Federal Register / Vol. 76, No. 203 / Thursday, October 20, 2011 / Proposed Rules 65139 

Comment Period 

On August 23, 2011, the EPA 

published in the Federal Register the 

proposed rule, ‘‘Oil and Natural Gas 

Sector: New Source Performance 

Standards and National Emission 

standards for Hazardous Air pollutants 

Review.’’ In that notice, the EPA 

announced that all comments must be 

received by October 24, 2011. The EPA 

conducted three public hearings on this 

proposed rule, the last of which was 

held on September 29, 2011, in 

Arlington, Texas. See 76 FR 53371, 

August 26, 2011. Under section 307(d) 

of the CAA, the EPA must keep the 

record open for thirty days after 

completion of the hearings to provide an 

opportunity for submission of rebuttal 

and supplementary information. 

Accordingly, the public comment 

period will end on October 31, 2011, 

rather than on October 24, 2011, as 

originally published. 

The EPA has also received numerous 

requests for extending the public 

comment period for this proposed rule. 

This notice only corrects the public 

comment period pursuant to section 

307(d) of the CAA. This notice does not 

address the pending requests being 

considered for extending the public 

comment period. 

How can I get copies of this document 

and other related information? 

The EPA has established the official 

public docket No. EPA–HQ–OAR–2010– 

0505. The EPA has also developed Web 

sites for the proposed rulemaking at the 

addresses given above. 

Dated: October 14, 2011. 

Gina McCarthy, 

Assistant Administrator for Air and 

Radiation. 

[FR Doc. 2011–27237 Filed 10–19–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 82 

[EPA–HQ–OAR–2009–0277; FRL–9481–9] 

RIN 2060–AQ83 

Protection of Stratospheric Ozone: The 

2012 Critical Use Exemption From the 

Phaseout of Methyl Bromide 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing uses that 

qualify for the 2012 critical use 

exemption and the amount of methyl 

bromide that may be produced, 

imported, or supplied from existing prephaseout inventory for those uses in 

2012. EPA is taking action under the 

authority of the Clean Air Act to reflect 

a recent consensus decision taken by the 

Parties to the Montreal Protocol on 

Substances that Deplete the Ozone 

Layer at the Twenty-Second Meeting of 

the Parties. 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 

November 21, 2011. Any party 

requesting a public hearing must notify 

the contact person listed below by 5 

p.m. Eastern Standard Time on October 

25, 2011. If a hearing is requested it will 

be held on November 4, 2011 and 

comments will be due to the agency 

December 5, 2011. EPA will post 

information regarding a hearing, if one 

is requested, on the Ozone Protection 

Web site http://www.epa.gov/ozone/ 

strathome.html. 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–2009–0277, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: a-and-r-Docket@epa.gov. 

• Fax: (202) 566–9744. 

• Phone: (202) 566–1742. 

• U.S. Mail: Docket EPA–HQ–OAR– 

2009–0277, U.S. Environmental 

Protection Agency, EPA Docket Center, 

Air and Radiation Docket, Mail Code 

28221T, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460. 

• Hand Delivery or Courier: Docket 

EPA–HQ–OAR–2009–0277, EPA Docket 

Center—Public Reading Room, EPA 

West Building, Room 3334, 1301 

Constitution Avenue, NW., Washington, 

DC 20004. 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–2009– 

0277. 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. 

FOR FURTHER INFORMATION CONTACT: For 

further information about this proposed 

rule, contact Jeremy Arling by telephone 

at (202) 343–9055, or by e-mail at 

arling.jeremy@epa.gov or by mail at 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 methyl bromide 

section of the Ozone Depletion Web site 

of EPA’s Stratospheric Protection 

Division at http://www.epa.gov/ozone/ 

mbr for further information about the 

methyl bromide critical use exemption, 

other Stratospheric Ozone Protection 

regulations, the science of ozone layer 

depletion, and 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 2012. Under the Clean Air 

Act, methyl bromide consumption 

(consumption is defined under the CAA 

as production plus imports minus 

exports) and production were phased 

out on January 1, 2005, apart from 

allowable exemptions, such as the 

critical use exemption and the 

quarantine and preshipment (QPS) 

exemption. With this action, EPA is 

proposing and seeking comment on the 

uses that will qualify for the 2012 


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65140 Federal Register / Vol. 76, No. 203 / Thursday, October 20, 2011 / Proposed Rules 

critical use exemption as well as 

specific amounts of methyl bromide that 

may be produced and imported, or sold 

from pre-phaseout inventory (also 

referred to as ‘‘stocks’’ or ‘‘inventory’’) 

for proposed critical uses in 2012. 

Table of Contents 

I. General Information 

A. Regulated Entities 

B. What should I consider when preparing 

my comments? 

II. What is methyl bromide? 

III. What is the background to the phaseout 

regulations for ozone-depleting 

substances? 

IV. What is the legal authority for exempting 

the production and import of methyl 

bromide for critical uses authorized by 

the parties to the Montreal Protocol? 

V. What is the critical use exemption 

process? 

A. Background of the Process 

B. How does this proposed rule relate to 

previous critical use exemption rules? 

C. Proposed Critical Uses 

D. Proposed Critical Use Amounts 

1. Approach for Determining Critical Stock 

Allowances 

2. Approach for Determining New 

Production and Import Allowances 

3. Summary of Calculations 

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

I/4 

F. Emissions Minimization 

G. Critical Use Allowance Allocations 

H. Critical Stock Allowance Allocations 

I. Stocks of Methyl Bromide 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

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 

producers, importers, and exporters of 

methyl bromide; applicators and 

distributors of methyl bromide; and 

users of methyl bromide that applied for 

the 2012 critical use exemption 

including farmers of vegetable crops, 

fruits and nursery stock and owners of 

stored food commodities and structures 

such as grain mills and processors. This 

rulemaking does not affect applications 

for future control periods. 

This list is not intended to be 

exhaustive, but rather to provide a guide 

for readers regarding entities likely to be 

regulated by this proposed action. To 

determine whether your facility, 

company, business, or organization 

could be 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 section. 

B. What should I consider when 

preparing my comments? 

1. Confidential Business Information. 

Do not submit confidential business 

information (CBI) 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. Information so 

marked will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 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. 

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 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 was once widely used 

as a fumigant to control a variety of 

pests such as insects, weeds, rodents, 

pathogens, and nematodes. Information 

on methyl bromide can be found at 

http://www.epa.gov/ozone/mbr. 

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. 

Restricted use pesticides are subject to 

Federal and State requirements 

governing their 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. 

Entities affected by 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 provisions 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. 

III. What is the background to the 

phaseout regulations for ozonedepleting substances? 

The regulatory requirements of the 

stratospheric ozone protection program 

that limit production and consumption 

of ozone-depleting substances are in 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 


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Federal Register / Vol. 76, No. 203 / Thursday, October 20, 2011 / Proposed Rules 65141 

that Deplete the Ozone Layer (Montreal 

Protocol). The Montreal 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 U.S. could satisfy its 

obligations under the Protocol. EPA 

issued regulations to implement this 

legislation and has since amended the 

regulations as needed. 

Methyl bromide was added to the 

Protocol as an ozone-depleting 

substance in 1992 through the 

Copenhagen Amendment to the 

Protocol. The Parties to the Montreal 

Protocol (Parties) agreed that each 

industrialized country’s level of methyl 

bromide production and consumption 

in 1991 should be the baseline for 

establishing a freeze in the level of 

methyl bromide production and 

consumption for industrialized 

countries. EPA published a final rule in 

the Federal Register on December 10, 

1993 (58 FR 65018), listing methyl 

bromide as a Class I, Group VI 

controlled substance, freezing U.S. 

production and consumption at this 

1991 baseline level of 25,528,270 

kilograms, and setting forth the 

percentage of baseline allowances for 

methyl bromide granted to companies in 

each control period (each calendar year) 

until 2001, when the complete phaseout 

would occur. This phaseout date was 

established in response to a petition 

filed in 1991 under sections 602(c)(3) 

and 606(b) of the CAAA of 1990, 

requesting that EPA list methyl bromide 

as a Class I substance and phase out its 

production and consumption. This date 

was consistent with section 602(d) of 

the CAAA of 1990, which for newly 

listed Class I ozone-depleting 

substances provides that ‘‘no extension 

[of the phaseout schedule in section 

604] under this subsection may extend 

the date for termination of production of 

any class I substance to a date more than 

7 years after January 1 of the year after 

the year in which the substance is 

added to the list of class I substances.’’ 

At the Seventh Meeting of the Parties 

(MOP) in 1995, the Parties made 

adjustments to the methyl bromide 

control measures and agreed to 

reduction steps and a 2010 phaseout 

date for industrialized countries with 

exemptions permitted for critical uses. 

At that time, the U.S. continued to have 

a 2001 phaseout date in accordance 

with section 602(d) of the CAAA of 

1990. At the Ninth MOP in 1997, the 

Parties agreed to further adjustments to 

the phaseout schedule for methyl 

bromide in industrialized countries, 

with reduction steps leading to a 2005 

phaseout. The Parties also established a 

phaseout date of 2015 for Article 5 

countries. 

IV. What is the legal authority for 

exempting the production and import of 

methyl bromide for critical uses 

authorized by the parties to the 

Montreal Protocol? 

In October 1998, the U.S. Congress 

amended the Clean Air Act (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 certain exemptions. These 

amendments were contained in Section 

764 of the 1999 Omnibus Consolidated 

and Emergency Supplemental 

Appropriations Act (Pub. L. 105–277, 

October 21, 1998) and were codified in 

section 604 of the CAA, 42 U.S.C. 

7671c. The amendment that specifically 

addresses the critical use exemption 

appears at section 604(d)(6), 42 U.S.C. 

7671c(d)(6). EPA revised the phaseout 

schedule for methyl bromide production 

and consumption in a direct final 

rulemaking on November 28, 2000 (65 

FR 70795), which allowed for the 

phased reduction in methyl bromide 

consumption specified under the 

Protocol and extended the phaseout to 

2005 while creating a placeholder for 

critical use exemptions. EPA again 

amended the regulations to allow for an 

exemption for quarantine and 

preshipment (QPS) purposes on July 19, 

2001 (66 FR 37751), with an interim 

final rule and with a final rule on 

January 2, 2003 (68 FR 238). 

On December 23, 2004 (69 FR 76982), 

EPA published a final rule (the 

‘‘Framework Rule’’) that established the 

framework for the critical use 

exemption; set forth a list of approved 

critical uses for 2005; and specified the 

amount of methyl bromide that could be 

supplied in 2005 from stocks and new 

production or import to meet the needs 

of approved critical uses. EPA 

subsequently published rules applying 

the critical use exemption framework 

for each of the control periods from 

2006 to 2011. Under authority of section 

604(d)(6) of the CAA, this action 

proposes the uses that will qualify as 

approved critical uses in 2012 and the 

amount of methyl bromide that may be 

produced, imported, or supplied from 

inventory to satisfy those uses. 

This proposed action on critical uses 

for 2012 reflects Decision XXII/6, taken 

at the Twenty-Second Meeting of the 

Parties in November 2010. 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 status of 

Decisions is addressed in NRDC v. EPA, 

(464 F.3d 1, D.C. Cir. 2006) and in EPA’s 

‘‘Supplemental Brief for the 

Respondent,’’ filed in NRDC v. EPA and 

available in the docket for this action. In 

this proposed rule on critical uses for 

2012, EPA is honoring commitments 

made by the United States in the 

Montreal Protocol context. 

V. What is the critical use exemption 

process? 

A. Background of the Process 

The critical use exemption is 

designed to permit the production and 

import of methyl bromide for uses that 

do not have technically and 

economically feasible alternatives and 

for which the lack of methyl bromide 

would result in significant market 

disruption (40 CFR 82.3). Article 2H of 

the Montreal Protocol established the 

critical use exemption provision. At the 

Ninth Meeting of the Parties (1997) the 

criteria for the exemption appeared in 

Decision IX/6. 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 EPA’s request for 

critical use exemption applications 

published in the Federal Register on 

May 20, 2009 (74 FR 23705), applicants 

provided data on the technical and 

economic feasibility of using 

alternatives to methyl bromide. 

Applicants also submitted data on their 

use of methyl bromide, research 

programs into the use of alternatives to 

methyl bromide, and efforts to minimize 

use and emissions of methyl bromide. 


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65142 Federal Register / Vol. 76, No. 203 / Thursday, October 20, 2011 / Proposed Rules 

EPA’s Office of Pesticide Programs 

reviews the data submitted by 

applicants, as well as data from 

governmental and academic sources, to 

establish whether there are technically 

and economically feasible alternatives 

available for a particular use of methyl 

bromide, and whether there would be a 

significant market disruption if no 

exemption were available. In addition, 

EPA reviews other parameters of the 

exemption applications such as dosage 

and emissions minimization techniques 

and applicants’ research or transition 

plans. This assessment process 

culminates in the development of a 

document referred to as the critical use 

nomination (CUN). The U.S. 

Department of State has submitted a 

CUN annually to the United Nations 

Environment Programme (UNEP) Ozone 

Secretariat. The Methyl Bromide 

Technical Options Committee (MBTOC) 

and the Technology and Economic 

Assessment Panel (TEAP), which are 

advisory bodies to Parties to the 

Montreal Protocol, review the CUNs of 

the Parties and make recommendations 

to the Parties on the nominations. The 

Parties then take Decisions to authorize 

critical use exemptions for particular 

Parties, including how much methyl 

bromide may be supplied for the 

exempted critical uses. As required in 

section 604(d)(6) of the CAA, for each 

exemption period, EPA consults with 

the United States Department of 

Agriculture (USDA) and other 

departments and institutions of the 

Federal government that have regulatory 

authority related to methyl bromide, 

and provides an opportunity for public 

comment on the amounts of methyl 

bromide that the agency is proposing to 

exempt for critical uses and the uses 

that the agency is proposing as 

approved critical uses. 

More on the domestic review process 

and methodology employed by the 

Office of Pesticide Programs is available 

in a detailed memorandum titled 

‘‘Development of 2003 Nomination for a 

Critical Use Exemption for Methyl 

Bromide for the United States of 

America,’’ contained in the docket for 

this rulemaking. While the particulars of 

the data continue to evolve and 

administrative matters are further 

streamlined, the technical review itself 

remains rigorous with careful 

consideration of new technical and 

economic conditions. 

On January 22, 2010, the U.S. 

Government (USG) submitted the eighth 

Nomination for a Critical Use 

Exemption for Methyl Bromide for the 

United States of America to the Ozone 

Secretariat of the UNEP. This 

nomination contained the request for 

2012 critical uses. In February 2010, 

MBTOC sent questions to the USG 

concerning technical and economic 

issues in the 2012 nomination. The USG 

transmitted responses to MBTOC in 

March, 2010. These documents, together 

with reports by the advisory bodies 

noted above, are in the public docket for 

this rulemaking. The proposed critical 

uses and amounts reflect the analysis 

contained in those documents. 

B. How does this proposed rule relate to 

previous critical use exemption rules? 

The December 23, 2004, Framework 

Rule (69 FR 76982) established the 

framework for the critical use 

exemption program in the U.S., 

including definitions, prohibitions, 

trading provisions, and recordkeeping 

and reporting obligations. The preamble 

to the Framework Rule included EPA’s 

determinations on key issues for the 

critical use exemption program. 

Since publishing the Framework Rule, 

EPA has annually promulgated 

regulations to exempt from the phaseout 

of methyl bromide specific quantities of 

production and import for each control 

period (each calendar year), to 

determine the amounts that may be 

supplied from pre-phaseout inventory, 

and to indicate which uses meet the 

criteria for the exemption program for 

that year. See 71 FR 5985 (calendar year 

2006), 71 FR 75386 (calendar year 

2007), 72 FR 74118 (calendar year 

2008), 74 FR 19878 (calendar year 

2009), 75 FR 23167 (calendar year 

2010), 76 FR 23769 (calendar year 2011 

proposal). 

Today’s action proposes to utilize the 

existing regulatory framework to 

determine critical uses for 2012 and the 

amounts of Critical Use Allowances 

(CUAs) and Critical Stock Allowances 

(CSAs) to be allocated for those uses. A 

CUA is the privilege granted through 40 

CFR part 82 to produce or import 1 kg 

of methyl bromide for an approved 

critical use during the specified control 

period. These allowances expire at the 

end of the control period and, as 

explained in the Framework Rule, are 

not bankable from one year to the next. 

A CSA is the right granted through 40 

CFR part 82 to sell 1 kg of methyl 

bromide from inventory produced or 

imported prior to the January 1, 2005, 

phaseout date for an approved critical 

use during the specified control period. 

The critical uses that EPA is 

proposing to approve as 2012 critical 

uses are the uses included in the USG’s 

eighth CUN and authorized by the 

Parties in Decision XXII/6. EPA is 

utilizing the existing regulatory 

framework for critical uses. This 

framework is discussed in Section V.D.1 

of the preamble. 

C. Proposed Critical Uses 

In Decision XXII/6, taken in 

November 2010, the Parties to the 

Protocol agreed ‘‘to permit, for the 

agreed critical-use categories for 2012 

set forth in table C of the annex to the 

present decision for each party, subject 

to the conditions set forth in the present 

decision and in decision Ex.I/4 to the 

extent that those conditions are 

applicable, the levels of production and 

consumption for 2012 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 XXII/ 

6 for the United States: 

• Commodities. 

• National Pest Management 

Association food processing structures. 

• Mills and processors. 

• Dried cured pork. 

• Cucurbits. 

• Eggplant—field. 

• Forest nursery seedlings. 

• Nursery stock—fruits, nuts, flowers. 

• Orchard replants. 

• Ornamentals. 

• Peppers—field. 

• Strawberry—field. 

• Strawberry runners. 

• Tomatoes—field. 

• Sweet potato slips. 

The Decision XXII/6 critical use levels 

for 2012 total 1,022,826 kilograms (kg), 

which is equivalent to 4.0% of the U.S. 

1991 methyl bromide consumption 

baseline of 25,528,270 kg. The 

maximum amount of allowable new 

production and import for U.S. critical 

uses in Table D of Decision XXII/6 is 

922,826 kg (3.6% of baseline), minus 

available stocks. 

EPA is proposing a total critical use 

exemption in 2012 of 1,022,826 kg 

(4.0% of baseline) with new production 

or import of methyl bromide for critical 

uses up to 759,744 kg (3.0% of 

baseline), and with up to 263,082 kg 

(1.0% of baseline) coming from prephaseout inventory (i.e., stocks). 

EPA is seeking comment on the 

technical analysis contained in the U.S. 

nomination (available for public review 

in the docket to this rulemaking), and 

seeks information regarding any changes 

to the registration (including 

cancellation or new registrations), use, 

or efficacy of alternatives that have 

transpired after the 2012 U.S. 

nomination was written. EPA recognizes 

that as the market for alternatives 

evolves, the thresholds for what 

constitutes ‘‘significant market 

disruption’’ or ‘‘technical and economic 


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Federal Register / Vol. 76, No. 203 / Thursday, October 20, 2011 / Proposed Rules 65143 

feasibility’’ change. Comments on the 

technical data contained in the 

nomination or new information could 

potentially alter the agency’s analysis on 

the uses and amounts of methyl 

bromide qualifying for the critical use 

exemption. The agency may, in 

response to new information, reduce the 

proposed quantities of critical use 

methyl bromide, or decide not to 

approve uses authorized by the Parties. 

However, the agency will not increase 

the quantities or add new uses in the 

final rule beyond those authorized by 

the Parties. 

EPA is also proposing to modify the 

table in 40 CFR part 82, subpart A, 

appendix L to reflect the agreed critical 

use categories identified in Decision 

XXII/6. The agency is amending the 

table of critical uses based in part on the 

technical analysis contained in the 2012 

U.S. nomination that assesses data 

submitted by applicants to the CUE 

program. First, EPA is proposing to 

remove from the list of approved critical 

users those uses that did not submit 

applications and therefore were not 

included in the U.S. nomination. These 

uses are International Paper and 

Weyerhaeuser Company in the forest 

nursery seedlings sector and beans in 

the commodities sector. The Parties 

have not authorized them as critical 

uses for 2012 and EPA proposes not to 

list these uses as critical for this control 

period. 

Second, EPA is proposing to remove 

North Carolina and Tennessee 

strawberry nurseries. Growers in this 

sector applied for a critical use in 2012. 

The U.S. did not submit a nomination 

to UNEP for this use because EPA’s 

technical review found that there are 

alternatives to methyl bromide for 

Southeast strawberry nurseries. The 

Parties have not authorized them as 

critical uses for 2012 and EPA proposes 

not to list these uses as critical for this 

control period. 

Third, EPA is proposing to reduce the 

number of allowable uses for the 

National Pest Management Association’s 

(NPMA) post harvest fumigations. Past 

critical uses for NPMA included 

‘‘processed food, cheese, herbs and 

spices, and spaces and equipment in 

associated processing and storage 

facilities.’’ MBTOC found that the 

nomination for food processing facilities 

was inadequately justified and 

recommended only cheese storage 

facilities for consideration by the Parties 

as a critical use. MBTOC’s comments 

can be found in the May 2010 TEAP 

Progress Report in the docket to this 

rule. EPA is proposing to modify the 

NPMA critical use to include only 

‘‘Members of the National Pest 

Management Association treating cheese 

storage facilities.’’ EPA seeks comment 

on these proposed changes to Appendix 

L. 

EPA is not proposing other changes to 

the table but is repeating the following 

clarifications made in previous years for 

ease of reference. The ‘‘local township 

limits prohibiting 1,3-dichloropropene’’ 

are prohibitions on the use of 1,3- 

dichloropropene products in cases 

where local township limits on use of 

this alternative have been reached. In 

addition, ‘‘pet food’’ under subsection B 

of Food Processing refers to food for 

domesticated dogs and cats. Finally, 

‘‘rapid fumigation’’ for commodities is 

when a buyer provides short (two 

working days or fewer) 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. 

D. Proposed Critical Use Amounts 

Table C of the annex to Decision XXII/ 

6 lists critical uses and amounts agreed 

to by the Parties to the Montreal 

Protocol. When added together, the total 

authorized critical use for 2012 is 

1,022,826 kg, which is equivalent to 

4.0% of the U.S. 1991 methyl bromide 

consumption baseline. The maximum 

amount of new production or import 

authorized by the Parties is 922,826 kg 

(3.6% of baseline) as set forth in Table 

D of the annex to Decision XXII/6. The 

difference between the total authorized 

amount and the authorized amount of 

new production is 100,000 kg (0.4% of 

baseline). This difference is the 

minimum that the Parties expect the 

U.S. to use from pre-phaseout inventory 

on critical uses. 

EPA is proposing to allocate 759,744 

kg (3.0% of baseline) of new production 

and import of methyl bromide for 

critical uses for 2012. EPA is also 

proposing to allocate 263,082 kg (1.0% 

of baseline) in the form of Critical Stock 

Allowances for sale of pre-phaseout 

inventory for critical uses in 2012. EPA 

is seeking comment on the proposed 

total levels of exempted new production 

and import for critical uses and the 

amount of material that may be sold 

from pre-phaseout inventory for critical 

uses. The sub-sections below explain 

EPA’s reasons for proposing the above 

critical use amounts for 2012. 

1. Approach for Determining Critical 

Stock Allowances 

The 2004 Framework Rule established 

the provisions governing the sale of prephaseout inventories for critical uses, 

including the concept of Critical Stock 

Allowances (CSAs) and a prohibition on 

the sale of pre-phaseout inventories for 

critical uses in excess of the amount of 

CSAs held by the seller. In addition, 

EPA noted that pre-phaseout inventories 

were further taken into account through 

the trading provisions that allow CUAs 

to be converted into CSAs. EPA is not 

proposing changes to these CSA 

provisions for calendar year 2012. 

In the Framework Rule (69 FR 52366), 

EPA issued CSAs in an amount equal to 

the difference between the total 

authorized CUE amount and the amount 

of new production or import authorized 

by the Parties. In each of the CUE 

allocation rules from 2006 through 

2010, EPA allocated CSAs in amounts 

that represented not only the difference 

between the total authorized CUE 

amount and the amount of authorized 

new production and import but also an 

additional amount to reflect available 

stocks. In the 2006 CUE Rule, EPA 

issued a total of 1,136,008 CSAs, 

equivalent to 4.4% of baseline. For 

2006, the difference in the Parties’ 

decision between the total CUE amount 

and the amount of new production and 

import was 3.6% of baseline. In the 

2007 rule, EPA added to the minimum 

amount (6.3% of baseline) an additional 

amount (1.2% of baseline) for a total of 

1,914,600 CSAs (7.5% of baseline). In 

the 2008 rule, EPA added to the 

minimum amount (3.0% of baseline) an 

additional amount (3.8% of baseline) for 

a total of 1,729,689 CSAs (6.8% of 

baseline). In the 2009 rule, EPA added 

to the minimum amount (1.2% of 

baseline) an additional amount (6.3% of 

baseline) for a total of 1,919,193 CSAs 

(7.5% of baseline). In the 2010 rule, EPA 

added to the minimum amount (1.8% of 

baseline) an additional amount (2.2% of 

baseline) for a total of 1,028,108 CSAs 

(4.0% of baseline). After determining 

the CSA amount, EPA reduced the 

portion of CUE methyl bromide to come 

from new production and import such 

that the total amount of methyl bromide 

exempted for critical uses did not 

exceed the total amount authorized by 

the Parties for that year. 

As established in the earlier 

rulemakings, EPA views the inclusion of 

these additional amounts in the 

calculation of the year’s overall CSA 

level as an appropriate exercise of 

discretion. The Agency is not required 

to allocate the full amount of authorized 

new production and consumption. The 

Parties only agree to ‘‘permit’’ a 

particular level of production and 

consumption; they do not—and 

cannot—mandate that the U.S. authorize 

this level of production and 

consumption domestically. Nor does the 

CAA require EPA to allow the full 

amount permitted by the Parties. 

Section 604(d)(6) of the CAA does not 


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require EPA to exempt any amount of 

production and consumption from the 

phaseout, but instead specifies that the 

Agency ‘‘may’’ create an exemption for 

critical uses, providing EPA with 

substantial discretion. When 

determining the CSA amount for a year, 

EPA considers what portion of existing 

stocks is ‘‘available’’ for critical uses. As 

discussed in prior CUE rulemakings, the 

Parties to the Protocol recognized in 

their Decisions that the level of existing 

stocks may differ from the level of 

available stocks. Decision XXII/6 states 

that ‘‘production and consumption of 

methyl bromide for critical uses should 

be permitted only if methyl bromide is 

not available in sufficient quantity and 

quality from existing stocks.’’ In 

addition, earlier decisions refer to the 

use of ‘‘quantities of methyl bromide 

from stocks that the Party has 

recognized to be available.’’ Thus, it is 

clear that individual Parties have the 

ability to determine their level of 

available stocks. Decision XXII/6 further 

reinforces this concept by including the 

phrase ‘‘minus available stocks’’ as a 

footnote to the United States’ authorized 

level of production and consumption in 

Table D. Section 604(d)(6) of the CAA 

does not require EPA to adjust the 

amount of new production and import 

to reflect the availability of stocks; 

however, as explained in previous 

rulemakings, making such an 

adjustment is a reasonable exercise of 

EPA’s discretion under this provision. 

EPA employs the concept of 

‘‘available stocks’’ in determining 

whether to allocate additional CSAs 

beyond the minimum stock amount 

stipulated by the Parties. In response to 

stakeholder questions about how EPA 

derived its CSA amounts, the 2008 CUE 

rule established a refined approach for 

determining the amount of existing 

methyl bromide stocks that is 

‘‘available’’ for critical uses. The 

approach uses a tool called the Supply 

Chain Factor (SCF). The SCF is EPA’s 

technical estimate of the amount of 

methyl bromide inventory that would be 

adequate to meet the need for critical 

use methyl bromide after an unforeseen 

domestic production failure. The SCF 

recognizes the benefit of allowing the 

private sector to maintain a buffer in 

case of a major supply disruption. 

However, the SCF is not intended to set 

aside or physically separate stocks as an 

inventory reserve. 

2. Calculation of Available Pre-Phaseout 

Inventory 

For 2012, EPA proposes to calculate 

the amount of ‘‘available’’ stocks as 

follows, using the formula adopted in 

the 2008 CUE rule: AS2012 = ES2011 ¥ 

D2011 ¥ SCF2012, where AS2012 is the 

available stocks on January 1, 2012; 

ES2011 is the existing pre-phaseout 

stocks of methyl bromide held in the 

United States by producers, importers, 

and distributors on January 1, 2011; 

D2011 is the estimated drawdown of 

existing stocks during calendar year 

2011; and SCF2012 is the supply chain 

factor for 2012. Using this formula, EPA 

calculates that there will be 263,082 kg 

of pre-phaseout stocks of methyl 

bromide ‘‘available’’ on January 1, 2012. 

Existing Stocks. In the above formula, 

‘‘ES2011’’ is methyl bromide that was 

produced before the January 1, 2005, 

phaseout date but is still held by 

domestic producers, distributors, and 

third-party applicators as of January 1, 

2011. ES2011 does not include critical 

use methyl bromide that was produced 

after January 1, 2005, and carried over 

into subsequent years. Nor does it 

include methyl bromide produced (1) 

Under the quarantine and preshipment 

(QPS) exemption, (2) with Article 5 

allowances to meet the basic domestic 

needs of Article 5 countries, or (3) for 

feedstock or transformation purposes. 

EPA considers all pre-phaseout 

inventory to be suitable for both preplant and post harvest uses. Similarly, 

EPA considers inventory methyl 

bromide to be available to all users, 

including users in California and the 

Southeastern United States. These 

assumptions are discussed in the 2009 

CUE rule (74 FR 19887). 

Estimated Drawdown. In past CUE 

rules, EPA either estimated the 

drawdown of existing stocks using a 

simple linear fit estimation of inventory 

data from all available years or used 

actual reported end of year data if 

available. A linear estimate would 

project that no methyl bromide would 

remain in inventory on January 1, 2012. 

EPA does not believe this estimate to be 

accurate because it does not consider 

that the use of inventory on critical uses 

is limited by the allocation of CSAs. A 

better estimate of drawdown would 

instead add the estimated amount of 

CSAs that will be expended in 2011 

plus the estimated amount of methyl 

bromide that will be used in 2011 for 

non-critical uses. 

The first element of EPA’s proposed 

drawdown estimate is the amount of 

inventory that will be used in 2011 on 

critical uses. This can be no more than 

the number of CSAs EPA allocates in 

the final 2011 CUE Rule. For purposes 

of this estimate, we are assuming the 

number of CSAs allocated in the final 

2011 CUE Rule will be the same as the 

number EPA has proposed, which is 

482,333 kg. As discussed in the 

Technical Support Document, on 

average only 58% of the CSAs allocated 

for a control period are reported as sold 

in that control period. Based on this 

historical pattern, EPA believes that not 

all of the CSAs will actually be 

expended in 2011 either. To estimate 

the number of expended CSAs in 2011, 

EPA conservatively assumes that 70% of 

the CSAs allocated for 2011 will be sold. 

This amount is greater than any year’s 

use of CSA allocations. Thus, EPA 

estimates that 337,633 kg of inventory 

will be sold for critical uses in 2011. 

The second element in the drawdown 

estimate is the amount of methyl 

bromide used on non-critical uses in 

2011. Under the recent reregistration 

decision for methyl bromide, seven noncritical uses remain on the pre-plant 

methyl bromide labels. These noncritical uses can continue to use methyl 

bromide but are restricted to prephaseout inventory. The uses are 

caneberries, fresh market tomatoes 

grown in California, fresh market 

peppers grown in California, Vidalia 

onions grown in Georgia, ginger grown 

in Hawaii, soils on golf courses and 

athletic/recreational fields for 

resurfacing/replanting of turf, and 

tobacco seedling trays. See 76 FR 7200. 

Collectively they are referred to as 

‘‘Group II uses.’’ EPA proposes to 

estimate the amount of inventory that 

will be sold to these Group II uses in 

2011 by averaging the amounts sold in 

2006–2010 for all non-critical uses. 

There is no clear trend in the pattern of 

usage which is why EPA is proposing to 

simply take an average. EPA is not 

including 2005 because it does not have 

data for that year. These data are 

contained in EPA’s annual Accounting 

Frameworks submitted to UNEP and are 

available in the docket. The average use 

of pre-phaseout inventory on all noncritical uses over the last five years is 

773 MT. EPA believes that this estimate 

is conservative because it includes the 

use of inventory for all non-critical uses, 

not just for Group II uses. Therefore, 

EPA proposes to adopt this average as 

its estimate of non-critical use in 2011. 

Therefore, EPA proposes to estimate 

the potential drawdown of inventory in 

2011 as (1) The projected sum of the use 

of CSAs for 2011 and (2) the estimate for 

Group II uses for 2011. Using this 

method, EPA projects that the prephaseout methyl bromide inventory will 

be drawn down by 1,110,633 kg 

(337,633 + 773,000) during 2011. This 

would result in a pre-phaseout 

inventory declining from 1,802,715 kg 

on January 1, 2011, to 692,082 kg on 

January 1, 2012. EPA welcomes 

comment on this proposed method of 

calculating inventory drawdown. If EPA 

receives actual end-of-year reported data 


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on inventory levels before this rule is 

finalized, EPA may substitute that data 

for this estimate. 

Supply Chain Factor. The SCF 

represents EPA’s technical estimate of 

the amount of pre-phaseout inventory 

that would be adequate to meet a need 

for critical use methyl bromide after an 

unforeseen domestic production failure. 

As described in the 2008 CUE Rule, and 

the Technical Support Document 

contained in the docket to this rule, EPA 

estimates that it would take 15 weeks 

for significant imports of methyl 

bromide to reach the U.S. in the event 

of a major supply disruption. Consistent 

with the regulatory framework used in 

previous CUE allocation rules, the SCF 

for 2012 conservatively reflects the 

effect of a supply disruption occurring 

in the peak period of critical use methyl 

bromide production, which is the first 

quarter of the year. While this 15-week 

disruption is based on shipping capacity 

and does not change year to year, other 

inputs to EPA’s analysis do change each 

year including the total U.S. and global 

authorizations for methyl bromide and 

the average seasonal production of 

critical use methyl bromide in the U.S. 

Using updated numbers, EPA estimates 

that critical use production in the first 

15 weeks of each year (the peak supply 

period) currently accounts for 

approximately 42% of annual critical 

use methyl bromide demand. EPA, 

therefore, estimates that the peak 15- 

week shortfall in 2012 could be 429 MT. 

As EPA stated in previous CUE Rules, 

the SCF is not a ‘‘reserve’’ or ‘‘strategic 

inventory’’ of methyl bromide but is 

merely an analytical tool used to 

provide greater transparency regarding 

how the Agency determines CSA 

amounts. Its use in the equation above 

demonstrates that 263,082 kg are 

available to be allocated. Further general 

discussion of the SCF is in the final 

2008 CUE rule (72 FR 74118) and 

further detail about the analysis used to 

derive the value for the 2012 supply 

chain factor is provided in the 

Technical Support Document available 

on the public docket for this 

rulemaking. 

Using the following formula AS2012 = 

ES2011¥D2011¥SCF2012, EPA estimates 

that there will be 263,082 kg of prephaseout stocks of methyl bromide 

‘‘available’’ on January 1, 2012. (263,082 

= 1,802,715¥1,110,633¥429,000). 

Therefore, EPA proposes to allocate 

263,082 kg as Critical Stock Allowances 

for 2012. 

2. Approach for Determining New 

Production and Import Allowances 

For the 2012 control period, EPA is 

proposing to apply the existing 

framework established in the 

Framework Rule. Under this approach, 

the amount of new production would 

equal the total amount authorized by the 

Parties to the Montreal Protocol in 

Decision XXII/6, minus the CSA amount 

detailed above, minus any reductions 

for carryover and the uptake of 

alternatives. Applying this established 

approach, EPA is proposing to exempt 

limited amounts of new production and 

imports of methyl bromide for critical 

uses in 2012 in the amount of 759,744 

kg (3.0% of baseline). EPA is taking 

comment on this approach. 

Carryover Material. The Parties in 

paragraph 6 of Decision XXII/6 ‘‘urge 

parties operating under a critical-use 

exemption to put in place an effective 

system to discourage the accumulation 

of methyl bromide produced under the 

exemption.’’ As discussed in the 

Framework Rule, EPA does not permit 

the building of stocks of methyl bromide 

produced or imported after January 1, 

2005, under the critical use exemption. 

Quantities of methyl bromide produced, 

imported, exported, or sold to end-users 

under the critical use exemption in a 

control period must be reported to EPA 

the following year. EPA uses these 

reports to calculate the amount of 

methyl bromide produced or imported 

under the critical use exemption, but 

not exported or sold to end-users in that 

year. EPA deducts an amount equivalent 

to this ‘‘carryover’’ from the total level 

of allowable new production and import 

in the year following the year of the data 

report. Carryover material (which is 

produced using critical use allowances) 

is not included in EPA’s definition of 

existing stocks (which applies to prephaseout material) because this would 

lead to a double-counting of carryover 

amounts, and a double reduction of 

critical use allowances (CUAs). 

Unlike past control periods, all 

critical use methyl bromide that 

companies reported to be produced or 

imported in 2010 was sold to end users. 

The information reported to EPA is that 

1,954,610 kg of critical use methyl 

bromide was produced or imported. A 

slightly higher amount than the amount 

produced or imported was actually sold 

to end-users in 2010. This additional 

amount was from distributors selling 

amounts that were carried over from the 

2009 control period. Using the existing 

framework, EPA is proposing to apply 

the carryover deduction of 0 kg to the 

new production amount. EPA’s 

calculation of the amount of carryover at 

the end of 2010 is consistent with the 

method used in previous CUE rules, and 

with the method agreed to by the Parties 

in Decision XVI/6 for calculating 

column L of the U.S. Accounting 

Framework. Past U.S. Accounting 

Frameworks, including the one for 2010, 

are available in the public docket for 

this rulemaking. 

Uptake of Alternatives. EPA also is 

proposing to continue considering new 

data about alternatives that were not 

available at the time the U.S. 

Government submitted its CUN to the 

Parties and adjust the allocation for new 

production accordingly. Two 

alternatives not considered in the 2012 

CUN, which was submitted to UNEP in 

January 2010, may potentially be used 

in 2012. In July 2010, EPA registered 

Dimethyl Disulfide (DMDS) to control 

nematodes, weeds, and pathogens in 

tomatoes, peppers, eggplants, 

curcurbits, strawberries, ornamentals 

and forest nursery seedlings, and 

onions. Currently, 12 states have 

registered DMDS for use in that state. 

Neither California nor Florida has yet to 

register DMDS. EPA anticipates uptake 

during 2012 to be minimal as the 

primary states with critical uses have 

not yet registered the alternative. In 

addition, once registered, growers are 

likely to experiment on only a limited 

number of acres. 

Second, California registered 

Iodomethane in December of 2010. EPA 

is unable to estimate uptake of 

Iodomethane in California during 2012 

due to uncertainties created by the 

California label, specifically impacts of 

larger buffer zones and the lack of 

efficacy studies at the California label’s 

lower use rates. In addition to the state 

registration, County Agricultural 

Commissioners must permit each 

iodomethane application that occurs 

within their jurisdiction. 

While EPA is not proposing a specific 

amount of reduction to account for the 

uptake of these alternatives, EPA will 

consider new data received during the 

comment period. If the registration 

status of either of these alternatives 

changes, EPA is proposing to estimate 

and account for that uptake in the final 

rule. EPA is not proposing to take any 

other reductions for alternatives because 

the 2012 CUN properly applied 

transition rates for all other alternatives. 

The TEAP report of October 2010 

included reductions in its 

recommendations for critical use 

categories based on the transition rates 

in the 2012 CUN. The TEAP’s 

recommendations were then considered 

in the Parties’ 2012 authorization 

amounts, as listed in Decision XXII/6. 

Therefore, transition rates, which 

account for the uptake of alternatives, 

have already been applied for 

authorized 2012 critical use amounts. 

EPA continues to gather information 

about methyl bromide alternatives 


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through the CUE application process, 

and by other means. EPA also continues 

to support research and adoption of 

methyl bromide alternatives, and to 

request information about the economic 

and technical feasibility of all existing 

and potential alternatives. 

In addition, EPA is taking comment 

on an issue raised in the proposed 2011 

CUE rule. In that rulemaking, EPA 

proposed a critical-use allowance 

allocation of 1,500,000 kg for 2011, 

given that regulated entities had been 

acting in good faith on statements made 

by the Agency in No Action Assurance 

letters that producers and importers 

could assume the allocation would be at 

least that much. While the total 

allocation was not affected, the amount 

of new production was 128,382 kg more 

than what EPA would have proposed for 

2011 had the CSA and CUA amounts 

been based on the ‘‘available stocks’’ 

calculation using end of year inventory 

data. It also means that the critical stock 

allocation was 128,382 kg less than the 

amount of ‘‘available stocks.’’ EPA 

stated in the 2011 proposed rule that the 

Agency could reduce critical-use 

allowances for new production and 

import in the 2012 allocation rule to 

account for this difference. 

EPA is taking comment on an 

alternative approach in which EPA 

would allocate 631,362 kg (2.5% of 

baseline) of CUAs for 2012. This amount 

is 128,382 kg less than the proposed 

CUA amount. The CSA amount could 

remain either at 263,082 kg or be 

increased to 391,464 kg to reflect the 

lower CSA allocation in 2011. The total 

allocation for 2012 would be 894,444 kg 

or 1,022,826 kg depending on how 

many CSAs are issued under this 

alternative. While EPA is taking 

comment on this alternative, EPA is not 

proposing it as the lead approach 

because the number of CUAs in the 

2011 rule did not exceed the Parties’ 

production authorization for 2011 and 

the total CUE amount for 2011 was 

unaffected. EPA does not believe the 

2011 allocation will result in carryover; 

however, if it does, EPA will follow its 

standard practice, discussed in prior 

CUE notices, of subtracting the 

carryover amount from the CUA amount 

in a subsequent year. In addition, any 

effects that the 2011 CSA allocation had 

on the amount of pre-phaseout 

inventory used in 2011 is captured in 

the ‘‘available stocks’’ analysis 

contained in this rule. 

3. Summary of Calculations 

The calculations described above for 

determining the level of new production 

and critical stock allowances are 

summarized in the table below: 

Kilograms 

Step 1: Calculate supply chain factor: 

U.S. authorization for 2012 in Decision XXII/6 ...................................................................................................................... 1,022,826 

¥ Reduction for uptake of alternatives .................................................................................................................................. 0 

= One year’s CUE need ......................................................................................................................................................... 1,022,826 

× Percentage of year’s production to recover from production failure .................................................................................. 42% 

= Supply Chain Factor .................................................................................................................................................... 429,000 

Step 2: Calculate available stocks: 

Existing pre-phaseout inventory on January 1, 2011 ............................................................................................................ 1,802,715 

¥ Drawdown of inventory for critical uses ............................................................................................................................ 337,633 

¥ Drawdown of inventory for non-critical uses ..................................................................................................................... 773,000 

¥ Supply Chain Factor (Step 1) ............................................................................................................................................ 429,000 

= Available stocks = Critical Stock Allowance ................................................................................................................ 263,082 

Step 3: Calculate new production: 

Total U.S. authorization for 2012 ........................................................................................................................................... 1,022,826 

¥ Critical Stock Allowance (Step 2) ...................................................................................................................................... 263,082 

¥ Carryover ........................................................................................................................................................................... 0 

¥ Uptake of alternatives ........................................................................................................................................................ 0 

= New production/import = Critical Use Allowance ........................................................................................................ 759,744 

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

I/4 

Paragraphs 2 and 5 of Decision XXII/ 

6 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 

2012 control period. A discussion of the 

agency’s application of the criteria in 

paragraph 1 of Decision IX/6 appears in 

sections V.A., V.C., V.D., and V.H. of 

this preamble. In section V.C. the 

agency solicits comments on the 

technical and economic 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.D., 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 titled 

‘‘Development of 2003 Nomination for a 

Critical Use Exemption for Methyl 

Bromide for the United States of 

America’’ for further elaboration. 

The remaining considerations, 

including the lack of available 

technically and economically feasible 

alternatives under the circumstance of 

the nomination; efforts to minimize use 

and emissions of methyl bromide where 

technically and economically feasible; 

the development of research and 

transition plans; and the requests in 

Decision Ex. I/4(5) and (6) that Parties 

consider and implement MBTOC 

recommendations, where feasible, on 

reductions in the critical use of methyl 

bromide and include information on the 

methodology they use to determine 

economic feasibility, are addressed in 

the nomination documents. 


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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 

submitted to the Ozone Secretariat in 

December 2005, updated in October 

2009, as well as in ongoing 

consultations with industry. The 

National Management Strategy 

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. 

There continues to be a need for 

methyl bromide for research purposes. 

A common example is an outdoor field 

experiment that requires methyl 

bromide as a standard control treatment 

with which to compare the trial 

alternatives’ results. As in past CUE 

rules, EPA is proposing to allocate CSAs 

rather than CUAs for any amounts 

authorized specifically for research 

purposes. Also as in past years, EPA is 

proposing to retain research on the 

crops shown in the table in Appendix 

L to subpart A as a critical use of methyl 

bromide. The USG recently submitted a 

supplemental nomination for 2,576 kg 

for research activities in 2012. Because 

the supplemental nomination was 

submitted this year, the Parties have not 

yet taken a decision authorizing an 

amount. The Parties are expected to take 

a decision at their upcoming Meeting of 

the Parties in November 2011. 

Therefore, EPA is proposing to increase 

the final CSA allocation by up to 2,576 

kg after consideration of the action 

taken by the Parties in November and 

comments received on this proposed 

rule regarding research needs. 

EPA encourages methyl bromide 

suppliers to sell inventory to researchers 

and encourages researchers to purchase 

inventory for research purposes. As 

discussed in the 2010 CUE rule, 

research is a key element of the critical 

use process. Therefore, researchers may 

continue to use newly produced methyl 

bromide, as well as pre-phaseout 

inventory purchased through the 

expenditure of CSAs, for field, postharvest, and emission minimization 

studies requiring the use of methyl 

bromide. EPA is taking comment on this 

proposal to increase the CSA amount as 

described above for research. 

F. Emissions Minimization 

Previous decisions have stated that 

Parties shall request critical users to 

employ emission minimization 

techniques such as virtually 

impermeable films, barrier film 

technologies, deep shank injection and/ 

or other techniques that promote 

environmental protection, whenever 

technically and economically feasible. 

Through the recent Reregistration 

Eligibility Decision (RED) for methyl 

bromide, the agency requires that 

methyl bromide applications be tarped 

except for California orchard replant 

where EPA instead requires deep (18 

inches or greater) shank applications. 

The RED also encourages the use of 

high-barrier tarps, such as virtually 

impermeable film (VIF), by providing 

credits that applicators can use to 

minimize their buffer zones. In addition 

to minimizing emissions, use of highbarrier tarps has the benefit of providing 

pest control at lower application rates. 

The amount of methyl bromide 

nominated by the USG reflects the lower 

application rates necessary when using 

high-barrier tarps, where such tarps are 

allowed. Emissions minimization efforts 

should not be limited to pre-plant 

fumigations. While the RED addresses 

emissions minimization only in the 

context of pre-plant fumigation, EPA 

also urges users to reduce emissions 

from structures and port facilities 

through the use of recapture 

technologies. 

Users of methyl bromide should 

continue to make every effort to 

minimize overall emissions of methyl 

bromide 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 emissions could be reduced 

further. 

G. Critical Use Allowance Allocations 

EPA is proposing to allocate 2012 

critical use allowances for new 

production or import of methyl bromide 

up to the amount of 759,744 kg (3.0% 

of baseline) as shown in the proposed 

changes to the table in 40 CFR 

82.8(c)(1). EPA is seeking comment on 

the total levels and allocations of 

exempted new production or import for 

pre-plant and post-harvest critical uses 

in 2012. 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. The proposed CUA allocation 

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). 

Paragraph 3 of Decision XXII/6 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 prior Decisions authorizing 

critical uses. The language from these 

Decisions calls on Parties to endeavor to 

allocate critical use methyl bromide on 

a sector basis. The Framework Rule 

proposed several options for allocating 

critical use allowances, including a 

sector-by-sector approach. The agency 

evaluated the various options based on 

their economic, environmental, and 

practical effects. After receiving 

comments, EPA determined 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-by-sector approach would pose 

significant administrative and practical 

difficulties. For the reasons discussed in 

the preamble to the 2009 CUE rule (74 

FR 19894), the agency believes that 

under the approach adopted in the 

Framework Rule, the actual critical use 

will closely follow the sector breakout 

listed in the Parties’ decisions, but 

continues to welcome comments on this 

issue. 

H. Critical Stock Allowance Allocations 

A preambular paragraph to Decision 

XXII/6 states ‘‘that parties should 

reduce their stocks of methyl bromide 

retained for employment in critical-use 

exemptions to a minimum in as short a 

time period as possible.’’ EPA notes that 

the U.S. Government is not retaining 

pre-phaseout inventory for any 

particular purpose. Pre-phaseout 

inventory is held by private companies 

who may sell to any use that meets the 

labeling under FIFRA. However, EPA 

believes that its practice of encouraging 

the use of inventory by allocating CSAs 

equivalent to all ‘‘available stocks’’ is 

consistent with this statement by the 

Parties. EPA is proposing to allocate 

CSAs for the 2012 control period in the 

amount of 263,082 kg (1.0% of 

baseline). This amount is greater than 

the difference between the total U.S. 

CUE amount approved by the Parties 

and the permitted level of U.S. 

production and consumption. For 2012, 

that difference is 100,000 kg (0.4% of 

baseline). 

EPA’s proposed allocation of CSAs is 

based on each company’s proportionate 

share of the aggregate inventory. In 


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65148 Federal Register / Vol. 76, No. 203 / Thursday, October 20, 2011 / Proposed Rules 

2006, the United States District Court 

for the District of Columbia upheld 

EPA’s treatment of company-specific 

methyl bromide inventory information 

as confidential. NRDC v. Leavitt, 2006 

WL 667327 (D.D.C. March 14, 2006). 

Therefore, the documentation regarding 

company-specific allocation of CSAs is 

in the confidential portion of the 

rulemaking docket and the individual 

CSA allocations are not listed in the 

table in 40 CFR 82.8(c)(2). EPA will 

inform the listed companies of their 

CSA allocations in a letter following 

publication of the final rule. 

I. Stocks of Methyl Bromide 

An approved critical user may 

purchase methyl bromide produced or 

imported with CUAs as well as limited 

inventories of pre-phaseout methyl 

bromide, the combination of which 

constitute the supply of ‘‘critical use 

methyl bromide’’ intended to meet the 

needs of agreed critical uses. The 

Framework Rule established provisions 

governing the sale of pre-phaseout 

inventories for critical uses, including 

the concept of CSAs and a prohibition 

on the sale of pre-phaseout inventories 

for critical uses in excess of the amount 

of CSAs held by the seller. It also 

established trading provisions that 

allow CUAs to be converted into CSAs. 

EPA is not proposing to change these 

provisions. 

The aggregate amount of pre-phaseout 

methyl bromide reported as being in 

inventory at the beginning of 2011 is 

1,802,715 kg. As in prior years, the 

Agency will continue to closely monitor 

CUA and CSA data. As stated in the 

final 2006 CUE Rule, if an inventory 

shortage occurs, EPA may consider 

various options including authorizing 

the 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. In 

sections V.D. 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. 

As explained in the 2008 CUE Rule, 

the agency intends to continue releasing 

the aggregate of methyl bromide 

stockpile information reported to the 

agency under the reporting 

requirements at 40 CFR 82.13 for the 

end of each control period. EPA notes 

that if the number of competitors in the 

industry were to decline appreciably, 

EPA would revisit the question of 

whether the aggregate is entitled to 

treatment as confidential information 

and whether to release the aggregate 

without notice. EPA is not proposing to 

change the treatment of submitted 

information but welcomes information 

concerning the composition of the 

industry in this regard. The aggregate 

information for 2003 through 2011 is 

available in the docket for this 

rulemaking. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order (EO) 12866 

(58 FR 51735, October 4, 1993), this 

proposal is a ‘‘significant regulatory 

action.’’ This action is likely to result in 

a rule that may raise novel legal or 

policy issues. Accordingly, EPA 

submitted this action to the Office of 

Management and Budget (OMB) for 

review under Executive Orders 12866 

and 13563 (76 FR 3821, January 21, 

2011) and any changes made in 

response to interagency 

recommendations have been 

documented in the docket for this 

action. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. The 

application, recordkeeping, and 

reporting requirements have already 

been established under previous Critical 

Use Exemption rulemakings and this 

action does not propose to change any 

of those existing requirements. The 

Office of Management and Budget 

(OMB) has previously approved the 

information collection requirements 

contained in the existing regulations at 

40 CFR part 82 under the provisions of 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. and has assigned OMB 

control number 2060–0482. The OMB 

control numbers for EPA’s regulations 

in 40 CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The RFA generally requires an agency 

to prepare a regulatory flexibility 

analysis of any rule subject to noticeand-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 

rule on small entities, small entity is 

defined as: (1) A small business as 

defined by the Small Business 

Administration’s regulations at 13 CFR 

121.201; (2) a small business that is 

identified by the North American 

Industry Classification System (NAICS) 

Code in the Table below; (3) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (4) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

Category NAICS code SIC code 

NAICS Small business 

size standard 

(in number of employees or 

millions of dollars) 

Agricultural production ................... 1112—Vegetable and Melon 

farming.

0171—Berry Crops ....................... $0.75 million. 

1113—Fruit and Nut Tree Farming.0172—Grapes. 

1114—Greenhouse, Nursery, and 

Floriculture Production.

0173—Tree Nuts. 

0175—Deciduous Tree Fruits (except apple orchards and farms). 

0179—Fruit and Tree Nuts, NEC. 

0181—Ornamental Floriculture 

and Nursery Products. 

0831—Forest Nurseries and 

Gathering of Forest Products. 


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Category NAICS code SIC code 

NAICS Small business 

size standard 

(in number of employees or 

millions of dollars) 

Storage Uses ................................. 115114—Postharvest Crop activities (except Cotton Ginning)........................................................ $7 million. 

311211—Flour Milling ................... 2041—Flour and Other Grain Mill 

Products.

500 employees. 

311212—Rice Milling .................... 2044—Rice Milling ........................ 500 employees. 

493110—General Warehousing 

and Storage.

4225—General Warehousing and 

Storage.

$25.5 million. 

493130—Farm Product 

Warehousing and Storage.

4221—Farm Product 

Warehousing and Storage.

$25.5 million. 

Distributors and Applicators ........... 115112—Soil Preparation, Planting and Cultivating.0721—Crop Planting, Cultivation, 

and Protection.

$7 million. 

Producers and Importers ............... 325320—Pesticide and Other Agricultural Chemical Manufacturing.2879—Pesticides and Agricultural 

Chemicals, NEC.

500 employees. 

Agricultural producers of minor crops 

and entities that store agricultural 

commodities are categories of affected 

entities that contain small entities. This 

proposed rule would only affect entities 

that applied to EPA for an exemption to 

the phaseout of methyl bromide. 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 revised this estimate in 2011 down 

to 1,800 end users of critical use methyl 

bromide. EPA believes that the number 

continues to decline as growers cease 

applying for critical uses. 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 onethird 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 would exempt 

methyl bromide for approved critical 

uses after the phaseout date of January 

1, 2005, this action would confer a 

benefit to users of methyl bromide. EPA 

estimates in the Regulatory Impact 

Assessment found in the docket to this 

rule that the reduced costs resulting 

from the de-regulatory creation of the 

exemption are approximately $22 

million to $31 million on an annual 

basis (using a 3% or 7% discount rate 

respectively). These reduced costs are 

dramatic owing to the high value of 

methyl bromide for crop production and 

agriculture related activities. We have 

therefore concluded that this proposed 

rule would relieve regulatory burden for 

all small entities. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for State, local, or tribal 

governments or the private sector. The 

action imposes no enforceable duty on 

any State, local or tribal governments or 

the private sector. Instead, this action 

would provide an exemption for the 

manufacture and use of a phased out 

compound and would not impose any 

new requirements on any entities. 

Therefore, this action is not subject to 

the requirements of sections 202 or 205 

of the UMRA. This action is also not 

subject to the requirements of section 

203 of UMRA because it contains no 

regulatory requirements that might 

significantly or uniquely affect small 

governments. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This 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. In the spirit 

of Executive Order 13132, and 

consistent with EPA policy to promote 

communications between EPA and State 

and local governments, EPA specifically 

solicits comment on this proposed 

action from State and local officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This rule does not significantly or 

uniquely affect the communities of 

Indian tribal governments nor does it 

impose any enforceable duties on 

communities of Indian tribal 

governments. Thus, Executive Order 

13175 does not apply to this action. EPA 

specifically solicits additional comment 

on this proposed action from tribal 

officials. 

G. Executive Order No. 13045: 

Protection of Children From 

Environmental Health and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 


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65150 Federal Register / Vol. 76, No. 203 / Thursday, October 20, 2011 / Proposed Rules 

EO 13045 because it does not establish 

an environmental standard intended to 

mitigate health or safety risks. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This proposed rule is not a 

‘‘significant energy action’’ as defined in 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)) because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

This 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, 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. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the agency decides not to use 

available and applicable voluntary 

consensus standards. This proposed 

rulemaking does not involve technical 

standards. Therefore, EPA is not 

considering the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations, 

because it affects the level of 

environmental protection equally for all 

affected populations without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. 

Any ozone depletion that results from 

this proposed rule will impact all 

affected populations equally because 

ozone depletion is a global 

environmental problem with 

environmental and human effects that 

are, in general, equally distributed 

across geographical regions. 

List of Subjects in 40 CFR Part 82 

Environmental protection, Ozone 

depletion, Chemicals, Exports, Imports. 

Dated: October 13, 2011. 

Lisa P. Jackson, 

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 as follows: 

a. by revising the table in paragraph 

(c)(1); 

b. by revising paragraph (c)(2) 

including the table. 

§ 82.8 Grant of essential use allowances 

and critical use allowances. 

* * * * * 

(c) * * * 

(1) * * * 

Company 

2012 Critical use 

allowances for 

pre-plant uses * 

(kilograms) 

2012 Critical use 

allowances for 

post-harvest 

uses * 

(kilograms) 

Great Lakes Chemical Corp., A Chemtura Company ................................................................................. 425,197 36,499 

Albemarle Corp ............................................................................................................................................ 174,851 15,009 

ICL–IP America ............................................................................................................................................ 96,626 8,294 

TriCal, Inc .................................................................................................................................................... 3,009 258 

Total ** .................................................................................................................................................. 699,683 60,061 

* 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. 

** Due to rounding, numbers do not add exactly. 

(2) Allocated critical stock allowances 

granted for specified control period. The 

following companies are allocated 

critical stock allowances for 2012 on a 

pro-rata basis in relation to the 

inventory held by each. 

Company 

Albemarle 

Bill Clark Pest Control, Inc. 

Burnside Services, Inc. 

Cardinal Professional Products 

Chemtura Corp. 

Crop Production Services 

Degesch America, Inc. 

Helena Chemical Co. 

Hendrix & Dail 

Hy Yield Products 

ICL–IP America 

Industrial Fumigant Company 

Pacific Ag Supplies Inc. 

Pest Fog Sales Corp. 

Prosource One 

Reddick Fumigants 

TriCal, Inc. 

Trident Agricultural Products 

Univar 

Western Fumigation 

Total—263,082 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 2012 Control Period 


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Column A Column B Column C 

Approved Critical Uses Approved Critical User and Location of Use Limiting Critical Conditions that exist, or that the approved critical user reasonably expects could arise 

without methyl bromide fumigation 

PRE-PLANT USES 

Cucurbits .............................. (a) Growers in Delaware and Maryland .......................... Moderate to severe soilborne disease infestation. 

(b) Growers in Georgia and Southeastern U.S. limited 

to growing locations in Alabama, Arkansas, Kentucky, Louisiana, Mississippi, North Carolina, South 

Carolina, Tennessee, and Virginia.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe root knot nematode infestation. 

Eggplant ............................... (a) Florida growers .......................................................... Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation. 

(b) Georgia growers ........................................................ Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

Moderate to severe pythium collar, crown and root rot. 

Moderate to severe southern blight infestation. 

Restrictions on alternatives due to karst topographical 

features. 

Forest Nursery Seedlings .... (a) Southern Forest Nursery Management Cooperative 

(Growers in Alabama, Arkansas, Florida, Georgia, 

Kentucky, Louisiana, Mississippi, North Carolina, 

Oklahoma, South Carolina, Tennessee, Texas, and 

Virginia.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

(b) Northeastern Forest and Conservation Nursery Association (Government-owned seedling nurseries in 

Illinois, Indiana, Kentucky, Maryland, Missouri, New 

Jersey, Ohio, Pennsylvania, West Virginia, and Wisconsin).

Moderate to severe weed infestation including purple 

and yellow nutsedge infestation. 

Moderate to severe Canada thistle infestation. 

Moderate to severe nematode infestation. 

Moderate to severe soilborne disease infestation. 

(c) Michigan Seedling Growers ....................................... Moderate to severe soilborne disease infestation. 

Moderate to severe Canada thistle infestation. 

Moderate to severe nutsedge infestation. 

Moderate to severe nematode infestation. 

Nursery Stock (Fruit, Nut, 

Flower).

(a) Members of the California Association of Nursery 

and Garden Centers representing Deciduous Tree 

Fruit Growers.

Moderate to severe nematode infestation. 

Medium to heavy clay soils. 

Local township limits prohibiting 1,3-dichloropropene. 

(b) California rose nurseries ........................................... Moderate to severe nematode infestation. 

Local township limits prohibiting 1,3-dichloropropene. 

Orchard Replant ................... California stone fruit, table and raisin grape, wine 

grape, walnut, and almond growers.

Moderate to severe nematode infestation. 

Moderate to severe soilborne disease infestation. 

Replanted orchard soils to prevent orchard replant disease. 

Medium to heavy soils. 

Local township limits prohibiting 1,3-dichloropropene. 

Ornamentals ......................... (a) California growers ...................................................... Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

Local township limits prohibiting 1,3-dichloropropene. 

(b) Florida growers .......................................................... Moderate to severe weed infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation. 

Peppers ................................ (a) Alabama, Arkansas, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, 

and Virginia growers.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

Moderate to severe pythium root, collar, crown and root 

rots. 

(b) Florida growers .......................................................... Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation. 


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Column A Column B Column C 

Approved Critical Uses Approved Critical User and Location of Use Limiting Critical Conditions that exist, or that the approved critical user reasonably expects could arise 

without methyl bromide fumigation 

(c) Georgia growers ........................................................ Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation, or moderate 

to severe pythium root and collar rots. 

Moderate to severe southern blight infestation, crown or 

root rot. 

Restrictions on alternatives due to karst topographical 

features. 

Strawberry Fruit ................... (a) California growers ...................................................... Moderate to severe black root rot or crown rot. 

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

Local township limits prohibiting 1,3-dichloropropene. 

Time to transition to an alternative. 

(b) Florida growers .......................................................... Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

Moderate to severe soilborne disease infestation. 

Carolina geranium or cut-leaf evening primrose infestation. 

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation. 

(c) Alabama, Arkansas, Georgia, Illinois, Kentucky, 

Louisiana, Maryland, Mississippi, Missouri, New Jersey, North Carolina, Ohio, South Carolina, Tennessee, and Virginia growers.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

Moderate to severe black root and crown rot. 

Strawberry Nurseries ........... California growers ........................................................... Moderate to severe soilborne disease infestation. 

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

Sweet Potato Slips ............... California growers ........................................................... Local township limits prohibiting 1,3-dichloropropene. 

Tomatoes ............................. (a) Alabama, Arkansas, Florida, Georgia, Kentucky, 

Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia growers.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

Restrictions on alternatives due to karst topographical 

features and, in Florida, soils not supporting seepage 

irrigation. 

(b) Maryland growers ...................................................... Moderate to severe fungal pathogen infestation. 

POST-HARVEST USES 

Food Processing .................. (a) Rice millers in the U.S. who are members of the 

USA Rice Millers Association.

Moderate to severe beetle, weevil, or moth infestation. 

Presence of sensitive electronic equipment subject to 

corrosion. 

Time to transition to an alternative. 

(b) Pet food manufacturing facilities in the U.S. who are 

members of the Pet Food Institute.

Moderate to severe beetle, moth, or cockroach infestation. 

Presence of sensitive electronic equipment subject to 

corrosion. 

Time to transition to an alternative. 

(c) Members of the North American Millers’ Association 

in the U.S.

Moderate to severe beetle infestation. 

Presence of sensitive electronic equipment subject to 

corrosion. 

Time to transition to an alternative. 

(d) Members of the National Pest Management Association treating cheese storage facilities.Mite infestation. 

Commodities ........................ California entities storing walnuts, dried plums, figs, raisins, and dates (in Riverside county only) in California.Rapid fumigation required to meet a critical market window, such as during the holiday season. 

Dry Cured Pork Products ..... Members of the National Country Ham Association and 

the Association of Meat Processors, Nahunta Pork 

Center (North Carolina), and Gwaltney and Smithfield 

Inc.

Red legged ham beetle infestation. 

Cheese/ham skipper infestation. 

Dermested beetle infestation. 

Ham mite infestation 


pmangrum on DSK29S0YB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 203 / Thursday, October 20, 2011 / Proposed Rules 65153 

[FR Doc. 2011–27186 Filed 10–19–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

RIN 0648–AY73 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; 

Comprehensive Annual Catch Limit 

Amendment for the South Atlantic 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of availability; request 

for comments. 

SUMMARY: NMFS announces that the 

South Atlantic Fishery Management 

Council (Council) has submitted the 

Comprehensive Annual Catch Limit 

Amendment (Comprehensive ACL 

Amendment) for review, approval, and 

implementation by NMFS. The 

Comprehensive ACL Amendment 

amends the Fishery Management Plans 

(FMPs) for the Snapper-Grouper Fishery 

of the South Atlantic Region, the Golden 

Crab Fishery of the South Atlantic 

Region, the Dolphin and Wahoo Fishery 

off the Atlantic States, and the Pelagic 

Sargassum Habitat of the South Atlantic 

Region. The Comprehensive ACL 

Amendment proposes actions to specify 

annual catch limits (ACLs), allowable 

biological catch (ABC), ABC control 

rules, and accountability measures 

(AMs) for species in the FMPs for 

Snapper-Grouper, Dolphin and Wahoo, 

Golden Crab, and Sargassum. The 

Comprehensive ACL Amendment 

proposes to specify ABC, and describe 

the current terminology and measures in 

place in the Sargassum FMP that are 

consistent with an ACL and AMs. For 

Sargassum, this amendment would not 

specifically set an ACL because there is 

currently a commercial quota in place 

which functions as an ACL, and there 

are commercial closure provisions in 

the event the quota is met or projected 

to be met which functions as an AM. 

Sector allocations, annual catch targets 

(ACTs), and management measures are 

also proposed for species in the 

Snapper-Grouper and Dolphin and 

Wahoo FMPs. In addition, the 

Comprehensive ACL Amendment 

proposes actions to the snapper-grouper 

fishery management unit (FMU), 

including the removal of some species, 

designation of ecosystem component 

(EC) species, and the development of 

species groups. 

DATES: Written comments must be 

received on or before December 19, 

2011. 

ADDRESSES: You may submit comments 

on the amendment identified by 

‘‘NOAA–NMFS–2011–0087’’ by any of 

the following methods: 

• Electronic submissions: Submit 

electronic comments via the Federal 

e-Rulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Nikhil Mehta, Southeast 

Regional Office, NMFS, 263 13th 

Avenue South, St. Petersburg, FL 33701. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

To submit comments through the 

Federal e-Rulemaking Portal: http:// 

www.regulations.gov, click on ‘‘submit a 

comment,’’ then enter ‘‘NOAA–NMFS– 

2011–0087’’ in the keyword search and 

click on ‘‘search’’. To view posted 

comments during the comment period, 

enter ‘‘NOAA–NMFS–2011–0087’’ in 

the keyword search and click on 

‘‘search’’. NMFS will accept anonymous 

comments (enter N/A in the required 

field if you wish to remain anonymous). 

You may submit attachments to 

electronic comments in Microsoft Word, 

Excel, WordPerfect, or Adobe PDF file 

formats only. 

Comments received through means 

not specified in this rule will not be 

considered. 

Electronic copies of the amendment 

may be obtained from the Southeast 

Regional Office Web site at http:// 

sero.nmfs.noaa.gov. 

FOR FURTHER INFORMATION CONTACT: 

Nikhil Mehta, telephone: 727–824– 

5305, or e-mail: nikhil.mehta@noaa.gov. 

SUPPLEMENTARY INFORMATION: The 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) requires each 

regional fishery management council to 

submit any fishery management plan or 

amendment to NMFS for review and 

approval, partial approval, or 

disapproval. The Magnuson-Stevens Act 

also requires that NMFS, upon receiving 

a plan or amendment, publish an 

announcement in the Federal Register 

notifying the public that the plan or 

amendment is available for review and 

comment. 

The four FMPs being revised by the 

Comprehensive ACL Amendment were 

prepared by the Council and 

implemented through regulations at 50 

CFR parts 622 under the authority of the 

Magnuson-Stevens Act. 

Background 

The 2006 revisions to the MagnusonStevens Act require that in 2011, for fish 

stocks determined by the Secretary to 

not be subject to overfishing, ACLs must 

be established at a level that prevents 

overfishing and helps to achieve 

optimum yield (OY) within a fishery. 

The Magnuson-Stevens Act requires 

NMFS and regional fishery management 

councils to prevent overfishing and 

achieve, on a continuing basis, the OY 

from federally managed stocks. These 

mandates are intended to ensure fishery 

resources are managed for the greatest 

overall benefit to the nation, particularly 

with respect to providing food 

production and recreational 

opportunities, and protecting marine 

ecosystems. 

Actions Contained in the Amendment 

Golden Crab FMP 

The Comprehensive ACL Amendment 

proposes to specify an ABC, an ABC 

control rule, an ACL, and an AM for 

golden crab. 

Dolphin and Wahoo FMP 

The Comprehensive ACL Amendment 

proposes to specify ABCs, ABC control 

rules, ACLs, and AMs for dolphin and 

wahoo. Sector allocations, ACTs for 

dolphin and wahoo, and management 

measures for dolphin are also proposed. 

Snapper-Grouper FMP 

The Comprehensive ACL Amendment 

proposes to identify snapper-grouper 

species that do not need Federal 

management and can therefore be 

removed from the Snapper-Grouper 

FMP; designate selected snappergrouper species as EC species; and 

establish species groups for selected 

snapper-grouper species for more 

effective management. The 

Comprehensive ACL Amendment 

would establish ABC control rules, 

ACLs for the commercial and 

recreational sectors, and ACTs 

(recreational sector only) for individual 

species and species groups. 

Additionally, the Comprehensive ACL 

Amendment would define the allocation 

of black grouper, mutton snapper, and 

yellowtail snapper across the 

jurisdictional boundary between the 

Gulf of Mexico Fishery Management 

Council (Gulf Council) and the South 


pmangrum on DSK29S0YB1PROD with PROPOSALS