[Federal Register: October 27, 2005 (Volume 70, Number 207)]
[Proposed Rules]
[Page 62029-62054]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27oc05-17]
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Part III
Environmental Protection Agency
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40 CFR Part 82
Protection of Stratospheric Ozone: The 2006 Critical Use Exemption From
the Phaseout of Methyl Bromide; Proposed Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[FRL-7990-1]
RIN 2060-AN18
Protection of Stratospheric Ozone: The 2006 Critical Use
Exemption From the Phaseout of Methyl Bromide
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: EPA is proposing an exemption to the phaseout of methyl
bromide production and import for 2006 critical uses. Specifically, EPA
is proposing uses that will qualify for the 2006 critical use
exemption, and the amount of methyl bromide that may be produced,
imported, or made available from stocks for those uses in 2006. EPA's
action is taken under the authority of the Clean Air Act and reflects
recent consensus Decisions taken by the Parties to the Montreal
Protocol on Substances that Deplete the Ozone Layer (Protocol) at the
16th Meeting of the Parties (MOP) and the 2nd Extraordinary Meeting of
the Parties (ExMOP). EPA is seeking comment on both the list of
critical uses, and on EPA's determination of the amounts of methyl
bromide needed to satisfy those uses.
DATES: Written comments on this proposed rule must be received on or
before November 28, 2005, except as otherwise noted in this paragraph.
Any party requesting a public hearing must notify the contact person
listed below by 5 p.m. Eastern Standard Time on November 7, 2005. If a
hearing is requested it will be held on November 14, 2005. If a hearing
is held, any party may submit follow-up comments in the form of
rebuttal or supplementary information, but such comments must be
received on or before December 12, 2005. Persons interested in
attending a public hearing should consult with the contact person below
regarding the location and time of the hearing. Whether or not a
hearing is held, if data relevant to the critical use exemption level
is received on or before November 28, 2005, any party may submit
follow-up comments regarding such data, but such comments must be
received on or before December 12, 2005.
ADDRESSES: Submit your comments, identified by Regional Material in
Edocket (RME) ID No. OAR-2005-0122, by one of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
2. Agency Web site: http://www.epa.gov/edocket. EDOCKET, EPA's
electronic public docket and comment system, is EPA's preferred method
for receiving comments. Follow the on-line instructions for submitting
comments.
3. E-mail: A-and-R-docket@epa.gov.
4. Fax: (202) 343-2337, attn: Marta Montoro.
5. Mail: ``OAR-2005-0122'', Air Docket, Environmental Protection
Agency, Mailcode: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC
20460.
6. Hand Delivery or Courier. Deliver your comments to: EPA Air
Docket, EPA West, 1301 Constitution Avenue, NW., Room B108, Mail Code
6102T, Washington, DC 20460. Such deliveries are only accepted during
the Docket's normal hours of operation, and special arrangements should
be made for deliveries of boxed information.
Instructions: Direct your comments to OAR-2005-0122. EPA's policy
is that all comments received will be included in the public docket
without change and may be made available online at http://www.epa.gov/edocket
, including any personal information provided, unless the
comment includes information claimed to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Do not submit information that you consider to be CBI or
otherwise protected through EDOCKET, regulations.gov, or e-mail. The
EPA EDOCKET and the Federal regulations.gov Web site are ``anonymous
access'' systems, which means EPA will not know your identity or
contact information unless you provide it in the body of your comment.
If you send an e-mail comment directly to EPA without going through
EDOCKET or regulations.gov, your e-mail address will be automatically
captured and included as part of the comment that is placed in the
public docket and made available on the Internet. If you submit an
electronic comment, EPA recommends that you include your name and other
contact information in the body of your comment and with any disk or
CD-ROM you submit. If EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your comment. Electronic files should avoid the use of
special characters, any form of encryption, and be free of any defects
or viruses.
Docket: All documents in the docket are listed in the EDOCKET index
at http://www.epa.gov/edocket. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in EDOCKET or in hard
copy at the Air Docket, EPA/DC, EPA West, Room B102, 1301 Constitution
Ave., NW., Washington, DC. This Docket Facility is open from 8:30 a.m.
to 4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744, and the
telephone number for the Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: For further information about this
proposed rule, contact Marta Montoro by telephone at (202) 343-9321, or
by e-mail at mebr.allocation@epa.gov or by mail at Marta Montoro, U.S.
Environmental Protection Agency, Stratospheric Protection Division,
Stratospheric Program Implementation Branch (6205J), 1200 Pennsylvania
Avenue, NW., Washington, DC 20460. You may also visit the Ozone
Depletion Web site of EPA's Stratospheric Protection Division at http://www.epa.gov/ozone
for further information about EPA's Stratospheric
Ozone Protection regulations, the science of ozone layer depletion, and
other related topics.
SUPPLEMENTARY INFORMATION: This proposed rule concerns Clean Air Act
restrictions on the consumption, production and on the use of methyl
bromide (class I, Group VI controlled substance) for critical uses
during the calendar year of 2006. Under the Clean Air Act, methyl
bromide consumption 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 today's action, EPA is
proposing and seeking comment on the uses that will qualify for the
2006 critical use exemption, as well as specific amounts of methyl
bromide that may be produced, imported, or made available from stocks
for proposed critical uses in 2006.
Table of Contents
I. General Information
A. Regulated Entities
B. How Can I Get Copies of This Document and Other Related
Information?
II. What Is the Background to the Phaseout Regulations for Ozone-
Depleting Substances?
[[Page 62031]]
III. What Is Methyl Bromide?
IV. What Is the Legal Authority for Exempting the Production and
Import of Methyl Bromide for Critical Uses Authorized by the Parties
to the Montreal Protocol?
V. What Is the Critical Use Exemption Process?
A. Background of the Process
B. How Does This Proposed Rulemaking Relate to Previous
Rulemaking Regarding the Critical Use Exemption?
C. What Are the Proposed Critical Uses?
D. What Are the Uses That May Obtain Methyl Bromide for
Research?
E. What Amount of Methyl Bromide Is Necessary for Critical Uses?
F. What Are the Sources of Critical Use Methyl Bromide?
G. What Are the Critical Use Allowance Allocations?
H. What Are the Critical Stock Allowance Allocations?
I. Clarifications to the Framework Rule
J. Proposed Supplementary Critical Use Exemptions for 2006
VI. Statutory and Executive Order Reviews
A. Executive Order No. 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order No. 13132: Federalism
F. Executive Order No. 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order No. 13045: Protection of Children From
Environmental Health & Safety Risks
H. Executive Order No. 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
I. General Information
A. Regulated Entities
Entities potentially regulated by this proposed action are those
associated with the production, import, export, sale, application and
use of methyl bromide covered by an approved critical use exemption.
Potentially regulated categories and entities include:
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Category Examples of regulated entities
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Industry............................... Producers, Importers and Exporters of methyl bromide; Applicators,
Distributors of methyl bromide; Users of methyl bromide, e.g. farmers
of vegetable crops, fruits and seedlings; and owners of stored food
commodities and structures such as grain mills and processors,
Government and non-government researchers.
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The above table is not intended to be exhaustive, but rather to
provide a guide for readers regarding entities likely to be regulated
by this proposed action. This table lists the types of entities that
EPA is aware could potentially be regulated by this proposed action. To
determine whether your facility, company, business, or organization is
regulated by this proposed action, you should carefully examine the
regulations promulgated at 40 CFR 82, subpart A. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
B. How Can I Get Copies of This Document and Other Related Information?
1. Docket. EPA has established an official public docket for this
action under the Office of Air and Radiation Docket & Information
Center, Electronic Air Docket ID No. OAR-2005-0122. The official public
docket consists of the documents specifically referenced in this
action, any public comments received, and other information related to
this action. Although a part of the official docket, the public docket
does not include Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. The official
public docket is the collection of materials that is available for
public viewing at EPA West, 1301 Constitution Ave. NW., Room B108, Mail
Code 6102T, Washington, DC 20460, Phone: (202) 566-1742, Fax: (202)
566-1741. The materials may be inspected from 8:30 a.m. until 4:30 p.m.
Monday through Friday, excluding legal holidays. A reasonable fee may
be charged for copying docket materials.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the Federal Register
listings at http://www.epa.gov/fedrgstr/. An electronic version of the
public docket is available through EPA's electronic public docket and
comment system, EPA Dockets. EPA prefers that you use the electronic
EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
comments and access the index listing of the contents of the official
public docket. To locate the docket on EPA's docket Web site, select
``search,'' then key in the appropriate docket identification number,
in this case OAR-2005-0122.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as confidential business information (CBI) and
other information whose disclosure is restricted by statute, will not
be included in the official public docket and will not be available for
public viewing in EPA's electronic public docket. EPA's policy is that
copyrighted material will not be placed in EPA's electronic public
docket but will be available only in printed, paper form in the
official public docket. Although not all docket materials may be
available electronically, you may still access any of the publicly
available docket materials through the docket facility identified in
Unit B.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the Docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
II. What Is the Background to the Phaseout Regulations for Ozone-
Depleting Substances?
The current regulatory requirements of the Stratospheric Ozone
Protection Program that limit production and consumption of ozone
depleting substances can be found at 40 CFR part 82 subpart A. The
regulatory program was originally published in the Federal Register on
August 12, 1988 (53 FR 30566), in response to the 1987 signing and
subsequent ratification of the Montreal Protocol on Substances that
Deplete the Ozone Layer (Protocol). The U.S. was one of the original
signatories
[[Page 62032]]
to the 1987 Montreal Protocol and the U.S. ratified the Protocol on
April 12, 1988. Congress then enacted, and President George H.W. Bush
signed into law, the Clean Air Act Amendments of 1990 (CAAA of 1990)
which included Title VI on Stratospheric Ozone Protection, codified as
42 U.S.C. Chapter 85, Subchapter VI, to ensure that the United States
could satisfy its obligations under the Protocol. EPA issued new
regulations to implement this legislation and has made several
amendments to the regulations since that time.
III. What Is Methyl Bromide?
Methyl bromide is an odorless, colorless, toxic gas which is used
as a broad-spectrum pesticide and is controlled under the CAA as a
Class I ozone depleting substance (ODS). Methyl bromide is used in the
U.S. and throughout the world as a fumigant to control a wide variety
of pests such as insects, weeds, rodents, pathogens, and nematodes.
Additional characteristics and details about the uses of methyl bromide
can be found in the proposed rule on the phaseout schedule for methyl
bromide published in the Federal Register on March 18, 1993 (58 FR
15014) and the final rule published in the Federal Register on December
10, 1993 (58 FR 65018).
The phaseout schedule for methyl bromide production and consumption
was revised in a direct final rulemaking on November 28, 2000 (65 FR
70795), which allowed for the phased reduction in methyl bromide
consumption and extended the phaseout to 2005. The revised phaseout
schedule was again amended to allow for an exemption for quarantine and
preshipment purposes on July 19, 2001 (66 FR 37751) with an interim
final rule and with a final rule (68 FR 238) on January 2, 2003.
Information on methyl bromide can be found at the following sites of
the World Wide Web: http://www.epa.gov/ozone/mbr and http://www.unep.org/ozone
or by contacting the Stratospheric Ozone Hotline at
1-800-296-1996.
Because it is a pesticide, methyl bromide is also regulated by EPA
under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
and other statutes and regulatory authority, as well as by States under
their own statutes and regulatory authority. Under FIFRA, methyl
bromide is a restricted use pesticide. Because of this status, a
restricted use pesticide is subject to certain Federal and State
requirements governing its sale, distribution, and use. Nothing in this
final rule implementing the Clean Air Act is intended to derogate from
provisions in any other Federal, State, or local laws or regulations
governing actions including, but not limited to, the sale,
distribution, transfer, and use of methyl bromide. All entities that
would be affected by provisions of this rule must continue to comply
with FIFRA and other pertinent statutory and regulatory requirements
for pesticides (including, but not limited to, requirements pertaining
to restricted use pesticides) when importing, exporting, acquiring,
selling, distributing, transferring, or using methyl bromide for
critical uses. The regulations in today's action are intended only to
implement the CAA restrictions on the production, consumption and use
of methyl bromide for critical uses exempted from the phaseout of
methyl bromide.
IV. What Is the Legal Authority for Exempting the Production and Import
of Methyl Bromide for Critical Uses Authorized by the Parties to the
Montreal Protocol?
Methyl bromide was added to the Protocol as an ozone depleting
substance in 1992 through the Copenhagen amendment to the Protocol. The
Parties authorize critical use exemptions through their Decisions.
The Parties agreed that each industrialized country's level of
methyl bromide production and consumption in 1991 should be the
baseline for establishing a freeze in the level of methyl bromide
production and consumption for industrialized countries. EPA published
a final rule in the Federal Register on December 10, 1993 (58 FR
65018), listing methyl bromide as a class I, Group VI controlled
substance, freezing U.S. production and consumption at this 1991 level,
and, in Section 82.7 of the rule, setting forth the percentage of
baseline allowances for methyl bromide granted to companies in each
control period (each calendar year) until the year 2001, when the
complete phaseout would occur (58 FR 65018). This phaseout date was
established in response to a petition filed in 1991 under sections
602(c)(3) and 606(b) of the CAA 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 CAA of
1990, which for newly listed class I ozone-depleting substances
provides that ``no extension [of the phaseout schedule in section 604]
under this subsection may extend the date for termination of production
of any class I substance to a date more than 7 years after January 1 of
the year after the year in which the substance is added to the list of
class I substances.'' EPA based its action on scientific assessments
and actions by the Parties to the Montreal Protocol to freeze the level
of methyl bromide production and consumption for industrialized
countries at the 1992 Meeting of the Parties on Copenhagen.
At their 1995 meeting, the Parties made adjustments to the methyl
bromide control measures and agreed to reduction steps and a 2010
phaseout date for industrialized countries with exemptions permitted
for critical uses. At that time, the U.S. continued to have a 2001
phaseout date in accordance with the CAA of 1990 language. At their
1997 meeting, the Parties agreed to further adjustments to the phaseout
schedule for methyl bromide in industrialized countries, with reduction
steps leading to a 2005 phaseout for industrialized countries. 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. On November
28, 2000, EPA issued regulations to amend the phaseout schedule for
methyl bromide and extend the complete phaseout of production and
consumption to 2005 (65 FR 70795).
On December 23, 2004 (69 FR 76982), EPA published a final rule in
the Federal Register that established the framework for the critical
use exemption; set forth a list of approved critical uses for 2005; and
specified the amount of methyl bromide that could be supplied in 2005
from available stocks and new production or import to meet approved
critical uses. Today, EPA is proposing the uses that will qualify as
approved critical uses in 2006 and the amount of the 2006 critical use
exemption.
Today's proposed action reflects Decision XVI/2, taken at the
Parties' Sixteenth Meeting in November 2004; and Decision Ex.II/I,
taken at the Second Extraordinary Meeting of the Parties in July 2005.
In accordance with Article 2H(5), the Parties have issued several
Decisions pertaining to the critical use exemption. These include
Decision IX/6, which sets forth criteria for review of proposed
critical uses; Decision XVI/2, which approved a portion of the 2006
nominated amounts and critical-use
[[Page 62033]]
categories; and Decision Ex.II/I, which approved another portion of the
2006 nominated amounts for critical-use categories. For a discussion of
the relationship between the relevant provisions of the CAA and Article
2H of the Protocol, and the extent to which EPA takes into account
Decisions of the Parties that interpret Article 2H, refer to the
December 23, 2004 FR notice (69 FR 76984-76985). Briefly, EPA regards
Decisions IX/6, XVI/2, and Decision Ex.II/1 as subsequent consensus
agreements of the Parties that address the interpretation and
application of the critical use provision in Article 2H(5) of the
Protocol. In today's action, EPA is following the terms of these
Decisions. This will ensure consistency with the Montreal Protocol and
satisfy the requirements of Section 604(d)(6) and Section 614(b) of the
Clean Air Act.
In Decision XVI/2, taken in November 2004, the Parties to the
Protocol agreed as follows: ``for the agreed critical-use categories
for 2006, set forth in section IIA to the annex to the present decision
for each Party, to permit, subject to the conditions set forth in
decision Ex.I/4, to the extent those conditions are applicable, the
levels of production and consumption for 2006 set forth in section IIB
to the annex to the present decision which are necessary to satisfy
critical uses, with the understanding that additional levels of
production and consumption and categories of uses may be approved by
the Meeting of the Parties to the Montreal Protocol in accordance with
decision IX/6.'' Section IIA of the Annex to Decision XVI/2 lists the
following critical use categories for the U.S.: Cucurbits--field; dried
fruit and nuts; forest nursery seedlings; nursery stock--fruit trees,
raspberries, roses; strawberry runners; turfgrass; dry commodities
cocoa beans; dry commodities/structures; eggplant field; mills and
processors; peppers field; strawberry fruit field; tomato field; and
orchard replant with a total agreed critical-use level of 6,897,680
kilograms, which is equivalent to 27% of the U.S. 1991 methyl bromide
consumption baseline.
In Decision Ex.II/1, taken in July 2005, the Parties to the
Protocol agreed as follows: ``for the agreed critical uses for 2006,
set forth in table A of the annex to the present decision, to permit,
subject to the conditions set forth in the present decision and in
decision Ex. I/4, to the extent those conditions are applicable, the
supplementary levels of production and consumption for 2006 set forth
in table B of the annex to the present decision which are necessary to
satisfy critical uses, with the understanding that additional levels
and categories of uses may be approved by the Seventeenth Meeting of
the Parties in accordance with decision IX/6.'' Table A of the Annex to
Decision Ex.II/1 lists the following critical use categories for the
U.S.: Ornamentals; dry-cured ham; dry commodities/structures (cocoa
beans); dry commodities/structures (processed foods, herbs and spices,
dried milk and cheese processing facilities); eggplant--field, for
research only; mills and processors; peppers--field; strawberry fruit--
field; tomato--field with a total agreed critical-use level of
1,117,003 kilograms, which is equivalent to 5% of the U.S. 1991 methyl
bromide consumption baseline. When combined, the agreed critical-use
levels for 2006 from Decision XVI/2 and from Decision Ex.II/1 total
8,074,683 kilograms, which is equivalent to 32% of the U.S. 1991 methyl
bromide consumption baseline. Based, in part, on the applications
underlying the U.S. 2006 nomination, the extensive review of those
applications culminating in the preparation of that nomination, and the
Decisions noted above, EPA is proposing to modify Columns B and C of
Appendix L to 40 CFR part 82, subpart A to reflect agreed critical-use
categories, locations of use, and limiting critical conditions
applicable for the 2006 control period.
The question of whether, and to what extent, EPA should adjust the
total critical use level agreed by the Parties for 2006 is addressed in
Section E below. The question of what amount of the total should come
from new production or import, and what amount should come from pre-
phaseout inventories, is addressed in Section F below. For the reasons
given in those sections, and based, in part, on the applications
underlying the U.S. 2006 nomination, the extensive review of those
applications culminating in the preparation of that nomination, and the
Decisions noted above, EPA is proposing to modify the table in 40 CFR
82.8 to reflect the amount of methyl bromide that may be produced or
imported, and sold from pre-phaseout inventories, for the 2006 control
period.
V. What Is the Critical Use Exemption Process?
A. Background of the Process
Starting in 2002, EPA began notifying applicants as to the
availability of an application process for a critical use exemption to
the methyl bromide phaseout. On May 23, 2005, the Agency published a
notice in the Federal Register (68 FR 24737) announcing the deadline to
apply, and directing applicants to announcements posted on EPA's methyl
bromide Web site at http://www.epa.gov/ozone/mbr. Applicants were told
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 which establish a critical need for methyl
bromide). This process has been repeated on an annual basis since then.
The critical use exemption is designed to meet the needs of methyl
bromide users who do not have technically and economically feasible
alternatives available to them.
The criteria for the exemption are delineated in Decision IX/6 of
the Parties to the Protocol. In that Decision, the Parties agreed that
``a use of methyl bromide should qualify as `critical' only if the
nominating Party determines that: (i) The specific use is critical
because the lack of availability of methyl bromide for that use would
result in a significant market disruption; and (ii) there are no
technically and economically feasible alternatives or substitutes
available to the user that are acceptable from the standpoint of
environment and public health and are suitable to the crops and
circumstances of the nomination.''
In response to the yearly requests for critical use exemption
applications published in the Federal Register, applicants have
provided information supporting their position that they have no
technically and economically feasible alternatives to methyl bromide
available to them. Applicants for the exemption have submitted
information on their use of methyl bromide, on research into the use of
alternatives to methyl bromide, on efforts to minimize use of methyl
bromide and efforts to reduce emissions and on the specific technical
and economic research results of testing alternatives to methyl
bromide.
EPA's December 23, 2004, regulation describing the operational
framework for the critical use exemption (69 FR 76982) established the
majority of critical uses for the 2005 calendar. Today's action
proposes exemptions for 2006 reflecting information that the U.S.
Government submitted to the Protocol's Ozone Secretariat in its annual
Nomination submission in February 2004, as approved by the Parties in
July 2005. For each exemption period, EPA provides an opportunity such
as this for comment on the amounts of methyl bromide that may be
supplied under the critical use exemption and the end uses that may
obtain this critical use methyl bromide.
The domestic review process is discussed in detail in a memo titled
[[Page 62034]]
``Development of 2003 Nomination for a Critical Use Exemption for
Methyl Bromide for the United States of America'' on EDOCKET OAR-2005-
0122. Briefly, the U.S. Government reviews applications using the
criteria in Decision IX/6 and creates a package for submission to the
Ozone Secretariat of the Protocol (the ``critical use nomination'' or
CUN). The CUNs of various countries are then reviewed by the Methyl
Bromide Technical Options Committee (MBTOC) and the Technical and
Economic Assessment Panel (TEAP), which are independent advisory bodies
to the Parties. These bodies make recommendations to the Parties
regarding the nominations.
On February 7, 2004, the U.S. Government submitted the second U.S.
Nomination for a Critical Use Exemption for Methyl Bromide to the Ozone
Secretariat of the United Nations Environment Programme. This second
nomination contained a supplemental request for critical methyl bromide
for 2005 and the initial request for 2006. In June 2004, MBTOC sent
questions to the U.S. Government concerning technical and economic
issues in the nomination. The U.S. Government's response was
transmitted on August 12, 2004. The U.S. submitted a revised request in
conjunction with ``The U.S. Nomination for Critical Uses for Methyl
Bromide in 2007 and Beyond.'' This revised request was for an
additional amount of 622,053 kilograms of methyl bromide for a total of
2,844,985 kilograms of methyl bromide for the year 2006. This revised
request was included in the U.S. rebuttal to MBTOC's recommendation
issued in its October 2004 report. These documents, together with
reports by the advisory bodies noted above, can be accessed on EDOCKET
OAR-2005-0122.
B. How Does This Proposed Rulemaking Relate to Previous Rulemakings
Regarding the Critical Use Exemption?
On December 23, 2004, EPA published in the Federal Register a Final
Rule entitled, ``Protection of Stratospheric Ozone: Process for
Exempting Critical Uses From the Phaseout of Methyl Bromide'' (the
``Framework Rule'') (69 FR 76982). That rule established the framework
for the critical use exemption in the U.S, including trading provisions
and recordkeeping and reporting obligations.
The Framework Rule defines the terms ``critical use allowances''
(CUAs) and ``critical stock allowances'' (CSAs) at 40 CFR 82.3. Each
allowance represents the right to produce or import, or to sell from
inventory, respectively, one kilogram of methyl bromide to an approved
critical use. For example, a distributor with 100 CSAs may sell 100
kilograms of stockpiled pre-phaseout methyl bromide to an approved
critical use. Today's action proposes the uses that will qualify as
approved critical uses for 2006 and the amount of CUAs and CSAs to be
allocated for those uses. In the future, EPA will continue to undertake
rulemakings that address both the approved critical uses and the
amounts of methyl bromide to be allocated for critical uses in specific
exemption periods.
On August 30, 2005, EPA published a direct final rule and
concurrent proposal relating to supplemental critical use exemptions
for 2005 (70 FR 51270). These recent notices in the Federal Register
would establish three (3) additional uses as qualifying for the
critical use exemption and permit access to critical use methyl bromide
for those uses in 2005. These notices would also allocate additional
CSAs for supplementary amounts of critical use methyl bromide in 2005.
The additional allocations for 2005 would supplement the CUAs and CSAs
previously allocated for 2005 in the Federal Register on December 23,
2004 (69 FR 76982). In today's proposed action, the Agency is
proposing: (1) To establish the list of uses that qualify for the
critical use exemption in 2006; and (2) to specify the amounts of
methyl bromide that may be produced or imported, or supplied from pre-
phaseout inventories, for those uses in 2006. EPA seeks comment on the
proposed 2006 critical uses and the amount of methyl bromide the Agency
has determined to be necessary to satisfy those uses. For detailed
technical and economic information on the critical uses and the U.S.
Government's justifications for why there is a critical need for
exempted methyl bromide, the Agency refers commenters to the E-Docket
where the U.S. nominations and additional information in the form of
responses to MBTOC are available. The 2004 U.S. nomination can be found
at EDOCKET OAR-2003-0017 and EDOCKET OAR-2005-0122. These are the
technical documents which are the basis for the Parties' authorization
of critical uses and permitted exempt production and import and which
form part of the basis for this rulemaking. Reports by the Protocol's
advisory bodies, the MBTOC and TEAP, as well as questions to the U.S.
from MBTOC, are also available in EDOCKET OAR-2005-0122.
C. What Are the Proposed Critical Uses?
In Decision XVI/2, taken in November 2004, the Parties to the
Protocol agreed as follows: ``for the agreed critical-use categories
for 2006, set forth in section IIA to the annex to the present decision
for each Party, to permit, subject to the conditions set forth in
decision Ex.I/4, to the extent those conditions are applicable, the
levels of production and consumption for 2006 set forth in section IIB
to the annex to the present decision which are necessary to satisfy
critical uses, with the understanding that additional levels of
production and consumption and categories of uses may be approved by
the Meeting of the Parties to the Montreal Protocol in accordance with
decision IX/6.'' Section IIA of the Annex to Decision XVI/2 lists the
following critical use categories for the U.S.: Cucurbits--field; dried
fruit and nuts; forest nursery seedlings; nursery stock--fruit trees,
raspberries, roses; strawberry runners; turfgrass; dry commodities
cocoa beans; dry commodities/structures; eggplant field; mills and
processors; peppers field; strawberry fruit field; tomato field; and
orchard replant with a total agreed critical-use level of 6,897,680
kilograms, which is equivalent to 27% of the U.S. 1991 methyl bromide
consumption baseline.
In Decision Ex.II/1, taken in July 2005, the Parties to the
Protocol agreed as follows: ``for the agreed critical uses for 2006,
set forth in table A of the annex to the present decision, to permit,
subject to the conditions set forth in the present decision and in
decision Ex. I/4, to the extent those conditions are applicable, the
supplementary levels of production and consumption for 2006 set forth
in table B of the annex to the present decision which are necessary to
satisfy critical uses, with the understanding that additional levels
and categories of uses may be approved by the Seventeenth Meeting of
the Parties in accordance with decision IX/6.'' Table A of the Annex to
Decision Ex.II/1 lists the following critical use categories for the
U.S.: Ornamentals; dry-cured ham; dry commodities/structures (cocoa
beans); dry commodities/structures (processed foods, herbs and spices,
dried milk and cheese processing facilities); eggplant--field, for
research only; mills and processors; peppers--field; strawberry fruit--
field; tomato--field with a total agreed critical-use level of
1,117,003 kilograms, which is equivalent to 5% of the U.S. 1991 methyl
bromide consumption baseline. When combined, the agreed critical-use
levels for 2006 from Decision XVI/2 and from Decision
[[Page 62035]]
Ex.II/1 total 8,074,683 kilograms, which is equivalent to 32% of the
U.S. 1991 methyl bromide consumption baseline. Based, in part, on the
applications underlying the U.S. 2006 nomination, the extensive review
of those applications culminating in the preparation of that
nomination, and the Decisions noted above, EPA is proposing to modify
Columns B and C of Appendix L to 40 CFR part 82, subpart A to reflect
agreed critical-use categories.
Under the December 23, 2004, Framework Rule (69 FR 76982), an
approved critical user may obtain access to exempted production/import
and limited inventories of pre-phaseout methyl bromide stocks, the
combination of which constitute the supply of ``critical use methyl
bromide'' intended to meet the needs of agreed critical uses.
As set out in the Framework Rule, an approved critical user is a
self-identified entity who meets the following requirements:
(1) For the applicable control period, applied to EPA for a
critical use exemption or is a member of a consortium that applied to
EPA for a critical use exemption for a use and location of use that was
included in the U.S. nomination, authorized by a Decision of the
Parties to the Montreal Protocol, and then finally determined by EPA in
a notice-and-comment rulemaking to be an approved critical use, and
(2) Has an area in the applicable location of use that requires
methyl bromide fumigation because the person reasonably expects that
the area will be subject to a limiting critical condition (LCC) during
the applicable control period.
Using these criteria, an approved critical user could be a tomato
farmer in Florida whose farm is over karst topography but would not
include a tomato farmer in Oklahoma even if he too has a farm over
karst topography because no exemption application was filed on behalf
of Oklahoma tomato farmers. Similarly, a Florida tomato farmer who did
not have a field with karst topography, or one of the other limiting
critical conditions specified in this rule, would not be an approved
critical user because the circumstance of the use is not an approved
critical use.
A ``limiting critical condition'' is the basis on which the
critical need for methyl bromide is demonstrated and authorized. It is
defined as ``the regulatory, technical, and economic circumstances * *
* that establish conditions of critical use of methyl bromide in a
fumigation area.'' 40 CFR 82.3. The limiting critical condition placed
on a use category reflects certain regulatory, technical, or economic
factors that either prohibit the use of alternatives or represent the
lack of a technically or economically feasible alternative for that use
or circumstance. For example, EPA may determine that a critical use
exemption for tomatoes is only necessary for areas of tomato production
in karst topography even if the EPA received applications for all of
U.S. fresh market tomato production. In this example, not all tomato
growers would be eligible to acquire exempted critical use methyl
bromide. Only those growers with production in an area with the
limiting critical condition of karst topography would have access to
the methyl bromide under the critical use exemption. Another example is
as follows: EPA received applications for exemptions for all U.S. grain
milling companies that are members of the North American Milling
Association (NAMA). The Parties authorized the exemption because grain
milling companies have a critical need for methyl bromide because the
alternatives can not be used, in part, due to corrosivity to electronic
equipment. Thus, one of the limiting critical conditions for this
critical use category is the presence of sensitive electronic equipment
subject to corrosivity from fumigation with the alternative. All grain
mills that are members of NAMA that have sensitive electronic equipment
would be eligible to acquire and use critical use methyl bromide.
EPA is proposing the critical uses for the year 2006 as well as the
conditions that make these uses ``critical'' based on EPA's assessment
of the technical and economic feasibility of alternatives and the
potential for a significant market disruption if methyl bromide were
not available for the uses proposed for 2006. This proposal is based on
the information submitted by CUE applicants, as well as public and
proprietary data sources. The CUE applications (except to the extent
claimed confidential), the U.S. nomination, the questions and answers
between the MBTOC and the U.S. Government about the nomination, and
procedural memos are all available on EDOCKET OAR-2005-0122. Data
submitted by the CUE applicants served as a basis for the nomination.
EPA and other government experts also sought data from multiple other
sources, including but not limited to the National Agricultural
Statistics Service of the U.S. Department of Agriculture, the State of
California Department of Pesticide Regulation, and proprietary
agricultural databases available to EPA. All of the CUE applications
underwent a rigorous review by highly qualified technical experts. A
detailed explanation of the nomination process, including the criteria
used by expert reviewers, is available in a memo titled ``2003
Nomination Process'' on EDOCKET OAR-2005-0122. The memo was originally
written to describe the process leading to the 2005 critical use
exemption rules, but is applicable generally to the process leading to
today's action.
The U.S. Government, in developing the nomination, defined the
limiting critical conditions for which exempted methyl bromide was
being sought. The U.S. Government used the information referenced above
to determine if (a) the lack of availability of methyl bromide for a
particular use would result in significant market disruption, and (b)
if there were any technically and economically feasible methyl bromide
substitutes available to the user. The analysis was described in the
U.S. nomination of critical uses. The nomination was then sent to the
Parties to the Protocol, and the Parties used the information in the
nomination and the report from the MBTOC, that was based in part on the
iterative exchange of questions and answers with the U.S. Government,
as the basis for the Decisions which authorized critical uses.
Based on the information described above, EPA determined that the
uses in Table I, with the limiting critical conditions specified,
qualify to obtain and use critical use methyl bromide in 2006. However,
as discussed in Section E, some of the circumstances for some of the
critical use categories have changed due to recent registrations of an
alternative and therefore EPA is proposing a decrease in the total CUE
level for 2006. EPA welcomes submissions of additional information
regarding substitutes and alternatives for any of the uses in the Table
I below. EPA wishes to note that while we may, in response to comments,
reduce the quantities of critical use methyl bromide, or the types of
critical uses, compared to what has been authorized by the Parties, EPA
will not increase the quantities, or types, beyond those authorized by
the Parties.
EPA proposes, based on the determination described in the U.S.
nomination and its supporting documents, that users who are in a
specific geographic location, identified below, or who are members of a
specific industry consortium, identified below, or companies
specifically identified below, are approved critical users
[[Page 62036]]
provided that such users are subject to the specified limiting critical
condition.
EPA notes the reference to emission minimization techniques in
paragraph 6 of Decision Ex.II/1 and urges the proposed users listed in
Table I. below to use ``emission minimization techniques such as
virtually impermeable films, barrier film technologies, deep shank
injection and/or other techniques that promote environmental
protection, whenever technically and economically feasible.'' Users of
methyl bromide should make every effort to decrease overall emissions
of methyl bromide by implementing measures such as the ones listed in
the previous sentence, to the extent consistent with state and local
laws and regulations. In addition, research is being conducted on the
potential to reduce rates and emissions using high-barrier films.
Table I.--Approved Critical Uses
----------------------------------------------------------------------------------------------------------------
Column A Column B Column C
----------------------------------------------------------------------------------------------------------------
Approved critical user and
Approved critical uses location of use Limiting critical conditions
----------------------------------------------------------------------------------------------------------------
PRE-PLANT USES
----------------------------------------------------------------------------------------------------------------
Cucurbits.......................... (a) Michigan growers....... With a reasonable expectation that moderate to
severe soilborne fungal disease infestation,
or moderate to severe disease infestation
could occur without methyl bromide
fumigation; or with a need for methyl bromide
for research purposes.
(b) Southeastern U.S. With a reasonable expectation that one or more
except Georgia limited to of the following limiting critical conditions
growing locations in either already exist or could occur without
Alabama, Arkansas, methyl bromide fumigation: moderate to severe
Kentucky, Louisiana, North yellow or purple nutsedge infestation, or to
Carolina, South Carolina, a lesser extent: fungal disease infestation
Tennessee, and Virginia. and root knot nematodes; or with a need for
methyl bromide for research purposes.
(c) Georgia growers........ With a reasonable expectation that one or more
of the following limiting critical conditions
either already exist or could occur without
methyl bromide fumigation: moderate to severe
yellow or purple nutsedge infestation,
moderate to severe fungal disease
infestation, or to a lesser extent: root knot
nematodes; or with a need for methyl bromide
for research purposes.
Eggplant........................... (a) Florida growers........ With a reasonable expectation that one or more
of the following limiting critical conditions
either already exist or could occur without
methyl bromide fumigation: moderate to severe
yellow or purple nutsedge infestation, or
moderate to severe nematodes, or moderate to
severe disease infestation, or restrictions
on alternatives due to karst geology; or with
a need for methyl bromide for research
purposes.
(b) Georgia growers........ With a reasonable expectation that one or more
of the following limiting critical conditions
either already exist or could occur without
methyl bromide fumigation: moderate to severe
yellow or purple nutsedge infestation, or
moderate to severe nematodes, or moderate to
severe pythium root and collar rots, or
moderate to severe southern blight
infestation, and to a lesser extent: crown
and root rot; or with a need for methyl
bromide for research purposes.
(c) Michigan growers....... With a reasonable expectation that moderate to
severe soilborne fungal disease infestation
could occur without methyl bromide
fumigation; or with a need for methyl bromide
for research purposes.
Forest Nursery Seedlings........... (a) growers in Alabama, With a reasonable expectation that one or more
Arkansas, Florida, of the following limiting critical conditions
Georgia, Louisiana, already either exist or could occur without
Mississippi, North methyl bromide fumigation: moderate to severe
Carolina, Oklahoma, South yellow or purple nutsedge infestation, or
Carolina, Tennessee, Texas moderate to severe disease infestation.
and Virginia.
(b) International Paper With a reasonable expectation that one or more
with and its subsidiaries of the following limiting critical conditions
limited to growing already either exist or could occur without
locations in Arkansas, methyl bromide fumigation: moderate to severe
Alabama, Georgia, South yellow or purple nutsedge infestation, or
Carolina and Texas. moderate to severe disease infestation.
(c) Public (government With a reasonable expectation that one or more
owned) seedling nurseries of the following limiting critical conditions
in the states of Idaho, either already exist or could occur without
Illinois, Indiana, Kansas, methyl bromide fumigation: moderate to severe
Kentucky, Maryland, weed infestation including purple and yellow
Missouri, Nebraska, New nutsedge infestation, or moderate to severe
Jersey, Ohio, Oregon, Canada thistle infestation, or moderate to
Pennsylvania, Utah, severe nematodes, and to a lesser extent:
Washington, West Virginia fungal disease infestation.
and Wisconsin.
(d) Weyerhaeuser Company With a reasonable expectation that one or more
and its subsidiaries of the following limiting critical conditions
limited to growing already either exist or could occur without
locations in Alabama, methyl bromide fumigation: moderate to severe
Arkansas, North Carolina yellow or purple nutsedge infestation,
and South Carolina. moderate to severe disease infestation, and
to a lesser extent: nematodes and worms.
(e) Weyerhaeuser Company With a reasonable expectation that one or more
and its subsidiaries of the following limiting critical conditions
limited to growing in already either exist of could occur without
Washington and Oregon. methyl bromide fumigation: moderate to severe
yellow nutsedge infestation, or moderate to
severe fungal disease infestation.
[[Page 62037]]
(f) Michigan growers....... With a reasonable expectation that one or more
of the following limiting critical conditions
already either exist or could occur without
methyl bromide fumigation: moderate to severe
disease infestation, moderate to severe
Canada thistle infestation, moderate to
severe nutsedge infestation, and to a lesser
extent: nematodes.
(g) Michigan herbaceous With a reasonable expectation that one or more
perennials growers. of the following limiting critical conditions
already exist or could occur without methyl
bromide fumigation: moderate to severe
nematodes, moderate to severe fungal disease
infestation, and to a lesser extent: yellow
nutsedge and other weeds infestation.
Orchard Nursery Seedlings.......... (a) Members of the Western With a reasonable expectation that one or more
Raspberry Nursery of the following limiting critical conditions
Consortium limited to already either exists or could occur without
growing locations in methyl bromide fumigation: moderate to severe
California and Washington nematode infestation, medium to heavy clay
(Driscoll's raspberries soils, or a prohibition of on the use of 1,3-
and their contract growers dichloropropene products due to reaching
in California and local township limits on the use of this
Washington). alternative; or with a need for methyl
bromide for research purposes.
(b) Members of the With a reasonable expectation that one or more
California Association of of the following limiting critical conditions
Nurserymen-Deciduous Fruit already either exists or could occur without
and Nut Tree Growers. methyl bromide fumigation: moderate to severe
nematodes, medium to heavy clay soils, or a
prohibition of on the use of 1,3-
dichloropropene products due to reaching
local township limits on the use of this
alternative; or with a need for methyl
bromide for research purposes.
(c) California rose With a reasonable expectation that one or more
nurseries. of the following limiting critical conditions
already either exists or could occur without
methyl bromide fumigation: moderate to severe
nematodes, or user may be prohibited from
using 1,3-dichloropropene products because
local township limits for this alternative
have been reached; or with a need for methyl
bromide for research purposes.
Strawberry Nurseries............... (a) California growers..... With a reasonable expectation that one or more
of the following limiting critical conditions
already either exists or could occur without
methyl bromide fumigation: moderate to severe
disease infestation, or moderate to severe
yellow or purple nutsedge infestation, or
moderate to severe nematodes; or with a need
for methyl bromide for research purposes.
(b) North Carolina, With a reasonable expectation that one or more
Tennessee and Maryland of the following limiting critical conditions
growers. already either exists or could occur without
methyl bromide fumigation: moderate to severe
black root rot, or moderate to severe root-
knot nematodes, or moderate to severe yellow
and purple nutsedge infestation, and to a
lesser extent: crown rot; or with a need for
methyl bromide for research purposes.
Orchard Replant.................... (a) California stone fruit With a reasonable expectation that one or more
growers. of the following limiting critical conditions
already either exists or could occur without
methyl bromide fumigation: moderate to severe
nematodes, or moderate to severe fungal
disease infestation, or replanted (non-
virgin) orchard soils to prevent orchard
replant disease, or medium to heavy soils, or
a prohibition on the use of 1,3-
dichloropropene products because local
township limits for this alternative have
been reached; or with a need for methyl
bromide for research purposes.
(b) California table and With a reasonable expectation that one or more
raisin grape growers. of the following limiting critical conditions
already either exists or could occur without
methyl bromide fumigation: moderate to severe
nematodes, or moderate to severe fungal
disease infestation, or replanted (non-
virgin) orchard soils to prevent orchard
replant disease, or medium to heavy soils, or
a prohibition on the use of 1,3-
dichloropropene products because local
township limits for this alternative have
been reached; or with a need for methyl
bromide for research purposes.
(c) California walnut With a reasonable expectation that one or more
growers. of the following limiting critical conditions
already either exists or could occur without
methyl bromide fumigation: moderate to severe
nematodes, or replanted (non-virgin) orchard
soils to prevent orchard replant disease, or
medium to heavy soils, or a prohibition on
the use of 1,3-dichloropropene products
because local township limits for this
alternative have been reached; or with a need
for methyl bromide for research purposes.
(d) California almond With a reasonable expectation that one or more
growers. of the following limiting critical conditions
already either exists or could occur without
methyl bromide fumigation: moderate to severe
nematodes, or replanted (non-virgin) orchard
soils to prevent orchard replant disease, or
medium to heavy soils, or a prohibition on
the use of 1,3-dichloropropene products
because local township limits for this
alternative have been reached; or with a need
for methyl bromide for research purposes.
[[Page 62038]]
Ornamentals........................ (a) California growers..... With a reasonable expectation that one or more
of the following limiting critical conditions
already either exists or could occur without
methyl bromide fumigation: moderate to severe
disease infestation, or moderate to severe
nematodes, or a prohibition on the use of 1,3-
dichloropropene products because local
township limits for this alternative have
been reached; or with a need for methyl
bromide for research purposes.
(b) Florida growers........ With a reasonable expectation that one or more
of the following limiting critical conditions
already either exists or could occur without
methyl bromide fumigation: moderate to severe
weed infestation, or moderate to severe
disease infestation, or moderate to severe
nematodes, or karst topography; or with a
need for methyl bromide for research
purposes.
Peppers............................ (a) California growers..... With a reasonable expectation that one or more
of the following limiting critical conditions
already either exists or could occur without
methyl bromide fumigation: moderate to severe
disease infestation, or moderate to severe
nematodes, or a prohibition on the use of 1,3-
dichloropropene products because local
township limits for this alternative have
been reached; or with a need for methyl
bromide for research purposes.
(b) Alabama, Arkansas, With a reasonable expectation that one or more
Kentucky, Louisiana, North of the following limiting critical conditions
Carolina, South Carolina, already either exists or could occur without
Tennessee and Virginia methyl bromide fumigation: moderate to severe
growers. yellow or purple nutsedge infestation, or
moderate to severe nematodes, or moderate to
severe pythium root, collar, crown and root
rots, or the presence of an occupied
structure within 100 feet of a grower's field
the size of 100 acres or less; or with a need
for methyl bromide for research purposes.
(c) Florida growers........ With a reasonable expectation that one or more
of the following limiting critical conditions
already either exists or could occur without
methyl bromide fumigation: moderate to severe
yellow or purple nutsedge infestation, or
moderate to severe disease infestation, or
moderate to severe nematodes, or karst
topography; or with a need for methyl bromide
for research purposes.
(d) Georgia growers........ With a reasonable expectation that one or more
of the following limiting critical conditions
either already exist or could occur without
methyl bromide fumigation: moderate to severe
yellow or purple nutsedge infestation, or
moderate to severe nematodes, or moderate to
severe pythium root and collar rots, or
moderate to severe southern blight
infestation, and to a lesser extent: crown
and root rot; or with a need for methyl
bromide for research purposes.
(e) Michigan growers....... With a reasonable expectation that moderate to
severe fungal disease infestation would occur
without methyl bromide fumigation; or with a
need for methyl bromide for research
purposes.
Strawberry Fruit................... (a) California growers..... With a reasonable expectation that one or more
of the following limiting critical conditions
already either exists or could occur without
methyl bromide fumigation: moderate to severe
black root rot or crown rot, or moderate to
severe yellow or purple nutsedge infestation,
or moderate to severe nematodes, or a
prohibition of the use of 1,3-dichloropropene
products because local township limits for
this alternative have been reached, time to
transition to an alternative; or with a need
for methyl bromide for research purposes.
(b) Florida growers........ With a reasonable expectation that one or more
of the following limiting critical conditions
already either exists or could occur without
methyl bromide fumigation: moderate to severe
yellow or purple nutsedge, or moderate to
severe nematodes, or moderate to severe
disease infestation, or karst topography and
to a lesser extent: carolina geranium or cut-
leaf evening primrose infestation; or with a
need for methyl bromide for research
purposes.
(c) Alabama, Arkansas, With a reasonable expectation that one or more
Georgia, Illinois, of the following limiting critical conditions
Kentucky, Louisiana, already either exists or could occur without
Maryland, New Jersey, methyl bromide fumigation: moderate to severe
North Carolina, Ohio, yellow or purple nutsedge, or moderate to
South Carolina, Tennessee severe nematodes, or moderate to severe black
and Virginia growers. root and crown rot, or the presence of an
occupied structure within 100 feet of a
grower's field the size of 100 acres or less;
or with a need for methyl bromide for
research purposes.
Tomatoes........................... (a) Michigan growers....... With a reasonable expectation that one or more
of the following limiting critical conditions
already either exists or could occur without
methyl bromide fumigation: moderate to severe
disease infestation, or moderate to severe
fungal pathogens infestation; or with a need
for methyl bromide for research purposes.
(b) Alabama, Arkansas, With a reasonable expectation that one or more
Florida, Georgia, of the following limiting critical conditions
Kentucky, Louisiana, North already either exists or could occur without
Carolina, South Carolina, methyl bromide fumigation: moderate to severe
and Tennessee growers. yellow or purple nutsedge infestation, or
moderate to severe disease infestation, or
moderate to severe nematodes, or the presence
of an occupied structure within 100 feet of a
grower's field the size of 100 acres or less,
or karst topography; or with a need for
methyl bromide for research purposes.
[[Page 62039]]
(c) California growers..... With a reasonable expectation that one or more
of the following limiting critical conditions
already either exists or could occur without
methyl bromide fumigation: moderate to severe
disease infestation, or moderate to severe
nematodes; or with a need for methyl bromide
for research purposes.
Turfgrass.......................... (a) U.S. turfgrass sod For the production of industry certified pure
nursery producers who are sod; with a reasonable expectation that one
members of Turfgrass or more of the following limiting critical
Producers International conditions already either exists or could
(TPI). occur without methyl bromide fumigation:
moderate to severe bermudagrass, nutsedge and
off-type perennial grass infestation, or
moderate to severe, or moderate to severe
white grub infestation; or with a need for
methyl bromide for research purposes.
------------------------------------
POST-HARVEST USES
----------------------------------------------------------------------------------------------------------------
Food Processing.................... (a) Rice millers in all With a reasonable expectation that one or more
locations in the U.S. who of the following limiting critical conditions
are members of the USA exists: moderate to severe infestation of
Rice Millers Association. beetles, weevils or moths, or older
structures that cannot be properly sealed to
use an alternative to methyl bromide, or the
presence of sensitive electronic equipment
subject to corrosivity, time to transition to
an alternative.
(b) Pet food manufacturing With a reasonable expectation that one or more
facilities in the U.S. who of the following limiting critical conditions
are active members of the exists: moderate to severe infestation or
Pet Food Institute. (For beetles, moths, or cockroaches, or older
today's rule, ``pet food'' structures that cannot be properly sealed to
refers to domestic dog and use an alternative to methyl bromide, or the
cat food). presence of sensitive electronic equipment
subject to corrosivity, time to transition to
an alternative.
(c) Kraft Foods in the U.S. With a reasonable expectation that one or more
of the following limiting critical conditions
exists: older structures that cannot be
properly sealed to use an alternative to
methyl bromide, or the presence of sensitive
electronic equipment subject to corrosivity,
time to transition to an alternative.
(d) Members of the North With a reasonable expectation that one or more
American Millers' of the following limiting critical conditions
Association in the U.S. already exists or could occur without methyl
bromide fumigation: moderate to severe beetle
infestation, or older structures that cannot
be properly sealed to use an alternative to
methyl bromide, or the presence of sensitive
electronic equipment subject to corrosivity,
time to transition to an alternative.
(e) Members of the National With a reasonable expectation that one or more
Pest Management of the following limiting critical conditions
Association associated already exists or could occur without methyl
with dry commodity bromide fumigation: moderate to severe beetle
structure fumigation or moth infestation, or older structures that
(cocoa) and dry commodity can not be properly sealed to use an
fumigation (processed alternative to methyl bromide, or the
foods, herbs, spices, and presence of sensitive electronic equipment
dried milk). subject to corrosivity, time to transition to
an alternative.
Commodity Storage.................. (a) California entities With a reasonable expectation that one or more
storing walnuts, beans, of the following limiting critical conditions
dried plums, figs, exists: rapid fumigation is required to meet
raisins, dates and a critical market window, such as during the
pistachios in California. holiday season, rapid fumigation is required
when a buyer provides short (2 working days
or less) notification for a purchase, or
there is a short period after harvest in
which to fumigate and there is limited silo
availability for using alternatives; or with
a need for methyl bromide for research
purposes.
Dry Cured Pork Products............ (a) Members of the National With a reasonable expectation that one or more
Country Ham Association. of the following limiting critical conditions
already exists or could occur without methyl
bromide fumigation: moderate to severe red
legged ham beetle, cheese/ham skipper,
dermested beetle or ham mite infestation.
(b) Members of the American With a reasonable expectation that one or more
Association of Meat of the following limiting critical conditions
Processors. already exists or could occur without methyl
bromide fumigation: moderate to severe red
legged ham beetle, cheese/ham skipper,
dermested beetle or ham mite infestation.
(c) Nahunta Pork Center With a reasonable expectation that one or more
(North Carolina). of the following limiting critical conditions
already exists or could occur without methyl
bromide fumigation: moderate to severe red
legged ham beetle, cheese/ham skipper,
dermested beetle or ham mite infestation.
----------------------------------------------------------------------------------------------------------------
D. What Are the Uses That May Obtain Methyl Bromide for Research?
The categories listed in Section F above have been designated
critical uses for 2006 in Decision XVI/2 and Decision Ex.II/1 of the
Parties. The amount of methyl bromide approved for research purposes is
included in the amount of methyl bromide approved by the Parties for
the commodities for which ``research'' is indicated as a limiting
critical condition in the table above. However, the Agency is not
setting aside a specific quantity of methyl bromide to be associated
with research activities. Methyl bromide is needed for research
purposes including experiments that require methyl bromide as a control
chemical with which to compare the trial alternatives' results. EPA is
proposing that the following sectors be
[[Page 62040]]
allowed to use methyl bromide for research purposes: cucurbits, dried
fruit and nuts, nursery stock, strawberry nurseries, turfgrass,
eggplant, peppers, strawberry fruit, tomatoes, and orchard replant.
These are the sectors that requested methyl bromide for research in
their applications to EPA.
E. What Amount of Methyl Bromide Is Necessary for Critical Uses?
In this section, EPA proposes the amount of methyl bromide that may
be produced or imported for critical uses in 2006, and the amount that
may be sold for critical uses from pre-phaseout inventories. Section
IIB of the Annex to Decision XVI/2 lists a ``permitted level of
production and consumption'' for the United States in 2006 of 6,897,680
kilograms, which is equivalent to 27% of the 1991 baseline of
25,528,270 kilograms. Table B of the Annex to Decision Ex.II/1 lists a
``permitted level of production and consumption'' for the United States
in 2006 of 760,585 kilograms, which is equivalent to 3% of the 1991
baseline. When combined, the permitted level of production and
consumption from the two Decisions is 7,658,265 kilograms, which is
equivalent to 30% of the 1991 baseline. Paragraph 2 of Decision Ex.II/1
states, ``that a Party with a critical-use exemption level in excess of
permitted levels of production and consumption for critical uses is to
make up any such difference between those levels by using quantities of
methyl bromide available from existing stocks.'' The difference between
the agreed critical-use exemption level of 8,074,683 and the permitted
level of production and consumption of 7,658,265 kilograms is 416,418
kilograms, which is equivalent to 2% of the 1991 baseline. In
accordance with paragraph 2 of Decision Ex.II/1, this amount would come
from stocks. This is the minimum amount that would come from stocks
under today's proposed action. A further elaboration of proposed
amounts that would come from stocks and those that would come from new
production or import in 2006 is found below in Sections F and H.
With this action, the Agency is proposing that the critical use
levels of methyl bromide for 2006 be slightly less than the amount
authorized by the Parties because of recent registrations of an
alternative to methyl bromide. As noted above, the U.S. Government
submitted the nomination for 2006 critical use exemptions on February
7, 2004. The information in the U.S. nomination reflected the most up-
to-date information on alternatives to methyl bromide that was
available at that time of submission to the Parties in February 2004.
In addition, through an iterative process of questions and answers with
the MBTOC, the U.S. Government was able to provide new information
about the status of methyl bromide alternatives in the United States
for the nominated sectors up until the time the MBTOC issued its final
report in the weeks prior to the 2nd Extraordinary Meeting of the
Parties in July 2005. Since the MBTOC's final review and report on the
2006 nomination there have been two new actions in the U.S. relevant to
uses included in Decision XVI/2 and Decision Ex.II/1. The most recent
action, on July 15, 2005, was the issuance of an EPA rule establishing
new Federal tolerance levels for residues of sulfuryl fluoride in or on
commodities in food processing facilities (70 FR 40899). On this same
day, EPA issued a Federal registration for these new uses of sulfuryl
fluoride. The Agency understands that as many as 45 States subsequently
issued State registrations allowing the use of sulfuryl fluoride for
these new uses. EPA is soliciting comments on the verification of State
registrations. In addition, on May 18, 2005, the State of California
registered sulfuryl fluoride for use in mills, warehouses, stationary
transportation vehicles (railcars, trucks, etc.), temporary and
permanent fumigation chambers, and storage structures containing
commodities listed on the State-approved label (cereal and small
grains, dried fruit, and nuts). The State of California has not
approved the label issued by EPA on July 15, 2005. The Federal label
permits sulfuryl fluoride use for a wide range of food commodities,
such as dried fruits, tree nuts, cereals and small grains, and
processed food products. Prior to these registration actions, sulfuryl
fluoride was not considered as a technically and economically feasible
alternative in the U.S. nomination. The Agency proposes to reflect
these changes in the circumstances of the use sectors for which there
is a newly registered alternative in determining the final amount of
methyl bromide deemed to be critical for 2006.
In today's action, with these recent actions regarding sulfuryl
fluoride described in the preceding paragraph, EPA is estimating that
there will be a fifteen percent (15%) uptake of sulfuryl fluoride in
the 2006 calendar year by these newly permitted uses which would mean
that the post-harvest users would use sulfuryl fluoride instead of 15%
of the amount of methyl bromide for which they were authorized by the
Parties for critical use exemptions in 2006. Thus, today's action
proposes to reduce the amount of critical use methyl bromide by fifteen
percent for those specific uses for which sulfuryl fluoride is now a
newly legal alternative for use. Specifically, this means a fifteen
percent reduction in the amount of critical use methyl bromide for the
newly registered uses in California, such as mills, dried fruit and
nuts, as well as a fifteen percent reduction in the amount of critical
use methyl bromide for the sectors in the U.S. nomination that include
food processing facilities, such as mills and processors. For the
affected post-harvest sectors, the reduction would be from an
authorized amount of 707,746 kilograms to an amount of 601,584
kilograms, which would be a reduction of no more than 0.42% of
baseline. The Agency is estimating that there will be a 15% uptake of
sulfuryl fluoride in 2006 by the specific uses for which there are
recent registrations based on information found in MBTOC reports
regarding projected uptake of sulfuryl fluoride for uses where there
were previous registrations, as well as on information in the U.S.
Government's nomination for 2007 critical use exemptions. In the MBTOC
report the uptake estimate was for 10% for the 2005 calendar year for
uses for which sulfuryl fluoride was registered in early 2004 (not
including the most recent registration in California or the new Federal
registration for food processing facilities). In the U.S. nomination
for 2007, the uptake estimate is for 25% by all registered sulfuryl
fluoride uses. EPA's estimate of a 15% uptake of sulfuryl fluoride in
the 2006 calendar year falls between MBTOC's uptake number for 2005 and
the U.S. nomination's uptake number for 2007. EPA notes that the
estimated rate of uptake for 2007 takes into consideration that there
have been 18 months of trials and potential adoption by similar
facilities since the first sulfuryl fluoride registration action early
in 2004 for mills, cereals and small grains, and cereal and small grain
processed products. The Agency believes that new agricultural
techniques are first adopted at a relatively slow rate. As more people/
companies test the new technology the rate of adoption gradually
increases. Given the short period of time since the most recent new
registrations and tolerances, EPA believes that the specific uses
associated with those new registrations and tolerances are unlikely to
achieve a 25% rate of adoption during 2006. The 25% estimated rate of
adoption contained in the U.S.
[[Page 62041]]
nomination for 2007 applies to circumstances (uses and locations) where
the registrations occurred three years previously--early in 2004. Thus,
with today's action EPA is seeking comments on the estimate for a 15%
uptake of sulfuryl fluoride for the 2006 control period for those uses
associated with the recent registration and tolerance actions, which
occurred mid-year in 2005.
The Agency seeks comments on the proposed uptake of sulfuryl
fluoride as an alternative to methyl bromide during 2006 and the
corresponding proposed reduction in the critical use level for 2006.
EPA seeks detailed data regarding sulfuryl fluoride as an alternative
to methyl bromide in the circumstances of the sectors nominated and
authorized for 2006 and the proposed uptake of sulfuryl fluoride in
those sectors during 2006. Relevant information may include whether
products in a sector are intended for export, and whether importing
countries have established approvals or tolerance levels for use of
sulfuryl fluoride. A person submitting detailed data on sulfuryl
fluoride as a methyl bromide alternative, or data on any other post-
harvest alterative to methyl bromide, should include:
Historic information on pest control efficacy of current
fumigant (trap catch data if available).
Size and building composition of facility.
Data from a range of geographic conditions.
Data on methyl bromide which will be used for comparison
purposes.
Temperature data inside and outside the facilities.
Trap catch data from before treatment and 3-, 7- and 14-
working days after treatment.
Information on differences in ``down time'' (non-operating
time) at facility for methyl bromide and alternative.
Amount of methyl bromide and alternative used in
treatment.
Price to treat a typical facility (both chemical prices
and fumigation set-up and take-down costs).
The Agency recognizes that the status of other alternatives to
methyl bromide may have changed since the finalization of the May 2005
MBTOC report and there may be updated comparative information regarding
alternatives and methyl bromide, as well as new data on emission
minimization techniques that would allow a user to obtain the same
results with smaller quantities of methyl bromide. With today's action,
EPA is soliciting new information on alternatives to methyl bromide and
emission minimization techniques. In particular, a person submitting
detailed data on pre-plant alternatives should include:
Historic information on pest control efficacy of current
fumigant.
Data from a range of geographic conditions.
Data on methyl bromide which will be used for comparison
purposes.
Yield and quality data for the alternative as compared to
methyl bromide.
Pest control data.
Price to treat an acre of a given crop.
EPA will review updated data on the use of sulfuryl fluoride as
compared to methyl bromide, and any other new information on
alternatives or emission minimization techniques submitted in response
to this notice, before promulgating the final critical use exemption
level for 2006. The total critical use amount will not exceed the
amount agreed by the Parties to the Protocol for 2006.
If adequate quantitative information is submitted, EPA will conduct
an analysis that is similar to that conducted in the development of the
U.S. nomination in which EPA's Office of Pesticide Programs reviews the
quantity of methyl bromide requested by each applicant and adjusts the
amounts needed where alternatives are not technically or economically
feasible. Since the review associated with the development of the U.S.
nomination is two years prior to the relevant year of exemption there
may be specific situations where the critical need may have changed. In
individual cases where new, more relevant and verifiable information
becomes available after submission of the U.S. nomination, an
additional ``post-hoc'' review to evaluate the technical and economic
feasibility of alternatives may be warranted.
When considering the suitability of making a post-hoc assessment
EPA considers two issues: First, whether any reductions been made in
the nominated amount that are approved at the Meetings of the Parties
to the Montreal Protocol, and second, the quality and verification of
new data to support a post-hoc review.
In the post-hoc review process the amount requested would once
again be the starting point for all calculations. Each sector would be
reviewed on an individual application basis. The first assessment would
involve the subtraction process that adjusts for: Double-counting,
growth, quarantine and preshipment use, and use rate differences.
Adjustments for double-counting is the estimate measured in kilograms
in situations where an applicant has made a request for a CUE while a
consortium has also made a request on their behalf in the consortium
application. Growth is an adjustment in kilograms for amounts greater
than the historical amount used. Adjustments for quarantine and
preshipment (QPS) are for the kilograms that would qualify as QPS
usage, which is part of a separate exemption category under the
Protocol. Use rate differences are adjustments in kilograms to the
lower of the historic use rate or requested use rate.
The second part of the assessment would involve the percent
adjustments. Use rate adjustment is the use rate in kilograms per 1000
cubic meters expressed as the lowest of either the historic use rate,
requested use rate, or efficacious use rate as indicated by either:
Research reports, usage under similar pest and environmental
conditions, or MBTOC maximum use rates. Key pest adjustment is for
those pests that are not adequately controlled by methyl bromide
alternatives. Regulatory adjustment is for those areas where the
alternatives have additional regulatory constraints on their use.
Adoption of new fumigants or control measures is the percent of the
requested volume where alternatives could be adopted to replace methyl
bromide. Combined impacts adjustments are the percent of the requested
area where alternatives cannot be used due to key pest, regulatory, and
current status in adoption of new fumigants. In each case the total
area impacted is the conjoined area that is impacted by any of the
individual impacts. The effects are assumed to be independently
distributed unless contrary evidence is available.
When reviewing the adoption of new fumigants or control measures,
any information on the relative efficacy of the alternative is
critical. Examples of relevant information consists of: Historic
information on efficacy of the current fumigant (comparative efficacy
data should include methyl bromide as a standard whenever possible),
size and building composition of facility being treated, data from a
range of geographic conditions, temperature data from inside and
outside the treated facilities, pest population data from before and
after the treatments, information on down time between methyl bromide
and alternatives, amounts of methyl bromide or alternative used, and
the price to treat a typical facility including chemical, fumigation
set-up and take down costs.
The kilogram amount recommended is calculated by multiplying the
final amount after all subtractions and
[[Page 62042]]
multiplying it by the combined impacts adjustment.
If adequate quantitative information is not submitted, EPA will
review the 15 percent uptake estimate in light of all information that
the Agency holds and any new information received before the
development of the final rule regarding the basis for that estimate. As
noted above, the proposed 15 percent uptake of sulfuryl fluoride in
2006 for the limited number of uses for which there are recent
registrations would result in an approximate reduction of the level of
critical use methyl bromide for 2006 by 0.42% of the U.S. 1991
consumption baseline level.
F. What Are the Sources of Critical Use Methyl Bromide?
As discussed above and in the Framework Rule (69 FR 76982), an
approved critical user may obtain access to exempted production/import
of methyl bromide and to limited inventories of pre-phaseout methyl
bromide, the combination of which constitute the supply of ``critical
use methyl bromide'' intended to meet the needs of agreed critical
uses. In Decision XVI/2 and Decision Ex.II/1 the Parties to the
Protocol authorized agreed critical-use levels for 2006 of 8,074,683
kilograms, which is equivalent to 32% of the U.S. 1991 methyl bromide
consumption baseline. As noted above, paragraph 2 of Decision Ex.II/1
states, ``that a Party with a critical-use exemption level in excess of
permitted levels of production and consumption for critical uses is to
make up any such difference between those levels by using quantities of
methyl bromide available from existing stocks.'' The permitted level of
production and consumption of critical use methyl bromide in Decision
XVI/2 and Decision Ex.II/1 is 7,658,265 kilograms which is equivalent
to 30% of the U.S. 1991 consumption baseline, making the amount to come
from stocks equivalent to 2% of baseline.
In developing today's action, the Agency notes that Decision XVI/2
(para. 4) contains the following language, ``each Party which has an
agreed critical use should ensure that the criteria in paragraph 1 of
decision IX/6 are applied when licensing, permitting or authorizing
critical use of methyl bromide and that such procedures take into
account available stocks of banked or recycled methyl bromide,'' and
Decision Ex.II/1 (para. 5) contains the following slightly different
language, ``each Party which has an agreed critical use renews its
commitment to ensure that the criteria in paragraph 1 of decision IX/6
are applied when licensing, permitting or authorizing critical use of
methyl bromide and that such procedures take into account quantities of
methyl bromide available from existing stocks.''
The language in these Decisions is similar to language in Decision
Ex I/3, paragraph 5. In the December 23, 2004 Federal Register notice
establishing the framework for critical use exemptions and the critical
use level for 2005, EPA interpreted paragraph 5 of Decision Ex I/3 ``as
meaning that the U.S. should not authorize critical use exemptions
without including provisions addressing drawdown from stocks for
critical uses'' (69 FR 76987). The December 23, 2004 final rule
established provisions governing the sale of pre-phaseout inventories
for critical uses, including the concept of critical stock allowances
(CSAs) and a prohibition on sale of pre-phaseout inventories 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 critical use allowances to be
converted into critical stock allowances. Under today's proposed
action, no significant changes would be made to those provisions, which
would remain part of the framework for the critical use exemption and
which would continue to be in accordance with Decisions of the Parties.
Bearing in mind the United States' ``renewed commitment'' as stated in
Decision Ex II/1, EPA is proposing an additional action based on
experience with the 2005 critical use exemption. EPA is proposing to
adjust the portion of critical use methyl bromide to come from exempted
production or import as compared to the portion to come from stocks.
With today's action, the Agency is proposing that 6,823,707 kilograms
of methyl bromide, which is equivalent to 27% percent of the 1991
consumption baseline, come from new production or import, and that
1,150,824 kilograms, which is equivalent to 5% of baseline, come from
pre-phaseout methyl bromide inventories. The percentage of methyl
bromide proposed to come from pre-phaseout inventories is the same as
the percentage that was to come from pre-phaseout inventories in the
2005 control period. To date, it does not appear that critical users
have had difficulty in obtaining methyl bromide from stocks during the
2005 control period. Drawing on this experience, EPA is proposing to
grant CSAs equivalent to 5% of baseline for the 2006 control period, on
the assumption that users will continue to be able to access this level
of stocks during 2006. There is some uncertainty in this determination,
however, given that we have not come to the end of the control period,
and because we anticipate that stock levels will be lower in 2006. In
part because of this, EPA is proposing a safeguard to ensure that
critical needs will be met should the assumption that users will be
able to access this amount of stocks prove to be incorrect. EPA seeks
comments on the proposed fractional portion of the 8,074,683 kilograms
authorized for critical uses in 2006 that would come from pre-phaseout
inventories of methyl bromide.
In developing today's proposal of the percentage that would come
from new production or import as compared to the percentage that would
come from pre-phaseout inventories of methyl bromide for the 2006
control period, the Agency recognizes there is still market uncertainty
regarding the availability of stocks for critical uses and therefore
proposes a petition process that would allow real-time responses to
market conditions. The Agency is proposing a petition mechanism that
will allow a critical user to demonstrate his or her inability to
acquire sufficient methyl bromide from stocks. Upon receipt of a
petition that meets the information criteria discussed below, EPA would
review the petition and consider converting a limited number of CSAs to
CUAs (up to the 30% limit agreed by the Parties to the Protocol in
Decision XVI/2 and Ex.II/1). EPA believes that this petition process is
warranted given the uncertainty in projecting the amount of pre-
phaseout inventories that may be available for critical uses. Thus, the
proposed petition process would provide an important safety mechanism
for critical users.
Information To Be Submitted in Petition
EPA proposes that if you are an approved critical user who has
attempted unsuccessfully to obtain methyl bromide from at least two CSA
holders, you may request additional production or import of methyl
bromide by submitting the following information to EPA: (a) Your name
and address; (b) name of contact person and phone and fax number(s),
and e-mail address; (c) the name of the organization/consortium that
submitted an application for a critical use exemption and of which you
are a member, (d) description of use, location and limiting critical
condition qualifying for critical use methyl bromide; (e) quantity (in
kilograms) of methyl bromide needed for the relevant control period and
the amount acquired to date; (f) documentation or phone logs of
unsuccessful attempts to place an order for a specific quantity of
critical use methyl bromide with at least two
[[Page 62043]]
entities listed in 82.8; (g) the name, address and contract information
for the distributor and the producer/importer who will be part of the
adjustment transaction (converting CSAs to CUAs); (h) a letter from the
distributor confirming that they hold CSAs for which they do not hold,
and cannot obtain, a corresponding quantity of pre-phaseout inventories
of methyl bromide; agreeing to the transfer, with EPA approval, of a
specified quantity of their CSAs to an identified producer/importer for
conversion to CUAs, on the condition that the producer/importer offer
the distributor an opportunity to purchase a quantity of critical use
methyl bromide equivalent to that produced or imported through the
expenditure of the resulting CUAs; and confirming that the distributor
will offer the petitioner, in turn, an opportunity to purchase the same
quantity of critical use methyl bromide for critical uses; (i) a letter
from the identified producer/importer agreeing to the receipt of the
CSAs transferred by the distributor, requesting EPA approval to convert
the CSAs to CUAs, and confirming that they will offer the distributor
an opportunity to purchase a quantity of critical use methyl bromide
equivalent to that produced or imported with the CUAs resulting from
the transaction. The offset established in the framework rule (69 FR
76982) for trades from CUAs to CSAs would not apply to a petition for
converting CUAs to CSAs. The companies involved in a petition should
indicate what information they are claiming as Confidential Business
Information. Information claimed as confidential will be treated in
accordance with EPA's regulations on confidential business information
at 40 CFR part 2 subpart B. EPA will notify petitioners of deficiencies
and give them an opportunity to provide information needed to fully
complete the petition. However, if petitioners do not respond to EPA's
requests for additional information within 15 working days of the
request and the petition remains incomplete, the petition will not be
considered. A statement from a distributor that they cannot obtain
stockpiled methyl bromide in a quantity corresponding to the number of
CSAs they hold could be supported by on letters from local or regional
suppliers indicating that stockpiled methyl bromide is unavailable.
EPA is proposing that the petitioner submit documentation for an
adjustment transaction that includes a letter from a distributor
certifying that they hold CSAs but do not hold corresponding supplies
of pre-phaseout methyl bromide and are unable to obtain such pre-
phaseout material, and that the distributor is willing to have these
CSAs converted to CUAs, if authorized, in a transaction with a
producer/importer. The Agency is proposing a review and authorization
of the petition request to ensure there is a need for an adjustment
between the amount of critical use methyl bromide from new production/
import as compared with the amount from pre-phaseout inventories. In
addition, the Agency must ensure that the total aggregate amount of new
production/import does not exceed the limit agreed to by the Parties to
the Protocol in Decision XVI/2 and Decision Ex.II/1.
EPA seeks comment on the petition requirements outlined above and
has submitted an Information Collection Request (ICR) to the Office of
Management and Budget (OMB) for approval to collect this data. For
additional information, please see Section VI.B, ``Paperwork Reduction
Act.''
Deadline for Petitioning
EPA is proposing that petitions would be due no later than October
1st of the relevant control period. EPA is proposing that the period
for petitioning end October 1st to allow sufficient time for the
Agency's petition review and to assure the final authorization leaves
enough time for the commercial transaction to occur within the control
period to address concerns about the availability of critical use
methyl bromide. EPA believes it is important to establish a fixed end-
point for submission of petitions to give the petitions due
consideration and ensure that total production and import for critical
uses does not exceed the level agreed by the Parties to the Montreal
Protocol for the control period. Because most of the information needed
to support a petition should be readily available, EPA believes that
the first three quarters of the calendar year (control period) should
be sufficient time for petitioners to assess the market availability of
critical use methyl bromide and collect and compile supporting
documentation. Although EPA may request additional information from
petitioners after the deadline of October 1st, the Agency will not
consider petitions filed after these dates.
Length of Agency Review of Petitions
EPA is proposing a 30-working-day review period for petitions. If
more information is needed, EPA will contact the applicant and specify
the necessary information. EPA will consider the merits of each
individual petition and industry-wide data on the availability and
viability of alternatives. EPA retains the right to deny a petition
based on information received regarding, inter alia, fraud,
misrepresentation, inconsistency with Articles and Decisions under the
Montreal Protocol, inconsistency with the CAA Amendments of 1990, or
other reasons related to human health and the environment.
Notification of Petitioners
EPA will issue a letter to the petitioner, copying the distributor
and producer/importer, stating whether the Agency is granting or
denying the petition. Denial letters will state the reason for the
denial. Within ten working working days after receipt of the denial
letter, the petitioner may file a one-time appeal, with supporting
reasons. EPA may affirm the denial or grant the petition based on the
information provided by petitioner or other available evidence. If no
appeal is taken by the tenth working day after receipt of the denial
letter, the denial will be final on that day.
G. What Are the Critical Use Allowance Allocations?
EPA is proposing to allow limited amounts of new production or
import of methyl bromide for critical uses for 2006 in the amount of
6,823,707 kilograms as shown in Table II. below. With today's action,
EPA is proposing to allocate critical use allowances (CUAs) to
producers and importers of methyl bromide on a pro-rata basis based on
their 1991 consumption baseline levels. Each critical use allowance
(CUA) is equivalent to 1 kg of critical use methyl bromide. These
allowances expire at the end of the control period and, consistent with
the Framework Rule, are not bankable from one year to the next. Today's
proposal for allocating the following number of pre-plant and post-
harvest critical use allowances (CUAs) to the entities listed below
would be subject to the trading provisions at 40 CFR 82.12, which are
discussed in section V.(G) of the preamble to the Framework Rule (69 FR
76982).
As discussed in section V.(E) of the preamble to the Framework Rule
(69 FR 76990), EPA issues CUAs once a year except in the instance where
the Parties authorize supplemental CUEs. EPA may amend allocations in a
subsequent rulemaking to allocate supplemental methyl bromide for 2006.
[[Page 62044]]
Table II.--Allocation of Critical Use Allowances
------------------------------------------------------------------------
2006 Critical 2006 Critical
use allowances use allowances
Company for pre-plant for post-
uses* harvest uses*
(kilograms) (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp............... 3,831,117 315,974
Albemarle Corp.......................... 1,575,415 129,934
Ameribrom, Inc.......................... 870,292 129,934
TriCal, Inc............................. 26,971 2,224
-----------------
Total............................... 6,303,796 519,910
------------------------------------------------------------------------
* For production or import of class I, Group VI controlled substance
exclusively for the Pre-Plant or Post-Harvest uses specified in
Appendix L to 40 CFR Part 82.
EPA seeks comment on the total levels of exempted production/import
for critical uses in 2006.
Paragraph four of Decision Ex. I/3, taken at the 1st Extraordinary
Meeting of the Parties, stated ``that Parties should endeavor to
allocate the quantities of methyl bromide recommended by the Technology
and Economic Assessment Panel as listed in annex II A to the report of
the First Extraordinary Meeting of the Parties.'' Similarly, paragraph
four of Decision Ex. II/1 states, ``that Parties that have an agreed
critical use shall endeavor to license, permit, authorize or allocate
the quantities of methyl bromide recommended by the Technology and
Economic Assessment Panel to the specific categories of use shown in
table A of the annex to the present decision.'' In accordance with
Decision Ex. I/3, paragraph four, and consistent with the more recent
Decision, the Agency endeavored to allocate directly on a sector-by-
sector basis by analyzing and proposing this option, among others, in
August of 2004. In the final Framework Rule, the Agency made a reasoned
decision as to the economic, environmental and practical effects of
implementing the various proposed approaches, after considering public
comment. In the August 25, 2004 Allocation Framework proposed
rulemaking (69 FR 52366), EPA solicited comment on both universal and
sector-based allocation of critical use allowances, as well as more
flexible methods for determining allocations. After comments were
received, it was determined in the final Framework Rule (69 FR 76989)
that a lump-sum, or universal, allocation, modified to include distinct
caps for pre-plant and post-harvest uses, was the most efficient and
least burdensome approach that would achieve the desired environmental
results, and that there would be significant administrative and
practical difficulties associated with a sector-specific approach. EPA
is not aware of any factors that would alter the analysis performed
during the development of the Framework rule but seeks comment on
today's proposal to allocate CUAs in the same two groupings (pre-plant
and post-harvest) as was done for 2005 control period.
In developing the Framework Rule and allocating CUAs for 2005, EPA
examined the economic, environmental and administrative effects of
various allocation options over the projected life of the CUE exemption
program. The Agency found that a universal approach would offer equal
environmental protection, at less cost and with easier implementation
compared to the other options, such as sector-specific allocation
method. The Agency adopted a modified universal approach, separating
pre-plant from post-harvest uses in order to address concerns raised by
smaller, less frequent and end-of-year uses.
In addition, although the approach adopted in the Framework Rule
does not directly allocate allowances to each category of use, the
Agency anticipates that reliance on market mechanisms will achieve
similar results indirectly. As described in the August 25, 2004 notice
of proposed rulemaking and accompanying regulatory impact analysis (E-
Docket OAR-2003-0230), the Agency believes that under the Universal
system, as divided into pre-plant and post-harvest sectors, the actual
critical use will closely follow the sector breakout listed by the TEAP
and incorporated into the Parties' Decision. EPA will continue to
monitor sectoral use. The TEAP recommendations are based on data
submitted by the U.S. which in turn are based on recent historic use
data under the current methyl bromide phaseout market. In other words,
the TEAP recommendations agreed to by the Parties are based on current
use and the current uses are taking place in a marketplace where all
methyl bromide uses in the pre-plant and post-harvest markets compete
for a lump sum. A market-based lump sum system will likely operate to
mirror a sector-specific allocation over time. For the reasons stated
above, EPA is not proposing to change the approach adopted in the
Framework Rule for the allocation of CUAs. However, in making today's
proposal, EPA endeavors to seek comments on a sector-specific
allocation that would reflect groupings in the U.S. nomination that
were subsequently recommended by the Technology and Economic Assessment
Panel for 2006.
H. What Are the Critical Stock Allowance Allocations?
EPA is proposing to allocate critical stock allowances (CSAs) to
the entities listed below in Table III for the control period of 2006
in the amount of 1,150,824 kilograms.
In the Framework Rule, EPA restricted access to stocks for approved
critical users as a condition of obtaining new production and import
(69 FR 76987-76988). EPA is not planning to c