60736 Federal Register / Vol. 76, No. 190 / Friday, September 30, 2011 / Rules and Regulations 

■ 2. A new temporary § 165.T11–0841 is 

added to read as follows: 

§ 165.T11–0841 Safety Zone; Mississippi 

River, Mile Marker 230 to Mile Marker 234, 

in the vicinity of Baton Rouge, LA. 

(a) Location. The following area is a 

temporary safety zone: All waters of the 

Mississippi River beginning at mile 

marker 230 and ending at mile marker 

234, extending the entire width of the 

river, in the vicinity of Baton Rouge. 

(b) Effective Date. This section is 

effective from 7 a.m. CST on August 28, 

2011 until 7 a.m. CST on November 25, 

2011. 

(c) Regulations. (1) In accordance with 

the general regulations in 33 CFR part 

165, subpart C, entry into this zone is 

prohibited unless vessels have met the 

specific instructions or are authorized 

by the Captain of the Port New Orleans 

or designated representative as further 

explained below. 

(2) Persons or vessels requiring entry 

into or passage through must have met 

the specific instructions or request 

permission from the Captain of the Port 

New Orleans or a designated 

representative. They may be contacted 

via VHF Channel 12, 67, or via 

telephone at (504) 365–2514. 

(3) All persons and vessels shall 

comply with the instructions of the 

Captain of the Port New Orleans and 

designated personnel. Designated 

personnel include commissioned, 

warrant, and petty officers of the U.S. 

Coast Guard. 

(4) The instructions of the Captain of 

the Port in are as follows: 

(i) The Captain of the Port New 

Orleans has implemented a temporary 

safety Zone on the Lower Mississippi 

River (LMR) extending the entire width 

of the river from Mile Marker (MM) 230 

to MM 234. The LMR will be open to 

one-way traffic from 7 a.m. CST, August 

28, 2011 and continue through 7 a.m. 

CST, November 25, 2011. This operation 

will continue 24 hours a day. 

(ii) Vessels must request permission 

to transit through the area from Vessel 

Traffic Service Lower Mississippi River 

in New Orleans on VHF channel 12 or 

67. The temporary check-in points are 

no lower than MM 239 for southbound 

vessels and no higher than MM 228 for 

northbound vessels. 

(d)Informational Broadcasts. The 

Captain of the Port, New Orleans or a 

designated representative will inform 

the public through broadcast notices to 

mariners (BNM) and/or marine safety 

information bulletins (MSIB) of the 

effective period for the safety zone, 

requirements, and of any changes in the 

effective period, requirements or size of 

the safety zone. 

Dated: August 27, 2011. 

P. W. Gautier, 

Captain, U.S. Coast Guard, Captain of the 

Port, New Orleans. 

[FR Doc. 2011–25182 Filed 9–29–11; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 82 

[EPA–HQ–OAR–2008–0321; FRL–9473–5] 

RIN 2060–AP92 

Protection of Stratospheric Ozone: The 

2011 Critical Use Exemption From the 

Phaseout of Methyl Bromide 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing uses that 

qualify for the 2011 critical use 

exemption and the amount of methyl 

bromide that may be produced, 

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

2011. EPA is taking this 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-First 

Meeting of the Parties. 

DATES: Effective Date: September 30, 

2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2008–0321. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket, EPA/DC, 

EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Air 

and Radiation Docket is (202) 566– 

1742). 

FOR FURTHER INFORMATION CONTACT: For 

further information about this 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 layer protection 

Web site 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 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 2011. Under the Clean Air 

Act, methyl bromide consumption 

(consumption is defined under the CAA 

as production plus imports minus 

exports) and production was phased out 

on January 1, 2005, apart from allowable 

exemptions, such as the critical use 

exemption and the quarantine and 

preshipment (QPS) exemption. With 

this action, EPA is finalizing the uses 

that qualify for the 2011 critical use 

exemption as well as specific amounts 

of methyl bromide that may be 

produced, imported, or sold from prephaseout inventory for proposed critical 

uses in 2011. 

Table of Contents 

I. General Information 

A. Regulated Entities 

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 rule relate to previous 

critical use exemption rules? 

C. Critical Uses 

D. Critical Use Amounts 

E. Critical Use Allowance Allocations 

F. Critical Stock Allowance Allocations 

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

I/4 

H. Emissions Minimization 

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 


wreier-aviles on DSK7SPTVN1PROD with RULES
Federal Register / Vol. 76, No. 190 / Friday, September 30, 2011 / Rules and Regulations 60737 

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 

K. Congressional Review Act 

I. General Information 

A. Regulated Entities 

Entities potentially regulated by this 

action are those associated with the 

production, import, export, sale, 

application, and use of methyl bromide 

covered by an approved critical use 

exemption. Potentially regulated 

categories and entities include 

producers, importers, and exporters of 

methyl bromide; applicators and 

distributors of methyl bromide; and 

users of methyl bromide that applied for 

the 2011 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 action. To determine 

whether your facility, company, 

business, or organization could be 

regulated by this action, you should 

carefully examine the regulations 

promulgated at 40 CFR part 82, subpart 

A. If you have questions regarding the 

applicability of this action to a 

particular entity, consult the person 

listed in the preceding section. 

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 the phaseout of 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 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 this rule must continue 

to comply with FIFRA and other 

pertinent statutory and regulatory 

requirements for pesticides (including, 

but not limited to, requirements 

pertaining to restricted use pesticides) 

when importing, exporting, acquiring, 

selling, distributing, transferring, or 

using methyl bromide for critical uses. 

The provisions in this action are 

intended only to implement the CAA 

Title VI 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. EPA initially 

published the regulatory program in the 

Federal Register on August 12, 1988 (53 

FR 30566), in response to the 1987 

signing and subsequent ratification of 

the Montreal Protocol on Substances 

that Deplete the Ozone Layer (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 United States 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 with reduction steps leading to 

a 2005 phaseout in industrialized 

countries and a 2015 phaseout for 

developing 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 


wreier-aviles on DSK7SPTVN1PROD with RULES
60738 Federal Register / Vol. 76, No. 190 / Friday, September 30, 2011 / Rules and Regulations 

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 2010. Under authority of section 

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

approved critical uses in 2011 and 

specifies the amount of methyl bromide 

that may be produced, imported, or 

supplied from inventory to satisfy those 

uses. 

This rule reflects Decision XXI/11, 

taken at the Twenty-First Meeting of the 

Parties in November 2009. 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, DC 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 rule on critical uses for 2011, 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 2, 2008 (73 FR 24282), 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, 

and efforts to minimize use and 

emissions. 

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 23, 2009, the U.S. 

Government (USG) submitted the 

seventh 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 

2011 critical uses. In February 2009, 

MBTOC sent two sets of questions to the 

USG concerning technical and 

economic issues in the 2011 

nomination, one for post-harvest uses 

and one for pre-plant uses. The USG 

transmitted responses to MBTOC on 

April 10, 2009. These documents, 

together with reports by the advisory 

bodies noted above, are in the public 

docket for this rulemaking. The critical 

uses and amounts in this rule reflect the 

analysis contained in those documents. 

EPA sought comment on the technical 

analysis contained in the U.S. 

nomination (available for public review 

in the docket to this rulemaking), and 

information regarding changes to the 

registration or use of alternatives that 

have transpired after the 2011 U.S. 

nomination was written. EPA did not 

propose to estimate uptake of 

Iodomethane in California in 2011 due 

to uncertainties created by the 

California label. Specifically, the 

California label has larger buffer zones 

and lower use rates than the Federal 

label. EPA does not have efficacy 

studies at the California label’s lower 

use rates and is uncertain how widely 

it will be adopted without that data. 


wreier-aviles on DSK7SPTVN1PROD with RULES
Federal Register / Vol. 76, No. 190 / Friday, September 30, 2011 / Rules and Regulations 60739 

1NPMA, National Pest Management Association, 

includes both food processing structures and 

processed foods. 

Two commenters agreed that the 

California label and other state 

regulations constrain the adoption of 

iodomethane in that state. The registrant 

of iodomethane stated that they are 

continuing to work with California 

Department of Pesticide Regulations to 

improve applicability of iodomethane in 

that state. The comment, however, did 

not include any data on which EPA 

could base an estimate of uptake of 

iodomethane in California in 2011. 

Therefore, EPA is not reducing the 

amount of new production for 2011 for 

the uptake of iodomethane in California. 

EPA received a comment stating the 

difficulty pet food facilities have using 

alternatives including longer periods of 

downtime needed to effectively use 

those fumigants or the presence of 

electronics that may corrode if exposed 

to phosphene. The commenter also 

noted that the use of sulfuryl fluoride 

for pet food is low given that pet food 

is not listed on the sulfuryl fluoride 

label as a commodity that can be 

fumigated. EPA’s critical use 

nomination for structures includes these 

specific concerns about these 

alternatives and they, in part, form the 

basis for pet food being recognized as a 

critical use in 2011. 

One commenter stated that some 

growers are having problems with preplant alternatives, specifically the reemergence of plant pests after several 

years of fumigating with alternatives. 

The commenter requested that a survey 

of Florida growers that had been 

submitted to EPA in June 2011 in 

support of the 2013 CUN be added to 

the docket for this rule. EPA received 

these data too late to consider them for 

the 2011 rule but EPA is reviewing the 

data in support of the 2013 CUN. The 

contents of the survey are claimed CBI 

and therefore will be added to the 

confidential portion of a future 

rulemaking docket. 

B. How does this 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), and 75 FR 23167 (calendar year 

2010). 

C. Critical Uses 

In Decision XXI/11, taken in 

November 2009, the Parties to the 

Protocol agreed ‘‘to permit, for the 

agreed critical use categories for 2011 

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 decision Ex. I/4 to the 

extent that those conditions are 

applicable, the levels of production and 

consumption for 2011 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 XXI/11 for the United 

States: 

• Commodities 

• NPMA food processing structures (cocoa 

beans removed) 1

• Mills and processors 

• Dried cured pork 

• Cucurbits 

• Eggplant—field 

• Forest nursery seedlings 

• Nursery stock—fruits, nuts, flowers 

• Orchard replant 

• Ornamentals 

• Peppers—field 

• Strawberries—field 

• Strawberry runners 

• Tomatoes—field 

• Sweet potato slips 

EPA is modifying the table in 40 CFR 

part 82, subpart A, appendix L to reflect 

the agreed critical use categories 

identified in Decision XXI/11. The 

amendments to the table of critical uses 

is based in part on the technical analysis 

contained in the 2011 CUN that assesses 

data submitted by applicants to the CUE 

program. EPA is removing ornamental 

growers in New York. MBTOC did not 

recommend this use for 2011, 

concluding that alternatives are 

available for replacing methyl bromide 

use in Anemone coronaria. The Parties 

did not authorize this use. EPA agrees 

with the Parties’ conclusion, and is not 

listing this use as critical for 2011. 

Second, EPA is removing Michigan 

cucurbit growers, Michigan eggplant 

growers, Michigan ornamental growers 

(specifically, herbaceous perennial 

growers), Michigan tomato growers, 

Michigan pepper growers, and members 

of the Western Raspberry Nursery 

Consortium operating in Washington 

State. These users did not submit 

applications and were not part of the 

CUN. The Parties have not authorized 

them as critical uses for 2011 and EPA 

is not listing these uses as critical for 

this control period. 

EPA received one comment agreeing 

that the listed critical uses have a 

continuing need for access to methyl 

bromide under a 2011 CUE. EPA also 

received two comments that there 

should be no uses of methyl bromide 

given its toxicity and effect on the 

stratospheric ozone layer. EPA disagrees 

that all methyl bromide use should stop. 

EPA’s CUN addresses the need for 

methyl bromide for the proposed critical 

uses. In addition, the proposed critical 

uses were reviewed by the technical 

bodies to the Ozone Secretariat and 

authorized by the Parties to the 

Montreal Protocol. Concerns about the 

toxicity of methyl bromide are 

addressed under FIFRA and other 

authorities and are beyond the scope of 

this rulemaking. EPA is finalizing the 

proposed changes to the table. 

EPA repeats 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. Critical Use Amounts 

Table C of the annex to Decision XXI/ 

11 lists critical uses and amounts agreed 

to by the Parties to the Montreal 

Protocol in 2009 as critical uses for 

2011. When added together, the total 

authorized critical use for 2011 is 

2,055,200 kg, which is equivalent to 

8.1% of the U.S. 1991 methyl bromide 

consumption baseline. The maximum 

amount of new production or import 

authorized by the Parties is 1,855,200 kg 

(7.3% of baseline) as set forth in Table 

D of the annex to Decision XXI/11. The 

difference between the total authorized 

amount and the authorized amount of 

new production is the minimum that 

the Parties expect the U.S. to use from 

pre-phaseout inventory. This difference 

is 200,000 kg (0.8% of baseline). EPA 


wreier-aviles on DSK7SPTVN1PROD with RULES
60740 Federal Register / Vol. 76, No. 190 / Friday, September 30, 2011 / Rules and Regulations 

proposed to allocate 482,333 kg (1.9% of 

baseline) in the form of Critical Stock 

Allowances (CSA) for sale of existing 

pre-phaseout inventory for critical uses 

in 2011. EPA also proposed to exempt 

limited amounts of new production and 

import of methyl bromide for critical 

uses for 2011 in the amount of 1,500,000 

kg (5.9% of baseline). EPA is finalizing 

the amount of new production and 

import contained in the proposed rule. 

For the reasons discussed below, EPA is 

increasing the CSA allocation from 

482,333 kg to 555,200 kg (2.2% of 

baseline). Thus the total allocation for 

2011 is 2,055,200 (8.1% of baseline). 

As discussed in the proposed rule, 

EPA calculated the allocation amounts 

differently than in past CUE allocation 

rulemakings. Initially, EPA used the 

methodology established in the 2008 

CUE Rule to determine the level of 

‘‘available stocks,’’ from which the CSA 

and CUA allowances are calculated. As 

described in previous CUE allocation 

rules, one input to this methodology is 

the previous year’s inventory 

drawdown. Consistent with past 

practice, EPA prepared an estimate of 

the pre-phaseout inventory on 

December 31, 2010. 

Due to the timing of the 2011 CUE 

rulemaking, EPA issued a No Action 

Assurance letter December 22, 2010, to 

allow Critical Use Allowance holders to 

continue producing and importing 

methyl bromide beyond December 31, 

2010, in the absence of allowances, 

subject to certain conditions. The 

amounts authorized in the December 22, 

2010, letter, and a subsequent 

clarification letter dated January 13, 

2011, were based on the estimates of the 

2010 inventory drawdown. Specifically, 

EPA clarified that producers and 

importers ‘‘may assume that the 

allocations for production and import 

will equal at least 1,500 MT.’’ After EPA 

issued the No Action Assurance letter, 

companies submitted their annual end 

of year reports to EPA containing data 

about how much pre-phaseout 

inventory they held on December 31, 

2010. These data show that the prephaseout inventory is greater than the 

estimated amounts that formed the basis 

of the No Action Assurance letter. If 

EPA were to use these data in the 

existing methodology for calculating 

‘‘available stocks,’’ this would result in 

more ‘‘available stocks’’ and fewer 

allowances for new production or 

import as compared to the December 

2010–January 2011 estimates. However, 

because regulated entities have been 

acting on the estimate developed for the 

No Action Assurance letter in good 

faith, EPA proposed the amount 

provided for in the No Action 

Assurance letter, as clarified by the 

January 2011 letter. 

EPA received one comment about the 

increasing lateness of the CUE rules. 

The commenter described how 

producers and distributors need 

advanced notice of their allowances so 

they may plan their production and 

import schedule. Growers also need the 

approval of critical uses before 

fumigating with critical use methyl 

bromide. EPA is aware of the delay and 

is developing the 2012 CUE rule as 

quickly as possible. However, the 

Agency must conduct a notice and 

comment rulemaking for each year’s 

allocation which takes a significant 

amount of time. The commenter 

encouraged EPA to move to a two-year 

allocation schedule, suggesting that we 

nominate two years together and issue 

a rule to address both years. To date the 

Parties have only approved critical uses 

through 2012 and the U.S. government 

has only submitted nominations 

through 2013. Therefore, EPA would be 

unable to write a rule covering the 2012 

and 2013 control periods before 2012. In 

addition, moving to a two-year 

nomination system would require the 

U.S. to project the needs of critical users 

several years in advance. As a result, the 

nominations would be less accurate for 

that second year. 

EPA received two comments that the 

total allocation for 2011 should be 

2,055,200 kg, which is the amount the 

Parties authorized, rather than 

1,982,333, which is what EPA proposed. 

The commenters expressed frustration 

that the EPA reduces the allocated 

amounts from those authorized by the 

Parties. One of the commenters states 

that it is inconceivable that since the 

nomination was submitted less than 18 

months ago, EPA has developed 

sufficient scientific and objective 

information that supports a reduction. 

In past CUE Rules, EPA has made 

reductions after considering several 

factors. First, EPA considers new data 

on alternatives such as the registration 

of a new alternative not considered 

when the CUN was submitted to UNEP. 

EPA does not have new data regarding 

the uptake of alternatives and is not 

reducing the total CUE amount on that 

basis. Second, in some past years, EPA 

has made reductions to the new 

production/import amount equal to the 

amounts approved by the Parties 

specifically for research. As discussed 

below, the U.S. did not nominate any 

separate additional amount for research 

for 2011 and therefore EPA is not 

making reductions for that purpose. 

Third, EPA has made reductions to 

the new production/import amount to 

account for amounts of methyl bromide 

produced in one control period but not 

sold in that control period. This amount 

is referred to as the ‘‘carryover.’’ 

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. In past CUE rules, EPA deducted 

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. 

Companies reported that the carryover 

from 2009 to 2010 was 72,867 kg. In the 

proposed 2011 CUE Rule, however, EPA 

did not propose to reduce the amount of 

new production and import by 72,867 

kg because EPA proposed to honor the 

amounts allowed in the No Action 

Assurance letter. Instead, EPA proposed 

to reduce the total authorization by this 

carryover amount. 

Based on the comments received, EPA 

is not reducing the total authorization 

by the carryover amount in this final 

rule, because the only means to do so 

would be through an adjustment to the 

CSA amount. Carryover is separate from 

‘‘stockpiled’’ methyl bromide, which is 

material that was produced prior to the 

phaseout in 2005. EPA does not believe 

it is necessary to reduce the number of 

critical stock allowances to account for 

the carryover of critical use methyl 

bromide produced but not sold in 2009. 

On the contrary, EPA seeks to encourage 

the use of pre-phaseout inventory. 

Therefore, as compared to the proposal, 

EPA is increasing the CSA allocation by 

72,867 kg to a total of 555,200 kg. EPA 

does not believe that this will result in 

the accumulation of critical use methyl 

bromide. Due to the timing of this year’s 

CUE rule, EPA has data indicating that 

the full 72,867 kg of carryover from 

2009 was sold in 2010. In addition, EPA 

has since received end of year data for 

2010 showing that there is no carryover 

from the 2010 control period either. 

Therefore, EPA is finalizing a total 

allocation that matches the Parties’ 

authorization for 2011. 

Three commenters stated that EPA 

should not be allocating fewer CUEs 

than the amount authorized by the 

Parties given EPA’s January 19, 2011, 

proposal to grant objections to the 

tolerances established for sulfuryl 

fluoride and fluoride under section 408 

of the Federal Food, Drug, and Cosmetic 

Act (76 FR 3422). This CUE Rule is 

based on the current status of 

alternatives and is limited to 2011. The 

proposed revocation of tolerances for 


wreier-aviles on DSK7SPTVN1PROD with RULES
Federal Register / Vol. 76, No. 190 / Friday, September 30, 2011 / Rules and Regulations 60741 

sulfuryl fluoride has not been finalized 

and does not apply to use in 2011. 

Therefore, EPA has not based the 

allocation amounts in the 2011 CUE 

Rule on that proposal. In addition, 

commenters should note that EPA 

proposed a staggered implementation 

for withdrawal of the affected tolerances 

(76 FR 3447). 

EPA also took comment on how to 

account for the fact that the critical use 

allowance allocation of 1,500,000 kg is 

greater than what would be allocated if 

it were based on the ‘‘available stocks’’ 

calculation using end of year inventory 

data. The proposal stated that EPA 

could reduce critical use allowances for 

new production and import in the 2012 

allocation rule. EPA received one 

comment that while the distribution 

between stocks and new production is 

different than the result produced by the 

framework calculation, the total amount 

is unaffected. In addition, the 

commenter stated that the calculations 

in the 2012 rule will automatically 

compensate for the lesser drawdown of 

inventory in 2011. EPA will address this 

issue further in the notice of proposed 

rulemaking for the 2012 CUE rule. 

E. Critical Use Allowance Allocations 

EPA is allocating 2011 critical use 

allowances for new production or 

import of methyl bromide up to the 

amount of 1,500,000 kg (5.9% of 

baseline) as shown in the table at 40 

CFR 82.8(c)(1). 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 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). 

One commenter objected to EPA 

allocating only 1,500,000 kg for new 

production or import. The commenter 

stated that Decision XXI/11 authorized 

1,855,200 kg for new production and 

import. EPA disagrees with the 

commenter’s interpretation of Decision 

XXI/11. In Table D of Decision XXI/11, 

the Parties authorized 1,855,200 kg for 

new production and import ‘‘minus 

available stocks.’’ EPA is acting 

consistently with Decision XXI/11by 

considering ‘‘available stocks.’’ How 

EPA determines ‘‘available stocks’’ is 

discussed in the next section. 

Paragraph three of Decision XXI/11 

states ‘‘that Parties shall endeavor to 

license, permit, authorize or allocate 

quantities of critical-use methyl 

bromide as listed in tables A and C of 

the annex to the present decision.’’ This 

is similar to language in Decisions 

authorizing prior 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 sectorby-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. 

One commenter stated that the 

demand for methyl bromide exceeds the 

supply granted to the post-harvest 

sector. That commenter requested that 

their uses receive priority over other 

post harvest uses. It would be counter 

to EPA’s past practice to grant priority 

for some critical uses over others. EPA 

does not have a system in place for 

ranking critical uses against each other. 

Rather, EPA allows the market to 

determine the distribution of methyl 

bromide among critical uses in the postharvest or pre-plant sectors. 

Finally, one commenter noted a 

typographical error in the table in 40 

CFR 82.8(c)(1). The proposed postharvest amount for ICL–IP was listed as 

12,267 kg but should have read 16,267 

kg. The final rule corrects this error. 

F. Critical Stock Allowance Allocations 

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. 

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. For 

example, Decision IX/6 states that 

‘‘production and consumption, if any, of 

methyl bromide for critical uses should 

be permitted only if * * * methyl 

bromide is not available in sufficient 

quantity and quality from existing 

stocks.’’ Previous decisions refer to 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 XXI/11 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. 

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 subsequent 

CUE Rules, 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. After determining the 

CSA amount, EPA reduced the portion 

of CUE methyl bromide to come from 

new production and import in each of 

the 2006–2010 control periods 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. 

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 


wreier-aviles on DSK7SPTVN1PROD with RULES
60742 Federal Register / Vol. 76, No. 190 / Friday, September 30, 2011 / Rules and Regulations 

CAA require EPA to allow the full 

amount permitted by the Parties. 

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

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. 

In this final rule, EPA is allocating the 

equivalent of 555,200 kg in the form of 

CSAs. This amount is greater than EPA 

proposed but less than the amount of 

‘‘available stocks.’’ The aggregate 

amount of pre-phaseout methyl bromide 

reported as being in inventory at the 

beginning of 2011 was 1,802,705 kg. 

EPA’s analysis of ‘‘available stocks’’ 

shows that there are 610,715 kg of 

stocks available for use in 2011. In the 

proposal, EPA took the total U.S. 

authorization as a starting point, 

subtracted the new production and 

import amount stated in the No Action 

Assurance provided to industry in 

December 2010, and then subtracted a 

carryover amount before reaching the 

tentative conclusion that the CSA 

amount should be the equivalent of 

482,333 kg. EPA received comments, 

discussed above, that the total CUE 

amount should not be less than the U.S. 

authorization. After considering those 

comments and evaluating its approach 

to carryover in the specific 

circumstances of this year’s allocation, 

EPA has determined that the CSA 

amount should be the difference 

between the total U.S. authorization and 

the proposed new production and 

import amount, which is the equivalent 

of 555,200 kg. Because at least 555,200 

kg of stocks are available, EPA is 

increasing the CSA allocation in the 

final rule so that the CSA and CUA 

allocations taken together equal the total 

U.S. authorization. 

Two commenters also stated that the 

Agency is incorrect to assume that 

482,333 kg of pre-phaseout inventory 

will be available for critical uses in 

2011. Instead, the commenters stated 

that EPA should allocate only 200,000 

kg from stocks, which is the difference 

between the total authorization and the 

maximum authorized new production 

amount. The commenters also say that 

the distributors that own stocks are free 

to sell them for any purpose, including 

for non-CUE uses, and that EPA cannot 

control how or whether inventory is 

sold. 

EPA agrees that the allocation system 

allows distributors of inventory to 

respond to market conditions instead of 

requiring them to sell inventory to 

critical users. EPA issues CSAs as a 

mechanism to track the use of stocks for 

critical uses. Under section 82.4(p), 

stocks may not be sold for use on 

critical uses if the seller does not hold 

the corresponding amount of CSAs. 

Critical users may purchase either 

newly produced or imported critical use 

methyl bromide or stocks sold through 

the expenditure of CSAs. EPA chose this 

approach, at least in part, to promote 

market flexibility and efficiency. The 

fact that distributors can choose to sell 

to non-critical users does not mean that 

the inventory is unavailable to critical 

users. End of year reported data show 

that the inventory on December 31, 

2010, was 1,802,715 kg. Of this amount, 

EPA estimates that 610,715 kg of stocks 

are available for use in 2011. While EPA 

is allocating more critical stock 

allowances than proposed, the amount 

is still less than the ‘‘available stocks.’’ 

EPA expects that holders of prephaseout inventory will be able to 

expend the full amount of CSA 

allocations in order to satisfy the needs 

of critical users. 

Two commenters stated that 

inventory was disproportionately 

distributed among fewer distributors 

and thus is unavailable to critical users. 

EPA collects information annually on 

the number of companies that hold 

inventory. These data support the 

comment that some companies no 

longer maintain any pre-phaseout 

inventory. However, there has not been 

a significant change in the overall 

distribution of inventory among 

companies. Inventory is still held by 

companies in large amounts in both 

California and the Southeast, the two 

largest markets for critical use methyl 

bromide. If some critical users were 

unable to purchase inventory, that is 

due to market decisions by distributors, 

not the quantity of methyl bromide held 

in inventory. 

One commenter stated that the CSA 

allocation failed to consider the effect of 

a catastrophic failure in the domestic 

supply of methyl bromide, either for 

2011 or for future years. The commenter 

states that the critical stock allowance 

levels undercut EPA’s own analysis that 

the amount necessary to address a 

catastrophic failure could be as much as 

58% of the critical need. EPA disagrees 

with the commenter’s conclusion. EPA’s 

supply chain factor calculation for 2011 

indicates that 1,192,000 kg (2,055,200 kg 

× 0.58) is the maximum amount of 

inventory that would be needed in the 

event of a supply disruption. With 

1,802,715 kg of existing inventory for 

2011, EPA’s analysis of ‘‘available 

stocks’’ shows that there are 610,715 kg 

of stocks available for use in 2011. EPA 

is actually allocating only the equivalent 

of 555,200 kg in the form of CSAs due 

to the No Action Assurance provided to 

industry in December 2010. 

EPA also disagrees with the comment 

that it did not consider the effect of this 

rule on availability of stocks for supply 

disruptions in the future. The supply 

chain factor is proportional to the CUE 

amount. The authorization for 2012 and 

potential authorization for 2013 

continue to decline in pace with both 

the inventory and the supply chain 

factor. In 2012, the U.S. was authorized 

1,022,826 kg of critical use methyl 

bromide. EPA estimates that the SCF 

will be 429,000 kg for 2012, which is 

less than the estimated amount of stocks 

in 2012. EPA will discuss this in more 

detail in the proposed 2012 CUE rule. 

EPA reiterates that the SCF is not a 

‘‘reserve’’ or ‘‘strategic inventory’’ of 

methyl bromide. Rather, it is merely an 

analytical tool used to provide greater 

transparency regarding how the Agency 

determines CSA amounts, in cases 

where CSA amounts are greater than the 

amounts stipulated by the Parties. EPA 

does not guarantee that critical users 

will have access to inventory in the 

event of a supply disruption. The timely 

distribution of pre-phaseout stocks 

would depend upon business decisions 

made by suppliers. However, the SCF is 

large enough to give suppliers the 

opportunity to provide uninterrupted 

distribution in the analyzed scenario. 

EPA is allocating CSAs to the entities 

shown in the table for the 2011 control 

period in the amount of 555,200 kg 

(2.2% of baseline). EPA is updating the 

table by incorporating information from 

recent mergers. Therefore, EPA is listing 

a single entry for Royster Clark, UAP 

Southeast (NC), and UAP Southeast (SC) 

called Crop Production Services. The 

CSA allocation for Crop Production 

Services is the sum of the three 

allocations that would have gone to 

Royster Clark and the two UAP 

Southeast entities. 

EPA’s allocation of CSAs is based on 

each company’s proportionate share of 

the aggregate inventory. In 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. 

As stated in the final 2006 CUE Rule, 

if an inventory shortage occurs, EPA 


wreier-aviles on DSK7SPTVN1PROD with RULES
Federal Register / Vol. 76, No. 190 / Friday, September 30, 2011 / Rules and Regulations 60743 

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. 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. In 

past years, EPA has noted 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. A 

commenter to the 2008 CUE Rule stated 

that the aggregate data should be 

confidential if there are fewer than three 

competitors. More than three companies 

continue to sell pre-phaseout inventory. 

While EPA is not adopting a definitive 

threshold number of companies at this 

point, EPA has not received any 

information suggesting that the number 

of companies has declined to the point 

that EPA should consider treating the 

aggregate as confidential information. 

Therefore, EPA will continue making 

aggregate inventory information 

available. The aggregate information for 

2003 through 2010 is available in the 

docket for this rulemaking. 

G. The Criteria in Decisions IX/6 and 

Ex. I/4 

Paragraphs 2 and 6 of Decision XXI/ 

11 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 

2011 control period. A discussion of the 

Agency’s application of the criteria in 

paragraph 1 of Decision IX/6 appears in 

sections V.C, V.D. and V.E. of this 

preamble. 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 section V.F. 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. 

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 and 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. 

EPA received one comment that the 

Agency should adjust production and 

import levels in the 2011 CUE Rule to 

account for research amounts. The 

commenter implied that EPA had a 

previous policy of adjusting the 

production and import level upward to 

provide an allocation for research. This 

is not an accurate characterization of 

EPA’s policy. Prior to 2010, the U.S. 

Nomination did contain a separate 

amount for research. While the Parties 

approved research as a critical use, their 

decisions encouraged the use of 

inventory to meet critical research 

needs. In the corresponding CUE rules, 

EPA responded to the Parties’ decisions 

by reducing the new production/import 

amounts by the research amount, 

leaving the research portion of the total 

critical use exemption to be met through 

the use of CSAs. In the CUN for the 

2011 control period, as in the CUN for 

the 2010 control period, the U.S. 

government did not nominate a 

separate, additional amount specifically 

for research purposes. Nonetheless, both 

the 2010 and 2011 nominations were 

broad enough to cover both research and 

non-research uses. While EPA continues 

to encourage use of inventory for 

research purposes, EPA is not reducing 

the CUA level as it did in pre-2010 CUE 

rules to subtract a research amount 

because no specific research amount has 

been identified. EPA also is not 

increasing the CUA allocation because 

the Parties did not authorize specific 

amounts for this purpose in addition to 

the authorization for pre-plant and postharvest uses. EPA understands the 

Parties’ decision as including the 

research amounts in the amounts 

authorized for pre-plant and postharvest uses. As discussed in the 

preamble to the 2010 CUE rule (75 FR 

23179), research is a key element of the 

critical use process. EPA is retaining 

research on the crops shown in the table 

in Appendix L to subpart A as a critical 

use of methyl bromide. While EPA 

encourages use of pre-phaseout 

inventory for research purposes, 

researchers may use either newly 

produced methyl bromide or prephaseout inventory for field, postharvest, and emission minimization 

studies requiring the use of methyl 

bromide. 

H. 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. 


wreier-aviles on DSK7SPTVN1PROD with RULES
60744 Federal Register / Vol. 76, No. 190 / Friday, September 30, 2011 / Rules and Regulations 

The Agency encourages researchers and 

users who are successfully utilizing 

such techniques to inform EPA of their 

experiences and to provide such 

information with their critical use 

applications. 

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 

action 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 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.

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 

rule only affects 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 2008 down 

to 2,000 end users of critical use methyl 

bromide. EPA believes that the number 

continues to decline as growers stop 

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 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 


wreier-aviles on DSK7SPTVN1PROD with RULES
Federal Register / Vol. 76, No. 190 / Friday, September 30, 2011 / Rules and Regulations 60745 

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. We 

have therefore concluded that this 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 

provides an exemption for the 

manufacture and use of a phased out 

compound and does 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 does 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 rule 

primarily affects producers, suppliers, 

importers, and exporters and users of 

methyl bromide. Thus, Executive Order 

13132 does not apply to this 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 

solicited comment on this 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. 

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 

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 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 does not have a 

significant adverse effect on the supply, 

distribution, or use of energy. This 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 

rule does not 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 rule does not 

involve technical standards therefore 

EPA did not consider 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 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 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. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A Major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective September 30, 2011. 

List of Subjects in 40 CFR Part 82 

Environmental protection, Ozone 

depletion, Chemicals, Exports, Imports. 


wreier-aviles on DSK7SPTVN1PROD with RULES
60746 Federal Register / Vol. 76, No. 190 / Friday, September 30, 2011 / Rules and Regulations 

Dated: September 26, 2011. 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the 

preamble, 40 CFR part 82 is 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 

2011 Critical use allowances for pre-plant 

uses * (kilograms) 

2011 Critical use allowances for post-harvest 

uses * (kilograms) 

Great Lakes Chemical Corp. A Chemtura Company .............................................................. 839,966 71,584 

Albemarle Corp. ....................................................................................................................... 345,413 29,437 

ICL–IP America ........................................................................................................................ 190,883 16,267 

TriCal, Inc ................................................................................................................................ 5,943 507 

Total * * .............................................................................................................................. 1,382,206 117,794 

* 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 2011 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—555,200 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 2011 CONTROL PERIOD 

Column A 

Approved Critical Uses 

Column B 

Approved Critical User and Location of Use 

Column C 

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, 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) Growers in Alabama, Arkansas, Georgia, 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) International Paper and its subsidiaries limited to 

growing locations in Alabama, Arkansas, Georgia, 

South Carolina, and Texas.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 


wreier-aviles on DSK7SPTVN1PROD with RULES
Federal Register / Vol. 76, No. 190 / Friday, September 30, 2011 / Rules and Regulations 60747 

Column A 

Approved Critical Uses 

Column B 

Approved Critical User and Location of Use 

Column C 

Limiting Critical Conditions that exist, or that the 

approved critical user reasonably expects could arise 

without methyl bromide fumigation: 

(c) 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. 

(d) Weyerhaeuser Company and its subsidiaries limited 

to growing locations in Alabama, Arkansas, North 

Carolina, and South Carolina.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode or worm infestation. 

(e) Weyerhaeuser Company and its subsidiaries limited 

to growing locations in Oregon and Washington.

Moderate to severe yellow nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

(f) Michigan 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, 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. 

(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. 


wreier-aviles on DSK7SPTVN1PROD with RULES
60748 Federal Register / Vol. 76, No. 190 / Friday, September 30, 2011 / Rules and Regulations 

Column A 

Approved Critical Uses 

Column B 

Approved Critical User and Location of Use 

Column C 

Limiting Critical Conditions that exist, or that the 

approved critical user reasonably expects could arise 

without methyl bromide fumigation: 

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

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

(b) North Carolina and Tennessee growers ................... Moderate to severe black root rot. 

Moderate to severe root-knot nematode infestation. 

Moderate to severe yellow and purple nutsedge 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 processed food, cheese, herbs and 

spices, and spaces and equipment in associated 

processing and storage facilities.

Moderate to severe beetle or moth infestation. 

Presence of sensitive electronic equipment subject to 

corrosion. 

Time to transition to an alternative. 

Commodities ........................ California entities storing walnuts, beans, 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. 

[FR Doc. 2011–25273 Filed 9–29–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Federal Emergency Management 

Agency 

44 CFR Part 65 

[Docket ID FEMA–2011–0002; Internal 

Agency Docket No. FEMA–B–1219] 

Changes in Flood Elevation 

Determinations 

AGENCY: Federal Emergency 

Management Agency, DHS. 

ACTION: Interim rule. 

SUMMARY: This interim rule lists 

communities where modification of the 

Base (1% annual-chance) Flood 

Elevations (BFEs) is appropriate because 

of new scientific or technical data. New 

flood insurance premium rates will be 

calculated from the modified BFEs for 

new buildings and their contents. 

DATES: These modified BFEs are 

currently in effect on the dates listed in 

the table below and revise the Flood 

Insurance Rate Maps (FIRMs) in effect 

prior to this determination for the listed 

communities. 

From the date of the second 

publication of these changes in a 

newspaper of local circulation, any 

person has ninety (90) days in which to 

request through the community that the 

Deputy Federal Insurance and 

Mitigation Administrator reconsider the 

changes. The modified BFEs may be 

changed during the 90-day period. 

ADDRESSES: The modified BFEs for each 

community are available for inspection 

at the office of the Chief Executive 

Officer of each community. The 

respective addresses are listed in the 

table below. 

FOR FURTHER INFORMATION CONTACT: Luis 

Rodriguez, Chief, Engineering 

Management Branch, Federal Insurance 

and Mitigation Administration, Federal 

Emergency Management Agency, 500 C 

Street, SW., Washington, DC 20472, 

(202) 646–4064, or (e-mail) 

Luis.Rodriguez3@fema.dhs.gov. 

SUPPLEMENTARY INFORMATION: The 

modified BFEs are not listed for each 

community in this interim rule. 

However, the address of the Chief 

Executive Officer of the community 


wreier-aviles on DSK7SPTVN1PROD with RULES