Protection of Stratospheric Ozone: The 2007 Critical Use Exemption From the Phaseout of Methyl Bromide, 38325-38346 [06-5969]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 71, Number 129 (Thursday, July 6, 2006)]
[Proposed Rules]
[Pages 38325-38346]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-5969]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2005-0538; FRL-8190-4]
RIN 2060-AN54


Protection of Stratospheric Ozone: The 2007 Critical Use 
Exemption From the Phaseout of Methyl Bromide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing an exemption to the phaseout of methyl 
bromide to meet the needs of 2007 critical uses. Specifically, EPA is 
proposing uses that will qualify for the 2007 critical use exemption 
and the amount of methyl bromide that may be produced, imported, or 
supplied from stocks for those uses in 2007. EPA is taking action under 
the authority of the Clean Air Act to reflect recent consensus 
Decisions taken by the Parties to the Montreal Protocol on Substances 
that Deplete the Ozone Layer (Protocol) at the 17th Meeting of the 
Parties (MOP). EPA is seeking comment on the list of critical uses and 
on EPA's determination of the amounts of methyl bromide needed to 
satisfy those uses.

DATES: Comments must be submitted by August 7, 2006. Any party 
requesting a public hearing must notify the contact person listed below 
by 5 p.m. Eastern Standard Time on July 11, 2006. If a hearing is 
requested it will be held on July 21, 2006, and comments will be due to 
the Agency August 21, 2006. EPA will post information regarding a 
hearing, if one is requested, on the Ozone Protection Web site 
www.epa.gov/ozone. Persons interested in attending a public hearing 
should consult with the contact person below regarding the location and 
time of the hearing.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2005-0538, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     E-mail: A-and-R-docket@epa.gov
     Fax: 202-343-2337, attn: Hodayah Finman.
     Mail: Air Docket, Environmental Protection Agency, Mail 
Code 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     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 Docket ID No. EPA-HQ-OAR-
2005-0538. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or e-mail. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going

[[Page 38326]]

through www.regulations.gov your e-mail address will be automatically 
captured and included as part of the comment that is placed in the 
public docket and made available on the Internet. If you submit an 
electronic comment, EPA recommends that you include your name and other 
contact information in the body of your comment and with any disk or 
CD-ROM you submit. If EPA cannot read your comment due to technical 
difficulties and cannot contact you for clarification, EPA may not be 
able to consider your comment. Electronic files should avoid the use of 
special characters, any form of encryption, and be free of any defects 
or viruses. For additional information about EPA's public docket visit 
the EPA Docket Center homepage at https://www.epa.gov/epahome/
dockets.htm. 
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Air Docket, EPA/DC, EPA 
West, Room B102, 1301 Constitution Ave., NW., Washington, DC. This 
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The 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 Hodayah Finman by telephone at (202) 343-9246, 
or by e-mail at mebr.allocation@epa.gov or by mail at Hodayah Finman, 
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 
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 
(CAA) restrictions on the consumption, production, and use of methyl 
bromide (a class I, Group VI controlled substance) for critical uses 
during calendar year 2007. Under the Clean Air Act, methyl bromide 
consumption (consumption is defined under the CAA as production plus 
imports minus exports) and production was phased out on January 1, 2005 
apart from allowable exemptions, namely the critical use exemption and 
the quarantine and pre-shipment exemption. With this action, EPA is 
proposing and seeking comment on the uses that will qualify for the 
2007 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 2007.

Table of Contents

I. General Information
    A. Regulated Entities
    B. What Should I Consider When Preparing My Comments?
II. What is the Background to the Phaseout Regulations for Ozone-
Depleting Substances?
III. What Is Methyl Bromide?
IV. What Is the Legal Authority for Exempting the Production and 
Import of Methyl Bromide for Critical Uses Authorized by the Parties 
to the Montreal Protocol?
V. What Is the Critical Use Exemption Process?
     A. Background of the Process
    B. How Does This Proposed Rulemaking Relate to Previous Critical 
Use Exemption Rulemakings?
    C. Proposed Critical Uses and Adjustment to Critical Use Amounts
    D. The Criteria in Decisions IX/6 and Ex. I/4
    E. Emissions Minimization
    F. Critical Use Allowance Allocations
    G. Critical Stock Allowance Allocations and Total Volumes of 
Critical Use Methyl Bromide
    H. Stocks of Methyl Bromide
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 and Safety Risks
    H. Executive Order No. 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and 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, agricultural
                                          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 Part 82, Subpart A. If you have 
questions regarding the applicability of this action to a particular 
entity, consult the person listed in the preceding FOR FURTHER 
INFORMATION CONTACT section.

B. What Should I Consider When Preparing My Comments?

    1. Confidential Business Information. Do not submit this 
information to EPA through www.regulations.gov or e-mail. Clearly mark 
the part or all of the information that you claim to be CBI. For CBI 
information in a disk or CD ROM that you mail to EPA, mark the outside 
of the disk or CD ROM as CBI and then identify electronically within 
the disk or CD ROM the specific information that is claimed as CBI. In 
addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.

[[Page 38327]]

     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

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

    The current regulatory requirements of the Stratospheric Ozone 
Protection Program that limit production and consumption of ozone-
depleting substances can be found at 40 CFR Part 82, Subpart A. The 
regulatory program was originally published in the Federal Register on 
August 12, 1988 (53 FR 30566), in response to the 1987 signing and 
subsequent ratification of the Montreal Protocol on Substances that 
Deplete the Ozone Layer (Protocol). The Protocol is the international 
agreement aimed at reducing and eliminating the production and 
consumption of stratospheric ozone depleting substances. The U.S. was 
one of the original signatories to the 1987 Montreal Protocol and the 
U.S. ratified the Protocol on April 12, 1988. Congress then enacted, 
and President George H.W. Bush signed into law, the Clean Air Act 
Amendments of 1990 (CAAA of 1990) which included Title VI on 
Stratospheric Ozone Protection, codified as 42 U.S.C. Chapter 85, 
Subchapter VI, to ensure that the United States could satisfy its 
obligations under the Protocol. EPA issued new regulations to implement 
this legislation and has made several amendments to the regulations 
since that time.

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 on January 2, 2003 (68 FR 238). 
Information on methyl bromide can be found at https://www.epa.gov/ozone/
mbr and https://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 
proposed rule implementing the Clean Air Act is intended to derogate 
from provisions in any other Federal, State, or Local laws or 
regulations governing actions including, but not limited to, the sale, 
distribution, transfer, and use of methyl bromide. All entities that 
would be affected by provisions of this proposal must continue to 
comply with FIFRA and other pertinent statutory and regulatory 
requirements for pesticides (including, but not limited to, 
requirements pertaining to restricted use pesticides) when importing, 
exporting, acquiring, selling, distributing, transferring, or using 
methyl bromide for critical uses. The regulations in this proposed 
action are intended only to implement the CAA restrictions on the 
production, consumption and use of methyl bromide for critical uses 
exempted from the phaseout of methyl bromide.

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. This phaseout date was established in 
response to a petition filed in 1991 under sections 602(c)(3) and 
606(b) of the CAAA of 1990, requesting that EPA list methyl bromide as 
a class I substance and phase out its production and consumption. This 
date was consistent with section 602(d) of the CAAA of 1990, which for 
newly listed class I ozone-depleting substances provides that ``no 
extension [of the phaseout schedule in section 604] under this 
subsection may extend the date for termination of production of any 
class I substance to a date more than 7 years after January 1 of the 
year after the year in which the substance is added to the list of 
class I substances.'' EPA based its action on scientific assessments 
and actions by the Parties to the Montreal Protocol to freeze the level 
of methyl bromide production and consumption for industrialized 
countries at the 1992 Meeting of the Parties in Copenhagen.
    At their 1995 meeting, the Parties made adjustments to the methyl 
bromide control measures and agreed to reduction steps and a 2010 
phaseout date for industrialized countries with exemptions permitted 
for critical uses. At that time, the U.S. continued to have a 2001 
phaseout date in accordance with the CAAA of 1990 language. At their 
1997 meeting, the Parties agreed to further adjustments to the phaseout 
schedule for methyl bromide in industrialized countries, with reduction 
steps leading to a 2005 phaseout for industrialized countries. 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.

[[Page 38328]]

These amendments were contained in Section 764 of the 1999 Omnibus 
Consolidated and Emergency Supplemental Appropriations Act (Pub. L. 
105-277, October 21, 1998) and were codified in Section 604 of the CAA, 
42 U.S.C. 7671c. The amendment that specifically addresses the critical 
use exemption appears at Section 604(d)(6), 42 U.S.C. 7671c(d)(6). 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 (the 
``Framework Rule'') in the Federal Register that established the 
framework for the critical use exemption; set forth a list of approved 
critical uses for 2005; and specified the amount of methyl bromide that 
could be supplied in 2005 from available stocks and new production or 
import to meet the needs of approved critical uses. EPA then published 
a second final rule that added additional uses to the exemption program 
for 2005 and allocated additional stock allowances (70 FR 73604). EPA 
published a final rule on February 6, 2006 to exempt production and 
import of methyl bromide for 2006 critical uses and indicate which uses 
met the criteria for the exemption program for that year (71 FR 5985). 
Under authority of section 604(d)(6) of the CAA, EPA is proposing the 
uses that will qualify as approved critical uses in 2007 and the amount 
of methyl bromide required to satisfy those uses.
    This proposed action reflects Decision XVII/9, taken at the 
Parties' Seventeenth Meeting in December 2005. In accordance with 
Article 2H(5), the Parties have issued several Decisions pertaining to 
the critical use exemption. These include Decisions IX/6 and Ex. I/4, 
which set forth criteria for review of proposed critical uses. The 
December 23, 2004 Framework Rule (69 FR 76984) discusses the 
relationship between the relevant provisions of the CAA and Article 2H 
of the Protocol, and the Decisions of the Parties that interpret 
Article 2H. Briefly, EPA regards certain provisions of Decisions IX/6, 
Ex I/4, and XVII/9 as subsequent consensus agreements of the Parties 
that address the interpretation and application of the critical use 
provision in Article 2H(5) of the Protocol. This proposed action 
follows the terms of these provisions to ensure consistency with the 
Montreal Protocol and satisfy the requirements of sections 604(d)(6) 
and 614(b) of the Clean Air Act.

V. What Is the Critical Use Exemption Process?

A. Background of the Process

    Starting in 2002, EPA began notifying applicants of the process for 
obtaining a critical use exemption to the methyl bromide phaseout. On 
May 8, 2003, the Agency published its first notice in the Federal 
Register (68 FR 24737) announcing the availability of the application 
for a critical use exemption and the deadline for submission of the 
requisite data. Applicants were informed that they may apply as 
individuals or as part of a group of users (a ``consortium'') who face 
the same limiting critical conditions (i.e. specific conditions that 
establish a critical need for methyl bromide). EPA has repeated this 
process annually since then. The critical use exemption is designed to 
permit production and import of methyl bromide for uses that do not 
have technically and economically feasible alternatives.
    The criteria for the exemption are delineated in Decision IX/6 of 
the Parties to the Protocol. In that Decision, the Parties agreed that 
``a use of methyl bromide should qualify as `critical' only if the 
nominating Party determines that: (i) The specific use is critical 
because the lack of availability of methyl bromide for that use would 
result in a significant market disruption; and (ii) there are no 
technically and economically feasible alternatives or substitutes 
available to the user that are acceptable from the standpoint of 
environment and public health and are suitable to the crops and 
circumstances of the nomination.'' These criteria are reflected in 
EPA's definition of ``critical use'' at 40 CFR 82.3.
    In response to the yearly requests for critical use exemption 
applications published in the Federal Register, applicants have 
provided data on the technical and economical feasibility of using 
alternatives to methyl bromide. Applicants further submit data on their 
use of methyl bromide, on research programs into the use of 
alternatives to methyl bromide, and on efforts to minimize use and 
emissions of methyl bromide.
    EPA's Office of Pesticide Programs reviews the data submitted by 
applicants, as well as data from governmental and academic sources, to 
establish whether there are technically and economically feasible 
alternatives available for a particular use of methyl bromide and 
whether there would be significant market disruption if no exemption 
were available. In addition, EPA reviews other parameters of the 
exemption applications such as dosage and emissions minimization 
techniques and applicants' research or transition plans. This 
assessment process culminates with the development of a document 
referred to as the ``Critical Use Nomination'' or CUN. The CUN is 
submitted annually by the U.S. Department of State to the United 
Nations Environment Programme (UNEP)'s Ozone Secretariat. The CUNs of 
various countries are subsequently reviewed by the Methyl Bromide 
Technical Options Committee (MBTOC) and the Technical and Economic 
Assessment Panel (TEAP), which are independent advisory bodies to 
Parties to the Montreal Protocol. These bodies make recommendations to 
the Parties on the nominations. The Parties then take a Decision to 
authorize a critical use exemption for a particular country. The 
Decision also identifies how much methyl bromide may be supplied for 
the exempted critical uses. Finally, for each exemption period, EPA 
provides an opportunity such as this for comment on the amounts of 
methyl bromide that the Agency has determined to be necessary for 
critical uses and the uses that the Agency has determined meet the 
criteria of the critical use exemption.
    For more information on the domestic review process and methodology 
employed by the Office of Pesticide Programs, please refer to a 
detailed memo titled ``Development of 2003 Nomination for a Critical 
Use Exemption for Methyl Bromide for the United States of America'' 
available on the docket for this rulemaking. While the particulars of 
the data continue to evolve and clerical matters are further 
streamlined, the technical review itself has remained the same since 
the inception of the exemption of the program.
    On January 31, 2005, the U.S. Government submitted the third U.S. 
Nomination for a Critical Use Exemption for Methyl Bromide to the Ozone 
Secretariat of the United Nations Environment Programme. This third 
nomination contained the request for 2007 critical uses. On March 16 
and 18, 2005, and June 10 and 13, 2005, MBTOC sent questions to the 
U.S. Government concerning technical and economic issues in the 
nomination. The U.S. Government transmitted responses to these requests 
for clarification on April 8, 2005 and August 18, 2005. These 
documents, together with reports by the advisory bodies noted above, 
can be accessed in the docket for this rulemaking. The determination in 
this proposed rule reflects the analysis contained in those documents.

[[Page 38329]]

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

    The December 23, 2004 Framework Rule (69 FR 76982) established the 
bulk of the framework for the critical use exemption in the U.S. 
including trading provisions and recordkeeping and reporting 
obligations. In this action, EPA is not proposing to change the 
framework of the exemption program but rather to establish a list of 
approved critical uses for 2007 and issue allowances that will 
determine the amount of methyl bromide available for those uses 
consistent with the Framework Rule.

C. Proposed Critical Uses and Adjustments to Critical Use Amounts

    In Decision XVII/9, taken in December 2005, the Parties to the 
Protocol agreed as follows: ``for the agreed critical-use categories 
for 2007, set forth in table C to the annex to the present decision for 
each Party, to permit, subject to the conditions set forth in the 
present decision and decision Ex. I/4, the levels of production and 
consumption for 2007 set forth in table D of the annex to the present 
decision which are necessary to satisfy critical uses * * *''
    The following uses are those set forth in table C of the annex to 
Decision XVII/9: Cucurbits; dry commodities/structures cocoa beans; 
dried fruit and nuts; NPMA dry commodities/structures (processed foods, 
herbs & spices, dried milk and cheese processing facilities); dry cure 
pork products (building and product); eggplant (field); forest nursery 
seedlings; mills and processors; nursery stock-fruit trees, 
raspberries, roses; orchard replant; ornamentals; peppers (field); 
strawberry fruit (field); strawberry runners; tomato (field) and turf 
grass. When added together, the agreed critical-use levels for 2007 
total 6,749,060 kilograms, which is equivalent to 26.4% of the U.S. 
1991 methyl bromide consumption baseline of 25,528,000 kilograms. 
However, the maximum amount of allowable new production or import as 
set forth in table D of Decision XVII/9 is 5,149,060 kgs, which is 
equivalent to 20% of the 1991 methyl bromide consumption baseline. The 
difference between allowable new production or import and total 
critical use exemption will be made up from available stocks. EPA 
further discusses the breakout between new production or import and 
stocks in sections V.G. and V.H. of this preamble.
    EPA is proposing to make the following reductions to the amount of 
newly produced or imported methyl bromide authorized in Decision XVII/9 
to satisfy critical uses:
    (a) Reductions to accommodate uptake of sulfuryl fluoride in 2007.
    (b) Reductions to account for unused critical use methyl bromide at 
the end of 2005.
    (c) Reductions equivalent to the amount authorized for research 
purposes.
    (d) Reductions to accommodate increased allocation of critical 
stock allowances (CSAs).
    In the 2006 CUE Rule (71 FR 5985), EPA allocated less methyl 
bromide for critical uses than was authorized by the Parties, in order 
to account for the recent registration of sulfuryl fluoride. The Agency 
based those reductions on the data contained in the 2008 Critical Use 
Nomination (CUN), which was submitted to the Ozone Secretariat in 
January 2006. The 2008 CUN is available in the docket for this proposed 
rule. The nomination indicated that sulfuryl fluoride is registered to 
control the relevant pests in all post-harvest sectors except for 
cheese and dry cured ham use categories and that between 12 percent and 
18 percent of the industry, depending on the use category, could 
feasibly transition to this alternative each year. This analysis still 
represents the best available data on the transition to sulfuryl 
fluoride including factors such as potential obstacles in the export of 
treated commodities. The report of the Methyl Bromide Technical Options 
Committee (MBTOC) indicated that the MBTOC did not make any reductions 
in these use categories for the uptake of sulfuryl fluoride in 2007 
because the United States Government indicated that it would do so in 
its domestic allocation procedures. Therefore, EPA is proposing to 
reduce the total volume of critical use methyl bromide by 68,170 
kilograms to reflect the continuing transition to sulfuryl fluoride. 
The Agency seeks comment on the transition rates for sulfuryl fluoride 
described in the 2008 CUN and used in this proposed rule. In 
particular, the Agency continues to seek comment on the ability of 
certain end users, such as dried fruit and nut processors, to be able 
to use sulfuryl fluoride given the progress made by importing countries 
in establishing and approving tolerance levels for the use of sulfuryl 
fluoride. A copy of the 2008 analysis is available in the rulemaking 
docket for comment.
    As described in the December 23, 2004 Framework Rule (69 FR 76997), 
EPA is not permitting entities to build stocks of methyl bromide 
produced or imported under the critical use exemption program. To 
prevent the unintended build up of such stocks, the Agency indicated 
that any volumes of methyl bromide produced or imported under the 
critical use exemption in a calendar year, but not used in that year, 
must be reported to EPA the following year. These reporting 
requirements appear at Sec. Sec.  82.13(f)(3)(xvi), 82.13(g)(4)(xviii), 
and 82.13(bb)(2)(iii). An amount equivalent to this ``carry-over,'' 
whether pre-plant or post-harvest, would then be deducted from the 
total level of allowable new production and import in the year 
following the year of the data report. For example, all carry-over 
methyl bromide that was produced or imported under the critical use 
exemption in 2005 was reported to EPA in 2006 and would be reduced from 
the total allowable levels of new production/import in 2007. Therefore, 
in this proposed rule, EPA is proposing to reduce the total level of 
new production and import for critical uses by 443,000 kilograms to 
reflect the total level of carry-over material available at the end of 
2005. As described in the Framework Rule, after applying this reduction 
to the total volumes of allowable new production or import, EPA is pro-
rating critical use allowances (CUAs) to each company based on their 
1991 baseline market share.
    Decision XVII/9, paragraph 7, ``request[s] Parties to endeavor to 
use stocks, where available, to meet any demand for methyl bromide for 
the purposes of research and development.'' In response to this 
Decision, EPA is reducing the total supply of new production and import 
for critical uses by an amount equivalent to the total amount 
authorized for research purposes, which is 21,702 kilograms. The 
calculations used by the Agency for the research adjustment are 
available for public comment in the docket for this action. Further, 
EPA is encouraging methyl bromide suppliers to sell stocks to 
researchers and is encouraging researchers to purchase stocks of methyl 
bromide.
    Lastly, the Agency is considering increasing the amount of critical 
stock allowances (CSAs) to allocate for 2007 critical uses from 6.2% of 
baseline as specified in Decision XVII/9 to 7.5% of baseline consistent 
with the amount allocated for 2005 critical uses. In section V.H. of 
this preamble, the Agency describes the rationale for proposing and 
seeking comment on two different amounts of CSAs to allocate. In 
allocating additional CSAs, the Agency must make a corresponding 
reduction in the amount of new production and import under the 
exemption program. In this proposed action, EPA will list two tables of 
CUA and CSA allocations

[[Page 38330]]

reflecting both the lower and upper CSA scenarios.
    On February 6, 2006, EPA amended the label for 1,3-dichloropropene 
(1,3-D) regarding karst restrictions and copies of the amended labels 
are available in the docket for this proposed rule . The previous label 
states ``Do not apply in areas overlying karst geology'' whereas the 
new label states ``Do not apply this product within 100 feet of karst 
topographical features.'' The new label language is more instructive on 
the use of 1,3-D in areas with karst topography, while still protecting 
the environment, than the previous label language. EPA's assessment of 
the amount of methyl bromide that may be displaced by the use of 1,3-D 
over karst areas in the 2007 technical analysis is already based on the 
revised label language now in place. Therefore, EPA is not proposing to 
make further reductions to the volumes of pre-plant methyl bromide 
based on the label change. EPA refers commenters to the more detailed 
explanation of this matter in the responses to the MBTOC available in 
the docket for this rulemaking. A copy of the label amendment is 
available in the docket as well.
    In this proposed rule, EPA is proposing to modify Columns B and C 
of Appendix L to 40 CFR Part 82, Subpart A to reflect the agreed 
critical-use categories identified in Decision XVII/9 for the 2007 
control period (calendar year). The Agency is proposing to amend the 
table of critical uses based, in part, on the technical analysis 
contained in the 2007 U.S. nomination that assesses data submitted by 
applicants to the critical use exemption program as well as public and 
proprietary data on the use of methyl bromide and its alternatives. EPA 
is seeking comment on the aforementioned analysis and, in particular, 
any information regarding changes to the registration or use of 
alternatives that may have transpired after the 2007 U.S. nomination 
was written. Such information has the potential to alter the technical 
or economic feasibility of an alternative and could thus cause EPA to 
modify the analysis that underpins EPA's determination as to which uses 
and what amounts of methyl bromide qualify for the critical use 
exemption. EPA notes that while we may, in response to comments, reduce 
the proposed quantities of critical use methyl bromide, or decide not 
to approve uses authorized by the Parties, we do not intend to increase 
the quantities or add new uses in the final rule beyond those 
authorized by the Parties. Therefore, if there has been a change in 
registration of an alternative that results in that alternative no 
longer being available to a particular use, EPA does not intend to add 
uses or amounts of methyl bromide to the critical use exemption program 
beyond those identified here. Under such circumstances, the user should 
apply to EPA, requesting that the U.S. nominate its use for a critical 
use exemption in the future. Based on the information described above, 
EPA is proposing that the uses in Table I: Approved Critical Uses, with 
the limiting critical conditions specified, qualify to obtain and use 
critical use methyl bromide in 2007.

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

[[Page 38331]]

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

[[Page 38332]]

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

[[Page 38333]]

 
    Ornamentals.............  (a) California        Moderate to severe
                               growers.              disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematodes.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits for this
                                                     alternative have
                                                     been reached.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) Florida growers.  Moderate to severe
                                                     weed infestation.
                                                    Moderate to severe
                                                     disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematodes.
                                                    Karst topography
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Peppers.................  (a) California        Moderate to severe
                               growers.              disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematodes.
                                                    Prohibition on use
                                                     of 1,3-
                                                     dichloropropene
                                                     products because
                                                     local township
                                                     limits for this
                                                     alternative have
                                                     been reached.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) Alabama,          Moderate to severe
                               Arkansas, Kentucky,   yellow or purple
                               Louisiana, North      nutsedge
                               Carolina, South       infestation.
                               Carolina,            Moderate to severe
                               Tennessee, and        nematodes.
                               Virginia growers.    Moderate to severe
                                                     pythium root,
                                                     collar, crown and
                                                     root rots.
                                                    Presence of an
                                                     occupied structure
                                                     within 100 feet of
                                                     a grower's field
                                                     the size of 100