ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2008-0321; FRL-]

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 

pre-phaseout 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.

ADDRESSES: EPA has established a docket for this action under Docket ID No. EPAHQ-OAR-2008-0321. All documents in the docket are listed on the 

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., 
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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, N.W., Washington, D.C., 20460. You may also visit 

the methyl bromide section of the ozone layer protection website at 

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 pre-phaseout inventory for proposed critical 

uses in 2011. 

Table of Contents
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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
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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 

Deleted: , e.g.,

Deleted: ;
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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 broadspectrum 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. 
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III. What Is the Background to the Phaseout Regulations for Ozone-Depleting 

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 ozonedepleting 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. 
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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?
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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 2010. 

Under authority of section 604(d)(6) of the CAA, this action lists approved critical uses 

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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, 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 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 

Deleted: The

Deleted: initially
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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 

Deleted: independent
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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 
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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. 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 pre-plant 

alternatives, specifically the re-emergence of plant pests after several years of fumigating 
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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 
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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 

 

1 NPMA, National Pest Management Association, includes both food processing structures and processed 

foods.
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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 Deleted: .
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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 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 
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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 pre-phaseout 

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 
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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 

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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 

Deleted: for the 2011 rule 

Deleted: is honoring
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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 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

Deleted: -
21 of 44

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-bysector 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 
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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.

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 post-harvest or pre-plant 

sectors. 

Finally, one commenter noted a typographical error in the table in 40 CFR 

82.8(c)(1). The proposed post-harvest 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 

Deleted: typo
23 of 44

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 
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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 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 

Deleted: , or any level,
25 of 44

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. 

Deleted: 
26 of 44

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 pre-phaseout 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 

x 0.58) is the maximum amount of inventory that would be needed in the event of a 
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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 
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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 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 
29 of 44

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 
30 of 44

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
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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 post-harvest uses. EPA understands the 

Parties’ decision as including the research amounts in the amounts authorized for preplant and post-harvest 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 pre-phaseout inventory for 

field, post-harvest, 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 

Deleted: on top of

Deleted: critical use 
32 of 44

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 high-barrier 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 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.

Deleted: OMB
33 of 44

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 notice-and-comment rulemaking requirements under the 

Administrative Procedure Act or any other statute unless the agency certifies that the rule 

will not have a significant economic impact on a substantial number of small entities. 

Small entities include small businesses, small organizations, and small governmental 

jurisdictions. For purposes of assessing the impacts of this 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-for-profit enterprise which is independently owned and 

operated and is not dominant in its field.
34 of 44

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 
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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 one-third of the entities may be small businesses. In addition, other categories of 

affected entities do not contain small businesses based on the above description.

After considering the economic impacts of this 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. We have therefore concluded that this rule would relieve regulatory burden for 

all small entities.

D. Unfunded Mandates Reform Act
36 of 44

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 
37 of 44

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 F.R. 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 No. 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 
38 of 44

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 
39 of 44

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 [Insert date of publication].

List of Subjects in 40 CFR Part 82

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

DATE: ____________________

______________________________________________

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

Protection of Stratospheric Ozone: The 2011 Critical Use Exemption from the 

Phaseout of Methyl Bromide (Page 39 of 44)

Deleted: <sp>
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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 Helena Chemical Co. Prosource One 

Bill Clark Pest Control, Inc. Hendrix & Dail Reddick Fumigants

Burnside Services, Inc. Hy Yield Products Trical Inc.
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Cardinal Professional Products ICL-IP America Trident Agricultural Products

Chemtura Corp. Industrial Fumigant Company Univar

Crop Production Services Pacific Ag Supplies Inc. Western Fumigation

Degesch America, Inc. Pest Fog Sales Corp.

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 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, 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
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(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
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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

(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
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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