe
                                                    disease infestation,
                                                    or moderate to
                                                    severe nematodes, or
                                                    the presence of an
                                                    occupied structure
                                                    within 100 feet of a
                                                    grower's field the
                                                    size of 100 acres or
                                                    less, or karst
                                                    topography; or with
                                                    a need for methyl
                                                    bromide for research
                                                    purposes.
                                (c) California     with a reasonable
                                 growers.           expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    disease infestation,
                                                    or moderate to
                                                    severe nematodes; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
    Turfgrass.................  (a) U.S.           for the production of
                                 turfgrass sod      industry certified
                                 nursery            pure sod; with a
                                 producers who      reasonable
                                 are members of     expectation that one
                                 Turfgrass          or more of the
                                 Producers          following limiting
                                 International      critical conditions
                                 (TPI).             already either
                                                    exists or could
                                                    occur without methyl
                                                    bromide fumigation:
                                                    moderate to severe
                                                    bermudagrass,
                                                    nutsedge and off-
                                                    type perennial grass
                                                    infestation, or
                                                    moderate to severe
                                                    white grub
                                                    infestation; or with
                                                    a need for methyl
                                                    bromide for research
                                                    purposes.
Post-Harvest Uses:
    Food Processing...........  (a) Rice millers   with a reasonable
                                 in all locations   expectation that one
                                 in the U.S. who    or more of the
                                 are members of     following limiting
                                 the USA Rice       critical conditions
                                 Millers'           exists: moderate to
                                 Association.       severe infestation
                                                    of beetles, weevils
                                                    or moths, or older
                                                    structures that can
                                                    not be properly
                                                    sealed to use an
                                                    alternative to
                                                    methyl bromide, or
                                                    the presence of
                                                    sensitive electronic
                                                    equipment subject to
                                                    corrosivity, time to
                                                    transition to an
                                                    alternative.
                                (b) Pet food       with a reasonable
                                 manufacturing      expectation that one
                                 facilities in      or more of the
                                 the U.S. who are   following limiting
                                 active members     critical conditions
                                 of the Pet Food    exists: moderate to
                                 Institute. (For    severe infestation
                                 this rule, ``pet   or beetles, moths,
                                 food'' refers to   or cockroaches, or
                                 domestic dog and   older structures
                                 cat food).         that can not be
                                                    properly sealed to
                                                    use an alternative
                                                    to methyl bromide,
                                                    or the presence of
                                                    sensitive electronic
                                                    equipment subject to
                                                    corrosivity, time to
                                                    transition to an
                                                    alternative.

[[Page 6010]]

 
                                (c) Kraft Foods    with a reasonable
                                 in the U.S.        expectation that one
                                                    or more of the
                                                    following limiting
                                                    critical conditions
                                                    exists: older
                                                    structures that can
                                                    not be properly
                                                    sealed to use an
                                                    alternative to
                                                    methyl bromide, or
                                                    the presence of
                                                    sensitive electronic
                                                    equipment subject to
                                                    corrosivity, time to
                                                    transition to an
                                                    alternative.
                                (d) Members of     with a reasonable
                                 the North          expectation that one
                                 American           or more of the
                                 Millers'           following limiting
                                 Association in     critical conditions
                                 the U.S.           already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation: moderate
                                                    to severe beetle
                                                    infestation, or
                                                    older structures
                                                    that can not be
                                                    properly sealed to
                                                    use an alternative
                                                    to methyl bromide,
                                                    or the presence of
                                                    sensitive electronic
                                                    equipment subject to
                                                    corrosivity, time to
                                                    transition to an
                                                    alternative.
                                (e) Members of     with a reasonable
                                 the National       expectation that one
                                 Pest Management    or more of the
                                 Association        following limiting
                                 treating cocoa     critical conditions
                                 beans in storage   already exists or
                                 and associated     could occur without
                                 spaces and         methyl bromide
                                 equipment in       fumigation: moderate
                                 processed food,    to severe pest
                                 cheese, dried      infestation, or
                                 milk, herbs and    older structures
                                 spices and         that can not be
                                 spaces and         properly sealed to
                                 equipment in       use an alternative
                                 associated         to methyl spaces and
                                 processing         bromide, or the
                                 facilities.        presence of
                                                    sensitive equipment
                                                    in electronic
                                                    equipment subject to
                                                    corrosivity, time to
                                                    transition to an
                                                    alternative.
    Commodity Storage.........  (a) California     with a reasonable
                                 entities storing   expectation that one
                                 walnuts, beans,    or more of the
                                 dried plums,       following limiting
                                 figs, raisins,     critical conditions
                                 dates and          exists: rapid
                                 pistachios in      fumigation is
                                 California.        required to meet a
                                                    critical market
                                                    window, such as
                                                    during the holiday
                                                    season, rapid
                                                    fumigation is
                                                    required when a
                                                    buyer provides short
                                                    (2 working days or
                                                    less) notification
                                                    for a purchase, or
                                                    there is a short
                                                    period after harvest
                                                    in which to fumigate
                                                    and there is limited
                                                    silo availability
                                                    for using
                                                    alternatives; or
                                                    with a need for
                                                    methyl bromide for
                                                    research purposes.
    Dry Cured Pork Products...  (a) Members of     with a reasonable
                                 the National       expectation that one
                                 Country Ham        or more of the
                                 Association.       following limiting
                                                    critical conditions
                                                    already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation: moderate
                                                    to severe red legged
                                                    ham beetle, cheese/
                                                    ham skipper,
                                                    dermestid beetle or
                                                    ham mite
                                                    infestation.
                                (b) Members of     with a reasonable
                                 the American       expectation that one
                                 Association of     or more of the
                                 Meat Processors.   following limiting
                                                    critical conditions
                                                    already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation: moderate
                                                    to severe red legged
                                                    ham beetle, cheese/
                                                    ham skipper,
                                                    dermestid beetle or
                                                    ham mite
                                                    infestation.
                                (c) Nahunta Pork   with a reasonable
                                 Center (North      expectation that one
                                 Carolina).         or more of the
                                                    following limiting
                                                    critical conditions
                                                    already exists or
                                                    could occur without
                                                    methyl bromide
                                                    fumigation: moderate
                                                    to severe red legged
                                                    ham beetle, cheese/
                                                    ham skipper,
                                                    dermestid beetle or
                                                    ham mite
                                                    infestation.
------------------------------------------------------------------------

[FR Doc. 06-1019 Filed 2-3-06; 8:45 am]
BILLING CODE 6560-50-P