[Federal Register: February 6, 2006 (Volume 71, Number 24)]
[Rules and Regulations]
[Page 5985-6010]
[DOCID:fr06fe06-6]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[FRL-8028-2]
RIN 2060-AN18

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

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

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-OAR-2005-0122. All documents in the docket are listed on the
http://www.regulations.gov web site. Although listed in the index, some

information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through
http://www.regulations.gov or in hard copy at the Air Docket, EPA/DC, EPA

West, Room B102, 1301 Constitution Ave., NW., Washington DC. This
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The Docket telephone number is (202)
566-1742. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal holidays. The telephone number
for the Public Reading Room is<PHONE_NUMBER>, and the telephone number
for the Air Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Marta Montoro, Office of Atmospheric
Programs, Stratospheric Protection Division, Mail Code 6205 J,
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460; telephone number:<PHONE_NUMBER>; fax number:
(202) 343-2337; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: This final rule concerns Clean Air Act
restrictions on the consumption, production, and use of methyl bromide
(class I, Group VI controlled substance) for critical uses during
calendar year 2006. Under the Clean Air Act, methyl bromide consumption
and production was phased out on January 1, 2005 apart from certain
exemptions, including the critical use exemption and the quarantine and
preshipment exemption. With this action, EPA is listing the uses that
will qualify for the 2006 critical use exemption, as well as
authorizing specific amounts of methyl bromide that may be produced,
imported, or made available from inventory for critical uses in 2006.
    Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C.
Chapter 5, generally provides that rules may not take effect earlier
than 30 days after they are published in the Federal Register. EPA is
issuing this final rule under section 307(d) of the CAA, which states:
``The provisions of section 553 through 557 * * * of Title 5 shall not,
except as expressly provided in this subsection, apply to actions to
which this subsection applies.'' CAA section 307(d)(1). Thus, section
553(d) of the APA does not apply to this rule. EPA nevertheless is
acting consistently with the policies underlying APA section 553(d) in
making this rule effective on February 1, 2006. APA section 553(d)
provides an exception for any action that grants or recognizes an
exemption or relieves a restriction. This final rule grants an
exemption from the phaseout of methyl bromide.

Table of Contents

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

I. General Information

A. Regulated Entities

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

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

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

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

III. What Is Methyl Bromide?

    Methyl bromide is an odorless, colorless, toxic gas which is used
as a broad-spectrum pesticide and is controlled under the CAA as a
Class I ozone-depleting substance (ODS). Methyl bromide is used in the
U.S. and throughout the world as a fumigant to control a wide variety
of pests such as insects, weeds, rodents, pathogens, and nematodes.
Additional characteristics and details about the uses of methyl bromide
can be found in the rule on the phaseout schedule for methyl bromide
published in the Federal Register on March 18, 1993 (58 FR 15014) and
the final rule published in the Federal Register on December 10, 1993
(58 FR 65018).
    The phaseout schedule for methyl bromide production and consumption
was revised in a direct final rulemaking on November 28, 2000 (65 FR
70795), which allowed for the phased reduction in methyl bromide
consumption and extended the phaseout to 2005. The revised phaseout
schedule was again amended to allow for an exemption for quarantine and
preshipment purposes with a final rule (68 FR 238) on January 2, 2003.
Information on methyl bromide can be found at http://www.epa.gov/ozone/mbr and http://www.unep.org/ozone or by contacting EPA's Stratospheric

Ozone Hotline at 1-800-296-1996.
    Because it is a pesticide, methyl bromide is also regulated by EPA
under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
and other statutes and regulatory authority, as well as by States under
their own statutes and regulatory authority. Under FIFRA, methyl
bromide is a restricted use pesticide. Because of this status, a
restricted use pesticide is subject to certain Federal and State
requirements governing its sale, distribution, and use. Nothing in this
final rule implementing the Clean Air Act is intended to derogate from
provisions in any other Federal, State, or local laws or regulations
governing actions including, but not limited to, the sale,
distribution, transfer, and use of methyl bromide. All entities that
would be affected by provisions of this rule must continue to comply
with FIFRA and other pertinent statutory and regulatory requirements
for pesticides (including, but not limited to, requirements pertaining
to restricted use pesticides) when importing, exporting, acquiring,
selling, distributing, transferring, or using methyl bromide for
critical uses. The regulations in this action are intended only to
implement the CAA restrictions on the production, consumption, and use
of methyl bromide for critical uses exempted from the phaseout of
methyl bromide.

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

    Methyl bromide was added to the Protocol as an ozone-depleting
substance in 1992 through the Copenhagen Amendment to the Protocol. The
Parties authorize critical use exemptions through their Decisions.
    The Parties agreed that each industrialized country's level of
methyl bromide production and consumption in 1991 should be the
baseline for establishing a freeze in the level of methyl bromide
production and consumption for industrialized countries. EPA published
a final rule in the Federal Register on December 10, 1993 (58 FR
65018), listing methyl bromide as a class I, Group VI controlled
substance, freezing U.S. production and consumption at this 1991 level,
and, in Section 82.7 of the rule, setting forth the percentage of
baseline allowances for methyl bromide granted to companies in each
control period (each calendar year) until the year 2001, when the
complete phaseout would occur. At their 1995 meeting, the Parties made
adjustments to the methyl bromide control measures and agreed to
reduction steps and a 2010 phaseout date for industrialized countries
with exemptions permitted for critical uses. At their 1997 meeting, the
Parties agreed to further adjustments to the phaseout schedule for
methyl bromide in industrialized countries, with reduction steps
leading to a 2005 phaseout for industrialized countries. In October
1998, the U.S. Congress amended the CAA to prohibit the termination of
production of methyl bromide prior to January 1, 2005, to require EPA
to bring the U.S. phaseout of methyl bromide in line with the schedule
specified under the Protocol, and to authorize EPA to provide
exemptions for critical uses. On November 28, 2000, EPA issued
regulations to amend the phaseout schedule for methyl bromide and
extend the complete phaseout of production and consumption to 2005 (65
FR 70795).
    On December 23, 2004 (69 FR 76982), EPA published a final rule in
the Federal Register (the ``Framework Rule'') that established the
framework for the critical use exemption; set forth a list of approved
critical uses for 2005; and specified the amount of methyl bromide that
could be supplied in 2005 from available inventory and new production
or import to meet approved critical uses. With this action, EPA is
authorizing the uses that will qualify as approved critical uses in
2006 and the

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

V. What Is the Critical Use Exemption Process?

A. Background of the Process

    Starting in 2002, EPA began notifying applicants as to the
availability of an application process for a critical use exemption to
the methyl bromide phaseout. On May 8, 2003, the Agency published a
notice in the Federal Register (68 FR 24737) announcing the deadline to
apply for critical uses for the 2006 calendar year, and directing
applicants to announcements posted on EPA's methyl bromide Web site at
http://www.epa.gov/ozone/mbr. Applicants were told they could apply as

individuals or as part of a group of users (a ``consortium'') who face
the same limiting critical conditions (i.e., specific conditions which
establish a critical need for methyl bromide). This process has been
repeated on an annual basis since then. The critical use exemption is
designed to meet the needs of methyl bromide users who do not have
technically and economically feasible alternatives available.
    The criteria for the exemption are delineated in Decision IX/6 of
the Parties to the Protocol. In that Decision, the Parties agreed that
``a use of methyl bromide should qualify as `critical' only if the
nominating Party determines that: (i) The specific use is critical
because the lack of availability of methyl bromide for that use would
result in a significant market disruption; and (ii) there are no
technically and economically feasible alternatives or substitutes
available to the user that are acceptable from the standpoint of
environment and public health and are suitable to the crops and
circumstances of the nomination.'' These criteria are reflected in
EPA's definition of ``critical use'' at 40 CFR 82.3.
    In response to the annual requests for critical use exemption
applications published in the Federal Register, applicants have
provided information supporting their position that they have no
technically and economically feasible alternatives to methyl bromide
available to them. Applicants for the exemption have submitted
information on their use of methyl bromide, on research into the use of
alternatives to methyl bromide, on efforts to minimize

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

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

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

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

C. What Are the Approved Critical Uses?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

specified items cannot be removed from the premises.
    In the final rule, EPA is reducing post-harvest critical use
allowances from the amount that was proposed by 13.66 kilograms to
account for an uptake of sulfuryl fluoride for certain post-harvest
sectors, including food processing and structures and sub-sectors of
the National Pest Management Association (NPMA), of 12-18%. This
reduction is equal to less than 0.5% of the 1991 baseline. These
sectors are those for which sulfuryl fluoride is registered, and where
there are data demonstrating that key pests are controlled by sulfuryl
fluoride. Although sulfuryl fluoride is registered for certain
commodities, EPA is not making a reduction based on transitions in the
commodity sector at this time due to the lack of sulfuryl fluoride food
tolerances in countries where the commodities are exported, such as the
European Union and Canada. Because of the complications associated with
separating quantities of commodities designated for export markets for
which sulfuryl fluoride is not a registered alternative, there is no
way to determine at harvest which portion of the commodity will be
exported. This issue is further discussed in the ``Methyl Bromide CUN
for Post-Harvest Use for Commodites'' chapter of the 2008 U.S.
nomination, available on Docket ID OAR-2005-0122.
    Based on the assessment performed for the BUNNI of the 2008 CUN,
which is available on Docket ID OAR-2005-0122, a transition rate of
between 12%-18% reflects the best available data on the feasible uptake
of sulfuryl fluoride in the affected portions of the industry. The 2008
assessment was conducted in January 2006 and reflects current market
conditions. The 12%-18% range is based on available data and on
professional judgment about the uptake of a new chemical in the market.
EPA believes that the projected uptake in 2008 under a business-as-
usual scenario can be achieved in 2006 by removing the corresponding
amount of methyl bromide from the approved critical use level, for the
affected sectors. This is consistent with the environmental goals of
EPA's stratospheric ozone program and the definition of ``critical
uses'' in Section 82.3 as uses for which there are no technically and
economically feasible alternatives. In the proposed rule, EPA noted
that uptake can be relatively slow in the initial period following new
registrations. The Agency is only applying this projected uptake factor
to the structures-food facilities use areas, as well as sub-sectors of
NPMA, as the Agency has determined that regulatory and/or technical and
economic barriers exist to the adoption of sulfuryl fluoride in other
post-harvest critical use areas. (For an additional discussion of
economic barriers, please see the 2008 CUN, available on Docket ID OAR-
2005-0122). Some technical and/or economic conditions may exist,
preventing the full adoption of sulfuryl fluoride in the structures-
food facilities sector. For instance, no transition was projected for
cheese processing plants because there is no information to show that
sulfuryl fluoride is effective on mites. The Agency will continue to
review data to better evaluate the potential for sulfuryl fluoride to
more broadly penetrate the post-harvest market in the future. Such data
would include studies that encompass multiple years and multiple
locations, and compare sulfuryl fluoride with methyl bromide. Several
studies, with similar pests (at high pest pressures), different
locations, with similar collection data (trap catch/bioassays) would be
needed in order to conduct such an analysis. Therefore, the best
available information for the 2006 rule would suggest a rate of
adoption of between 12% and 18%, depending on the sector.
    During a notice-and-comment rulemaking, EPA responds, in part, to
evolving market conditions between the time of the nomination and the
applicable control period. The Agency is taking new registrations of
sulfuryl fluoride into account in determining the amount of methyl
bromide needed for critical uses in 2006. In the notice of proposed
rulemaking, the Agency also recognized that the status of other