[Federal Register Volume 72, Number 248 (Friday, December 28, 2007)]
[Rules and Regulations]
[Pages 74118-74152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-25065]



[[Page 74117]]

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

Part IV





Environmental Protection Agency





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



40 CFR Part 82



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

  Federal Register / Vol. 72, No. 248 / Friday, December 28, 2007 / 
Rules and Regulations  

[[Page 74118]]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2006-1016; FRL-8510-8]
RIN 2060-A030


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: EPA is finalizing an exemption to the phaseout of methyl 
bromide to meet the needs of 2008 critical uses. Specifically, EPA is 
authorizing uses that qualify for the 2008 critical use exemption and 
the amount of methyl bromide that may be produced, imported, or 
supplied from existing pre-phaseout inventory for those uses in 2008. 
EPA is taking action under the authority of the Clean Air Act to 
reflect recent consensus decisions taken by the Parties to the Montreal 
Protocol on Substances that Deplete the Ozone Layer at the 18th Meeting 
of the Parties.

DATES: This rule is effective on December 28, 2007.

ADDRESSES: EPA has established a docket for this action identified 
under Docket ID No. EPA-HQ-OAR-2006-1016. All documents in the docket 
are listed on the http://www.regulations.gov site. Although listed in 
the index, some information is not publicly available, e.g., CBI or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available only through http://www.regulations.gov or in hard copy. To obtain copies of materials in 
hard copy, please call the EPA Docket Center at (202) 564-1744 between 
the hours of 8:30 a.m.-4:30 p.m. E.S.T., Monday-Friday, excluding legal 
holidays, to schedule an appointment. The EPA Docket Center's Public 
Reading Room address is EPA/DC, EPA West, Room 3334, 1301 Constitution 
Ave., NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Aaron Levy by telephone at (202) 343-
9215, or by e-mail at [email protected] or by mail at Aaron Levy, U.S. 
Environmental Protection Agency, Stratospheric Protection Division, 
Stratospheric Program Implementation Branch (6205J), 1200 Pennsylvania 
Avenue, NW., Washington, DC, 20460. You may also visit the Ozone 
Depletion Web site of EPA's Stratospheric Protection Division at http://www.epa.gov/ozone/strathome.html for further information about EPA's 
stratospheric ozone protection regulations, the science of ozone layer 
depletion, and other related topics.

SUPPLEMENTARY INFORMATION: This final rule concerns Clean Air Act (CAA) 
restrictions on the consumption, production, and use of methyl bromide 
(a class I, Group VI controlled substance) for critical uses during 
calendar year 2008. Under the Clean Air Act, methyl bromide consumption 
(consumption is defined under the CAA as production plus imports minus 
exports) and production was phased out on January 1, 2005, apart from 
allowable exemptions, namely the critical use exemption and the 
quarantine and pre-shipment exemption. With this action, EPA is 
authorizing the uses that will qualify for the 2008 critical use 
exemption as well as specific amounts of methyl bromide that may be 
produced, imported, or sold from pre-phaseout inventory for critical 
uses in 2008.
    Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. 
Chapter 5, generally provides that rules may not take effect earlier 
than 30 days after they are published in the Federal Register. EPA is 
issuing this final rule under section 307(d) of the Clean Air Act, 
which states: ``The provisions of section 553 through 557 * * * of 
Title 5 shall not, except as expressly provided in this section, apply 
to actions to which this subsection applies.'' CAA section 307(d)(1). 
Thus, section 553(d) of the APA does not apply to this rule. EPA is 
nevertheless acting consistently with the policies underlying APA 
section 553(d) in making this rule effective on December 28, 2007. APA 
section 553(d) provides an exception for any action that grants or 
recognizes an exemption or relieves a restriction. This final rule 
grants an exemption from the phaseout of methyl bromide.

Table of Contents

I. General Information
    Regulated Entities
II. What Is Methyl Bromide?
III. What Is the Background to the Phaseout Regulations for Ozone 
Depleting Substances?
IV. What Is the Legal Authority for Exempting the Production and 
Import of Methyl Bromide for Critical Uses Authorized by the Parties 
to the Montreal Protocol?
V. What Is the Critical Use Exemption Process?
    A. Background of the Process
    B. How Does This Final Rulemaking Relate to Previous Critical 
Use Exemption Rulemakings?
    C. Critical Uses
    D. Critical Use Amounts
    1. Background of Critical Use Amounts
    2. Calculation of Available Stocks
    3. Adjusting New Production and Import Amounts to Account for 
Available Stocks
    4. Treatment of Carryover Material
    a. Reporting Requirements to Calculate Carryover Amounts
    b. Apportionment of Carryover Reductions Among Producers
    5. Amounts for Research Purposes
    6. Methyl Bromide Alternatives
    E. The Criteria in Decisions IX/6 and Ex. I/4
    F. Emissions Minimization
    G. Critical Use Allowance Allocations
    H. Critical Stock Allowance Allocations and the Confidentiality 
of Information About the Aggregate Methyl Bromide Inventory
    I. Stocks of Methyl Bromide
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. General Information

Regulated Entities

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

------------------------------------------------------------------------
             Category                  Examples of regulated entities
------------------------------------------------------------------------
Industry.........................  Producers, Importers, and Exporters
                                    of methyl bromide; Applicators and
                                    Distributors of methyl bromide;
                                    Users of methyl bromide, e.g.,
                                    farmers of vegetable crops, fruits,
                                    and seedlings; Owners of stored food
                                    commodities and structures such as
                                    grain mills and processors; and
                                    Agricultural researchers.
------------------------------------------------------------------------


[[Page 74119]]

    The above table is not intended to be exhaustive, but rather to 
provide a guide for readers regarding entities likely to be regulated 
by this action. This table lists the types of entities that EPA is 
aware could potentially be regulated by this action. To determine 
whether your facility, company, business, or organization is regulated 
by this action, you should carefully examine the regulations 
promulgated at 40 CFR Part 82, Subpart A. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person listed in the preceding section.

II. What Is Methyl Bromide?

    Methyl bromide is an odorless, colorless, toxic gas which is used 
as a broad-spectrum pesticide and is controlled under the CAA as a 
class I ozone-depleting substance (ODS). Methyl bromide is used in the 
U.S. and throughout the world as a fumigant to control a variety of 
pests such as insects, weeds, rodents, pathogens, and nematodes. 
Additional characteristics and details about the uses of methyl bromide 
can be found in the proposed rule on the phaseout schedule for methyl 
bromide published in the Federal Register on March 18, 1993 (58 FR 
15014), and the final rule published in the Federal Register on 
December 10, 1993 (58 FR 65018). Information on methyl bromide can be 
found at http://www.epa.gov/ozone/mbr and http://www.ozone.unep.org or 
by contacting the Stratospheric Ozone Hotline at 1-800-296-1996.
    Because it is a pesticide, methyl bromide is also regulated by EPA 
under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) 
and other statutes and regulatory authority, as well as by States under 
their own statutes and regulatory authorities. Under FIFRA, methyl 
bromide is a restricted use pesticide. Restricted use pesticides are 
subject to certain Federal and State requirements governing their sale, 
distribution, and use. Nothing in this 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 are affected by provisions of 
this action 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 final rule are intended only to implement the CAA 
restrictions on the production, consumption, and use of methyl bromide 
for critical uses exempted from the phaseout of methyl bromide.

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

    The current regulatory requirements of the stratospheric ozone 
protection program that limit production and consumption of ozone-
depleting substances can be found at 40 CFR Part 82, Subpart A. The 
regulatory program was originally published in the Federal Register on 
August 12, 1988 (53 FR 30566), in response to the 1987 signing and 
subsequent ratification of the Montreal Protocol on Substances that 
Deplete the Ozone Layer (Protocol). The Protocol is the international 
agreement aimed at reducing and eliminating the production and 
consumption of stratospheric ozone depleting substances. The U.S. was 
one of the original signatories to the 1987 Montreal Protocol and the 
U.S. ratified the Protocol on April 12, 1988. Congress then enacted, 
and President George H.W. Bush signed into law, the Clean Air Act 
Amendments of 1990 (CAAA of 1990) which included Title VI on 
Stratospheric Ozone Protection, codified as 42 U.S.C. Chapter 85, 
Subchapter VI, to ensure that the United States could satisfy its 
obligations under the Protocol. EPA issued regulations to implement 
this legislation and has made several amendments to the regulations 
since that time.
    Methyl bromide was added to the Protocol as an ozone depleting 
substance in 1992 through the Copenhagen Amendment to the Protocol. The 
Parties to the Montreal Protocol (Parties) agreed that each 
industrialized country's level of methyl bromide production and 
consumption in 1991 should be the baseline for establishing a freeze in 
the level of methyl bromide production and consumption for 
industrialized countries. EPA published a final rule in the Federal 
Register on December 10, 1993 (58 FR 65018), listing methyl bromide as 
a class I, Group VI controlled substance, freezing U.S. production and 
consumption at this 1991 level of 25,528,270 kilograms, and, in 40 CFR 
82.7, EPA also set forth the percentage of baseline allowances for 
methyl bromide granted to companies in each control period (each 
calendar year) until 2001, when the complete phaseout would occur. This 
phaseout date was established in response to a petition filed in 1991 
under sections 602(c)(3) and 606(b) of the CAAA of 1990, requesting 
that EPA list methyl bromide as a class I substance and phase out its 
production and consumption. This date was consistent with section 
602(d) of the CAAA of 1990, which for newly listed class I ozone 
depleting substances provides that ``no extension [of the phaseout 
schedule in section 604] under this subsection may extend the date for 
termination of production of any class I substance to a date more than 
7 years after January 1 of the year after the year in which the 
substance is added to the list of class I substances.'' EPA based its 
action on scientific assessments and actions by the Parties to the 
Montreal Protocol to freeze the level of methyl bromide production and 
consumption for industrialized countries at the Fourth Meeting of the 
Parties (MOP) in 1992 in Copenhagen, Denmark.
    At the Seventh MOP in 1995, the Parties made adjustments to the 
methyl bromide control measures and agreed to reduction steps and a 
2010 phaseout date for industrialized countries with exemptions 
permitted for critical uses. At that time, the U.S. continued to have a 
2001 phaseout date in accordance with the CAAA of 1990 language. At the 
Ninth MOP in 1997, the Parties agreed to further adjustments to the 
phaseout schedule for methyl bromide in industrialized countries, with 
reduction steps leading to a 2005 phaseout.

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

    In October 1998, the U.S. Congress amended the CAA to prohibit the 
termination of production of methyl bromide prior to January 1, 2005, 
to require EPA to bring the U.S. phaseout of methyl bromide in line 
with the schedule specified under the Protocol, and to authorize EPA to 
provide exemptions for critical uses. These amendments were contained 
in section 764 of the 1999 Omnibus Consolidated and Emergency 
Supplemental Appropriations Act (Pub. L. 105-277, October 21, 1998) and 
were codified in section 604 of the CAA, 42 U.S.C. 7671c. The amendment 
that specifically addresses the critical use exemption appears at 
section 604(d)(6), 42 U.S.C. 7671c(d)(6). EPA revised the phaseout 
schedule for methyl bromide production and consumption in a direct 
final rulemaking on November 28, 2000 (65 FR 70795), which allowed for 
the phased reduction in methyl bromide consumption and extended the 
phaseout to 2005. EPA again amended the revised phaseout to allow for 
an

[[Page 74120]]

exemption for quarantine and preshipment purposes on July 19, 2001 (66 
FR 37751), with an interim final rule and with a final rule on January 
2, 2003 (68 FR 238).
    On December 23, 2004 (69 FR 76982), EPA published a final rule 
titled ``Protection of Stratospheric Ozone: Process for Exempting 
Critical Uses From the Phaseout of Methyl Bromide'' (the ``Framework 
Rule'') in the Federal Register that established the framework for the 
critical use exemption; set forth a list of approved critical uses for 
2005; and specified the amount of methyl bromide that could be supplied 
in 2005 from stocks and new production or import to meet the needs of 
approved critical uses. EPA then promulgated a supplemental rule on 
December 13, 2005 that added critical uses to the exemption program for 
2005 and allocated additional stock allowances (70 FR 73604). EPA 
published a final rule on February 6, 2006, to exempt production and 
import of methyl bromide for 2006 critical uses and indicated which 
uses met the criteria for the exemption program for that year (71 FR 
5985). EPA published another final rule on December 14, 2006, to exempt 
production and import of methyl bromide for critical uses in 2007 and 
indicated which uses met the criteria for critical uses for that year 
(71 FR 75386). Under authority of section 604(d)(6) of the CAA, this 
action lists the uses that qualify as approved critical uses in 2008 
and the amount of methyl bromide that may be produced, imported, or 
supplied from inventory to satisfy those uses.
    This action reflects Decision XVIII/13, taken at the Eighteenth 
Meeting of the Parties in October 2006. In accordance with Article 
2H(5) of the Montreal Protocol, the Parties have issued several 
Decisions pertaining to the critical use exemption. These include 
Decisions IX/6 and Ex. I/4, which set forth criteria for review of 
proposed critical uses (see Section V.E. of this preamble). The status 
of Decisions is addressed in NRDC v. EPA, (464 F.3d 1, DC Cir. 2006) 
and in EPA's ``Supplemental Brief for the Respondent,'' filed in NRDC 
v. EPA and available in the docket for this action. In this final rule, 
EPA is honoring commitments made by the United States in the Montreal 
Protocol context.

V. What Is the Critical Use Exemption Process?

A. Background of the Process

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

[[Page 74121]]

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

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

C. Critical Uses

    In Decision XVIII/13, taken in October 2006, the Parties to the 
Protocol agreed as follows: ``for the agreed critical-use categories 
for 2008, set forth in table C of the annex to the present decision for 
each Party to permit, subject to the conditions set forth in the 
present decision and decision Ex.I/4, to the extent that those 
conditions are applicable, the levels of production and consumption for 
2008 set forth in table D of the annex to the present decision which 
are necessary to satisfy critical uses * * *''
    The following uses are those set forth in table C of the annex to 
Decision XVIII/13: Commodities, Cocoa beans (NPMA \1\ subset), NPMA 
food processing structures (cocoa beans removed), Mills and processors, 
Smokehouse ham, Cucurbits--field, Eggplant--field, Forest nursery, 
Nursery stock--fruit, nut, flower, Orchard replant, Ornamentals, 
Peppers--field, Strawberry--field, Strawberry runners, Tomatoes--field, 
and Sweet potato slips. The agreed critical-use levels for 2008 total 
5,355,946 kilograms (kg), which is equivalent to 21.0% of the U.S. 1991 
methyl bromide consumption baseline of 25,528,270 kg. However, the 
maximum amount of allowable new production and import as set forth in 
table D of Decision XVIII/13 is 4,595,040 kg (18.0% of baseline). For 
the reasons described in Section V.D. of this preamble, EPA is allowing 
up to 3,083,763 kg (12.1% of baseline) of new production or import of 
methyl bromide for critical uses for 2008, with 1,729,689 kg (6.8% of 
baseline) coming from stocks. To clarify, while the Parties require 
only 760,906 kg of stockpile use if the entire U.S. allotment is 
utilized, EPA is allowing use of 1,729,689 kg of pre-phaseout inventory 
for critical uses and reducing allowable production accordingly.
---------------------------------------------------------------------------

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

    In this final rule, EPA is amending columns B and C of Appendix L 
to 40 CFR art 82, subpart A to reflect the agreed critical-use 
categories identified in Decision XVIII/13 for the 2008 control period 
(calendar year). The Agency is amending the table of critical uses 
based, in part, on the technical analysis contained in the 2008 U.S. 
nomination that assesses data submitted by applicants to the critical 
use exemption program as well as public and proprietary data on the use 
of methyl bromide and its alternatives. EPA sought comment on the 
analysis contained in the 2008 nomination and, in particular, any 
information regarding changes to the registration or use of 
alternatives that may have transpired after the 2008 nomination was 
submitted. The Agency stated that such information has the potential to 
alter the technical or economic feasibility of an alternative and could 
thus cause EPA to modify the analysis that underpins EPA's 
determination as to which uses and what amounts of methyl bromide 
qualify for the critical use exemption. Based on Decision XIII/13 and 
the 2008 U.S. CUN, EPA is determining that the uses in Table I: 
Approved Critical Uses, with the limiting critical conditions 
specified, qualify to obtain and use critical use methyl bromide in 
2008.

                    Table I.--Approved Critical Uses
------------------------------------------------------------------------
          Column A                  Column B              Column C
------------------------------------------------------------------------
                                                      Limiting critical
                                                       conditions that
                                                      either exist, or
                                Approved critical     that the approved
   Approved critical uses     user and location of      critical user
                                       use           reasonably expects
                                                     could arise without
                                                       methyl bromide
                                                         fumigation
------------------------------------------------------------------------
Pre-Plant Uses:
    Cucurbits...............  (a) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) Southeastern      Moderate to severe
                               U.S. limited to       yellow or purple
                               growing locations     nutsedge
                               in Alabama,           infestation.
                               Louisiana,           Moderate to severe
                               Mississippi, North    soilborne disease
                               Carolina, South       infestation.
                               Carolina,            Moderate to severe
                               Tennessee, and        root knot nematode
                               Virginia.             infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     root knot nematode
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.

[[Page 74122]]

 
    Eggplant................  (a) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Moderate to severe
                                                     pythium collar,
                                                     crown and root rot.
                                                    Moderate to severe
                                                     southern blight
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Forest Nursery Seedlings  (a) Growers in        Moderate to severe
                               Alabama, Arkansas,    yellow or purple
                               Georgia, Louisiana,   nutsedge
                               Mississippi, North    infestation.
                               Carolina, Oklahoma,  Moderate to severe
                               South Carolina,       soilborne disease
                               Tennessee, Texas,     infestation.
                               and Virginia.        Moderate to severe
                                                     nematode
                                                     infestation.
                              (b) International     Moderate to severe
                               Paper and its         yellow or purple
                               subsidiaries          nutsedge
                               limited to growing    infestation.
                               locations in         Moderate to severe
                               Alabama, Arkansas,    soilborne disease
                               Georgia, South        infestation.
                               Carolina, and Texas.
                              (c) Public            Moderate to severe
                               (government-owned)    weed infestation
                               seedling nurseries    including purple
                               in Illinois,          and yellow nutsedge
                               Indiana, Kentucky,    infestation.
                               Maryland, Missouri,  Moderate to severe
                               New Jersey, Ohio,     Canada thistle
                               Pennsylvania, West    infestation.
                               Virginia, and        Moderate to severe
                               Wisconsin.            nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                              (d) Weyerhaeuser      Moderate to severe
                               Company and its       yellow or purple
                               subsidiaries          nutsedge
                               limited to growing    infestation.
                               locations in         Moderate to severe
                               Alabama, Arkansas,    soilborne disease
                               North Carolina, and   infestation.
                               South Carolina.      Moderate to severe
                                                     nematode or worm
                                                     infestation.
                              (e) Weyerhaeuser      Moderate to severe
                               Company and its       yellow nutsedge
                               subsidiaries          infestation.
                               limited to growing   Moderate to severe
                               locations in Oregon   soilborne disease
                               and Washington.       infestation.
                              (f) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     Canada thistle
                                                     infestation.
                                                    Moderate to severe
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
    Orchard Nursery           (a) Members of the    Moderate to severe
     Seedlings.                Western Raspberry     nematode
                               Nursery Consortium    infestation.
                               limited to growing   Presence of medium
                               locations in          to heavy clay
                               Washington.           soils.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits on use of
                                                     this alternative
                                                     have been reached.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.

[[Page 74123]]

 
                              (b) Members of the    Moderate to severe
                               California            nematode
                               Association of        infestation.
                               Nursery and Garden   Presence of medium
                               Centers               to heavy clay
                               representing          soils.
                               Deciduous Tree       Prohibition on use
                               Fruit Growers.        of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits on use of
                                                     this alternative
                                                     have been reached.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) California rose   Moderate to severe
                               nurseries.            nematode
                                                     infestation.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits on use of
                                                     this alternative
                                                     have been reached.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Strawberry Nurseries....  (a) California        Moderate to severe
                               growers.              soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) North Carolina    Moderate to severe
                               and Tennessee         black root rot.
                               growers.             Moderate to severe
                                                     root-knot nematode
                                                     infestation.
                                                    Moderate to severe
                                                     yellow and purple
                                                     nutsedge
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Orchard Replant.........  (a) California stone  Moderate to severe
                               fruit growers.        nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Replanted (non-
                                                     virgin) orchard
                                                     soils to prevent
                                                     orchard replant
                                                     disease.
                                                    Presence of medium
                                                     to heavy soils.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits on use of
                                                     this alternative
                                                     have been reached.
                              (b) California table  Moderate to severe
                               and raisin grape      nematode
                               growers.              infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Replanted (non-
                                                     virgin) orchard
                                                     soils to prevent
                                                     orchard replant
                                                     disease.
                                                    Medium to heavy
                                                     soils.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits for this
                                                     alternative have
                                                     been reached.
                              (c) California wine   Moderate to severe
                               grape growers.        nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Replanted (non-
                                                     virgin) orchard
                                                     soils to prevent
                                                     orchard replant
                                                     disease.
                                                    Medium to heavy
                                                     soils.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits for this
                                                     alternative have
                                                     been reached.
                              (d) California        Moderate to severe
                               walnut growers..      nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Replanted (non-
                                                     virgin) orchard
                                                     soils to prevent
                                                     orchard replant
                                                     disease.
                                                    Medium to heavy
                                                     soils.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits for this
                                                     alternative have
                                                     been reached.

[[Page 74124]]

 
                              (e) California        Moderate to severe
                               almond growers.       nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Replanted (non-
                                                     virgin) orchard
                                                     soils to prevent
                                                     orchard replant
                                                     disease.
                                                    Medium to heavy
                                                     soils.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits for this
                                                     alternative have
                                                     been reached.
    Ornamentals.............  (a) California        Moderate to severe
                               growers.              soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits for this
                                                     alternative have
                                                     been reached.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) Florida growers.  Moderate to severe
                                                     weed infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) Michigan          Moderate to severe
                               herbaceous            nematode
                               perennials growers.   infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     yellow nutsedge and
                                                     other weed
                                                     infestation.
    Peppers.................  (a) Alabama,          Moderate to severe
                               Arkansas, Kentucky,   yellow or purple
                               Louisiana,            nutsedge
                               Mississippi, North    infestation.
                               Carolina, South      Moderate to severe
                               Carolina,             nematode
                               Tennessee, and        infestation.
                               Virginia growers.    Moderate to severe
                                                     pythium root,
                                                     collar, crown and
                                                     root rots.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation, or
                                                     moderate to severe
                                                     pythium root and
                                                     collar rots.
                                                    Moderate to severe
                                                     southern blight
                                                     infestation, crown
                                                     or root rot.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (d) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.

[[Page 74125]]

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

[[Page 74126]]

 
                              (e) Members of the    Moderate to severe
                               National Pest         beetle or moth
                               Management            infestation.
                               Association          Presence of
                               treating cocoa        sensitive
                               beans in storage      electronic
                               and associated        equipment subject
                               spaces and            to corrosion.
                               equipment and        Time to transition
                               processed food,       to an alternative.
                               cheese, herbs,
                               spices and spaces
                               and equipment in
                               associated
                               processing
                               facilities.
    Commodities.............  (a) California        Rapid fumigation is
                               entities storing      required to meet a
                               walnuts, beans,       critical market
                               dried plums, figs,    window, such as
                               raisins, and dates    during the holiday
                               (in Riverside         season, rapid
                               county only) in       fumigation is
                               California.           required when a
                                                     buyer provides
                                                     short (2 working
                                                     days or less)
                                                     notification for a
                                                     purchase or there
                                                     is a short period
                                                     after harvest in
                                                     which to fumigate
                                                     and there is
                                                     limited silo
                                                     availability for
                                                     using alternatives.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Dry Cured Pork Products.  (a) Members of the    Red legged ham
                               National Country      beetle infestation.
                               Ham Association.     Cheese/ham skipper
                                                     infestation.
                                                    Dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.
                              (b) Members of the    Red legged ham
                               American              beetle infestation.
                               Association of Meat  Cheese/ham skipper
                               Processors.           infestation.
                                                    Dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.
                              (c) Nahunta Pork      Red legged ham
                               Center (North         beetle infestation.
                               Carolina).           Cheese/ham skipper
                                                     infestation.
                                                    Dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.
                              (d) Gwaltney of       Red legged ham
                               Smithfield Ltd.       beetle infestation.
                                                    Cheese/ham skipper
                                                     infestation.
                                                    Dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.
------------------------------------------------------------------------

    The National Pest Management Association (NPMA) requested that the 
language in Column B of Table I describing the NPMA be changed to 
``Members of the National Pest Management Association treating cocoa 
beans in storage and associated spaces and equipment and processed 
food, cheese, dried milk, herbs, spices and spaces and equipment in 
associated processing facilities.'' EPA has incorporated this revised 
language describing the NPMA because it clarifies that commodities will 
be fumigated as part of space fumigations, as indicated in NPMA's 
application.
    Dow Agrosciences LLC (Dow) commented that sulfuryl fluoride 
(ProFume) can replace methyl bromide for all post-harvest uses during 
the 2008 control period. Dow also states that some post-harvest use 
limiting critical conditions are no longer relevant and should be 
removed. The commenter noted that sulfuryl fluoride has superseded 
phosphine and heat as the preferred alternative in post-harvest use 
categories. The commenter requested removal of the following limiting 
critical conditions:

 Time to transition to an alternative
 Older structures that cannot be properly sealed
 Presence of sensitive electronic equipment subject to 
corrosion by phosphine
 Rapid fumigation

    First, EPA addresses the transition rate and overall feasibility of 
sulfuryl fluoride for post-harvest sectors in Section V.D.6. of this 
preamble. Second, EPA agrees that the inability to properly seal older 
structures in preparation for fumigation should not be the sole 
condition for granting critical use exemption status to food processing 
facilities. The 2008 CUN does not state that the inability to seal 
older structures is a basis for methyl bromide need. Therefore, EPA 
agrees and has removed this limiting critical condition from the rule 
text.
    Third, as discussed in the 2008 CUN, research is still ongoing 
regarding the efficacy of sulfuryl fluoride for the post-harvest 
critical uses listed in Table I, and EPA must ensure that post-harvest 
sectors have sufficient time to validate and adopt the new technology. 
Therefore, the presence of sensitive electronic equipment remains a 
proper limiting critical condition for critical use applications that 
would otherwise use phosphine, which corrodes electronic equipment.
    Finally, regarding the rapid fumigation limiting critical condition 
for certain post-harvest sectors, the United States Department of 
Agriculture (USDA) Agriculture Research Service (ARS) is currently 
conducting research on the efficacy and practicality of using 
alternative fumigants, including sulfuryl fluoride, to control post-
harvest pests of durable commodities such as nuts and dried fruit. 
While acknowledging that sulfuryl fluoride appears to have the 
potential to provide effective and rapid vacuum fumigation of nuts and 
dried fruit, the Agency must ensure that the tree nut and dried fruit 
industry has sufficient time to validate and adopt the new technology. 
Therefore, rapid fumigation remains a valid limiting critical condition 
for the sectors where it is listed in Table I.

[[Page 74127]]

    Dow commented that EPA should remove or modify some of the pre-
plant limiting critical conditions in the final rule. The commenter 
stated that with the availability of 1,3-Dichloropropene (1,3-D) as a 
nematicide, ``nematode infestations'' should not qualify as a limiting 
critical condition. The 2008 CUN explained that methyl bromide is the 
only option to effectively control the target pests, including 
nematodes, found in the Southeastern U.S. where pest pressures commonly 
exist at moderate to severe levels. EPA responds in more detail in the 
Response to Comments document for this action.
    At the public hearing for this action the Florida Golf Course 
Superintendents Association and a researcher from Florida University 
argued that the golf and turf industry should qualify for critical use 
methyl bromide. EPA responds to these comments in a Response to 
Comments document available on the docket for this rulemaking.
    EPA is finalizing the proposed changes amending the table in 40 CFR 
Part 82, subpart A, Appendix L, as reflected above. EPA is adding six 
references and deleting four references in column B, changing the 
description of one critical use in column B, and removing one limiting 
critical condition from five post-harvest sectors in column C. 
Specifically, the changes are as follows: Adding Mississippi to the 
approved locations for cucurbit growers because that location was 
included in the approved Southeast Cucurbit Consortium application for 
2008; removing Florida from the approved forest seedling locations 
because a 2008 application for that location was not submitted to EPA; 
removing Maryland from the approved strawberry nursery locations 
because a 2008 application for that location was not submitted to EPA; 
removing California from the approved locations for pepper growers 
because the United States Government did not reflect this location in 
its 2008 CUN; adding Mississippi to the approved locations for pepper 
growers because that location was included in the approved Southeast 
Pepper Consortium application for 2008; adding Mississippi and Missouri 
to the approved locations for strawberry fruit growers because those 
locations were included in the approved Southeastern Strawberry 
Consortium application for 2008; adding California sweet potato slip 
growers to reflect the authorization of that use in Decision XVIII/13; 
adding Mississippi to the approved locations for tomato growers because 
that location was included in the approved Southeastern Tomato 
Consortium application for 2008; removing turf grass because that use 
was not agreed to by the Parties in Decision XVIII/13; adding Gwaltney 
and Smithfield Inc. to the approved entities for dry cured pork 
products because their application was approved for 2008; changing the 
description of members of the National Pest Management Association 
(NPMA) as requested by NPMA; and deleting the limiting critical 
condition ``older structures that can not be properly sealed to use an 
alternative to methyl bromide'' for post-harvest sectors.
    The categories listed in Table I above have been designated 
critical uses for 2008 in Decision XVIII/13 of the Parties. The amount 
of methyl bromide approved for research purposes is included in the 
amount of methyl bromide approved by the Parties for the commodities 
for which ``research purposes'' is indicated as a limiting critical 
condition in the table above. As explained in Section V.D.5. of this 
preamble, EPA is allowing sale of 15,491 kg of methyl bromide from 
existing stocks for research purposes, and adjusting new production 
accordingly.
    In accordance with the recommendations in Table 9 of the TEAP's 
September 2006 Final Report entitled ``Evaluations of 2006 Critical Use 
Nominations for Methyl Bromide and Related Matters,'' available on the 
docket for this rulemaking, EPA is allowing the following sectors to 
use critical use methyl bromide for research purposes: Commodities, 
cucurbits (field), eggplant (field), nursery stock (fruit, nut, 
flower), ornamentals, peppers (field), strawberry (field), strawberry 
runners, and tomatoes (field). In their applications to EPA, these 
sectors identified research programs that require the use of methyl 
bromide.

D. Critical Use Amounts

    Section V.C. of this preamble explains that Table C of the annex to 
Decision XVIII/13 lists critical uses and amounts agreed to by the 
Parties to the Montreal Protocol (Parties). When added together, the 
critical use amounts authorized by the Parties for the U.S. in 2008 
total 5,355,946 kilograms (kg), which is equivalent to 21.0% of the 
U.S. 1991 methyl bromide consumption baseline of 25,528,270 kg. 
However, the limit on authorized new production or import as set forth 
in Table D of the annex to Decision XVIII/13 is 4,595,040 kg (18.0% of 
baseline). The difference between allowable new production and import 
and the total critical use amount is to be made up from pre-phaseout 
inventory that was produced before January 1, 2005. EPA further 
discusses the breakout between new production or import and stocks in 
sections V.D.1-3. of this preamble.
    EPA is establishing the following reductions to the amount of newly 
produced or imported methyl bromide authorized in Decision XVIII/13 to 
satisfy critical uses:
    (a) Reductions to account for the amount of available stocks;
    (b) Reductions to account for unused critical use methyl bromide at 
the end of 2006;
    (c) Reductions to account for methyl bromide for research purposes 
that EPA encourages researchers to purchase from available stocks;
    (d) Reductions to accommodate uptake of sulfuryl fluoride for post-
harvest cocoa bean fumigation in 2008; and
    (e) Reduction to accommodate a certain amount of transition to the 
recently registered fumigant iodomethane for some pre-plant uses.
    After accounting for the reductions listed above, in this action 
EPA is issuing 3,083,763 kg of critical use allowances (CUAs), which 
allow limited amounts of new production and import of methyl bromide 
for 2008 critical uses up to the amount of 3,083,763 kg (12.1% of 
baseline) as shown in Table II. EPA is also issuing 1,729,689 kg of 
critical stock allowances (CSAs), which allow sales of 1,729,689 kg 
(6.8% of baseline) from existing pre-phaseout inventories for critical 
uses in 2008. Sections V.H. and V.I. of this preamble provide 
definitions for the terms CUA and CSA. EPA explains each of the 
reductions listed above in subsequent sections of this preamble.
    EPA received five comments that object to the Agency's proposed 
reductions and state that EPA should grant the full amount of new 
production allowed by the Parties to the Montreal Protocol in Decision 
XVIII/13.
    EPA received one comment from Chemtura Corporation (Chemtura) 
asserting that EPA ``arbitrarily'' reduces the amount of production 
authorized by the Parties and ``never deigns to explain how amounts for 
production previously determined to be critical are deemed no longer to 
be critical.'' At the public hearing for this action three commenters 
argued that the methyl bromide allocations have been reduced at each 
stage of the review process and do not need to be further reduced by 
the Agency in this rulemaking. When the USG prepares a critical use 
nomination, it is making a determination as to the level of critical 
need. It is not making a determination that a particular portion of 
that need should be met from new

[[Page 74128]]

production as compared to stocks. The Parties' Decisions contain a 
determination as to the level of critical need as well as a maximum 
amount of that total need that may be met from new production. The 
Parties' Decisions do not specify a minimum amount that must be met 
from new production. It is not accurate to state, as the commenter 
does, that a particular production amount is itself ``critical.'' As 
explained elsewhere in this preamble, EPA is adjusting the amount of 
new production to take into account stocks that it has determined to be 
available.
    Fumigation Service and Supply, Inc. (FSS) commented that the 
Copenhagen Amendment was signed by the U.S. to phase out methyl bromide 
14 years ago, and stated that this time period should have been 
adequate for all users of methyl bromide to switch to alternative 
fumigation methods. The commenter stated that EPA's proposed 
allocations will penalize companies that have already phased out methyl 
bromide. The Natural Resources Defense Council (NRDC) requested that 
EPA reduce the 2008 CUE allocations by at least 1,275,000 kg and by 
larger amounts in 2009 due to advancements in using sulfuryl fluoride 
and iodomethane. The comments on EPA's proposed allocation amounts are 
addressed in subsequent sections of this preamble and in the Response 
to Comments document available on the docket for this action.
1. Background of Critical Use Amounts
    The Framework Rule (69 FR 76982) and subsequent CUE rules each took 
note of language regarding stocks of methyl bromide in relevant 
decisions of the Parties. In developing this action, the Agency noted 
that paragraph six of Decision XVIII/13 contains the following 
language: ``that each Party which has an agreed critical use renews its 
commitment to ensure that the criteria in paragraph 1 of decision IX/6 
are applied when licensing, permitting or authorizing critical use of 
methyl bromide and that such procedures take into account available 
stocks of banked or recycled methyl bromide, in particular, the 
criterion laid down in paragraph 1(b)(ii) of decision IX/6.'' Language 
calling on Parties to address stocks also appears in prior Decisions 
related to the critical use exemption.
    In the Framework Rule, which established the architecture of the 
CUE program and set out the exempted levels of critical use for 2005, 
EPA interpreted paragraph 5 of Decision Ex. I/3, which is similar to 
Decision XVIII/13(6), ``as meaning that the U.S. should not authorize 
critical use exemptions without including provisions addressing 
drawdown from stocks for critical uses'' (69 FR 76987). Consistent with 
that interpretation, the Framework Rule established provisions 
governing the sale of pre-phaseout inventories for critical uses, 
including the concept of CSAs and a prohibition on the sale of pre-
phaseout inventories for critical uses in excess of the amount of CSAs 
held by the seller. In addition, EPA noted that stocks were further 
taken into account through the trading provisions that allow CUAs to be 
converted into CSAs. In developing this final rule, EPA did not propose 
changes to these basic CSA provisions.
    In the August 25, 2004, Proposed Framework Rule (69 FR 52366), EPA 
proposed to adjust the authorized level of new production and 
consumption for critical uses by the amount of ``available'' stocks. 
The methodology for determining the amount of ``available'' stocks 
considered exports, methyl bromide for feedstock uses, and the need for 
a buffer in case of catastrophic events. However, the Final Framework 
Rule did not adopt the proposed methodology for determining available 
stocks. Instead, EPA issued CSAs in an amount equal to the difference 
between the total authorized CUE amount and the amount of new 
production or import authorized by the Parties (Total Authorized CUE 
Amount--Authorized New Production and Import).
    In the 2006 CUE Rule, published February 6, 2006 (71 FR 5985), EPA 
applied the approach described in the Framework Rule by allocating as 
CSAs the difference between the total authorized CUE amount and the 
amount of new production and import authorized by the Parties (2.0% of 
baseline), as well as the small supplemental allocation in Decision 
XVII/9 (0.4% of baseline). EPA also issued CSAs allowing additional 
amounts of existing stocks to be sold for critical uses (roughly 3.0% 
of baseline). In the 2006 CUE Rule, EPA issued a total of 1,136,008 kg 
as CSAs, equivalent to 5.0% of baseline. Similarly, in the 2007 CUE 
Rule, EPA issued a number of CSAs that represented not only the 
difference between the total authorized CUE amount and the amount of 
authorized new production and import (6.2% of baseline), but also an 
additional amount (1.3% of baseline) for a total of 1,915,600 CSAs 
(7.5% of baseline).
    EPA viewed the allocation of additional CSA amounts as an 
appropriate exercise of its discretion. EPA reasoned that the Agency 
was not required to allocate the full amount of authorized new 
production and consumption. The Parties agreed to ``permit'' a 
particular level of production and consumption; they did not--and could 
not--mandate that the U.S. authorize this level of production and 
consumption domestically. Nor does the CAA require EPA to exempt the 
full amount permitted by the Parties. Section 604(d)(6) of the Clean 
Air Act (CAA) does not require EPA to exempt any amount of production 
and consumption for critical uses, but instead specifies that the 
Agency ``may'' exempt amounts for production, import, and consumption, 
thus providing EPA with substantial discretion in creating critical use 
exemptions.
    In the July 6, 2006, Proposed 2007 CUE Rule (71 FR 38325), EPA 
sought comment on ``whether, in the critical use exemption context, it 
would be appropriate to adjust the level of new production and import 
with the goal of maintaining a stockpile of some specified duration [* 
* *] and on how many months of methyl bromide inventory would be 
appropriate, in order to maintain non-disruptive management of this 
chemical in the supply chain'' (71 FR 38339). In the Final 2007 CUE 
Rule, EPA noted that ``the Parties have not taken a decision on an 
appropriate amount of inventory for reserve. Nor has EPA reached any 
conclusion regarding what amount might be appropriate. Given this 
uncertainty, and the continuing decline in inventory levels, EPA is 
exercising caution in this year's CSA allocation. EPA will consider 
various approaches to this issue in the future based on the data 
received during this notice and comment rulemaking process and other 
information obtained by the Agency'' (71 FR 75399).
    The benefits of pre-phaseout methyl bromide inventories for 
critical uses were discussed at the 18th and 19th Meetings of the 
Parties (MOPs). The Parties did not take a decision at the 18th or 19th 
MOP on whether it would be appropriate to allow some specific amount of 
pre-phaseout stocks to remain in inventory, or what amount that might 
be. However, at the 19th MOP, the Parties did recognize that it is 
appropriate to adjust new production and import levels to account for 
the amount of ``available stocks.'' In Table D of the Annex to Decision 
XIX/9, the Parties authorized new production and consumption for 
critical uses in the United States during 2009 of 3,961,974 kg, ``minus 
available stocks.''
    In the proposed rule, EPA noted that in another instance--essential 
use exemption process for the use of chlorofluorocarbons in the 
manufacture of metered-dose inhalers--the Parties have allowed 
companies to maintain

[[Page 74129]]

working stocks of up to one year's supply. As explained in the FDA 
Determination Letter available on the public docket for this 
rulemaking, FDA bases its determination of the amount of CFC production 
that is necessary for medical devices ``on an estimate of the quantity 
of CFCs that would allow manufacturers to maintain as much as a 12-
month stockpile.'' However, neither FDA nor EPA maintains a CFC reserve 
on behalf of any essential use manufacturer, or guarantees that a 
certain amount of CFCs will always be held in inventory.
    Similarly, in developing this action, EPA did not propose to 
maintain a reserve of methyl bromide for critical uses, or to guarantee 
that a certain amount of methyl bromide would always be held in 
inventory. EPA did, however, propose to calculate the amount of 
existing methyl bromide stocks that is available for critical uses in 
2008, and to consider this amount in the Agency's determination of how 
much sale of existing stocks and how much production and import to 
allow for critical uses in 2008. Section V.D.2. of the proposed rule 
described EPA's proposed method to calculate the amount of stocks 
available for critical uses in 2008. Section V.D.3. of the proposed 
rule explained how EPA proposed to adjust new production and import 
levels to account for the Agency's calculation of the amount of 
available stocks.
    In the proposed rule, EPA explained that through data collection 
and experience, EPA has gained information about the CUE program that 
the Agency did not have when the program began. For example, data on 
the aggregate amount of methyl bromide held in inventory at the end of 
calendar years 2003, 2004, 2005, and 2006 is now available in the 
public docket for this rulemaking. The pre-phaseout inventory has 
gradually declined to the point where, for the first time, EPA 
estimates that at the start of the 2008 control period the pre-phaseout 
inventory will represent less than a one-year supply of critical use 
methyl bromide. EPA explained that the proposed approach is intended as 
a clear and repeatable process for the Agency to make responsible 
allocations that reflect a reasonable estimate of the amount of 
inventory available in a future control period based on data collected 
from earlier control periods.

2. Calculation of Available Stocks

    In developing this action, EPA proposed a formula to calculate the 
amount of available stocks in 2008, expressed as follows: AS = ES--D--
SCF, where AS = available stocks on January 1, 2008; ES = existing pre-
phaseout stocks of methyl bromide held in the United States by 
producers, importers, and distributors on January 1, 2007; D = 
estimated drawdown of existing stocks during calendar year 2007; and 
SCF = a supply chain factor, the calculation of which was described in 
the proposed rule and in the Technical Support Document (TSD) available 
on the public docket for this rulemaking. Using the methodology 
described in the proposed rule, EPA proposed that ES = 7,671,091 kg; D 
= 3,224,351 kg; and SCF = 2,731,211 kg. EPA proposed that 1,715,438 kg 
(6.7% of baseline) of pre-phaseout methyl bromide stocks will be 
available for critical uses in 2008. The Agency sought comments on its 
proposed methodology.
    The Methyl Bromide Industry Panel (MBIP) correctly noticed in its 
comments that EPA made a mathematical error in its calculation of 
available stocks in the proposed rule. Even though EPA listed existing 
stocks as 7,671,091 kg, which is the correct value, the Agency used the 
value 7,671,000 kg in its calculation. As a result, EPA proposed 
1,715,438 kg of available stocks in 2008, when EPA intended to proposed 
available stocks of 1,715,529 kg. In other words, EPA underestimated 
available stocks by 91 kg. EPA has corrected its calculations in this 
final rule.
    The North American Millers' Association (NAMA) commented that the 
mechanisms for reporting pre-phaseout inventory and usage are 
imprecise, and therefore the Agency's calculations of inventory levels 
are likely inaccurate. The commenter did not explain why it stated that 
the mechanisms for reporting stocks and usage are imprecise, and EPA 
has not found any specific reason to question the accuracy of its 
aggregate pre-phaseout inventory data.
    EPA received seven comments supporting the creation of a supply 
chain factor (SCF), but these comments asserted that the 15-week SCF 
suggested for use in the event of a supply disruption is inadequate and 
recommended a one-year supply instead. The commenters may have 
misunderstood the assumption in the TSD, which explains EPA's analysis 
of how large the SCF should be, that it would take up to 15 weeks for 
adequate amounts of methyl bromide imports to reach the U.S. if there 
is a domestic production failure. Because the Agency proposed an SCF 
that would provide insurance against a production failure during the 
peak production season (i.e. the beginning of the calendar year), the 
Agency's proposed SCF is actually equivalent to about 51% of the 
5,355,946 kg authorized for U.S. critical uses in 2008, or roughly a 
six-month supply if demand were constant throughout the year. The 
commenters provide a number of reasons why they recommend a larger 
supply buffer, and EPA responds to those comments below.
    Chemtura stated that EPA's proposed SCF is inappropriate because it 
conflicts with the USG's position at the 19th Meeting of the Parties 
(MOP) to the Montreal Protocol in Montreal, Canada, where the commenter 
asserted the USG delegation requested a six month reserve for critical 
uses. NRDC commented that the Parties rejected the U.S. proposal to 
allow maintenance of a half-year supply chain reserve at the 19th 
Meeting of the Parties. EPA disagrees with Chemtura's characterization 
of the events at the September 2007 MOP, and with Chemtura's assertion 
because a negotiating position does not constitute a factual basis for 
a rulemaking, or a specific policy or technical finding of the USG. 
Furthermore, as explained in the proposed rule (72 FR 48966), EPA's 
proposed SCF provides a technical basis for calculating available 
stocks that is consistent with the Montreal Protocol, and therefore 
clearly within EPA's authority under Section 604(d)(6) of the Clean Air 
Act. EPA also disagrees with NRDC's assertion, because the Parties 
neither adopted nor rejected the creation of such a reserve. More 
information about the 2007 MOP is provided in the Report of the 
Nineteenth MOP, available on the docket for this action.
    Chemtura and MBIP quoted the technical limitations discussed in the 
TSD and stated that these limitations render the final calculation 
invalid. The Agency does not agree that any of the acknowledged 
technical limitations individually, or taken together, invalidate 
either the proposed SCF or EPA's calculation of available pre-phaseout 
inventory. EPA's proposed SCF should be considered within the context 
of the United States' renewed commitment in paragraph six of Decision 
Ex.II/1, which was restated in Decision XVIII/13, to ensure that the 
criteria in Decision IX/6(1), which is explained above, are applied 
when allowing the use of methyl bromide. One of the primary ways that 
EPA met this commitment in previous years was to consider the aggregate 
quantity of existing stocks, and to reduce authorized new production 
levels to encourage a more rapid drawdown of existing stocks than 
required by the Parties. EPA's consideration of stocks in

[[Page 74130]]

determining the appropriate production level is partially responsible 
for steadily shrinking the volume of pre-phaseout inventory to less 
than half of its 2003 amount, and the Agency projects that aggregate 
stocks will represent less than a one year supply of critical use 
methyl bromide at the beginning of 2008. With existing inventories 
declining significantly, EPA asked, at what point should the Agency 
stop facilitating a more rapid inventory drawdown? To answer this 
question, and to enhance the transparency and uniformity of future CUE 
allocation rules, EPA proposed to estimate the level of aggregate 
inventory that would be necessary to respond to a scenario in which all 
methyl bromide production in the U.S. is abruptly halted during peak 
production season. The Agency did not conduct a statistical or 
probability analysis of the likelihood of this scenario. EPA chose this 
scenario because in the U.S. methyl bromide, unlike most commercial 
chemicals, is produced at only one facility. Therefore, a scenario in 
which this facility completely ceases production is of special concern. 
In estimating the amount of methyl bromide that would be necessary in 
such a scenario, EPA considered the effect of such a production failure 
during the peak production season. EPA chose this conservative approach 
partly in recognition that there could be other contingencies that 
might affect critical users' ability to obtain methyl bromide.
    Five commenters raised examples of other events that could occur, 
and argued that the SCF should account for all of these contingencies 
happening together. EPA notes that the probability that all of these 
contingencies occurring together is lower than the probability that any 
of them will occur individually. In addition, many of the possible 
events described by the commenters would have an uncertain effect not 
easily quantified. The scenario that EPA used as a basis for the size 
of the proposed SCF is straightforward and allows for quantification. 
In general, EPA relies on private entities to take prudent steps to 
protect themselves against various contingencies. The inclusion of the 
SCF in the calculation of available stocks provides suppliers an 
opportunity to maintain a buffer, but is not designed to guarantee the 
availability of pre-phaseout inventory in all conceivable 
circumstances.
    NRDC and Dow stated that EPA has no basis for assuming a 
catastrophic loss at the U.S. methyl bromide production plant, as no 
such event has ever occurred at this location. In addition, they found 
unlikely EPA's assumption of such an event happening right after the 
first of the year. First, EPA points out--as it did in the proposed 
rule--that the methyl bromide industry is unlike many others because 
there is only one active production facility in the United States. EPA 
recognizes that a catastrophic loss is unlikely, but this does not 
obviate the need to plan for such a scenario. While EPA expects private 
entities to take prudent steps to protect themselves, EPA does not wish 
to render them incapable of maintaining a reasonable supply buffer. In 
developing the TSD, the Agency estimated that significant imports could 
arrive in up to 15 weeks. Depending on what season the production 
failure occurred, EPA estimated that the lost production would be 
within the range of 11-51% of the 2008 demand for 2008 critical use 
methyl bromide. EPA proposed the conservative value, an SCF equivalent 
to 51% of the 2008 need for critical use methyl bromide, in part to 
account for a wider range of other supply disruption scenarios that 
could occur.
    Below, EPA reiterates the technical limitations of the TSD, and 
explains why each limitation does not render the final estimate 
invalid, as a number of the commenters contended.
    The TSD stated that, ``pre-2005 inventory is held by multiple 
companies, and the sale of that inventory is governed by market forces. 
Hence, in the event of a production failure, the stockpile could be 
purchased by any user (i.e., critical use/non-critical use, quarantine 
and preshipment, feedstock, or foreign users). Most likely, the 
stockpile would go to the user willing to pay the highest price in time 
of short-term global shortage. Second, there may also be existing 
contract agreements that must be honored. As a result, there is no 
guarantee that the existing pre-2005 inventory of methyl bromide will 
flow towards U.S. critical uses in the case of a production failure.'' 
Quarantine and preshipment (QPS) refers to the exemption from the 
phaseout of methyl bromide for quarantine and preshipment applications 
as defined in the January 2, 2003, QPS Final Rule (68 FR 238) and at 40 
CFR 82.3. EPA believes that methyl bromide for QPS, feedstock, and 
exempted Article 5 country (developing country) uses would not have to 
be supplied from pre-phaseout inventory after a supply disruption, 
because, as explained in the proposed rule, existing regulations allow 
manufacturers and distributors to manage inventories of methyl bromide 
designated for those purposes (72 FR 48968).
    There is precedent in the CUE program for allowing methyl bromide 
distributors to respond to market forces. In the Proposed Framework 
Rule, EPA explained that, ``The issuance of critical stock allowances 
(CSAs) does not obligate holders to make these quantities available to 
critical uses if they choose for practical or business reasons not to 
sell or distribute stocks to critical uses. However, EPA believes that 
these firms will respond to market conditions'' (69 FR 52376). 
Similarly, EPA's consideration of a SCF in its calculation of available 
stocks does not obligate suppliers to sell their stocks to critical 
users following a supply disruption. EPA is unable to predict exactly 
how stocks would be used after a disruption. All things considered, EPA 
does not believe that the possibility that some inventory would be 
consumed by non-critical users after a supply disruption should 
invalidate or alter the size of the proposed SCF.
    The TSD also stated that, ``it is not clear that a contingency plan 
exists amongst the various methyl bromide producers as to how to 
respond to a major supply disruption. Thus, the reallocation of 
shipping containers to import methyl bromide into the United States may 
not occur smoothly over the first weeks or months while the various 
manufacturers, shippers, and customers sort out their arrangements.'' 
Similarly, two commenters expressed concern that importing the methyl 
bromide necessary to meet U.S. demand would take far longer than 15 
weeks due to inflexibilities in the methyl bromide shipping system. 
Chemtura stated that ``adjusting distribution patterns to accommodate a 
sudden shift in worldwide demand and supply, as would occur with the 
loss of U.S. production, would require an extensive, ad hoc redesign of 
this distribution system with very little, if any, lead time.''
    The possibility that methyl bromide distributors have not conducted 
emergency response planning does not invalidate the SCF estimate 
described in the TSD. Methyl bromide distribution is the responsibility 
of the methyl bromide industry and not EPA. EPA's role is to allow 
producers and distributors to satisfy critical needs for methyl 
bromide, not to guarantee that they will do so. The Agency carefully 
considered physical shipping constraints that dictate how rapidly 
methyl bromide distribution patterns can shift, including ISO container 
capacity, the length and timing of shipping routes, and the volume of 
methyl bromide that could be shipped internationally to maintain the 
global distribution system following a

[[Page 74131]]

U.S. production failure. However, for the reasons expressed above, the 
TSD does not assume that distributors would need long periods of time 
to redesign their distribution patterns in order to respond. 
Furthermore, since each shipping route would take weeks to complete, 
the TSD assumed that industry would have ample planning time to re-
route containers as necessary.
    Finally, the TSD stated that, ``characteristics such as the purity 
of the pre-2005 inventory of methyl bromide could affect users' ability 
to use this inventory to meet their needs for methyl bromide; however, 
these characteristics are not known. For example, some of the methyl 
bromide held in inventory intended for pre-plant uses may be pre-mixed 
with chloropicrin in compressed gas cylinders and therefore could not 
be used for post-harvest fumigation.'' Similarly, EPA received comments 
from The Industrial Fumigant Company (IFC) and MBIP that expressed 
concern about the availability of stocks of methyl bromide free of 
chloropicrin for the post-harvest sector. MBIP stated that chloropicrin 
is premixed in ``virtually the entire'' U.S. inventory of existing 
stocks. IFC was especially concerned about the possible need for 
emergency fumigation treatments, which would require pure methyl 
bromide.
    EPA's current reporting requirements do not request information 
about all of the characteristics, or composition, of the existing 
stockpile. Just prior to publishing the proposed rule, the Agency 
received anecdotal information suggesting that a large percentage of 
the existing stockpile is mixed with chloropicrin, and therefore 
unsuitable for post-harvest uses. EPA has also heard conflicting 
reports stating that a substantial portion of the existing stockpile is 
pure methyl bromide. The Agency is currently considering options to 
obtain more information about the existing stockpile, including but not 
limited to, requesting information from holders of pre-phaseout 
inventory using information-gathering authority under section 114 of 
the Clean Air Act. Because the CUA amount in today's final rule is less 
than the production amount authorized by the Parties, EPA may consider 
allowing the conversion of some CSAs to CUAs in appropriate 
circumstances. The Agency also notes that if pre-phaseout inventory 
contains very small amounts of pure methyl bromide, then allowing for a 
larger supply buffer composed of that inventory would not remedy the 
commenters' concerns.
    Chemtura commented that EPA needs to acknowledge methyl bromide's 
role as a tool in responding to catastrophic events such as a need to 
provide widespread re-fumigation after a natural disaster, and that 
methyl bromide has security as well as economic importance. EPA agrees 
with the commenter and acknowledges methyl bromide's role in responding 
to the situations described by the commenter. Methyl bromide's role in 
responding to such challenges as those listed by the commenter is one 
of the reasons EPA proposed a SCF in its analysis of available stocks, 
and based its estimate of the SCF on conservative assumptions.
    Four commenters stated that the SCF should be a one-year supply 
because of the global ramifications that the supply disruption from the 
U.S.'s one plant could have. EPA agrees that a severe critical use 
methyl bromide shortage in the U.S. could have important global 
ramifications. That is one reason EPA considered international factors 
in its SCF analysis. For example, after close scrutiny, EPA estimated 
that foreign production capacity is capable of meeting global demands 
for methyl bromide. While the commenters did not provide a specific 
basis for why a one-year supply would be most appropriate, EPA responds 
to some of their other concerns below and in the Response to Comments 
document on the docket for this rulemaking.
    Four commenters raised concerns about the ability of the Israeli 
plant, which could supply critical use methyl bromide to the U.S. after 
a domestic production failure, to divert methyl bromide to the U.S., 
especially in light of conflicts occurring in the Middle East. The 
commenters did not provide specific information about the likelihood or 
consequences of the Israeli supply disruption that they mentioned. The 
TSD required a determination about which contingencies to use as the 
basis for the analysis. Contingencies that were too speculative or 
whose effects could not be readily quantified were not included in the 
analysis. However, EPA adopted a conservative approach in recognition 
that its analysis could not address all possible contingencies. One of 
the commenters stated that the U.S. would not be sacrificing 
environmental goals by maintaining a one-year SCF because stockpiled 
methyl bromide that is not in use can do no harm to the environment. 
EPA notes that using existing methyl bromide can displace the need for 
new production, with corresponding environmental benefits.
    MBIP and Chemtura both asserted that importing methyl bromide to 
meet U.S. demand would take longer than the 15 weeks EPA estimates. 
MBIP claimed that the current capacity of specialized ISO containers, 
which are used to ship methyl bromide overseas, is inadequate to 
maintain global distribution following a supply disruption. MBIP 
stated, ``Assuming round trip times of 45 days for shipments from 
Israel to Europe and 90 days for all other trips, the current worldwide 
fleet of ISO containers would need to immediately grow by more than 35% 
to establish and maintain the global distribution system for methyl 
bromide within the 15-week period estimated by EPA.'' In their public 
comments Chemtura stated, ``To assist the Agency further in 
understanding the logistical challenges raised by a shut-down of U.S. 
production, Chemtura is submitting, as business-confidential exhibits, 
two diagrams showing its estimates of the current global distribution 
map, and how the distribution map would change if U.S. production were 
suddenly disrupted.''
    EPA disagrees with MBIP's claim that the current fleet of ISO 
containers would be unable to maintain the global distribution system 
for methyl bromide within the 15-week period estimated by the Agency. 
The conclusions described in the TSD are based, in part, on a detailed 
analysis of the capacity of the existing ISO container fleet, and other 
shipping logistics. EPA could not reconcile the differences between the 
Agency's estimate and MBIP's estimate, because MBIP did not provide 
details about how it concluded that the existing fleet of containers 
would be inadequate.
    After close analysis, EPA found a number of points of disagreement 
with the assumptions in Chemtura's confidential submission. In general, 
these disagreements are related to concerns that Chemtura raised in its 
public comments, which EPA addresses in this preamble. For 
confidentiality reasons, the Agency is unable to elaborate on how 
Chemtura's submission conflicts with the analysis explained in the TSD. 
The Agency closely analyzed Chemtura's confidential submissions and did 
not find a specific reason therein to revise the TSD, or the size of 
the proposed SCF. EPA's detailed response to Chemtura's confidential 
comments has been placed on a confidential section of the docket 
because it includes information claimed as confidential business 
information.
    MBIP raised several concerns about the amount of time it would take 
for foreign methyl bromide producers--specifically Israel Chemicals 
Ltd. (ICL)--to ramp-up production after a U.S. production failure. MBIP 
stated that increasing foreign production would take longer than EPA 
estimated because: Methyl bromide manufacturers

[[Page 74132]]

typically plan production several months in advance; foreign producers 
may have to wait for government approval before increasing their 
production; and an immediate increase in methyl bromide production may 
not be possible due to limited storage capacity.
    In the analysis underpinning the TSD, EPA built in a certain amount 
of time--starting when U.S. production fails--for foreign producers to 
make arrangements and adjustments to their production schedules before 
they would need to ramp-up production. EPA considered the ability of 
foreign producers to ramp-up production, including gaining access to 
raw materials and storage capacity. Foreign producers could increase 
production and exports to the United States without approval from the 
Parties to the Montreal Protocol, so long as entities holding CUA 
allowances are willing to expend their CUAs to import that material. 
MBIP did not provide specific information about how the concerns it 
raised should change the analysis contained in the TSD, or whether 
there are steps that foreign producers could take in advance as 
contingency measures that could alleviate these concerns. EPA responds 
to these comments in more detail in the Response to Comments document 
on the docket for this action.
    MBIP noted that ``significant regulatory challenges could hamper 
companies' ability to obtain a sufficient supply of chloropicrin for 
methyl bromide formulations'' and that ``if quantities of chloropicrin 
had to be exported from the U.S. to Israel, several CWC [Chemical 
Weapons Convention] regulatory requirements would be triggered.'' While 
it is true that the export of chloropicrin to Israel would involve 
certain export certificates, it is not clear that quantities of 
chloropicrin would need to be exported from the U.S. to Israel.
    According to preliminary Form R reports from the 2006 Toxic Release 
Inventory (TRI), as well as past reports from 2005, methyl bromide/
chloropicrin products are currently formulated at five or more 
facilities around the United States (EPA has placed information 
collected from the TRI on the docket for this action). Thus, at least 
for the products sold by these distributors to U.S. critical users, 
chloropicrin would not be required to be exported to Israel for 
formulation. The commenter did not provide specific information about 
the likelihood that the CWC, or other regulatory measures, would impede 
the supply of methyl bromide products to U.S. critical users, or 
whether advance planning could help resolve potential difficulties.
    MBIP commented that the distribution system for methyl bromide in 
the U.S. is complex and that imports would not reach all repackaging 
locations in the same time period. The commenter stated that 500,000 
kilograms of methyl bromide must remain in the system (a minimum of 
3,231 metric tons of pre-phaseout stocks) to keep the domestic 
distribution system functional. EPA specifically accounted for this 
concern in the proposed SCF analysis. The SCF would replace lost 
production for 15 weeks until imports arrive. Assuming these imports 
are all shipped to the location where methyl bromide is currently 
produced in the U.S., imported methyl bromide could be expected to 
reach repackaging locations in the same amount of time as it would if 
there were no production failure. EPA recognizes that the timely 
distribution of pre-phaseout stocks after a domestic production failure 
would depend upon business decisions made by suppliers. However, the 
proposed SCF is large enough to give suppliers the opportunity to 
provide uninterrupted distribution in the analyzed scenario.
    In its comments, MBIP stated: ``EPA does not consider regulatory 
obstacles that may delay the availability of alternate supply * * * In 
addition, formulations of methyl bromide are regulated by EPA as 
pesticides under FIFRA. As such, suppliers of these products must 
maintain registrations with EPA. Under FIFRA, the source of methyl 
bromide used in the products must be identified to EPA and detailed 
information about the manufacturing process must be submitted. In 
addition, the labels for all products must bear a special number that 
denotes the pesticide producing establishment where the product is 
formulated. If production is shifted to another location, the source 
information, manufacturing process data, and labels for all affected 
products would have to be updated before the products could be imported 
or distributed in the U.S. For example, if the methyl bromide that is 
sourced from Israel is made using a different manufacturing process 
than those on file with EPA, U.S. registrants may need to notify EPA of 
the change in the formulation process that is on file or even file an 
amendment to that process.''
    Pesticide registration information is highly confidential, but 
critical sales data shows that imported methyl bromide is registered 
for some critical uses in the U.S. EPA does not obligate producers to 
register their products for all U.S. critical uses, but the Agency 
believes that firms will respond to market conditions, and undertake 
appropriate emergency response planning. A firm's decision about 
whether to register its product for critical uses is similar to 
business planning decisions under the established critical stock 
allowance policy noted above; in which EPA let firms respond to market 
conditions, instead of requiring them to sell methyl bromide to 
critical users (69 FR 52376). The Agency believes that the added 
transparency of the SCF approach will help companies respond to market 
conditions more rapidly and appropriately.
    NRDC and Dow objected to the proposal to create an SCF and believe 
the methyl bromide in question should be used to reduce or eliminate 
the need for new production and import allocations for 2008. The Agency 
explained the reasons for proposing an SCF in the proposed rule. EPA 
responds to the commenters' specific concerns below and in the Response 
to Comments document.
    NRDC stated that the SCF will be equivalent to existing stockpiles 
and will be easy to get and use by those with restricted use pesticide 
licenses. NRDC also stated that stocks will not be maintained for the 
purpose of the SCF--the stocks intended for the SCF that remain 
unallocated for CUEs can be freely used by non-critical users. The 
commenter is correct that this supply buffer would be composed of 
methyl bromide produced before the January 1, 2005, phaseout. The 
commenter is also correct that non-critical users are not barred from 
purchasing pre-phaseout methyl bromide inventory. In the Final 
Framework Rule, EPA explained its rationale and authority for allowing 
non-critical users to access pre-phaseout inventory (69 FR 76988). EPA 
is not revisiting that issue in this rulemaking.
    The Agency does not believe that the fact that producers and 
distributors may sell pre-phaseout inventory to non-critical users 
invalidates the proposed SCF, or EPA's proposed estimation of the 
amount of available stocks in 2008. The commenter is speculating about 
what suppliers would do given the opportunity to maintain a buffer, 
which is something that has not yet been tested. Information on pre-
phaseout inventory drawdown during 2008 will inform EPA's future CUE 
rulemakings.
    While EPA did not propose to require that distributors keep the SCF 
amount as a supply buffer for critical users, Section V.D.3. of the 
proposed rule laid out an approach in which the Agency would stop 
drawing down stocks faster

[[Page 74133]]

than the minimum agreed by the Parties, if EPA determines that 
available stocks will be less than the SCF amount. By considering a SCF 
in its analysis of the amount of stocks that are available for critical 
uses, EPA is giving producers and distributors the opportunity to 
provide a reasonable supply buffer to satisfy critical needs.
    At the public hearing for this action the California Strawberry 
Commission (CSC) and Ameribrom Inc. commented that the private 
companies that own pre-phaseout inventory have no obligation to sell 
it. Ameribrom commented that the SCF needs to be held by manufacturers 
and importers because distributors, who own a large portion of the pre-
phaseout inventory, do not distribute the methyl bromide when it is 
needed. EPA notes that the supply of pre-phaseout inventories to 
critical users is based upon private business decisions that the Agency 
does not control and responds to these comments in more detail in the 
Response to Comments document available on the docket for this action.
    Dow stated that the SCF should be based on what it called ``the 
actual 2008 methyl bromide demand (4,816,514 kg) as determined by the 
U.S. Government and as proposed in the rule,'' rather than the amount 
approved by the Parties (5,355,946 kg). The commenter stated that an 
SCF calculated based upon a methyl bromide volume that exceeds the 
critical need for 2008 renders the SCF value and basis for the 
calculation nonsensical. Dow concluded that this simple recalculation 
would reduce overall new production in 2008 by more than 250,000 kg.
    It appears that the Dow's figure for ``actual methyl bromide 
demand'' is derived by subtracting the proposed 539,432 kg carryover 
amount (72 FR 48969), from the critical use amount agreed to by the 
Parties (5,355,946 kg). As discussed in Section V.D.4. of this 
preamble, EPA reduces new production to account for carryover critical 
use material in order to prevent companies from building inventories of 
newly produced critical use methyl bromide. EPA reduces new production 
amounts to account for carryover, but in doing so the Agency is not 
reopening the issue of the overall amount of total critical need. EPA 
expects that critical users will satisfy the remainder of their 
critical needs by using the critical use methyl bromide that was unused 
in previous control periods. Therefore, the SCF is only affected by 
reductions to account for the feasibility of alternatives. Accordingly, 
for the reasons explained in Section V.D.6. of this preamble, EPA is 
reducing the total 2008 CUE by 27,769 kg to account for the increased 
uptake of sulfuryl fluoride and iodomethane in 2008. The Agency has re-
calculated the SCF by applying a revised 2008 critical use demand of 
5,328,177 kg. This adjustment reduces the SCF by 14,160 kg.
    To clarify, EPA proposed that the SCF should represent about 51% of 
the total critical need in 2008. In the proposed rule, the Agency 
assumed that the total critical need in 2008 would be 5,355,946 kg, as 
agreed to by the Parties in Decision XVIII/13. Therefore, EPA proposed 
an SCF of 2,731,211 kg (5,355,946 kg * 50.994% = 2,731,211 kg). As 
explained in Section V.D.6. of this preamble, EPA now estimates that 
the total critical need in 2008 will be 27,769 kg less than the Parties 
authorized in Decision XVIII/13, because EPA is making further 
reductions to account for the uptake of sulfuryl fluoride for cocoa 
bean fumigation, and for the newly registered fumigant iodomethane. 
Therefore, in this final rule EPA estimates that the total critical 
need in 2008 will be 5,328,177 kg. Accordingly, EPA now calculates an 
SCF of 2,717,051 kg (5,328,177 kg * 50.944% = 2,717,051 kg).
    Dow commented that the SCF is counterproductive to the phase-out of 
methyl bromide and offers disincentives to companies to invest in 
alternatives. EPA recognizes that a very large methyl bromide inventory 
could have the counterproductive effects that the commenter mentioned. 
In response to this concern, EPA has encouraged a faster draw down of 
the pre-phaseout inventory than the minimum agreed by the Parties. The 
Agency has also explained the rigorous technical review process for 
critical uses both domestically and internationally. Companies should 
be aware that as soon as technically and economically feasible methyl 
bromide alternatives are available for particular uses, critical use 
exemptions will be reduced accordingly. Because the SCF is a percentage 
of the current year's estimated critical need, companies should also 
consider that, all things being equal, the SCF will change in 
accordance with critical use exemption levels.
    NRDC objected to the SCF because Congress and the Parties did not 
intend for EPA to designate stocks as ``unavailable.'' EPA did not 
propose to designate any amount of pre-phaseout inventory, or any 
specific holdings, as ``unavailable.'' EPA proposed to recognize the 
amount of existing stocks that is available. As discussed above and in 
the proposed rule, in paragraph 4 of Decision XVIII/13, and similar 
Decisions, the Parties indicated that each individual Party has 
discretion to recognize the amount of existing stocks that is available 
for critical uses. Most recently, Table D of the Annex to Decision XIX/
9 explicitly indicates that for the 2009 control period the United 
States will reduce authorized new production levels to account for the 
amount of available stocks. Thus, EPA's proposed approach is consistent 
with the practice under the Montreal Protocol. It is also an 
appropriate exercise of the discretion granted by Congress under 
Section 604(d)(6) of the Clean Air Act.
    NRDC stated that no chemical company keeps more than a two- or 
three-month supply of a chemical, yet the SCF is nearly a four-month 
supply. The commenter provided no evidence for its assertion that no 
chemical company keeps more than a two- to three-month supply of a 
chemical. Furthermore, the methyl bromide industry is unusual because 
there is only one production facility in the United States and in fact 
in the Western Hemisphere. The proposed rule estimated that the SCF for 
2008 should be 2,731,211 kg, or roughly a six-month supply of critical 
use methyl bromide if demand were constant throughout the year.
    NRDC commented that methyl bromide users can make temporary 
adjustments at a manageable cost in the event of a supply disruption, 
such as using alternatives or shifting fumigation schedules. EPA agrees 
that depending on when a supply disruption occurs, it is possible that 
a limited number of entities might be able to delay scheduled 
fumigations. It is also possible that some non-critical users might 
need to access the pre-phaseout inventory for security or other 
emergency purposes. We do not know whether these effects would occur or 
to what extent they would offset each other. Such speculation does not 
change the validity of EPA's estimate that 2,717,051 kg is a reasonable 
SCF for 2008. EPA disagrees with the commenter's assertion that 
critical users could readily switch to alternatives following a supply 
disruption. By definition, and as confirmed by several rounds of expert 
review, entities that qualify for critical use methyl bromide do not 
have access to technically and economically feasible alternatives.
    In this final rule, EPA is adopting the proposed formula for 
calculating the amount of stocks available for critical uses in 2008, 
expressed as follows: AS2008 = ES2007-
D2007-SCF2008, where AS2008 = 
available stocks on January 1,

[[Page 74134]]

2008; ES2007 = existing pre-phaseout stocks of methyl 
bromide held in the United States by producers, importers, and 
distributors on January 1, 2007; D2007 = estimated drawdown 
of existing stocks during calendar year 2007; and SCF2008 = 
a supply chain factor for 2008, the calculation of which was described 
in the proposed rule and in the TSD available on the public docket for 
this rulemaking. Using the methodology described in the proposed rule, 
correcting for mathematical errors explained above, and reducing 2008 
critical needs by 27,769 kg to account for the uptake of sulfuryl 
fluoride and iodomethane explained below in Section V.D.6., EPA finds 
that ES2007 = 7,671,091 kg; D2007 = 3,224,351 kg; 
and SCF2008 = 2,717,051 kg. Therefore, EPA calculates that 
1,729,689 kg (6.8% of baseline) of pre-phaseout methyl bromide stocks 
will be available for critical uses in 2008.
    EPA believes 1,729,689 kg is a reasonable estimate of the amount of 
stocks that should be considered available for critical uses in 2008, 
especially given the U.S. role as one of the world's largest suppliers 
to meet global methyl bromide needs. EPA also believes the methodology 
used to make this estimate is consistent with the relevant Decisions of 
the Parties, including Decision IX/6, and the Clean Air Act. EPA has 
determined that the approach finalized in this action is the most 
efficient and reasonable way to balance the goals of satisfying 
critical needs for methyl bromide and also facilitating the transition 
to ozone-safe alternatives. Finally, as discussed above and in the 
Response to Comments document, EPA considered all of the comments 
received and did not find a specific reason to change its proposed 
refined approach for calculating the amount of available stocks.
3. Adjusting New Production and Import Amounts To Account for Available 
Stocks
    In developing this action, EPA proposed to refine its allocation 
approach to account for the amount of stocks available for critical 
uses in 2008, and each year thereafter as appropriate and feasible. EPA 
proposed to allocate critical stock allowances (CSAs) in 2008 in an 
amount equal to the quantity of pre-phaseout inventory ``available'' 
for critical uses in 2008, as estimated by EPA using the formula 
described above. In the proposed rule, EPA calculated that there would 
be 1,715,438 kg of available inventory in 2008. Therefore, EPA proposed 
to allow the sale of 1,715,438 kg from existing stocks for critical 
uses in 2008 by allocating an equivalent number of CSAs. As in past 
years, EPA proposed to adjust the critical use allowance (CUA) amounts 
accordingly, so that the total number of CUAs and CSAs is not greater 
than the total critical use amount authorized by the Parties. In the 
proposed rule, EPA noted that to account for carryover amounts of 
methyl bromide, amounts for research purposes or other appropriate 
reasons, including updated information on alternatives, EPA may 
allocate a total number of CUAs and CSAs that is less than the total 
critical use amount authorized by the Parties for 2008. EPA also 
proposed a method for adjusting new production and import to account 
for the amount of available stocks in future years if the amount of 
available stocks is less than the amount of stocks the Parties 
authorize for critical uses for the year in question. EPA sought 
comments on its proposed approach for adjusting new production and 
import amounts to account for the amount of stocks available for 
critical uses.
    EPA received six comments that expressed concern about the proposed 
level of CSAs for 2008. The commenters noted that the proposed amount 
of methyl bromide to come from pre-phaseout inventory is greater than 
the amount agreed to by the Parties in Decision XVIII/13. The proposed 
rule and Section V.D.1. of this preamble explain that in previous years 
EPA has determined that more critical use methyl bromide should come 
from stocks than the minimum levels agreed to by the Parties, and that 
EPA understands those actions to be in compliance with the Montreal 
Protocol, and within the Agency's authority established in Section 
604(d)(6) of the Clean Air Act. Furthermore, the inclusion of a SCF in 
EPA's determination of the amount of available stocks should relieve 
some of the commenters' concerns.
    MBIP commented that EPA's proposal to use pre-phaseout inventory 
for critical uses jeopardizes the U.S.'s ability to address a 
catastrophic supply disruption. The proposed rule and Section V.D.2. of 
this preamble explain that by including a SCF in its calculation of 
available stocks, EPA is allowing for the maintenance of a supply 
buffer that could help to satisfy critical needs in the event of an 
emergency, such as a major supply disruption.
    The Florida Fruit and Vegetable Association (FFVA) stated that EPA 
should develop and make available to CUE holders a timely and accurate 
accounting system for use during the control period for both new 
production and CSAs. The commenter contended that this accounting 
system would be important as stockpiles decrease and would allow the 
Agency flexibility to shift from CSAs to new production during the 
control period if necessary. The commenter stated that without this 
flexibility the Agency should authorize the total quantity approved for 
the 2008 control period as new production with the understanding that 
the portion of material not used as a result of the use of pre-phaseout 
stocks during 2008 would be deducted from future authorizations. If EPA 
understands correctly, the commenter is concerned that at some point 
existing stocks will not be able to satisfy all of the CSAs issued by 
EPA for a given control period, and that if this happens during a 
control period, EPA should convert CSAs to CUAs. The Agency believes 
that the proposed approach for determining CUA and CSA amounts, which 
accounts for the amount of available stocks, is a major step towards 
decreasing the probability that EPA would issue more CSAs than existing 
stocks are able to satisfy in a given control period. Currently, EPA 
collects annual data about critical sales of new production and pre-
phaseout inventory. EPA agrees with the commenter that collecting this 
data more often, quarterly for example, could have certain benefits 
related to monitoring pre-phaseout inventory information. As the 
commenter stated, more timely data could help EPA determine more 
rapidly if it would be appropriate to allow the conversion of some CSAs 
to CUAs. However, by increasing the frequency of reporting, the 
commenter's proposal would impose a substantial administrative burden 
upon the regulated community, especially upon small distributors. 
Considering the approach that EPA is finalizing in this rule, which 
should decrease the likelihood of impractically large CSA allocations, 
the Agency does not believe the benefits of the commenter's proposal 
would justify the additional costs it would impose.
    In this rule, EPA is adopting the proposed approach for adjusting 
allowable new production and import levels to account for the amount of 
available stocks. As discussed above, this approach is consistent with 
the relevant Decisions of the Parties, especially Table D of the Annex 
to Decision XIX/9, which for 2009 explicitly authorizes for the United 
States a certain amount of new production and import ``minus available 
stocks.'' After considering all of the comments received, EPA believes 
that

[[Page 74135]]

this is the most reasonable, efficient, and transparent way for the 
Agency to continue to facilitate responsible management of pre-phaseout 
inventory. Therefore, with this action the Agency is allowing 1,729,689 
kg of methyl bromide to be supplied from pre-phaseout inventory for 
critical uses in 2008 by issuing an equivalent number of CSAs, and 
adjusting the amount of CUAs accordingly.
    To clarify, the critical use amounts authorized by the Parties in 
Decision XVIII/13 for 2008 total 5,355,946 kg. However, the maximum 
amount of authorized new production or import as set forth in Table D 
of the Annex to Decision XVIII/13 is 4,595,040 kg. This means that 
while the Parties require only 760,906 kg of stockpile consumption if 
the entire U.S. allotment is utilized, EPA is allowing 1,729,689 kg of 
2008 critical use needs to be met from pre-phaseout inventory. Thus, to 
account for the amount of available stocks, EPA is allocating 968,783 
kg of extra pre-phaseout inventory consumption for critical uses in 
2008. As in past years, EPA proposed to adjust the amount of CUAs 
accordingly, so that the sum of CUAs and CSAs is not greater than the 
total amount authorized by the Parties. After accounting for the 
additional reductions discussed below for unused critical use methyl 
bromide at the end of 2006, increased uptake of sulfuryl fluoride for 
post-harvest cocoa bean fumigation in 2008, transition to the recently 
registered fumigant iodomethane, and reductions to encourage research 
amounts to be supplied from pre-phaseout inventory, EPA is allowing 
3,083,763 kg of new production and import for critical uses in 2008.
    In developing this action, EPA proposed to adjust new production 
and import to account for the amount of available stocks in future 
years if the amount of available stocks is less than the amount of 
stocks the Parties authorize for critical uses for the year in question 
(72 FR 48969). EPA did not receive any comments on how it proposed to 
account for available stocks if the amount of available stocks is less 
than the amount of stocks the Parties authorize for critical uses for 
the year in question. If that scenario arises, EPA may adopt the 
approach it described in the proposed rule after a notice and comment 
rulemaking process. EPA estimates that there will be sufficient pre-
phaseout inventory at the beginning of the 2009 control period to 
satisfy the amount of 2009 inventory drawdown (300,000 kg) for critical 
uses authorized by the Parties in Decision XIX/19.
4. Treatment of Carryover Material
    As described in the December 23, 2004, Framework Rule (69 FR 
76997), EPA is not permitting entities to build stocks of methyl 
bromide produced or imported after January 1, 2005, under the critical 
use exemption. Under current regulations, quantities of methyl bromide 
produced, imported, exported, or sold to end-users under the critical 
use exemption in a calendar year must be reported to EPA the following 
year. These reporting requirements appear at Sec. Sec.  82.13(f)(3), 
82.13(g)(4), 82.13(h)(1), 82.13(bb)(2), and 82.13(cc)(2). EPA uses the 
reported information to calculate the amount of methyl bromide that was 
produced or imported under the critical use exemption, but not exported 
or sold to end-users in that year. An amount equivalent to this 
``carryover,'' whether pre-plant or post-harvest, is then deducted from 
the total level of allowable new production and import in the year 
following the year of the data report. For example, the amount of 
carryover from 2005, which was reported in 2006, was deducted from the 
allowable amount of production or import for critical uses in 2007. In 
developing this action, EPA proposed to treat carryover the same way 
for 2008.
    As discussed in Section V.D.2., carryover critical use material is 
not included in EPA's definition of existing stocks as it applies to 
the proposed formula for determining the amount of available stocks. 
EPA is not including carryover amounts as part of existing stocks, 
because doing so could lead to a double-counting of carryover amounts, 
and thus a double reduction of CUAs. The definition of existing stocks 
specifically refers to pre-phaseout inventory, not material produced or 
imported under the critical use exemption.
    In developing this action, EPA explained that in February 2007 the 
Agency, received reports about critical use methyl bromide production, 
imports, exports, sales and/or inventory holdings in 2006 under the 
requirements at 40 CFR 82.13. The information reported to EPA indicated 
that 6,923,926 kg of critical use methyl bromide was acquired through 
production or import in 2006, and 6,384,493 kg of critical use methyl 
bromide was exported or sold to end-users in 2006. EPA proposed to 
calculate the amount of carryover at the end of 2006 with the method 
used in column L of the U.S. Accounting Framework for critical uses of 
methyl bromide. The Agency calculated that the carryover amount at the 
end of 2006 was 539,433 kg, which was the difference between the 
reported amount of critical use methyl bromide acquired (i.e. produced 
or imported) in 2006 and the reported amount used (i.e. sold to end 
users in 2006) (6,923,926 kg-6,384,493 kg = 539,433 kg). On March 16, 
2007, in the 2006 U.S. Accounting Framework for critical uses of methyl 
bromide, which is available on the docket for this action, the Agency 
officially reported 539 metric tons of carryover from 2006 to the UNEP 
Ozone Secretariat.
    In the proposed rule, EPA brought attention to a petition submitted 
by Chemtura that proposed changes to: (1) The Agency's established 
method for calculating carryover; (2) the distribution of subsequent 
CUA reductions; and (3) the existing recordkeeping and reporting 
requirements. The Agency made Chemtura's petition available on the 
public docket, and specifically sought detailed comments on Chemtura's 
proposals. EPA asked that comments suggesting alternative methods for 
calculating the amount of carryover material at the end of each year be 
detailed and comprehensive; address what changes would be needed to the 
reporting requirements; and discuss the degree of administrative burden 
that alternative methods might impose. The Agency also sought comment 
on ways to improve the completeness of data reporting by affected 
companies. EPA emphasized that the process for calculating the amount 
of carryover CUE material each year relies on data regarding sales to 
end users as reported to EPA by distributors and applicators. The 
Agency specifically requested comment on whether requiring producers, 
importers, and distributors to report the names of distributors and 
third-party applicators to which they have sold critical-use methyl 
bromide would result in more complete reporting, and whether this would 
justify the additional burden of such requirements.
    Chemtura's petition asserted that ``EPA must adjust its methodology 
for calculating carry over.'' EPA disagrees for two fundamental 
reasons: the Agency's established methodology is a simple and accurate 
way to calculate the carryover amount each year; and adjusting the 
established method could create international confusion about U.S. 
reporting, which could jeopardize international authorizations of new 
production to satisfy the critical needs of U.S. agriculture. EPA 
expands on these points below.
    Six commenters supported Chemtura's request that EPA revise its 
carryover calculation procedures to consider a broader range of 
information

[[Page 74136]]

sources when determining the carryover amount from a given control 
period. The commenters suggested that EPA calculate the carryover as 
the sum of all critical use methyl bromide that companies report as 
being held in inventory. In its comments, Chemtura recognizes that this 
approach would not fully address the problem of incomplete reporting, 
and suggests that a conservative margin for error could be achieved by 
calculating the average carryover for all reported sales and applying 
the average to any remaining unreported volume. If EPA understands 
correctly, the commenters are requesting an ``inventory approach'' to 
calculate the carryover amount, in which EPA would calculate carryover 
as the sum of critical use methyl bromide inventory reported in section 
2.6 of the annual Sales of Critical Use Methyl Bromide to End Users 
Reports (``sales reports''), a sample of which is posted on the docket 
for this rulemaking. EPA understands that the commenter believes the 
inventory method would result in a lower carryover amount and would be 
more accurate. However, EPA does not believe the inventory method would 
be as accurate as the established ``sales method'' that the Agency uses 
to report carryover amounts internationally.
    For 2006, the inventory method would rely on data reported in 
section 2.6 of the annual sales report forms. In collaboration with 
major methyl bromide producers and distributors, the reporting forms 
were updated and posted on EPA's Web site in 2006. EPA posted 
instructional materials online with the updated forms, and held 
compliance assistance meetings to teach stakeholders how to use the new 
forms, including a session at the Methyl Bromide Alternatives Outreach 
(MBAO) conference in Orlando in November 2006 and a similar session at 
the MBAO conference in San Diego in October 2007. If the sales reports 
are completely and accurately filled out, section 2.6 is calculated 
with information from sections 2.4A, 2.4B, 2.2, and 2.5. For companies 
that hold critical use methyl bromide for other companies, the 
information reported in section 2.7 is an important cross-check of the 
information reported in section 2.6. However, EPA reviewed the data in 
sections 2.4 through 2.7 of the 2006 sales reports, and found several 
instances of blank, incomplete or apparently misreported information in 
those sections. EPA made efforts to contact distributors that filed 
reports with significant inconsistencies, and many of the reports were 
subsequently corrected. However, some of the data points remain blank 
or questionable. On the other hand, there were far fewer instances of 
blank or apparent misreporting in section 2.2 of the sales report, 
which lists sales to end users by critical use sector. Most 
importantly, all instances of blank or apparently misreported sales in 
section 2.2 were corrected after EPA staff contacted the corresponding 
reporting entities. Given EPA's concerns about the data in sections 2.4 
through 2.7 and the Agency's reservations about changing the carryover 
calculation method, EPA has decided to retain the proposed approach in 
this final rule.
    Six commenters asserted that the critical use material calculated 
as carryover for 2006 is actually unaccounted sales rather than 
inventory held at the end of the year, and contend that EPA has 
evidence that this is the case. As discussed further below, the 
commenters claimed to have evidence that 2006 sales remain unreported, 
but did not produce official sales reports to support their claim.
    MBIP stated that EPA should have been aware of underreporting of 
critical use sales and that EPA's data set for calculating the 
carryover set was deficient. MBIP claimed that information it received 
in response to its Freedom of Information Action (FOIA) request of May 
2007 clearly showed that some companies filed reports in 2005 and not 
in 2006. Nonetheless, MBIP contended, EPA had mistakenly assumed that 
100 percent of the unreported sales of critical use methyl bromide are 
held in inventory. In response, EPA points out that it made every 
reasonable effort to contact entities that reported in 2005 and not 
2006. Although EPA contacted these entities, some of them still have 
not reported 2006 sales for critical uses. Whether every entity that 
sold critical use methyl bromide in 2005 did so in 2006 remains an open 
question. EPA has made it clear to MBIP that it would consider late 
submissions of official sales reports from 2006, but MBIP has been 
unable to produce suitable evidence of the unreported sales that they 
insist took place during 2006. With this final rule EPA is making a 
final determination of the 2006 carryover amount.
    At the public hearing for this action, Ameribrom Inc. said that 80 
percent of the 539 metric tons (MT) that EPA calculated as carryover is 
actually methyl bromide that was sold to critical users but not 
reported. The commenter also said that many small distributors do not 
understand the reporting requirements, and some are incapable of 
complying with them. The commenter did not provide specific, verifiable 
information to support the claim that 80 percent of the carryover is 
actually unreported sales. Therefore, EPA will not change its proposed 
approach as a result of Ameribrom's claims. The Agency is concerned 
with Ameribrom's statement that some small distributors did not file 
required reports. EPA continues to educate stakeholders about critical 
use exemption reporting requirements through outreach programs. For 
example, EPA posts instructional material on its Web site, holds 
informational sessions about reporting at the annual Methyl Bromide 
Alternatives Outreach Conference, and provides staff contacts to assist 
with reporting requirements. Most recently, EPA provided a letter 
template to members of MBIP, including Ameribrom, that explains the 
importance of full reporting, provides information about how to acquire 
official reporting forms, and a contact person to answer questions. EPA 
encouraged MBIP's members to customize the letter and send it to all of 
their customers.
    MBIP stated that an independent auditor found that approximately 20 
methyl bromide suppliers failed to provide EPA with sales reports, 
which accounted for approximately 80 percent of the calculated 
carryover. However, MBIP did not provide the names of these suppliers, 
so EPA could not confirm the veracity of MBIP's claim. Thus, as EPA 
explains above, the Agency is unwilling to revise its methodology for 
determining the previously calculated 2006 carryover amount, which was 
reported internationally on March 16, 2007. EPA has taken a number of 
steps to work with MBIP and other stakeholders to encourage full 
reporting. Full reporting is in everyone's interest, and the Agency 
will continue to work with industry in outreach and educational 
programs toward that end.
    Chemtura asserted that many of the companies that routinely filed 
required reports were the entities most likely to be holding critical 
use methyl bromide inventory--manufacturers and distributors, and that 
that EPA's contention that ``carryover increased while allocations and 
stocks have plummeted'' is not credible. Similarly, EPA MBIP commented 
that it performed an audit that revealed that non-reporting entities 
were mostly smaller entities that were unlikely to hold any inventory. 
Six commenters requested that EPA rigorously enforce compliance with 
the supplier reporting requirements at 40 CFR 82.13. EPA received 
comments from Chemtura and MBIP that stated

[[Page 74137]]

that the proposed rule's explanation of how the carryover is calculated 
is the first such explanation given by EPA in any CUE rule promulgated 
to date. MBIP stated that this was their first opportunity to comment 
on EPA's method of calculation. EPA received a comment from Chemtura 
that expressed the view that EPA lacks authority to reduce the 2008 CUE 
amount based on carryover from a previous year. EPA responds to all of 
these comments in the Response to Comment document available on the 
docket for this action.
    In this final rule, EPA is not adjusting the established 
methodology for calculating the amount of carryover critical use methyl 
bromide, because doing so could create international confusion about 
U.S. reporting, which could jeopardize international authorizations of 
new production to satisfy the critical needs of U.S. agriculture. The 
United States has important commitments to report information about 
methyl bromide for critical uses. In December 2004 the Parties agreed 
to Decision XVI/6, which adopted an accounting framework for critical 
uses of methyl bromide. Each Party with critical needs submits an 
accounting framework annually. The U.S. submitted its first Accounting 
Framework for 2005 critical uses on May 19, 2006. The U.S. subsequently 
revised the accounting framework agreed to by the Parties slightly 
because the amount of pre-phaseout inventory was being treated as 
confidential.
    For 2005 and 2006, EPA calculated the carryover amount using the 
method described in the proposed rule, and reported the result 
internationally in the U.S. Accounting Framework for critical uses of 
methyl bromide. The Parties expect EPA to reduce new production, when 
appropriate, by the amount of carryover CUE material. A post-hoc 
revision of the methodology for the U.S. Accounting Framework could 
create international confusion, and, as discussed in this preamble, 
there is not a compelling reason to change EPA's method at this time. 
Therefore, EPA has determined that any revision of the previously 
reported 2006 carryover amount must be based upon new data, not a new 
method for manipulating old data.
    In this final rule, EPA is continuing its practice of not 
permitting entities to build stocks of methyl bromide produced or 
imported after January 1, 2005, under the critical use exemption. In 
the proposed rule, EPA explained that the Agency received official 
sales reports under the requirements at 40 CFR 82.13 showing that 
6,923,926 kg of critical use methyl bromide was acquired through 
production or import in 2006. The proposed rule stated that the 
information reported to EPA also indicated that 6,384,493 kg of 
critical use methyl bromide was sold to end-users in 2006. EPA 
calculated that the carryover amount at the end of 2006 was 539,433 kg, 
which is the difference between the amount acquired and the amount 
sold, and proposed to reduce 2008 CUA allocations accordingly. However, 
EPA received five official 2006 sales reports after the submission 
deadline, which was 45 days after December 31, 2006. The late sales 
reports were not counted in the proposed rule, or the 2006 U.S. 
Accounting Framework. These late reports show that an additional 40,199 
kg of critical use methyl bromide was sold to end users in 2006. As a 
result, EPA's official records now show that 6,424,692 kg of methyl 
bromide was sold to end users in 2006. Therefore, in accordance with 
EPA's proposed method for calculating carryover amounts, EPA calculates 
that the 2006 carryover amount was 499,234 kg of critical use methyl 
bromide. This amount was calculated as follows: 6,923,926 kg--6,424,692 
kg = 499,234 kg. To account for carryover of critical use methyl 
bromide, EPA is reducing the level of new production and import for 
critical uses by 499,234 kg.
a. Reporting Requirements To Calculate Carryover Amounts
    In developing this action, EPA specifically requested comment on 
whether requiring producers, importers, and distributors to report the 
names of distributors and third-party applicators to which they have 
sold critical-use methyl bromide would provide valuable information to 
EPA, and encourage complete reporting of sales to end-user data. EPA 
sought comment on whether this would justify the additional burden of 
such requirements (72 FR 48970).
    EPA received six comments that supported a petition submitted by 
Chemtura to augment the current reporting and recordkeeping process to 
prevent underreporting of methyl bromide use. The commenters proposed 
that EPA modify its reporting system in a manner that would allow the 
Agency to identify non-reporting companies and the amount of critical 
use sales attributable to each company. EPA could achieve this, the 
commenters asserted, by requiring each entity in the supply chain--from 
the manufacturer to the company that sells to the end user--to report 
the name of the entity that purchased the critical use methyl bromide 
and how much material it purchased.
    EPA does not agree that it should require information that would 
allow the Agency to quantify the amount of critical use sales 
attributable to each non-reporting company. Instead of imposing 
additional burden on entities that do report in order to obtain 
information about non-reporters, a more straightforward and practical 
approach is to encourage full reporting. EPA, though, believes it would 
be beneficial to acquire the names of all distributors and third-party 
applicators with critical use exemption reporting requirements under 40 
CFR 82.13. Collecting the names of these entities will facilitate 
Agency follow-up with non-reporters, allowing collection of necessary 
information in a more targeted manner than collecting detailed 
information from all entities. In early 2008 EPA will use its 
information gathering authority under section 114 of the Clean Air Act 
to ask all entities that sell critical use methyl bromide to report the 
names of all non-end user entities (i.e. producers, importers, 
distributors and third-party applicators) to which they sold critical 
use methyl bromide during the 2007 control period.
    Chemtura commented that EPA's reliance on full and accurate 
reporting by the regulated community is unreasonable, because the 
existing reporting system does not provide EPA with any way to verify 
whether all entities that should file reports have done so. NRDC 
commented that EPA should require producers, importers, distributors 
and third-party applicators to report the names of distributors and 
third-party applicators to which they have sold any methyl bromide, 
including pre-2005 stocks, in order to get accurate data to track 
amounts sold for all purposes (including non-critical uses). The 
commenter stated that the costs of such reporting would be minimal and 
would be justified by the benefits of better tracking of CAA and 
Protocol compliance. EPA responds to these comments in the Response to 
Comment document available on the docket for this action.
b. Apportionment of Carryover Reductions Among Producers
    In previous CUE rules, EPA used the approach described in the 
Framework Rule for applying reductions in CUA amounts equal to the 
amount of carryover CUE material from a previous year. EPA's practice 
to date has been to apply this reduction to the total volumes of 
allowable new production or import, and then to pro-rate CUA 
allocations to each company based on its 1991 baseline market share. In

[[Page 74138]]

developing this action, EPA proposed to use the same approach for 2008.
    In the proposed rule, EPA explained that Chemtura's petition 
recommended alternative methods for apportioning carryover reductions 
among CUA holders. EPA encouraged interested parties to comment on the 
recommendations in Chemtura's petition and provide any additional 
suggestions regarding the apportionment of carryover among companies.
    Chemtura's petition requested that EPA apportion carryover amounts 
proportional to the producers' responsibility for the carryover 
originating in their own supply chain. The petition further stated that 
EPA's process for apportioning carryover reductions among producers is 
arbitrary, capricious, unfair, and perpetuates poor stewardship. In its 
comments Chemtura acknowledged that EPA does not currently collect 
information that would allow the Agency to reduce CUAs on the basis of 
carryover originating in each producer's supply chain. As discussed 
below in more detail, EPA believes that acquiring credible data of this 
nature would impose extra burden on the regulated community without 
producing any discernible environmental benefit. The extra reporting 
that Chemtura proposed could redistribute the proportional allocation 
of CUAs among producers, but it would not affect the overall amount of 
critical use methyl bromide available to critical users, and therefore, 
would not help EPA achieve the primary goal of the critical use 
exemption program: to satisfy critical needs for methyl bromide. A 
better solution that does not impose extra burden on the regulated 
community is to continue to strengthen outreach and educational 
programs that facilitate full reporting under existing requirements.
    Chemtura commented that CUE reductions to account for carryover are 
distributed among the four methyl bromide producers based on a 
proportional basis according to their 1991 consumption baselines. The 
commenter stated that an equal allocation of the carryover would be 
fairer and that using the 1991 data is now inconsistent with the 
available supply chain information and would maximize future 
distortions in the critical use market. EPA notes that Chemtura has not 
objected to EPA's framework for distributing CUAs to producers based on 
their 1991 market share, under which Chemtura receives over 60 percent 
of the new production allowances each year. The Proposed Framework Rule 
stated that, ``Allocating CUAs based on each company's 1991 baseline 
allowances (on a pro-rata basis) is a better reflection of market share 
than simply dividing the number of allowances by the total number of 
entities, and would be less burdensome than conducting a detailed 
historical market share analysis on a [sic] an annual basis. Using the 
1991 historic baseline method for distributing CUAs is consistent with 
how EPA has allocated methyl bromide production and consumption 
allowances for the past decade under the methyl bromide phaseout'' (69 
FR 52376). EPA believes the arguments in the Proposed Framework Rule 
still apply. Using the 1991 market shares, which have become the 
company-specific baselines for CUA allocations, provides the best 
available estimation of how much carryover is attributable to each 
company's supply chain. A more detailed method of estimation would 
involve additional burden for respondents.
    Chemtura's petition recommended a ``fault-based'' system for 
allocating CUA reductions to account for carryover amounts. Chemtura 
stated that in order to support the fault-based carryover allocation 
process, EPA could modify the reporting requirements established at 40 
CFR 82.13 to require that importers, producers, distributors, and 
third-party applicators list the producer of any critical use methyl 
bromide they acquired during the year. In its comments, Chemtura 
asserted that, ``Identifying the producer of origin for any given sale 
or distributor should be a simple task, as each of the four producers 
supplies downstream customers with methyl bromide products under 
different pesticide registrations, labels, and product names. Thus, 
regardless of how many intermediary distributors a methyl bromide 
product may have passed through before reaching the end user, that 
entity can identify the producer by a review of the label or sales 
invoice.''
    Whether or not producer of origin reporting would be a ``simple 
task,'' it would add to the regulatory burden currently borne by 
entities in the distribution chain. Preliminary estimates, using as a 
guideline EPA's previous estimates under Paperwork Reduction Act (PRA) 
requirements, a guideline, suggest that the burden imposed by producer 
of origin reporting could require 150 respondent hours per year, 
depending on how much EPA follow-up is necessary to perform standard 
data quality assurance procedures. EPA does not believe the ``fault-
based'' system, or the extra reporting burden it requires, would 
provide any discernible environmental benefit, or help to satisfy 
critical needs for methyl bromide. Therefore, while the Agency may 
continue to analyze Chemtura's proposed reporting additions as part of 
the renewal process for its information collection request (ICR) under 
PRA, in this final rule the Agency is not implementing Chemtura's 
``fault-based'' system or the additional reporting that it would 
require.
    Chemtura's petition asserted that, ``The opt-out system proposed 
[in the petition] provides an appropriate method for apportioning 
carryover penalties.'' Chemtura's proposed ``opt-out'' system would 
allow producers to voluntarily submit supply chain data in exchange for 
EPA's removal of the individual producer from the ``default penalty 
pool.'' In its comments on the proposed rule, Chemtura asserted that 
Ameribrom had acknowledged responsibility for the majority of the 2008 
carryover. Chemtura also commented that ``EPA has received ample notice 
of the flaws in the framework.'' Chemtura further commented that any 
material that stays in the distribution system past the end of a 
control period should be considered part of the SCF rather than 
carryover, and that no carryover should be subtracted from CUEs in 2008 
and beyond. EPA responds to these comments in the Response to Comment 
document available on the docket for this rulemaking.
    In this action, EPA is reducing the total level of new production 
and import--i.e., the total number of CUAs issued--for 2008 by 499,234 
kg to reflect the total level of carryover material available at the 
end of 2006. EPA will continue to consider the level of available 
stocks, and may consider adjusting carryover policies, through a notice 
and comment rulemaking process, if available stocks become very scarce. 
However, considering the current amount of available pre-phaseout 
inventory, in this action it is best to maintain the existing framework 
for responding to carryover.
5. Amounts for Research Purposes
    Decision XVII/9(7) ``request[ed] Parties to endeavor to use stocks, 
where available, to meet any demand for methyl bromide for the purposes 
of research and development.'' Consistent with that Decision, in the 
2007 CUE Rule, EPA reduced the amount of new production and import by 
21,702 kilograms, which was the amount needed for research, and 
encouraged methyl bromide suppliers to sell inventory to researchers 
and encouraged researchers to purchase inventory.

[[Page 74139]]

    Decision XVIII/15(1) authorized ``the production and consumption of 
[methyl bromide] necessary to satisfy laboratory and analytical 
critical uses.'' Paragraph 2 of that decision stated that methyl 
bromide produced under the exemption for laboratory and analytical uses 
may be used as a reference or standard; in laboratory toxicology 
studies; to compare the efficacy of methyl bromide and its alternatives 
inside a laboratory; and as a laboratory agent which is destroyed in a 
chemical reaction in the manner of feedstock. In a separate notice-and-
comment rulemaking titled the ``Global Essential Laboratory and 
Analytical Use Exemption,'' EPA is implementing the exemption 
authorized in Decision XVIII/15 (72 FR 52332). More information about 
that rulemaking process is available on the docket for that rule (EPA-
HQ-OAR-2007-0384).
    In the proposed CUE rule for 2008, EPA stated that there continues 
to be a need for methyl bromide for research purposes that do not meet 
the criteria for laboratory and analytical uses, as defined in Decision 
XVIII/15. A common example is an outdoor field experiment that requires 
methyl bromide as a standard control treatment with which to compare 
the trial alternatives' results. In the proposed rule, EPA listed the 
critical use sectors that were approved by the Parties to use methyl 
bromide for research purposes in 2008 in Section V.C. and with the 
phrase ``research purposes'' listed in their limiting critical 
conditions in Table I of this preamble.
    In developing this action, EPA proposed to allow sale of 15,491 kg 
of existing stocks for research purposes in 2008 to account for the 
amount authorized for those purposes. EPA proposed to allow the sale of 
methyl bromide from stocks for exempted research purposes by expending 
CSAs. An explanation of what amounts of methyl bromide and of what 
sectors qualify for research purposes can be found in Section V.C. of 
this preamble. The Agency proposed to continue to encourage methyl 
bromide suppliers to sell pre-phaseout inventory to researchers and to 
encourage researchers to purchase pre-phaseout inventory for research 
purposes. EPA sought comment on its proposal to issue CSAs for sale of 
pre-phaseout methyl bromide for exempted research purposes.
    MBIP objected to EPA's proposal to issue CSAs for sale of pre-
phaseout inventory for exempted research purposes. The commenter stated 
that existing stocks of pre-2005 inventory are too low to warrant 
further drawdown for research purposes and that new production should 
be increased by 15,491 kilograms to account for research needs. The 
Agency disagrees, and proposed a detailed analysis of the amount of 
available stocks, explained further in Section V.D.2. of this preamble, 
which found more than 1,700,000 kg of pre-phaseout inventory available 
for critical uses. Therefore, EPA is reducing new production by 15,491 
kg, and encouraging researchers to procure methyl bromide from pre-
phaseout inventory.
6. Methyl Bromide Alternatives
    In the 2006 CUE Rule (71 FR 5985), EPA allocated less methyl 
bromide for critical uses than was authorized by the Parties in order 
to account for the recent Federal registration of sulfuryl fluoride. 
The allocation reductions in that rule reflected transition rates that 
were included for the first time in the 2007 U.S. CUN. In the 2007 CUE 
Rule, EPA explained why a similar reduction was made in that rule: 
``The report of the Methyl Bromide Technical Options Committee (MBTOC) 
indicated that the MBTOC did not make any reductions in these [post-
harvest] use categories for the uptake of sulfuryl fluoride in 2007 
because the United States Government indicated that it would do so in 
its domestic allocation procedures. Therefore, EPA is reducing the 
total volume of critical use methyl bromide by 53,703 kilograms to 
reflect the continuing transition to sulfuryl fluoride'' (75 FR 75390).
    In developing today's action, EPA referenced preliminary results of 
a study by Dr. Brian D. Adam of Oklahoma State University, which the 
Agency is making available on the public docket for this rulemaking. 
The proposed rule stated that Dr. Adam's study indicates that the cost 
of post-harvest cocoa fumigation with sulfuryl fluoride is not 
substantially greater than the cost of using methyl bromide for that 
fumigation. The proposed rule explained that in response to the study 
results, the National Pest Management Association (NPMA) withdrew its 
nomination request for critical use methyl bromide for 2009 cocoa 
fumigations, and informed EPA that it does not intend to seek critical 
use methyl bromide for 2010 cocoa fumigations. EPA reiterated NPMA's 
stated need for some critical use methyl bromide for cocoa in 2008 as 
the sector transitions to sulfuryl fluoride, and explained the 
situation further. EPA sought comment on how much of the 53,188 kg of 
critical use methyl bromide approved by the Parties for cocoa for 2008 
should be allowed by the Agency. EPA asked that comments on this topic 
recommend specific amounts of critical use methyl bromide for cocoa in 
2008, and provide detailed justifications for their recommendations.
    EPA received a comment from NPMA that recognized that the Oklahoma 
State University study showed that the cost of using sulfuryl fluoride 
to treat post-harvest cocoa was not substantially greater than the cost 
of using methyl bromide. However, NPMA's comment stated that smaller 
companies in the industry needed time to transition to sulfuryl 
fluoride. This transition includes the completion of a manufacturer's 
stewardship program as well as customer education about non-methyl 
bromide treatment. Additionally, while most states in which cocoa is 
processed have a special 24(C) label to allow for higher Concentration 
and Time (CT) dosage allocations for use of sulfuryl fluoride on cocoa, 
New York has not approved this label. Therefore, NPMA requested that at 
least 75 percent of the 53,188 kg of critical use methyl bromide 
approved by the Parties be allocated for 2008. NPMA stated that its 
application for 2009 had been withdrawn, as the transition to sulfuryl 
fluoride should be complete by that time.
    In their 2008 CUE application, NPMA requested 79,950 kg for 2008 
critical uses. In developing the 2008 critical use nomination, the USG 
reduced NPMA's original request to account for growth, because EPA's 
framework does not allow critical users to increase their critical need 
based on expansion of their operations (FR 69 76996). USG also reduced 
NPMA's request to account for a reduction in the use rate of methyl 
bromide from 24 kg/1,000 m\3\ to 20 kg/ 1,000 m\3\. USG made a further 
reduction to account for a transition rate of 16.8% per year to 
sulfuryl fluoride. After accounting for these factors, USG nominated a 
total of 53,255 kg for cocoa bean fumigation in 2008, and the Parties 
approved 53,188 kg in Decision XVIII/13. In light of new information 
about the economic feasibility of sulfuryl fluoride for post-harvest 
cocoa fumigation, in this action EPA is approving less critical use 
methyl bromide for cocoa fumigation than the Parties authorized.
    The Agency appreciates that NPMA voluntarily came forward and 
agreed to a more rapid transition to methyl bromide alternatives for 
cocoa fumigation. With this final rule, EPA is approving 39,891 kg of 
critical use methyl bromide for this sector, or 75 percent of the 
amount agreed to by the Parties in Dec. XVIIII/13. Therefore, EPA is 
reducing the total amount authorized for 2008 critical uses by 13,297 
kg to account for increased

[[Page 74140]]

uptake of sulfuryl fluoride for cocoa fumigation.
    NRDC stated that EPA recently approved the use of iodomethane 
(methyl iodide) for field uses, which will reduce the need for methyl 
bromide CUE allocations. The commenter stated that iodomethane is a 
drop-in substitute for methyl bromide and that while it is more costly 
per kilogram, less of it is require to achieve the same efficacy. The 
commenter also stated that while iodomethane poses direct toxicity 
issues, the toxicity issues associated with methyl bromide are worse.
    Chemtura requested that EPA assess the technical and economic 
feasibility of iodomethane for no fewer than two years before factoring 
its availability into future CUE decisions. The commenter stated that 
the controversial nature of the registration combined with the 
proximity of the registration to the close of the comment period on the 
CUE rule provided reason to delay considering this alternative when 
allocating CUEs. The commenter also noted that iodomethane was not yet 
registered in California because of safety questions and that there was 
anecdotal evidence of efficacy problems with the chemical. The 
commenter stated that at least two growing seasons are necessary to 
review and assess viability.
    In the proposed rule EPA sought ``information regarding changes to 
the registration or use of alternatives that may have transpired after 
the 2008 U.S. nomination was written.'' The Agency stated that, ``Such 
information has the potential to alter * * *. EPA's determination as to 
which uses and what amounts of methyl bromide qualify for the critical 
use exemption.'' In this final rule, EPA is following through with that 
statement, and reducing pre-plant critical use amounts to account for 
new information about the uptake of iodomethane.
    After considering new information about iodomethane, EPA estimates 
that in 2008 iodomethane will be a technically and economically 
feasible alternative for a limited amount of pre-plant applications. 
Iodomethane has been registered at the federal level for the period of 
October 1, 2007 to October 1, 2008 for the following crops: Strawberry, 
Pepper, Tomato, Ornamentals, Nurseries, Trees and Vines. The pesticide 
registration process in the U.S. involves multiple layers of regulatory 
review, and State registrations are required before a pesticide can be 
applied. As of December 11, 2007, the last day that EPA could 
reasonably consider information for this rulemaking, iodomethane had 
been registered in the following states that are included in Column B 
of Table I as locations that qualify to use pre-plant critical use 
methyl bromide for certain uses in 2008: Georgia, Michigan, Missouri, 
North Carolina, Ohio, Oregon, Pennsylvania, Tennessee and Virginia. 
Therefore, EPA expects that iodomethane will be a legal fumigant option 
in 2008 for some growers that qualify for critical use methyl bromide.
    To estimate the amount of iodomethane that will be a technically 
and economically feasible methyl bromide alternative in 2008, EPA 
considered a number of factors. The Agency considered that iodomethane 
is currently registered for 10 of 12 months during 2008, that 
iodomethane is expected to cost more than methyl bromide, and that 
there are restrictions on the use of iodomethane such as the imposition 
of buffers, that do not apply to methyl bromide use. The Agency's 
analysis, described in a memo on the docket for this action, estimates 
that iodomethane can feasibly replace 14,472 kg of methyl bromide in 
2008. Therefore, in this action EPA is reducing the total amount of 
pre-plant critical use methyl bromide in 2008 by 14,472 kg to account 
for the uptake of iodomethane in 2008.
    Besides the issues regarding post-harvest cocoa fumigation, and the 
newly registered pre-plant fumigant iodomethane, EPA is not making any 
additional reductions in critical use allowances to account for the 
uptake of alternatives. In developing this action, the Agency explained 
that in the 2008 CUN that USG applied transition rates for all critical 
use sectors. The MBTOC report of September 2006 included reductions in 
its recommendations for critical use categories based on the transition 
rates in the 2008 CUN. MBTOC's recommendations were then considered in 
the Parties' 2008 authorization amounts, as listed in Decision XVIII/
13. Therefore, EPA explained that transition rates, which account for 
the uptake of alternatives, have already been applied for authorized 
2008 critical use amounts. Furthermore, the Agency stated that the 2009 
CUN, which represented the most recent analysis and the best available 
data for methyl bromide alternatives, did not conclude that transition 
rates should be increased for 2008. In developing this action, EPA 
sought comment on its proposal not to make further reductions in 2008 
to account for the uptake of methyl bromide alternatives.
    FSS stated that post harvest application requests by NPMA, Pet Food 
Institute, and Rice Millers are for applications for which methyl 
bromide is not necessary. FSS and Dow stated that methyl bromide 
allocations for these applications should therefore be significantly 
reduced or eliminated. Dow stated that nearly half of the 220 flour 
mills in the U.S. are fumigated with sulfuryl fluoride. Dow also stated 
that the transition rates for alternatives used by EPA may apply to 
farm applications, but Dow claimed these transition rates are too low 
for structural applications. Additionally, Dow and FSS asserted that 
sulfuryl fluoride has proved successful even after multiple 
applications with no return to methyl bromide, and that fumigation 
failures can happen with all materials, including methyl bromide. The 
Agency responds to these comments in a separate Response to Comments 
document available on the docket for this action.
    MBIP noted that some fumigation companies need more time to 
transition to sulfuryl fluoride, including the purchase of new 
equipment and training in its use. Specifically, MBIP argued that 
allowing CUEs for cocoa in 2008 would enable a smoother transition to 
sulfuryl fluoride and would help to guarantee methyl bromide 
availability to guard against unforeseen problems with the transition.
    EPA received extensive comments from Dow objecting to EPA's 
assessment of the label restriction on 1,3-D product use near karst 
topographical features in Florida. EPA responds to these comments in 
detail in the Response to Comments document available on the docket for 
this action.
    As discussed above, in this action, EPA is reducing the proposed 
critical use amount for post-harvest cocoa fumigation by 13,297 kg. EPA 
is also reducing the proposed critical use amount for pre-plant 
fumigation by 14,472 kg to account for new information about the 
fumigant iodomethane. EPA is not reducing any of the other proposed 
critical use amounts for 2008 to account for the transition to 
alternatives, because uptake of alternatives was already considered in 
the 2008 U.S. CUN, adopted by MBTOC, and reflected in the 2008 CUE 
authorization amounts that EPA is finalizing with this action. The most 
recent information that EPA received does not support further 
reductions.

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

    Paragraphs 2 and 6 of Decision XVIII/13 requested Parties to ensure 
that the conditions or criteria listed in Decisions Ex. I/4 and IX/6, 
paragraph 1, are applied to exempted critical uses for the

[[Page 74141]]

2008 control period. A discussion of the Agency's application of the 
criteria in paragraph one of Decision IX/6 appears in sections V.A., 
V.C., V.D., and V.G. of this preamble. The CUNs detail how each 
proposed critical use meets the criteria listed in paragraph 1 of 
Decision IX/6, apart from the criterion located at (b)(ii), as well as 
the criteria in paragraphs 5 and 6 of Decision Ex. I/4.
    The criterion in Decision IX/6(1)(b)(ii), which referred to the use 
of available stocks of methyl bromide, is addressed in sections V.D., 
V.F., and V.G. of this preamble. The Agency has previously provided its 
interpretation of the criterion in Decision IX/6(1)(a)(i) regarding the 
presence of significant market disruption in the absence of an 
exemption, and EPA refers readers to the 2006 CUE final rule (71 FR 
5989) as well as to the memo on the docket titled ``Development of 2003 
Nomination for a Critical Use Exemption for Methyl Bromide for the 
United States of America'' for further elaboration.
    The remaining considerations, including the lack of available 
technically and economically feasible alternatives under the 
circumstance of the nomination; efforts to minimize use and emissions 
of methyl bromide where technically and economically feasible; the 
development of research and transition plans; and the requests in 
Decision Ex. I/4(5) that Parties consider and implement MBTOC 
recommendations, where feasible, on reductions in the critical use of 
methyl bromide and in paragraph 6 for Parties that submit critical use 
nominations to include information on the methodology they use to 
determine economic feasibility, are all addressed in the nomination 
documents.
    Some of these criteria were evaluated in other documents as well. 
For example, the U.S. considered matters regarding the adoption of 
alternatives and research into methyl bromide alternatives, criterion 
(1)(b)(iii) in Decision IX/6, in the development of the National 
Management Strategy (NMS) submitted to the Ozone Secretariat in 
December 2005 and in on-going consultations with industry. The NMS 
addresses all of the aims specified in Decision Ex. I/4(3) to the 
extent feasible and is available in the docket for this rulemaking.

F. Emissions Minimization

    In the proposed rule, EPA noted for the regulated community the 
reference to emission minimization techniques in paragraph 8 of 
Decision XVIII/13, which stated that Parties shall request critical 
users to employ ``emission minimization techniques such as virtually 
impermeable films, barrier film technologies, deep shank injection and/
or other techniques that promote environmental protection, whenever 
technically and economically feasible.'' EPA understands that research 
is being conducted on the potential to reduce rates and emissions using 
newly available high-barrier films and that these studies show 
promising results. Users of methyl bromide should make every effort to 
minimize overall emissions of methyl bromide by using measures such as 
the ones listed above, to the extent consistent with State and local 
laws and regulations. In the proposed rule, the Agency encouraged 
researchers and users who are successfully utilizing such techniques to 
inform EPA of their experiences as part of their comments and to 
provide such information with their critical use applications. In 
addition, the Agency welcomed comments on the implementation of 
emissions minimization techniques and whether and how further emissions 
minimization could be achieved.
    At the public hearing for this action the CSC expressed its opinion 
that EPA should create a regulatory incentive for emissions reduction. 
NRDC commented that the most effective way to achieve further emission 
minimization is to require the use of emissions minimization techniques 
such as virtually impermeable films (VIF), barrier films, and deep 
shank injection. NRDC noted that these techniques offer the concurrent 
benefit of reducing the amount of methyl bromide needed for 
fumigations. EPA believes that reducing supply through the phaseout 
provides incentives for use minimization and therefore limits 
emissions. Other points discussed by this commenter can be found in the 
Response to Comments document on the docket for this action.
    At the public hearing for this action, West Coast Tomato stated 
that VIF keeps methyl bromide in the soil longer where it is 
metabolized rather than escaping into the atmosphere. The commenter 
suggested that methyl bromide that is used in this way should not be 
decreased since it is not reaching the ozone layer. EPA has not fully 
reviewed the research that the commenter is referring to. In compiling 
annual critical use nominations, USG considers the feasibility of VIF, 
and other less permeable tarps, because the use of these technologies 
can reduce required dosage rates and the critical need for methyl 
bromide to treat certain crops. The commenter may be proposing a 
different type of exemption for methyl bromide use that does not result 
in emissions to the stratosphere, but this would require a change in 
the Montreal Protocol, which is outside the scope of the present 
rulemaking. Until EPA fully reviews the research that the commenter 
refers to, it would be inappropriate for the Agency to respond further.

G. Critical Use Allowance Allocations

    A critical use allowance (CUA) is a privilege granted by EPA, using 
its authority under Section 604(d)(6) of the Clean Air Act, that 
enables the holder to produce or import one kilogram of methyl bromide 
for an approved critical use during the specified control period. These 
allowances expire at the end of the control period and, as explained in 
the Framework Rule, are not bankable from one year to the next. The 
allocation of 2008 pre-plant and post-harvest CUAs to the entities 
listed below is subject to the trading provisions at 40 CFR 82.12, 
which are discussed in section V.G. of the preamble to the Framework 
Rule (69 FR 76982).
    In the August 27, 2007, proposed rule, EPA proposed to allow 
limited amounts of new production or import of methyl bromide for 
critical uses for 2008 up to the amount of 3,101,076 kg (12.2% of 
baseline) as shown in Table II below. EPA sought comment on the total 
levels of exempted new production or import for pre-plant and post-
harvest critical uses in 2008. For the reasons discussed in Section 
V.D. of this preamble, EPA is adjusting the proposed CUA amounts to 
account for late sales reports that decrease the calculated 2006 
carryover amount and to account for the uptake of alternatives. 
Therefore, the total critical use exemption amount for 2008 is 
4,813,452 kg (18.9% of baseline), with 3,083,763 kg (12.1% of baseline) 
of critical use allowances allowing new production or import, and the 
remaining amount, 1,729,689 kg (6.8% of baseline), available through 
critical stock allowances (CSAs) that allow critical users to access 
pre-phaseout methyl bromide. EPA is continuing to calculate company-
specific CUA allocations on the basis of the 1991 baseline consumption 
share of the companies listed in Table II. The updated calculation 
spreadsheet is available on Docket ID No. EPA-HQ-OAR-2006-1016. 
Therefore, the CUAs are allocated as follows:

[[Page 74142]]



                                Table II.--Allocation of Critical Use Allowances
----------------------------------------------------------------------------------------------------------------
                                                                                            2008 Critical use
                                                                   2008 Critical use       allowances for post-
                            Company                               allowances for pre-         harvest uses*
                                                                plant uses* (kilograms)        (kilograms)
----------------------------------------------------------------------------------------------------------------
Chemtura Corp.................................................                1,687,407                  186,595
Albemarle Corp................................................                  693,900                   76,732
Ameribrom, Inc................................................                  383,464                   42,404
TriCal, Inc...................................................                   11,940                    1,320
                                                               -------------------------------------------------
    Total.....................................................                2,776,711                 307,052
----------------------------------------------------------------------------------------------------------------
* For production or import of class I, Group VI controlled substances exclusively for the pre-plant or post-
  harvest uses specified in Appendix L to this subpart.

    Paragraph five of Decision XVIII/13 states ``that Parties shall 
endeavor to license, permit, authorize, or allocate quantities of 
critical use methyl bromide as listed in tables A and C of the annex to 
the present decision.'' This is similar to language in Decisions Ex. I/
3(4), Ex. II/1(4) and VII/9(4) regarding 2005, 2006, and 2007 critical 
uses, respectively. The language from these Decisions called on Parties 
to endeavor to allocate critical use methyl bromide on a sector basis.
    In establishing the critical use exemption program, the Agency 
endeavored to allocate directly on a sector-by-sector basis by 
analyzing and proposing this option among others in the August 2004 
Framework Rule notice (69 FR 52366). EPA solicited comment on both 
universal and sector-based allocation of critical use allowances. The 
Agency evaluated the various options based on their economic, 
environmental, and practical effects. After receiving comments, EPA 
determined in the final Framework Rule (69 FR 76989) that a lump-sum, 
or universal, allocation, modified to include distinct caps for pre-
plant and post-harvest uses, was the most efficient and least 
burdensome approach that would achieve the desired environmental 
results, and that a sector-specific approach would pose significant 
administrative and practical difficulties. Although the approach 
adopted in the Framework Rule does not directly allocate allowances to 
each category of use, the Agency anticipates that reliance on market 
mechanisms will achieve similar results indirectly. The TEAP 
recommendations were based on data submitted by the U.S. which in turn 
were based on recent historic use data in the current methyl bromide 
market. In other words, the TEAP recommendations agreed to by the 
Parties were based on current use and the current use patterns take 
place in a market where all pre-plant and post-harvest methyl bromide 
uses compete for a lump sum supply of critical use material. Therefore, 
the Agency believes that under a system of universal allocations, 
divided into pre-plant and post-harvest sectors, the actual critical 
use will closely follow the sector breakout listed by the TEAP. These 
issues were addressed in the Framework Rule and EPA is not aware of any 
factors that would alter the analysis performed during the development 
of previous CUE allocation rules. A summary of the options analysis 
conducted by EPA is available in the docket for this rulemaking.
    In developing this action, EPA did not propose to change the 
approach adopted in the Framework Rule for the allocation of CUAs but, 
in an effort to address Decision XVIII/13(5), EPA sought additional 
comment on the Agency's allocation of CUAs in the two groupings (pre-
plant and post-harvest) that the Agency has employed in the past. NPMA 
and Chemtura commented that the universal system is working well and 
believe the concept of the pre-plant/post-harvest allocations is simple 
and easy for stakeholders to understand. The commenters also noted that 
the system has not disrupted the supply chain and has been easy for 
distributors to implement, and discouraged the Agency from switching to 
a sector-by-sector allocation system.
    FFVA and a representative of the walnut, prune and fig industry 
commented that the geographical distribution of methyl bromide has 
created shortfalls resulting in the inability of individual growers to 
access or afford material to fumigate their fields in accordance with 
their production schedules. FFVA indicated that this was particularly 
noticeable during the 2005 and 2006 fall fumigation periods. The other 
commenter stated that the universal system has not worked well for the 
above reasons, but believes that a sector-by-sector allocation system 
would be equally flawed due to insufficient allocations in certain 
sectors and unequal holdings of pre-phaseout inventory.
    CSC stated that EPA should explore a hybrid between a regional and 
a lump-sum allocation system. Specifically, the commenter suggested 
that EPA consider creating several large regional areas (such as the 
EPA regions) that combine all of the sectors within each region to 
create a regional lump-sum. The commenter further stated that the 
methyl bromide users who most frequently face difficulty obtaining 
methyl bromide are small, minority growers. The commenter argued that 
the allocation of methyl bromide creates a harm that is 
disproportionately distributed. The commenter's primary concern does 
not appear to be human health and environmental effects on minority or 
low-income populations. Instead, the commenter appears to believe that 
EPA's current allocation system causes economic harm for these 
populations, because they have difficulty satisfying their critical 
needs for methyl bromide.
    This final rule creates an exemption to the phaseout of methyl 
bromide. The overall impact of this action is deregulatory, and has an 
economic benefit for growers with critical needs for methyl bromide. 
EPA responds further to this comment in the Response to Comment 
document for this action.
    EPA agrees with the comments that supported the existing allocation 
system. EPA considered sector-specific, and other allocation approaches 
in the proposed Framework Rule, and decided that the existing universal 
allocation system with pre-plant and post-harvest allowances was the 
most effective and least burdensome system. The Framework Rule did not 
establish a regional approach, as one commenter suggested. EPA may 
consider such an approach for future CUE rules. EPA does not believe it 
would be appropriate to finalize such an approach without giving other 
interested parties an opportunity for comment. EPA responds to these 
comments further in the

[[Page 74143]]

Response to Comments document available on the docket for this action.

H. Critical Stock Allowance Allocations and the Confidentiality of 
Information About the Aggregate Methyl Bromide Inventory

    Each critical stock allowance (CSA) is equivalent to one kilogram 
of critical use methyl bromide. These allowances expire at the end of 
the control period and, as explained in the Framework Rule, are not 
bankable from one year to the next (69 FR 76990). CSAs are not used to 
produce or import methyl bromide but are rights that enable the holder 
to sell pre-phaseout inventories of methyl bromide for use in approved 
critical uses. A CSA is expended when the entity selling methyl bromide 
sells the material, or fumigation services with the material, to an 
approved critical user who certifies that the material is for an 
approved critical use. Thus, the movement of pre-phaseout inventories 
or methyl bromide along the supply chain does not require expenditure 
of a CSA.
    In developing this action, EPA proposed to allocate critical stock 
allowances (CSAs) to the entities listed below in Table III for the 
2008 control period in the amount of 1,715,438 kg (6.8% of U.S. 1991 
baseline). EPA's proposal was based on the proposed approach for 
accounting for available stocks of methyl bromide, which is described 
in Section V.D. of this preamble. For the reasons discussed in Section 
V.D., in this action EPA is allocating 1,729,689 kg of CSAs to the 
entities listed in Table III below. The amounts are apportioned to each 
entity in proportion to inventory held by each on January 1, 2007.
    In 2006, the United States District Court for the District of 
Columbia upheld EPA's treatment of company-specific methyl bromide 
inventory information as confidential. NRDC v. Leavitt, 2006 WL 667327 
(D.D.C. March 14, 2006). EPA's allocation of CSAs is based on each 
company's proportionate share of the aggregate inventory. Therefore, 
the documentation regarding company-specific allocation of CSAs is in 
the confidential portion of the rulemaking docket and the individual 
CSA allocations are not listed in the table below. EPA will inform the 
listed companies of their CSA allocations in a letter following 
publication of the final rule.
    In developing this action, EPA explained that several companies 
that receive small amounts of CSAs from EPA have contacted the Agency 
and requested that they be permitted to permanently relinquish their 
allowances. Due to the small CSA allocation and because they typically 
do not sell critical use methyl bromide, they find the allocation of 
CSAs, and associated recordkeeping and reporting requirements, to be 
unduly burdensome. In response to this concern, in the proposed 2007 
CUE rule EPA proposed to allow CSA holders, on a voluntary basis, to 
permanently relinquish their allowances through written notification to 
the Agency. EPA received no adverse comments. However, no CSA holders 
contacted EPA to take advantage of that voluntary opportunity. In the 
2008 proposed rule EPA again gave CSA holders the opportunity, on a 
voluntary basis, to permanently relinquish their allowances through 
written notification to the Agency. EPA explained that companies 
voluntarily relinquishing their allowances would not receive CSA 
allocations and would be excluded from future allocations, and that all 
allowances forfeited by companies would be reallocated to the remaining 
companies on a pro-rata basis.
    Seven companies contacted EPA during the comment period for this 
action and volunteered to relinquish their CSAs. The companies that 
contacted the Agency were: Blair Soil Fumigation, Dodson Brothers, 
Carolina Eastern Inc., Harvey Fertilizer & Gas, J.C. Ehrlich Co., 
Southern States Cooperative Inc., and Vanguard Fumigation Co. With this 
final rule, EPA is honoring their requests and removing these seven 
companies from Table III below. Additionally, EPA will not issue CSAs 
to these seven companies in future control periods. EPA has reallocated 
their CSAs to the remaining companies on a pro-rata basis.

           Table III.--Allocation of Critical Stock Allowances
------------------------------------------------------------------------
                                 Company
-------------------------------------------------------------------------
Albemarle.
Ameribrom, Inc.
Bill Clark Pest Control, Inc.
Burnside Services, Inc.
Cardinal Professional Products.
Chemtura Corp.
Degesch America, Inc.
Helena Chemical Co.
Hendrix & Dail.
Hy Yield Bromine.
Industrial Fumigation Company.
Pacific Ag.
Pest Fog Sales Corp.
Prosource One.
Reddick Fumigants.
Royster-Clark, Inc.
Trical Inc.
Trident Agricultural Products.
UAP Southeast (NC).
UAP Southeast (SC).
Univar.
Western Fumigation.
 
    Total--1,729,689 kilograms.
------------------------------------------------------------------------

I. Stocks of Methyl Bromide

    As discussed above and in the December 23, 2004 Framework Rule, an 
approved critical user may obtain access to exempted production and 
import of methyl bromide and to limited inventories of pre-phaseout 
methyl bromide, the combination of which constitute the supply of 
``critical use methyl bromide'' intended to meet the needs of agreed 
critical uses. The Framework Rule established provisions governing the 
sale of pre-phaseout inventories for critical uses, including the 
concept of CSAs and a prohibition on the sale of pre-phaseout 
inventories for critical uses in excess of the amount of CSAs held by 
the seller. The Framework Rule also established trading provisions that 
allow critical use allowances (CUAs) to be converted into CSAs. Under 
this action, no significant changes are being made to those provisions.
    NRDC commented that EPA should dedicate all pre-phaseout stocks of 
methyl bromide to CUEs. The Agency notes that it has responded to 
similar comments in the Final Framework Rule (69 FR 76988), the Final 
2007 CUE Rule (71 FR 75400), and in response to NRDC's late submission 
of supplemental comments on the Proposed 2007 CUE Rule. EPA is not 
revisiting this issue in this rulemaking.
    The proposed rule explained in detail how EPA acquired information 
about pre-phaseout inventory for 2003 and after, and how EPA had 
applied its regulations on treatment of information claimed as 
confidential. In the proposed rule, EPA noted that it did not receive 
any objections to releasing the aggregate stocks information for 
calendar year 2006. To simplify the process of releasing future 
aggregate stocks information, EPA proposed to release the aggregate of 
methyl bromide stockpile information reported to the Agency under the 
reporting requirements at 40 CFR 82.13 for the end of 2007, and each 
year thereafter. For the reasons given in a letter that EPA sent on 
April 23, 2007, which is available in the docket, to all entities which 
had reported holding pre-phaseout inventory at the end of 2003, 2004, 
2005, or 2006, this aggregate information is clearly not entitled to

[[Page 74144]]

confidential treatment. EPA proposed to release the aggregate of this 
stockpile data in future years without first notifying entities by 
letter, as EPA has done in the past two years. EPA sought comment on 
this proposal. In the proposed rule, the Agency stated that if it did 
not receive any comments opposing its proposal, the aggregate of methyl 
bromide stockpile data collected under the reporting requirements at 40 
CFR 82.13 would not be treated as confidential information and could be 
released in future without additional notice to the competitors.
    In its comments MBIP did not object to EPA's proposal to release 
aggregate stockpile data in future years at this time. MBIP stated that 
they reserve the right to object in the future should the number of 
competitors in the industry dwindle to two or fewer in order to protect 
confidentiality. Therefore, because EPA received no comments objecting 
to its proposal at the present time, for as long as there are a 
sufficient number of competitors in the industry, the aggregate of 
methyl bromide stockpile data collected under the reporting 
requirements at 40 CFR 82.13 will not be treated as confidential 
information and may be released in future without further notice. 
However, if the number of competitors in the industry were to decline 
appreciably, EPA would revisit the question of whether the aggregate is 
entitled to treatment as confidential information and would not release 
the aggregate without notice.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action,'' because it raises 
novel or legal policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order. Accordingly, EPA submitted this action to the Office of 
Management and Budget (OMB) for review under EO 12866 and any changes 
made in response to OMB recommendations have been documented in the 
docket for this action.

B. Paperwork Reduction Act

    This rulemaking does not impose any additional information 
collection burden. OMB has previously approved the information 
collection requirements contained in the existing regulations at 40 CFR 
Part 82 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq. and has assigned OMB control number 2060-0564, and EPA ICR 
number 2179.03. A copy of the OMB approved Information Collection 
Request (ICR) may be obtained from Susan Auby, Collection Strategies 
Division; U.S. Environmental Protection Agency (2822T); 1200 
Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-
1672.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice-and-comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions. For purposes 
of assessing the impacts of this action on small entities, small entity 
is defined as: (1) A small business that is identified by the North 
American Industry Classification System (NAICS) Code in the Table 
below; (2) a small governmental jurisdiction that is a government of a 
city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.

----------------------------------------------------------------------------------------------------------------
                                                                                           NAICS small business
                                                                                            size standard (in
             Category                      NAICS code                  SIC code           number of employees or
                                                                                           millions of dollars)
----------------------------------------------------------------------------------------------------------------
Agricultural production..........  1112--Vegetable and Melon  0171--Berry Crops........  $0.75 million.
                                    farming.                  0172--Grapes.............
                                   1113--Fruit and Nut Tree   0173--Tree Nuts..........
                                    Farming.                  0175--Deciduous Tree
                                   1114--Greenhouse,           Fruits (except apple
                                    Nursery, and               orchards and farms).
                                    Floriculture Production.  0179--Fruit and Tree
                                                               Nuts, NEC.
                                                              0181--Ornamental
                                                               Floriculture and Nursery
                                                               Products.
                                                              0831--Forest Nurseries
                                                               and Gathering of Forest
                                                               Products.

[[Page 74145]]

 
Storage Uses.....................  115114--Postharvest Crop   2041--Flour and Other      $6.5 million.
                                    activities (except         Grain Mill Products.      500 employees.
                                    Cotton Ginning).          2044--Rice Milling.......  $23.5 million.
                                   311211--Flour Milling....  4221--Farm Product
                                   311212--Rice Milling.....   Warehousing and Storage.
                                   493110--General            4225--General Warehousing
                                    Warehousing and Storage.   and Storage.
                                   493130--Farm Product
                                    Warehousing and Storage.
Distributors and Applicators.....  115112--Soil Preparation,  0721--Crop Planting,       $6.5 million.
                                    Planting and Cultivating.  Cultivation, and
                                                               Protection.
Producers and Importers..........  325320--Pesticide and      2879--Pesticides and       500 employees.
                                    Other Agricultural         Agricultural Chemicals,
                                    Chemical Manufacturing.    NEC.
----------------------------------------------------------------------------------------------------------------

    Agricultural producers of minor crops and entities that store 
agricultural commodities are categories of affected entities that 
contain small entities. This action will only affect entities that 
applied to EPA for a de-regulatory exemption. In most cases, EPA 
received aggregated requests for exemptions from industry consortia. On 
the exemption application, EPA asked consortia to describe the number 
and size distribution of entities their application covered. EPA 
estimated that 3,218 entities submitted critical use applications, 
either individually or as members of consortia, for a critical use 
exemption for the 2005 control period. EPA received requests from a 
comparable number of entities for the 2006, 2007, and 2008 control 
periods. Since many applicants did not provide information on the 
distribution of sizes of entities covered in their applications, EPA 
estimated that, based on the above definition, between one-fourth and 
one-third of the entities may be small businesses. In addition, other 
categories of affected entities do not contain small businesses based 
on the above description.
    After considering the economic impacts of this final rule on small 
entities, EPA certifies that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities.'' (5 U.S.C. 
603-604). Thus, an Agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves a regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule. Since 
this rule exempts methyl bromide for approved critical uses after the 
phaseout date of January 1, 2005, this is a de-regulatory action which 
will confer a benefit to users of methyl bromide. EPA believes the 
estimated de-regulatory value for users of methyl bromide is between 
$20 million and $30 million annually. We have therefore concluded that 
this 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.
    This final rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector. This action is deregulatory and does 
not impose any new requirements on any entities. Thus, this rule is not 
subject to the requirements of sections 202 and 205 of the UMRA. 
Further, EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
The phrase ``policies that have federalism implications'' is defined in 
the Executive Order to include regulations that have ``substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and

[[Page 74146]]

responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This final rule is expected to 
primarily affect producers, suppliers, importers and exporters and 
users of methyl bromide. Thus, Executive Order 13132 does not apply to 
this final rule.

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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. This final 
rule does not significantly or uniquely affect the communities of 
Indian tribal governments. The final rule does not impose any 
enforceable duties on communities of Indian tribal governments. Thus, 
Executive Order 13175 does not apply to this final rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

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

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

    This final rule is not a ``significant energy action'' as defined 
in Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. This final rule 
does not pertain to any segment of the energy production economy nor 
does it regulate any manner of energy use. Therefore, EPA has concluded 
that this final 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 is not 
considering the use of any voluntary consensus standards.

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

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

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective December 28, 2007.

List of Subjects in 40 CFR part 82

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

    Dated: December 19, 2007.
Stephen L. Johnson,
Administrator.

0
For the reasons stated in the preamble, 40 CFR Part 82 is amended as 
follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

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

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


0
2. Section 82.8 is amended by revising the table in paragraph (c)(1) 
and paragraph (c)(2) to read as follows:


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

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

[[Page 74147]]



----------------------------------------------------------------------------------------------------------------
                                                                                            2008 Critical use
                                                                   2008 Critical use       allowances for post-
                            Company                               allowances for pre-         harvest uses*
                                                                plant uses* (kilograms)        (kilograms)
----------------------------------------------------------------------------------------------------------------
Chemtura Corp.................................................                1,687,407                  186,595
Albemarle Corp................................................                  693,900                   76,732
Ameribrom, Inc................................................                  383,464                   42,404
TriCal, Inc...................................................                   11,940                    1,320
                                                               -------------------------------------------------
    Total.....................................................                2,776,711                 307,052
----------------------------------------------------------------------------------------------------------------
*For production or import of class I, Group VI controlled substance exclusively for the pre-plant or post-
  harvest uses specified in Appendix L of this subpart.

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

------------------------------------------------------------------------
                                 Company
-------------------------------------------------------------------------
Albemarle.
Ameribrom, Inc.
Bill Clark Pest Control, Inc.
Burnside Services, Inc.
Cardinal Professional Products.
Chemtura Corp.
Degesch America, Inc.
Helena Chemical Co.
Hendrix & Dail.
Hy Yield Bromine.
Industrial Fumigation Company.
Pacific Ag.
Pest Fog Sales Corp.
Prosource One.
Reddick Fumigants.
Royster-Clark, Inc.
Trical Inc.
Trident Agricultural Products.
UAP Southeast (NC).
UAP Southeast (SC).
Univar.
Western Fumigation.
------------------------------------------------------------------------
    Total--1,729,689 kilograms.
------------------------------------------------------------------------


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

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

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

[[Page 74148]]

 
                              (b) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Moderate to severe
                                                     pythium collar,
                                                     crown and root rot.
                                                    Moderate to severe
                                                     southern blight
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Forest Nursery Seedlings  (a) Growers in        Moderate to severe
                               Alabama, Arkansas,    yellow or purple
                               Georgia, Louisiana,   nutsedge
                               Mississippi, North    infestation.
                               Carolina, Oklahoma,  Moderate to severe
                               South Carolina,       soilborne disease
                               Tennessee, Texas,     infestation.
                               and Virginia.        Moderate to severe
                                                     nematode
                                                     infestation.
                              (b) International     Moderate to severe
                               Paper and its         yellow or purple
                               subsidiaries          nutsedge
                               limited to growing    infestation.
                               locations in         Moderate to severe
                               Alabama, Arkansas,    soilborne disease
                               Georgia, South        infestation.
                               Carolina, and Texas.
                              (c) Public            Moderate to severe
                               (government-owned)    weed infestation
                               seedling nurseries    including purple
                               in Illinois,          and yellow nutsedge
                               Indiana, Kentucky,    infestation.
                               Maryland, Missouri,  Moderate to severe
                               New Jersey, Ohio,     Canada thistle
                               Pennsylvania, West    infestation.
                               Virginia, and        Moderate to severe
                               Wisconsin.            nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                              (d) Weyerhaeuser      Moderate to severe
                               Company and its       yellow or purple
                               subsidiaries          nutsedge
                               limited to growing    infestation.
                               locations in         Moderate to severe
                               Alabama, Arkansas,    soilborne disease
                               North Carolina, and   infestation.
                               South Carolina.      Moderate to severe
                                                     nematode or worm
                                                     infestation.
                              (e) Weyerhaeuser      Moderate to severe
                               Company and its       yellow nutsedge
                               subsidiaries          infestation.
                               limited to growing   Moderate to severe
                               locations in Oregon   soilborne disease
                               and Washington.       infestation.
                              (f) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     Canada thistle
                                                     infestation.
                                                    Moderate to severe
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
    Orchard Nursery           (a) Members of the    Moderate to severe
     Seedlings.                Western Raspberry     nematode
                               Nursery Consortium    infestation.
                               limited to growing   Presence of medium
                               locations in          to heavy clay
                               Washington.           soils.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits on use of
                                                     this alternative
                                                     have been reached.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) Members of the    Moderate to severe
                               California            nematode
                               Association of        infestation.
                               Nursery and Garden   Presence of medium
                               Centers               to heavy clay
                               representing          soils.
                               Deciduous Tree       Prohibition on use
                               Fruit Growers.        of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits on use of
                                                     this alternative
                                                     have been reached.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) California rose   Moderate to severe
                               nurseries.            nematode
                                                     infestation.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits on use of
                                                     this alternative
                                                     have been reached.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.

[[Page 74149]]

 
    Strawberry Nurseries....  (a) California        Moderate to severe
                               growers.              soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) North Carolina    Moderate to severe
                               and Tennessee         black root rot.
                               growers.             Moderate to severe
                                                     root-knot nematode
                                                     infestation.
                                                    Moderate to severe
                                                     yellow and purple
                                                     nutsedge
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Orchard Replant.........  (a) California stone  Moderate to severe
                               fruit growers.        nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Replanted (non-
                                                     virgin) orchard
                                                     soils to prevent
                                                     orchard replant
                                                     disease.
                                                    Presence of medium
                                                     to heavy soils.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits on use of
                                                     this alternative
                                                     have been reached.
                              (b) California table  Moderate to severe
                               and raisin grape      nematode
                               growers.              infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Replanted (non-
                                                     virgin) orchard
                                                     soils to prevent
                                                     orchard replant
                                                     disease.
                                                    Medium to heavy
                                                     soils.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits for this
                                                     alternative have
                                                     been reached.
                              (c) California wine   Moderate to severe
                               grape growers.        nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Replanted (non-
                                                     virgin) orchard
                                                     soils to prevent
                                                     orchard replant
                                                     disease.
                                                    Medium to heavy
                                                     soils.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits for this
                                                     alternative have
                                                     been reached.
                              (d) California        Moderate to severe
                               walnut growers.       nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Replanted (non-
                                                     virgin) orchard
                                                     soils to prevent
                                                     orchard replant
                                                     disease.
                                                    Medium to heavy
                                                     soils.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits for this
                                                     alternative have
                                                     been reached.
                              (e) California        Moderate to severe
                               almond growers.       nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Replanted (non-
                                                     virgin) orchard
                                                     soils to prevent
                                                     orchard replant
                                                     disease.
                                                    Medium to heavy
                                                     soils.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits for this
                                                     alternative have
                                                     been reached.
    Ornamentals.............  (a) California        Moderate to severe
                               growers.              soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits for this
                                                     alternative have
                                                     been reached.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.

[[Page 74150]]

 
                              (b) Florida growers.  Moderate to severe
                                                     weed infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) Michigan          Moderate to severe
                               herbaceous            nematode
                               perennials growers.   infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     yellow nutsedge and
                                                     other weed
                                                     infestation.
    Peppers.................  (a) Alabama,          Moderate to severe
                               Arkansas, Kentucky,   yellow or purple
                               Louisiana,            nutsedge
                               Mississippi, North    infestation
                               Carolina, South      Moderate to severe
                               Carolina,             nematode
                               Tennessee, and        infestation.
                               Virginia growers.    Moderate to severe
                                                     pythium root,
                                                     collar, crown and
                                                     root rots.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation, or
                                                     moderate to severe
                                                     pythium root and
                                                     collar rots.
                                                    Moderate to severe
                                                     southern blight
                                                     infestation, crown
                                                     or root rot.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (d) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Strawberry Fruit........  (a) California        Moderate to severe
                               growers.              black root rot or
                                                     crown rot.
                                                    Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits for this
                                                     alternative have
                                                     been reached.
                                                    Time to transition
                                                     to an alternative.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Carolina geranium or
                                                     cut-leaf evening
                                                     primrose
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.

[[Page 74151]]

 
                              (c) Alabama,          Moderate to severe
                               Arkansas, Georgia,    yellow or purple
                               Illinois, Kentucky,   nutsedge
                               Louisiana,            infestation.
                               Maryland,            Moderate to severe
                               Mississippi,          nematode
                               Missouri, New         infestation.
                               Jersey, North        Moderate to severe
                               Carolina, Ohio,       black root and
                               South Carolina,       crown rot.
                               Tennessee, and       A need for methyl
                               Virginia growers.     bromide for
                                                     research purposes.
    Sweet Potato Slips......  (a) California        Prohibition on use
                               growers.              of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits for this
                                                     alternative have
                                                     been reached.
    Tomatoes................  (a) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation
                                                    Moderate to severe
                                                     fungal pathogen
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) Alabama,          Moderate to severe
                               Arkansas, Florida,    yellow or purple
                               Georgia, Kentucky,    nutsedge
                               Louisiana, North      infestation
                               Carolina, South      Moderate to severe
                               Carolina,             soilborne disease
                               Tennessee, and        infestation.
                               Virginia growers.    Moderate to severe
                                                     nematodes.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features, and in
                                                     Florida, soils not
                                                     supporting seepage
                                                     irrigation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
Post-Harvest Uses:
    Food Processing.........  (a) Rice millers in   Moderate to severe
                               all locations in      infestation of
                               the U.S. who are      beetles, weevils,
                               members of the USA    or moths.
                               Rice Millers         Presence of
                               Association.          sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.
                              (b) Pet food          Moderate to severe
                               manufacturing         infestation or
                               facilities in the     beetles, moths, or
                               U.S. who are active   cockroaches.
                               members of the Pet   Presence of
                               Food Institute (for   sensitive
                               this rule, ``pet      electronic
                               food'' refers to      equipment subject
                               domestic dog and      to corrosion.
                               cat food).           Time to transition
                                                     to an alternative.
                              (c) Bakeries in the   Presence of
                               U.S..                 sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.
                              (d) Members of the    Moderate to severe
                               North American        beetle infestation.
                               Millers'             Presence of
                               Association in the    sensitive
                               U.S..                 electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.
                              (e) Members of the    Moderate to severe
                               National Pest         beetle or moth
                               Management            infestation.
                               Association          Presence of
                               treating cocoa        sensitive
                               beans in storage      electronic
                               and associated        equipment subject
                               spaces and            to corrosion.
                               equipment and        Time to transition
                               processed food,       to an alternative.
                               cheese, herbs,
                               spices and spaces
                               and equipment in
                               associated
                               processing
                               facilities.
    Commodities.............  (a) California        Rapid fumigation is
                               entities storing      required to meet a
                               walnuts, beans,       critical market
                               dried plums, figs,    window, such as
                               raisins, and dates    during the holiday
                               (in Riverside         season, rapid
                               county only) in       fumigation is
                               California.           required when a
                                                     buyer provides
                                                     short (2 working
                                                     days or less)
                                                     notification for a
                                                     purchase or there
                                                     is a short period
                                                     after harvest in
                                                     which to fumigate
                                                     and there is
                                                     limited silo
                                                     availability for
                                                     using alternatives.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Dry Cured Pork Products.  (a) Members of the    Red legged ham
                               National Country      beetle infestation.
                               Ham Association.     Cheese/ham skipper
                                                     infestation.
                                                    Dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.
                              (b) Members of the    Red legged ham
                               American              beetle infestation.
                               Association of Meat  Cheese/ham skipper
                               Processors.           infestation.
                                                    Dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.

[[Page 74152]]

 
                              (c) Nahunta Pork      Red legged ham
                               Center (North         beetle infestation.
                               Carolina).           Cheese/ham skipper
                                                     infestation.
                                                    Dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.
                              (d) Gwaltney of       Red legged ham
                               Smithfield Ltd..      beetle infestation.
                                                    Cheese/ham skipper
                                                     infestation.
                                                    Dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.
------------------------------------------------------------------------

[FR Doc. E7-25065 Filed 12-27-07; 8:45 am]
BILLING CODE 6560-50-P