[Federal Register: July 6, 2006 (Volume 71, Number 129)]
[Proposed Rules]
[Page 38325-38346]
[DOCID:fr06jy06-25]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

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

should consult with the contact person below regarding the location and
time of the hearing.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2005-0538, by one of the following methods:
     http://www.regulations.gov: Follow the on-line instructions for

submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>, attn: Hodayah Finman.
     Mail: Air Docket, Environmental Protection Agency, Mail
Code 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery or Courier: Deliver your comments to: EPA
Air Docket, EPA West, 1301 Constitution Avenue, NW., Room B108, Mail
Code 6102T, Washington, DC 20460. Such deliveries are only accepted
during the Docket's normal hours of operation, and special arrangements
should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2005-0538. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information provided,

unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov or e-mail.

The http://www.regulations.gov Web site is an ``anonymous access'' system,

which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going

through http://www.regulations.gov your e-mail address will be automatically

captured and included as part of the comment that is placed in the
public docket and made available on the Internet. If you submit an
electronic comment, EPA recommends that you include your name and other
contact information in the body of your comment and with any disk or
CD-ROM you submit. If EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your comment. Electronic files should avoid the use of
special characters, any form of encryption, and be free of any defects
or viruses. For additional information about EPA's public docket visit
the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

    Docket: All documents in the docket are listed in the
http://www.regulations.gov index. Although listed in the index, some

information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in 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 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: For further information about this
proposed rule, contact Hodayah Finman by telephone at<PHONE_NUMBER>,
or by e-mail at<EMAIL_ADDRESS>or by mail at Hodayah Finman,
U.S. Environmental Protection Agency, Stratospheric Protection
Division, Stratospheric Program Implementation Branch (6205J), 1200
Pennsylvania Avenue, NW., Washington, DC 20460. You may also visit the
Ozone Depletion Web site of EPA's Stratospheric Protection Division at
http://www.epa.gov/ozone for further information about EPA's Stratospheric

Ozone Protection regulations, the science of ozone layer depletion, and
other related topics.

SUPPLEMENTARY INFORMATION: This proposed rule concerns Clean Air Act
(CAA) restrictions on the consumption, production, and use of methyl
bromide (a class I, Group VI controlled substance) for critical uses
during calendar year 2007. Under the Clean Air Act, methyl bromide
consumption (consumption is defined under the CAA as production plus
imports minus exports) and production was phased out on January 1, 2005
apart from allowable exemptions, namely the critical use exemption and
the quarantine and pre-shipment exemption. With this action, EPA is
proposing and seeking comment on the uses that will qualify for the
2007 critical use exemption as well as specific amounts of methyl
bromide that may be produced, imported, or made available from stocks
for proposed critical uses in 2007.

Table of Contents

I. General Information
    A. Regulated Entities
    B. What Should I Consider When Preparing My Comments?
II. What is the Background to the Phaseout Regulations for Ozone-
Depleting Substances?
III. What Is Methyl Bromide?
IV. What Is the Legal Authority for Exempting the Production and
Import of Methyl Bromide for Critical Uses Authorized by the Parties
to the Montreal Protocol?
V. What Is the Critical Use Exemption Process?
     A. Background of the Process
    B. How Does This Proposed Rulemaking Relate to Previous Critical
Use Exemption Rulemakings?
    C. Proposed Critical Uses and Adjustment to Critical Use Amounts
    D. The Criteria in Decisions IX/6 and Ex. I/4
    E. Emissions Minimization
    F. Critical Use Allowance Allocations
    G. Critical Stock Allowance Allocations and Total Volumes of
Critical Use Methyl Bromide
    H. Stocks of Methyl Bromide
VI. Statutory and Executive Order Reviews
    A. Executive Order No. 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order No. 13132: Federalism
    F. Executive Order No. 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order No. 13045: Protection of Children From
Environmental Health and Safety Risks
    H. Executive Order No. 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act

I. General Information

A. Regulated Entities

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

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

B. What Should I Consider When Preparing My Comments?

    1. Confidential Business Information. Do not submit this
information to EPA through http://www.regulations.gov or e-mail. Clearly mark

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

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

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

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

III. What Is Methyl Bromide?

    Methyl bromide is an odorless, colorless, toxic gas which is used
as a broad-spectrum pesticide and is controlled under the CAA as a
class I ozone-depleting substance (ODS). Methyl bromide is used in the
U.S. and throughout the world as a fumigant to control a wide variety
of pests such as insects, weeds, rodents, pathogens, and nematodes.
Additional characteristics and details about the uses of methyl bromide
can be found in the proposed rule on the phaseout schedule for methyl
bromide published in the Federal Register on March 18, 1993 (58 FR
15014) and the final rule published in the Federal Register on December
10, 1993 (58 FR 65018).
    The phaseout schedule for methyl bromide production and consumption
was revised in a direct final rulemaking on November 28, 2000 (65 FR
70795), which allowed for the phased reduction in methyl bromide
consumption and extended the phaseout to 2005. The revised phaseout
schedule was again amended to allow for an exemption for quarantine and
preshipment purposes on July 19, 2001 (66 FR 37751) with an interim
final rule and with a final rule on January 2, 2003 (68 FR 238).
Information on methyl bromide can be found at http://www.epa.gov/ozone/mbr and http://www.unep.org/ozone or by contacting the Stratospheric

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

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

    Methyl bromide was added to the Protocol as an ozone-depleting
substance in 1992 through the Copenhagen amendment to the Protocol. The
Parties authorize critical use exemptions through their Decisions.
    The Parties agreed that each industrialized country's level of
methyl bromide production and consumption in 1991 should be the
baseline for establishing a freeze in the level of methyl bromide
production and consumption for industrialized countries. EPA published
a final rule in the Federal Register on December 10, 1993 (58 FR
65018), listing methyl bromide as a class I, Group VI controlled
substance, freezing U.S. production and consumption at this 1991 level,
and, in Section 82.7 of the rule, setting forth the percentage of
baseline allowances for methyl bromide granted to companies in each
control period (each calendar year) until the year 2001, when the
complete phaseout would occur. This phaseout date was established in
response to a petition filed in 1991 under sections 602(c)(3) and
606(b) of the CAAA of 1990, requesting that EPA list methyl bromide as
a class I substance and phase out its production and consumption. This
date was consistent with section 602(d) of the CAAA of 1990, which for
newly listed class I ozone-depleting substances provides that ``no
extension [of the phaseout schedule in section 604] under this
subsection may extend the date for termination of production of any
class I substance to a date more than 7 years after January 1 of the
year after the year in which the substance is added to the list of
class I substances.'' EPA based its action on scientific assessments
and actions by the Parties to the Montreal Protocol to freeze the level
of methyl bromide production and consumption for industrialized
countries at the 1992 Meeting of the Parties in Copenhagen.
    At their 1995 meeting, the Parties made adjustments to the methyl
bromide control measures and agreed to reduction steps and a 2010
phaseout date for industrialized countries with exemptions permitted
for critical uses. At that time, the U.S. continued to have a 2001
phaseout date in accordance with the CAAA of 1990 language. At their
1997 meeting, the Parties agreed to further adjustments to the phaseout
schedule for methyl bromide in industrialized countries, with reduction
steps leading to a 2005 phaseout for industrialized countries. In
October 1998, the U.S. Congress amended the CAA to prohibit the
termination of production of methyl bromide prior to January 1, 2005,
to require EPA to bring the U.S. phaseout of methyl bromide in line
with the schedule specified under the Protocol, and to authorize EPA to
provide exemptions for critical uses.

These amendments were contained in Section 764 of the 1999 Omnibus
Consolidated and Emergency Supplemental Appropriations Act (Pub. L.
105-277, October 21, 1998) and were codified in Section 604 of the CAA,
42 U.S.C. 7671c. The amendment that specifically addresses the critical
use exemption appears at Section 604(d)(6), 42 U.S.C. 7671c(d)(6). On
November 28, 2000, EPA issued regulations to amend the phaseout
schedule for methyl bromide and extend the complete phaseout of
production and consumption to 2005 (65 FR 70795).
    On December 23, 2004 (69 FR 76982), EPA published a final rule (the
``Framework Rule'') in the Federal Register that established the
framework for the critical use exemption; set forth a list of approved
critical uses for 2005; and specified the amount of methyl bromide that
could be supplied in 2005 from available stocks and new production or
import to meet the needs of approved critical uses. EPA then published
a second final rule that added additional uses to the exemption program
for 2005 and allocated additional stock allowances (70 FR 73604). EPA
published a final rule on February 6, 2006 to exempt production and
import of methyl bromide for 2006 critical uses and indicate which uses
met the criteria for the exemption program for that year (71 FR 5985).
Under authority of section 604(d)(6) of the CAA, EPA is proposing the
uses that will qualify as approved critical uses in 2007 and the amount
of methyl bromide required to satisfy those uses.
    This proposed action reflects Decision XVII/9, taken at the
Parties' Seventeenth Meeting in December 2005. In accordance with
Article 2H(5), the Parties have issued several Decisions pertaining to
the critical use exemption. These include Decisions IX/6 and Ex. I/4,
which set forth criteria for review of proposed critical uses. The
December 23, 2004 Framework Rule (69 FR 76984) discusses the
relationship between the relevant provisions of the CAA and Article 2H
of the Protocol, and the Decisions of the Parties that interpret
Article 2H. Briefly, EPA regards certain provisions of Decisions IX/6,
Ex I/4, and XVII/9 as subsequent consensus agreements of the Parties
that address the interpretation and application of the critical use
provision in Article 2H(5) of the Protocol. This proposed action
follows the terms of these provisions to ensure consistency with the
Montreal Protocol and satisfy the requirements of sections 604(d)(6)
and 614(b) of the Clean Air Act.

V. What Is the Critical Use Exemption Process?

A. Background of the Process

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

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

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

C. Proposed Critical Uses and Adjustments to Critical Use Amounts

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

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

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

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

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

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

                              (b) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge.
                                                    Moderate to severe
                                                     nematodes.
                                                    Moderate to severe
                                                     disease
                                                     infestation.
                                                    Carolina geranium or
                                                     cut-leaf evening
                                                     primrose
                                                     infestation.
                                                    Karst topography and
                                                     to a lesser extent
                                                     a need for methyl
                                                     bromide for
                                                     research purposes.
                              (c) Alabama,          Moderate to severe
                               Arkansas, Georgia,    yellow or purple
                               Illinois, Kentucky,   nutsedge.
                               Louisiana,           Moderate to severe
                               Maryland, New         nematodes.
                               Jersey, North        Moderate to severe
                               Carolina, Ohio,       black root and
                               South Carolina,       crown rot.
                               Tennessee, and       Presence of an
                               Virginia growers.     occupied structure
                                                     within 100 feet of
                                                     a grower's field
                                                     the size of 100
                                                     acres or less.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Tomatoes................  (a) Michigan growers  Moderate to severe
                                                     disease
                                                     infestation.
                                                    Moderate to severe
                                                     fungal pathogen
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
                              (b) Alabama,          Moderate to severe
                               Arkansas, Florida,    yellow or purple
                               Georgia, Kentucky,    nutsedge
                               Louisiana, North      infestation.
                               Carolina, South      Moderate to severe
                               Carolina,             disease
                               Tennessee, and        infestation.
                               Virginia growers.    Moderate to severe
                                                     nematodes .
                                                    Presence of an
                                                     occupied structure
                                                     within 100 feet of
                                                     a grower's field
                                                     the size of 100
                                                     acres or less.
                                                    Karst topography.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Turfgrass...............  (a) U.S. turfgrass    Production of
                               sod nursery           industry certified
                               producers who are     pure sod.
                               members of           Moderate to severe
                               Turfgrass Producers   bermudagrass.
                               International (TPI). Moderate to severe
                                                     nutsedge.
                                                    Moderate to severe
                                                     white grub
                                                     infestation.
                                                    Control of off-type
                                                     perennial grass
                                                     infestation.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
Post-Harvest Uses:
    Food Processing.........  (a) Rice millers in   Moderate to severe
                               all locations in      infestation of
                               the U.S. who are      beetles, weevils or
                               members of the USA    moths.
                               Rice Millers         Older structures
                               Association.          that can not be
                                                     properly sealed to
                                                     use an alternative
                                                     to methyl bromide.
                                                    Presence of
                                                     sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosivity.
                                                    Time to transition
                                                     to an alternative.
                              (b) Pet food          Moderate to severe
                               manufacturing         infestation or
                               facilities in the     beetles, moths, or
                               U.S. who are active   cockroaches.
                               members of the Pet   Older structures
                               Food Institute (For   that can not be
                               this proposed rule,   properly sealed to
                               ``pet food'' refers   use an alternative
                               to domestic dog and   to methyl bromide.
                               cat food).           Presence of
                                                     sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosivity.
                                                    Time to transition
                                                     to an alternative.
                              (c) Kraft Foods in    Older structures
                               the U.S..             that can not be
                                                     properly sealed to
                                                     use an alternative
                                                     to methyl bromide.
                                                    Presence of
                                                     sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosivity.
                                                    Time to transition
                                                     to an alternative.

                              (d) Members of the    Moderate to severe
                               North American        beetle infestation.
                               Millers''            Older structures
                               Association in the    that can not be
                               U.S.                  properly sealed to
                                                     use an alternative
                                                     to methyl bromide.
                                                    Presence of
                                                     sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosivity.
                                                    Time to transition
                                                     to an alternative.
                              (e) Members of the    Moderate to severe
                               National Pest         beetle or moth
                               Management            infestation.
                               Association          Older structures
                               associated with dry   that can not be
                               commodity structure   properly sealed to
                               fumigation (cocoa)    use an alternative
                               and dry commodity     to methyl bromide.
                               fumigation           Presence of
                               (processed food,      sensitive
                               herbs and spices,     electronic
                               dried milk and        equipment subject
                               cheese processing     to corrosivity.
                               facilities).         Time to transition
                                                     to an alternative.
    Commodity Storage.......  (a) California        Rapid fumigation is
                               entities storing      required to meet a
                               walnuts, beans,       critical market
                               dried plums, figs,    window, such as
                               raisins, dates (in    during the holiday
                               Riverside county      season, rapid
                               only), and            fumigation is
                               pistachios in         required when a
                               California.           buyer provides
                                                     short (2 working
                                                     days or less)
                                                     notification for a
                                                     purchase or there
                                                     is a short period
                                                     after harvest in
                                                     which to fumigate
                                                     and there is
                                                     limited silo
                                                     availability for
                                                     using alternatives.
                                                    A need for methyl
                                                     bromide for
                                                     research purposes.
    Dry Cured Pork Products.  (a) Members of the    Moderate to severe
                               National Country      red legged ham
                               Ham Association.      beetle infestation.
                                                    Moderate to severe
                                                     cheese/ham skipper
                                                     infestation.
                                                    Moderate to severe
                                                     dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.
                              (b) Members of the    Moderate to severe
                               American              red legged ham
                               Association of Meat   beetle infestation.
                               Processors.          Moderate to severe
                                                     cheese/ham skipper
                                                     infestation.
                                                    Moderate to severe
                                                     dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.
                              (c) Nahunta Pork      Moderate to severe
                               Center (North         red legged ham
                               Carolina).            beetle infestation.
                                                    Moderate to severe
                                                     cheese/ham skipper
                                                     infestation.
                                                    Moderate to severe
                                                     dermested beetle
                                                     infestation.
                                                    Ham mite
                                                     infestation.
------------------------------------------------------------------------

    In the December 23, 2004 Framework Rule, EPA restricted access to
stocks for approved critical users as a condition of obtaining new
production and import (69 FR 76987). Decision XVII/9 establishes two
distinct caps on the supply of methyl bromide for critical uses: a
limit on the maximum allowable level of production or import and a
limit on the maximum allowable amount of methyl bromide to be used for
critical uses. It further indicates that the difference between the two
levels is to be made up ``by using quantities of methyl bromide from
stocks that the Party has recognized to be available.'' EPA continues
to view promulgated restrictions on the use of stocks by critical uses
(69 FR 76987) as an appropriate means of ensuring that total critical
use does not exceed the level agreed to by the Parties. The Agency also
believes that the restriction on access to stocks for critical uses is
an expression of the United States' ``renewed commitment'' to take
stocks into account as expressed in Decision XVII/9(5).
    EPA is proposing to amend the table in 40 CFR part 82, subpart A,
Appendix L, as reflected above. Specifically, EPA is adding one and
deleting seven references to and from column B. The changes are as
follows: adding cheese processing facilities to NPMA dry commodities to
reflect the authorization of this use in Decision XVII/9; removing
Idaho, Kansas, Nebraska, Oregon, Utah, and Washington from the approved
public nursery locations in the Forest Nursery Sector because a 2007
application for these locations was not submitted to EPA; and removing
California growers from the tomato sector because this use was not
authorized by the Parties for 2007.
    The categories listed in Table I above have been designated
critical uses for 2007 in Decision 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 the table above. However, consistent with the
approach taken in the 2006 CUE Rule, 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 standard control treatment
with which to compare the trial alternatives' results. EPA is proposing
that the following sectors be allowed to use critical use methyl
bromide for research purposes: cucurbits, dried fruit and nuts, nursery
stock, strawberry nurseries, turfgrass, eggplant, peppers, strawberry
fruit, tomatoes, and orchard replant. In their applications to EPA,
these sectors identified research programs that require the use of
methyl bromide.

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

    Paragraphs 2 and 5 of Decision XVII/9 request parties to ensure
that the conditions or criteria listed in Decisions Ex. I/4 and IX/6,
paragraph 1, are applied to exempted critical uses for the 2007 control
period. A discussion of the Agency's application of the criteria in
paragraph 1 of Decision IX/6 appears in sections V.A. and V.C. of this
preamble. In section V.C., the Agency is soliciting comments from the
public on the technical basis for determining that the uses listed in
this proposed rule meet the criteria of the critical use exemption. The
CUNs detail how each proposed critical use meets the criteria listed in
paragraph 1 of Decision IX/6, apart from the criterion located at
(b)(ii), as well as the criteria in paragraphs 5 and 6 of Decision Ex.
I/4.
    The criterion in Decision IX/6(1)(b)(ii), which refers to the use
of available stocks of methyl bromide, is addressed in sections V.G.
and V.H. of this preamble. The Agency has previously provided its
interpretation of the criterion in Decision IX/6(1)(a)(i) regarding the
presence of significant market disruption in the absence of an
exemption, and EPA refers readers to the 2006 CUE final rule (71 FR
5989) as well as to the memo on the docket on the CUE process for
further elaboration.
    The remaining considerations, including the lack of available
technically and economically feasible alternatives under the
circumstance of the nomination, efforts to minimize use and emissions
of methyl bromide where technically and economically feasible, the
development of research and transition plans, and the requests in
Decision Ex. I/4(5) that Parties consider and implement MBTOC
recommendations, where feasible, on reductions in the critical use of
methyl bromide and in paragraph 6 for Parties that submit critical use
nominations to include information on the methodology they use to
determine economic feasibility are all addressed in the nomination
documents.
    Some of these criteria are evaluated in other documents as well.
For example, the U.S. has further considered matters regarding the
adoption of alternatives and research into methyl bromide alternatives,
criterion (1)(b)(iii) in Decision IX/6, in the development of the
National Management Strategy (NMS) submitted to the Ozone Secretariat
in December 2005 and in on-going consultations with industry. The NMS
addresses all of the aims specified in Decision Ex.I/4(3) to the extent
feasible and is available in the docket for this rulemaking.

E. Emissions Minimization

    EPA notes for the regulated community the reference to emission
minimization techniques in paragraph 6 of Decision XVII/9, which states
that Parties shall request critical users to employ ``emission
minimization techniques such as virtually impermeable films, barrier
film technologies, deep shank injection and/or other techniques that
promote environmental protection, whenever technically and economically
feasible.'' In addition, EPA understands that research is being
conducted on the potential to reduce rates and emissions using newly
available high-barrier films and that these studies show promising
results. Users of methyl bromide should make every effort to decrease
overall emissions of methyl bromide by implementing measures such as
the ones listed above, to the extent consistent with state and local
laws and regulations. The Agency encourages researchers and users who
are successfully utilizing such techniques to inform EPA of their
experiences as part of their comments on this proposed rule and to
provide such information with their critical use applications. In
addition, the Agency welcomes comments on the implementation of
emission minimization techniques and whether and how further emission
minimization could be achieved.

F. Critical Use Allowance Allocations

    EPA is proposing to allow limited amounts of new production or
import of methyl bromide for critical uses for 2007 up to the amount of
4,616,188 kilograms (18.08% of baseline) or in the alternative
4,301,588 kilograms (16.85% of baseline) as shown in Tables IIa and IIb
respectively below, depending on the volume of critical stocks the
Agency allocates. In section V.C. of this preamble, the Agency
indicated that if we allocate a larger amount from stocks, EPA would
make a corresponding reduction to the volume of allowable new
production/import. EPA is seeking comment on the total levels of
exempted new production or import for pre-plant and post-harvest
critical uses in 2007. Each critical use allowance (CUA) is equivalent
to 1 kg of critical use methyl bromide. These allowances expire at the
end of the control period and, as explained in the Framework Rule, are
not bankable from one year to the next. This proposal for allocating
the following number of pre-plant and post-harvest CUAs to the entities
listed below is subject to the trading provisions at 40 CFR 82.12,
which are discussed in section V.G. of the preamble to the Framework
Rule (69 FR 76982).

   Table IIa.--Proposed Allocation of Critical Use Allowances Based on
                        1,621,702 kg From Stocks
------------------------------------------------------------------------
                                           2007 Critical   2007 Critical
                                          use allowances  use allowances
                 Company                   for pre-plant     for post-
                                               uses*       harvest uses*
                                            (kilograms)     (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp...............       2,573,764         231,494
Albemarle Corp..........................       1,058,390          95,196
Ameribrom, Inc..........................         584,889          52,607
TriCal, Inc.............................          18,212           1,638
                                         -------------------------------

    Total...............................       4,235,254         380,935
------------------------------------------------------------------------

   Table IIb.--Proposed Allocation of Critical Use Allowances Based on
                        1,936,302 kgs From Stocks
------------------------------------------------------------------------
                                           2007 Critical   2007 Critical
                                          use allowances  use allowances
                 Company                   for pre-plant     for post-
                                               uses*       harvest uses*
                                            (kilograms)     (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp...............       2,401,699         212,376
Albemarle Corp..........................         987,633          87,334
Ameribrom, Inc..........................         545,787          48,262
TriCal, Inc.............................          16,994           1,503
                                         -------------------------------
    Total...............................       3,952,114        349,475
------------------------------------------------------------------------
* For production or import of class I, Group VI controlled substance
  exclusively for the Pre-Plant or Post-Harvest uses specified in
  Appendix L to 40 CFR Part 82.

    Paragraph four of Decision XVII/9 states ``that Parties shall
endeavor to license, permit, authorize, or allocate quantities of
critical use methyl bromide as listed in tables A and C of the annex to
the present decision.'' This is similar to language in Decisions Ex. I/
3(4) and Ex. II/1(4) regarding 2005 and 2006 critical uses,
respectively. The language from these Decisions calls on Parties to
endeavor to allocate critical use methyl bromide on a sector basis.
    In establishing the critical use exemption program, the Agency
endeavored to allocate directly on a sector-by-sector basis by
analyzing and proposing this option among others in the August 2004
Framework Rule notice (69 FR 52366). EPA solicited comment on both
universal and sector-based allocation of critical use allowances. The
Agency evaluated the various options based on their economic,
environmental and practical effects. After receiving comments, EPA
determined in the final Framework Rule (69 FR 76989) that a lump-sum,
or universal, allocation, modified to include distinct caps for pre-
plant and post-harvest uses, was the most efficient and least
burdensome approach that would achieve the desired environmental
results, and that a sector-specific approach would pose significant
administrative and practical difficulties. Although the approach
adopted in the Framework Rule does not directly allocate allowances to
each category of use, the Agency anticipates that reliance on market
mechanisms will achieve similar results indirectly. The TEAP
recommendations are based on data submitted by the U.S. which in turn
are based on recent historic use data in the current methyl bromide
market. In other words, the TEAP recommendations agreed to by the
Parties are based on current use and the current use patterns take
place in a market where all pre-plant and post-harvest methyl bromide
uses compete for a lump sum supply of critical use material. Therefore,
the Agency believes that under a system of universal allocations,
divided into pre-plant and post-harvest sectors, the actual critical
use will closely follow the sector breakout listed by the TEAP. These
issues were addressed in the previous rule and EPA is not aware of any
factors that would alter the analysis performed during the development
of the Framework Rule. EPA is not proposing to change the approach
adopted in the Framework Rule for the allocation of CUAs but, in an
endeavor to address Decision XVII/9(4), EPA will consider additional
comment on the Agency's allocation of CUAs in the two groupings (pre-
plant and post-harvest) that the Agency has employed in the past. A
summary of the options analysis conducted by EPA is available in the
docket for this rulemaking.

G. Critical Stock Allowance Allocations and Total Volumes of Critical
Use Methyl Bromide

    EPA is proposing to allocate critical stock allowances (CSAs) to
the entities listed below in Table III for the control period of 2007
in the range of between 1,621,702 kilograms (6.2% of U.S. 1991
baseline) and 1,936,302 kilograms (7.5% of U.S. 1991 baseline). EPA is
employing the same methodology and baselines for allocating CSAs as in
previous critical use rulemakings (69 FR 76982). If the Agency
allocates 1,621,702 kg of CSAs, then it would also allocate 4,616,188
kg of allowances for new production/import, bringing the total volume
of critical use methyl bromide to 6,237,890 kg (24.4% of baseline) for
2007 U.S. critical uses. If the Agency allocates 1,936,302 kg of CSAs,
then it would also allocate 4,301,588 kg of allowances for new
production/import, bringing the total volume of critical use methyl
bromide to 6,237,890 kgs (24.4% of baseline) for 2007 U.S. critical
uses as well. The Agency is seeking comment on the amount of critical
use methyl bromide to come from stocks.
    EPA currently possesses information on existing stocks of methyl
bromide that has been claimed as confidential. With regard to data for
2003, EPA has determined that the aggregate stock information is not
confidential business information but, in accordance with EPA
regulations, is withholding that information due to the filing of
complaints by affected businesses seeking to enjoin the Agency from its
release (40 CFR 2.205). The United States District Court for the
District of Columbia recently ruled that EPA has properly withheld the
aggregate information in this circumstance. In addition, the court
upheld EPA's treatment of the company-specific

information as confidential. NRDC v. Leavitt, 2006 WL 667327 (D.D.C.
March 14, 2006). Therefore, the documentation regarding company-
specific allocation of CSAs is in the confidential portion of the
rulemaking docket and is not listed in the table below. EPA will inform
the listed companies of their CSA allocations in a letter following
publication of the final rule. EPA continues to follow its own
regulations with respect to the treatment of information claimed as
confidential.

           Table III.--Allocation of Critical Stock Allowances
------------------------------------------------------------------------
                                 Company
-------------------------------------------------------------------------
Albemarle
Ameribrom, Inc.
Bill Clark Pest Control, Inc.
Blair Soil Fumigation
Burnside Services, Inc.
Cardinal Professional Products
Carolina Eastern, Inc.
Degesch America, Inc.
Dodson Bros.
Great Lakes Chemical Corp.
Harvey Fertilizer & Gas
Helena Chemical Co.
Hendrix & Dail
Hy Yield Bromine
Industrial Fumigation Company
J.C. Ehrlich Co.
Pacific Ag
Pest Fog Sales Corp.
Prosource One
Reddick Fumigants
Royster-Clark, Inc.
Southern State Cooperative, Inc.
Trical Inc.
Trident Agricultural Products
UAP Southeast (NC)
UAP Southeast (SC)
Univar
Vanguard Fumigation Co.
Western Fumigation
  Total--1,621,702 kilograms or 1,936,302 kilograms.
------------------------------------------------------------------------

    Several companies that receive very small amounts of CSAs from EPA
have contacted the Agency and requested that they be permitted to
permanently retire their allowances. Some companies receive as few as 3
allowances which allow the holder to sell up to 3 kilograms of methyl
bromide to critical uses. Due to the small allocation and because they
typically do not sell critical use methyl bromide, they find the
allocation of CSAs, and associated recordkeeping and reporting
requirements, to be unduly burdensome. In response to this concern, EPA
is proposing to allow CSA holders, on a voluntary basis, to permanently
relinquish their allowances through written notification to the person
indicated in the addresses section of this preamble during the comment
period for this rulemaking. Such companies would not receive CSA
allocations and would be excluded from future allocations. All
allowances forfeited by companies through the written notification
process will be reallocated to the remaining companies on a pro-rata
basis.

H. Stocks of Methyl Bromide

    As discussed above and in the December 23, 2004 Framework Rule, an
approved critical user may obtain access to exempted production/import
of methyl bromide and to limited inventories of pre-phaseout methyl
bromide, the combination of which constitute the supply of ``critical
use methyl bromide'' intended to meet the needs of agreed critical
uses.
    In developing this proposed action, the Agency notes that Decision
XVII/9 (para. 5) contains the following language: ``that each Party
which has an agreed critical use renews its commitment to ensure that
the criteria in paragraph 1 of decision IX/6 are applied when
licensing, permitting or authorizing critical use of methyl bromide and
that such procedures take into account available stocks of banked or
recycled methyl bromide.'' This language is similar to language in
Decision XVI/2 authorizing 2006 critical uses. Language calling on
Parties to address stocks also appears in Decision Ex. I/3, which
authorized 2005 critical uses.
    In the Framework Rule, which established the architecture of the
critical use exemption program and set out the exempted levels of
critical use for 2005, EPA interpreted paragraph 5 of Decision Ex. I/3
``as meaning that the U.S. should not authorize critical use exemptions
without including provisions addressing drawdown from stocks for
critical uses'' (69 FR 76987). The Framework Rule established
provisions governing the sale of pre-phaseout inventories for critical
uses, including the concept of CSAs and a prohibition on sale of pre-
phaseout inventories for critical uses in excess of the amount of CSAs
held by the seller. In addition, EPA noted that stocks were further
taken into account through the trading provisions that allow critical
use allowances to be converted into CSAs. Under this proposed action,
no significant changes would be made to those provisions.
    In the February 6, 2006 final rule that determined the amount to
come from stocks during the 2006 control period, EPA stated that
``bearing in mind the United States' `renewed commitment' as stated in
Decision Ex II/1, and its experience with the 2005 critical use
nomination,'' EPA would exercise its discretion to reduce production/
import and authorize and additional amount from inventory (71 FR 5998).
For the 2006 control period, EPA authorized 1,136,008 kilograms (5% of
baseline) to be supplied from pre-phaseout methyl bromide inventories.
EPA noted that ``continued drawdown of inventory for critical uses at
the level authorized in the Framework Rule for 2005'' (i.e., 5% of
baseline) was an appropriate means, for the 2006 control period, ``of
continuing the commitment previously made, in light of our
understanding of current inventory and our analysis of the current
needs of users.'' In addition, EPA responded to stakeholder concerns
that taking 5% of baseline from inventory in 2006 and 6.2% in 2007
would result in shortages. EPA reported that the Agency ``has re-
examined the available inventory data and has projected multiple
scenarios concerning levels of consumption of existing inventory. Based
on these efforts, EPA believes that critical users will continue to be
able to meet their needs throughout 2006 and 2007 through the
anticipated combination of new production and import and inventory
drawdown'' (71 FR 6000).
    After EPA published the 2006 final rule, it collected data on
holdings of pre-2005 stocks from methyl bromide suppliers as part of
its routine reporting under the CUE program. For 2007, EPA is proposing
that the amount to come from stocks be either the difference between
the agreed U.S. critical-use level (6,749,060 kg) and the amount of
allowable new production or import (5,149,060 kg) (the difference
between these amounts is 1,600,000 kg, or 6.2% of baseline) or
1,914,600 kgs (7.5% of baseline) as it was for critical uses in 2005,
plus an additional amount for the adjustment for amounts for research
purposes. Both amounts are larger than the amounts taken from stocks in
the preceding year of the exemption program and represent the continued
regulatory implementation of U.S. commitments expressed in relevant
Decisions of the Parties including Decision XVII/9(5). EPA is also
seeking comment on whether some other number in this range would be
appropriate.
    In light of the possibility that EPA will authorize a lower amount
of production/import than allowed in Decision XVII/9 and therefore that
the regulated community may have concerns regarding shortages of methyl
bromide, the Agency would like to reiterate its commitment to closely
monitor CUA and CSA data. Further, as

stated in the final 2006 CUE rule, if an inventory shortage occurs, EPA
may consider various options including, but not limited to,
promulgating a final version of the petition process proposed on
October 27, 2005 (70 FR 62030), taking into account comments received
on that proposal; proposing a different administrative mechanism to
serve the same purpose; or authorizing conversion of a limited number
of CSAs to CUAs through a rulemaking, bearing in mind the upper limit
on U.S. production/import for critical uses.
    An alternative means of addressing stocks appeared in a recent
Federal Register notice relating to the essential use exemption program
(71 FR 18264). In that context, the relevant Decision stated that
``Parties shall take into account * * * stocks of controlled substances
* * * such that no more than a one-year operational supply is
maintained by that manufacturer.'' This Decision refers to another
exemption program, one that is analogous but differently structured
from the CUE, and operating for different applications and
circumstances. EPA seeks comment on whether, in the critical use
exemption context, it would be appropriate to adjust the level of new
production and import with the goal of maintaining a stockpile of some
specified duration and seeks comment on how many months of inventory of
methyl bromide may be appropriate to maintain non-disruptive management
of this chemical in the supply chain for purposes of determining
availability as inventories are reduced over time.
    In sections V.F. and V.G. of this preamble, EPA seeks comment on
the amount of critical use methyl bromide to come from stocks compared
to new production and import.

VI. Statutory and Executive Order Reviews

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

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

B. Paperwork Reduction Act

    This proposed action does not add any information collection
requirements or increase burden under the provisions of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq. The Office of Management and
Budget (OMB) has previously approved the information collection
requirements contained in the existing regulations, 40 CFR Part 82,
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. and has assigned OMB control number 2060-0564, EPA ICR number
2179.02 and 2179.03. A copy of the OMB approved Information Collection
Request (ICR) may be obtained from Susan Auby, Collection Strategies
Division; U.S. Environmental Protection Agency (2822T); 1200
Pennsylvania Ave., NW., Washington, DC 20460 or by calling (202) 566-
1672.
    Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

C. Regulatory Flexibility Act

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

----------------------------------------------------------------------------------------------------------------
                                                                                NAICS small business size
                                                                                standard (in number of
             Category                     NAICS code             SIC code            employees or millions of
                                                                                dollars)
----------------------------------------------------------------------------------------------------------------
Agricultural Production...........  1112--Vegetable and    0171--Berry Crops...  $0.75 million.
                                     Melon farming.        0172--Grapes........
                                    1113--Fruit and Nut    0173--Tree Nuts.....
                                     Tree Farming.         0175--Deciduous Tree
                                    1114--Greenhouse,       Fruits (except
                                     Nursery, and           apple orchards and
                                     Floriculture           farms).
                                     Production.           0179--Fruit and Tree
                                                            Nuts, NEC.
                                                           0181--Ornamental
                                                            Floriculture and
                                                            Nursery Products.
                                                           0831--Forest
                                                            Nurseries and
                                                            Gathering of Forest
                                                            Products.
Storage Uses......................  115114--Postharvest    2041--Flour and       $6 million.
                                     Crop activities        Other Grain Mill
                                     (except Cotton         Products.
                                     Ginning).             2044--Rice Milling..
                                    311211--Flour Milling  4221--Farm Product
                                                            Warehousing and
                                                            Storage.
                                    311212--Rice Milling.  4225--General         $21.5 million.
                                    493110--General         Warehousing and
                                     Warehousing and        Storage.
                                     Storage.
                                    493130--Farm Product
                                     Warehousing and
                                     Storage.
Distributors and Applicators......  115112--Soil           0721--Crop Planting,  $6 million.
                                     Preparation,           Cultivation, and
                                     Planting and           Protection.
                                     Cultivating.
Producers and Importers...........  325320--Pesticide and  2879--Pesticides and  500 employees.
                                     Other Agricultural     Agricultural
                                     Chemical               Chemicals, NEC.
                                     Manufacturing.
----------------------------------------------------------------------------------------------------------------

    Agricultural producers of minor crops and entities that store
agricultural commodities are categories of affected entities that
contain small entities. This proposed rule will only affect entities
that applied to EPA for a de-regulatory exemption. In most cases, EPA
received aggregated requests for exemptions from industry consortia. On
the exemption application, EPA asked consortia to describe the number
and size distribution of entities their application covered. EPA
estimated that 3,218 entities petitioned EPA for an exemption for the
2005 control period. EPA received requests from a comparable number of
entities for the 2006 control period. Since many applicants did not
provide information on the distribution of sizes of entities covered in
their applications, EPA estimated that, based on the above definition,
between one-fourth and one-third of the entities may be small
businesses. In addition, other categories of affected entities do not
contain small businesses based on the above description.
    After considering the economic impacts of this proposed rule on
small entities, EPA certifies that this action will not have a
significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' (5 U.S.C.
603-604). Thus, an Agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves a regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule. Since
this rule exempts methyl bromide for approved critical uses after the
phaseout date of January 1, 2005, this is a de-regulatory action which
will confer a benefit to users of methyl bromide. EPA believes the
estimated de-regulatory value for users of methyl bromide is between
$20 million and $30 million annually. We have therefore concluded that
this proposed rule will relieve regulatory burden for all small
entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local and tribal
governments and the private sector. Under Section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures by State, local and tribal governments, in
the aggregate, or by the private sector, of $100 million or more in any
one year. If a written statement is required under Section 202, Section
205 of the UMRA generally requires EPA to identify and consider a
reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule, unless the Agency explains why
this alternative is not selected or the selection of this alternative
is inconsistent with law.
    Section 203 of the UMRA requires the Agency to establish a plan for
obtaining input from and informing, educating, and advising any small
governments that may be significantly or uniquely affected by the rule.
Section 204 of the UMRA requires the Agency to develop a process to
allow elected state, local, and tribal government officials to provide
input in the development of any proposal containing a significant
Federal intergovernmental mandate.
    This proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local, or
tribal governments or the private sector. This action is deregulatory
and does not impose any new requirements on any entities. Thus, this
proposed rule is not subject to the requirements of sections 202 and
205 of the UMRA. Further, EPA has determined that this rule contains no
regulatory requirements that might significantly or uniquely affect
small governments.

E. Executive Order No. 13132: Federalism

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

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

    Executive Order No. 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This proposed rule does not
have tribal implications, as specified in Executive Order No. 13175.
This proposed rule does not significantly or uniquely affect the
communities of Indian tribal governments. The proposed rule does not
impose any enforceable duties on communities of Indian tribal
governments. Thus, Executive Order No. 13175 does not apply to this
proposed rule.

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

    Executive Order No. 13045: ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997) applies to any rule that: (1) Is determined to be ``economically
significant'' as defined under Executive Order 12866, and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children, and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
    EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under Section 5-501 of the Order has the
potential to influence the regulation. This proposed rule is not
subject to Executive Order 13045 because it does not establish an
environmental standard intended to mitigate health or safety risks.

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

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

I. National Technology Transfer and Advancement Act

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

List of Subjects in 40 CFR Part 82

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

    Dated: June 23, 2006.
Stephen L. Johnson,
Administrator.
    For the reasons stated in the preamble, 40 CFR part 82 is proposed
to be amended as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

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

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

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

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

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

------------------------------------------------------------------------
                                           2007 Critical   2007 Critical
                                          use allowances  use allowances
                 Company                   for pre-plant     for post-
                                               uses*       harvest uses*
                                            (kilograms)     (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp...............       2,573,764         231,494
Albemarle Corp..........................       1,058,390          95,196
Ameribrom, Inc..........................         584,889          52,607
TriCal, Inc.............................          18,212           1,638
                                         -------------------------------

    Total...............................       4,235,254        380,935
------------------------------------------------------------------------
*For production or import of class I, Group VI controlled substance
  exclusively for the Pre-Plant or Post-Harvest uses specified in
  appendix L to this subpart.

    (2) Allocated critical stock allowances granted for specified
control period. The following companies are allocated critical stock
allowances for 2007 on a pro-rata basis in relation to the inventory
held by each.

------------------------------------------------------------------------
                                 Company
-------------------------------------------------------------------------
Albemarle
Ameribrom, Inc.
Bill Clark Pest Control, Inc.
Blair Soil Fumigation
Burnside Services, Inc.
Cardinal Professional Products
Carolina Eastern, Inc.
Degesch America, Inc.
Dodson Bros.
Great Lakes Chemical Corp.
Harvey Fertilizer & Gas
Helena Chemical Co.
Hendrix & Dail
Hy Yield Bromine
Industrial Fumigation Company
J.C. Ehrlich Co.
Pacific Ag
Pest Fog Sales Corp.
Prosource One
Reddick Fumigants
Royster-Clark, Inc.
Southern State Cooperative, Inc.
Trical Inc.
Trident Agricultural Products
UAP Southeast (NC)
UAP Southeast (SC)
Univar
Vanguard Fumigation Co.
Western Fumigation
  Total--1,621,702 kilograms.
------------------------------------------------------------------------

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

Appendix L to Subpart A of Part 82.--Approved Critical Uses and Limiting
     Critical Conditions for Those uses for the 2007 Control Period
------------------------------------------------------------------------
          Column A                  Column B              Column C
------------------------------------------------------------------------
                                                      Limiting critical
                                                       conditions that
                                                      either exist, or
                                Approved critical     that the approved
   Approved critical uses     user and location of      critical user
                                       use           reasonably expects
                                                     could arise without
                                                       methyl bromide
                                                         fumigation
------------------------------------------------------------------------
Pre-Plant Uses:
    Cucurbits...............  (a) Michigan growers  Moderate to severe