EO 13563/12866 Review -- 2011 MeBr CUE Final rule summary of

interagency comments

Frey, Nathan J. to: Jeremy Arling 09/07/2011 11:14 AM

History: This message has been forwarded.

Attached please find interagency comments under EO 13563/12866 on the 2011 MeBr CUE final rule. 

Please let me know if you have any questions. 

EO12866MeBrCUE2060-AP92Final20110801_summaryofinteragencycomments.docx
[Type text]

Summary of Interagency Working Comments on Draft Language under

EO12866/13563 Interagency Review. Subject to Further Policy Review.

EO12866MeBrCUE2060-AP92Final20110801

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 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.

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.

Field Code Changed
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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

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
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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

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 
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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, e.g., farmers of vegetable 

crops, fruits and nursery stock; and owners of stored food commodities and structures such as 

grain mills and processors.

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 

Comment [A1]: I am assuming that the minor 

tweaks that were suggested to the draft 2012 rule 

will be applied as well. Won’t make those additional 

changes from here on out. 
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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 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 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 
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(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 ozonedepleting 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.
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IV. What Is the Legal Authority for Exempting the Production and Import of Methyl 

Bromide for Critical Uses Authorized by the Parties to the Montreal Protocol?

In October 1998, the U.S. Congress amended the Clean Air Act (CAA) to prohibit the 

termination of production of methyl bromide prior to January 1, 2005, to require EPA to bring 

the U.S. phaseout of methyl bromide in line with the schedule specified under the Protocol, and 

to authorize EPA to provide certain exemptions. These amendments were contained in Section 

764 of the 1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act (Pub. 

L. 105-277, October 21, 1998) and were codified in section 604 of the CAA, 42 U.S.C. 7671c. 

The amendment that specifically addresses the critical use exemption appears at section 

604(d)(6), 42 U.S.C. 7671c(d)(6). EPA revised the phaseout schedule for methyl bromide 

production and consumption in a direct final rulemaking on November 28, 2000 (65 FR 70795), 

which allowed for the phased reduction in methyl bromide consumption specified under the 

Protocol and extended the phaseout to 2005. 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.
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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 circumstances of the nomination.” These criteria are reflected in EPA’s definition 

of “critical use” at 40 CFR 82.3.

Comment [A2]: As suggested for 2012 rule. 

Again, won’t go through and make all the suggested 

changes – think someone from EPA already has. 

Deleted: T

Deleted: initially 
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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 independent 

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 
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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 
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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 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 
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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

 

1 NPMA, National Pest Management Association, includes both food processing structures and processed foods.
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 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 
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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 prephaseout 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 
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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 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 
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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 

Deleted: 
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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 endusers 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. EPA did not 

propose to reduce the amount of new production and import by 72,867 kg for the 2011 rule 

because EPA was honoring 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 

Deleted: is 

Comment [A3]: I find the way this is written 

confusing. This refers to the proposed rulemaking, 

not the current rulemaking. In other words, EPA is 

changing its approach and is not reducing the total 

authorization based on carryover. One suggestion is 

to change the “is” to “was”. Alternatively, maybe 

this could be clarified by saying something like: 

Instead, EPA has initially proposed to reduce...
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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 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 

Deleted: -
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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, 
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EPA determined that a lump-sum, or universal, allocation, modified to include distinct caps for 

pre-plant and post-harvest uses, was the most efficient and least burdensome approach that 

would achieve the desired environmental results, and that a sector-by-sector approach would 

pose significant administrative and practical difficulties. For the reasons discussed in the 

preamble to the 2009 CUE rule (74 FR 19894), the Agency believes that under the approach 

adopted in the Framework Rule, the actual critical use will closely follow the sector breakout 

listed in the Parties’ decisions, but continues to welcome comments on this issue.

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 CSAs and a prohibition on the sale of pre-
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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 
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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 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 

Deleted: , or any level,

Comment [A4]: Suggest deleting this. Although 

accurate, I worry that this may be used by some tto 

argue that we are therefore not bound by the upper 

limit that is approved by the Parties.

Comment [A5]: Why is the CSA different from 

the “available stocks”?
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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 noncritical 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.
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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 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 
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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. 
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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 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. 
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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 
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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 on top of the authorization for pre-plant and 

post-harvest uses. EPA understands the Parties’ decision as including the research amounts in the 

amounts authorized for pre-plant 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 critical use 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 studies requiring the use of methyl bromide.

H. Emissions Minimization

Comment [A6]: in addition to?
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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 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
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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 OMB 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 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 

Field Code Changed

Field Code Changed
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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.

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
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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 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 
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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
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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 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 
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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 lowincome 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.
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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

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:

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

Phaseout of Methyl Bromide (Page 39 of 43)
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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 PrePlant 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.

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.
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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

(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
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(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
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(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

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
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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