```

[Federal Register: May 3, 2010 (Volume 75, Number 84)]
[Rules and Regulations]               
[Page 23167-23186]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03my10-4]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2009-0351; FRL-9144-5]
RIN 2060-AP62

 
Protection of Stratospheric Ozone: The 2010 Critical Use 
Exemption From the Phaseout of Methyl Bromide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This final rule authorizes uses of methyl bromide that qualify 
for the 2010 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 2010. EPA is taking action under the 
authority of the Clean Air Act to reflect a recent consensus decision 
taken by the Parties to the Montreal Protocol on Substances that 
Deplete the Ozone Layer at the Twentieth Meeting of the Parties.

DATES: This rule is effective on May 3, 2010.

ADDRESSES: EPA has established a docket for this action identified 
under EPA-HQ-OAR-2009-0351. All documents in the docket are listed on 
the http://www.regulations.gov 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 only through http://www.regulations.gov or in 
hard copy. To obtain copies of materials in hard copy, please call the 
EPA Docket Center at (202) 564-1744 between the hours of 8:30 a.m.-4:30 
p.m. E.S.T., Monday-Friday, excluding legal holidays, to schedule an 
appointment. The EPA Docket Center's Public Reading Room address is 
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, 
DC.

FOR FURTHER INFORMATION CONTACT: Jeremy Arling by telephone at (202) 
343-9055, or by e-mail at arling.jeremy@epa.gov or by mail at U.S. 
Environmental Protection Agency, Stratospheric Protection Division, 
Stratospheric Program Implementation Branch (6205J), 1200 Pennsylvania 
Avenue, NW., Washington, DC, 20460. You may also visit the Ozone 
Depletion Web site of EPA's Stratospheric Protection Division at http://www.epa.gov/ozone/strathome.html for further information about EPA's 
Stratospheric Ozone Protection regulations, the science of ozone layer 
depletion, and related topics.

SUPPLEMENTARY INFORMATION: This final 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 2010. 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 
authorizing the uses that qualify for the 2010 critical use exemption 
as well as specific amounts of methyl bromide that may be produced, 
imported, or supplied from pre-phaseout inventory for critical uses in 
2010.
    Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. 
Chapter 5, generally provides that rules may not take effect earlier 
than 30 days after they are published in the Federal Register. EPA is 
issuing this final rule under section 307(d)(1) of the Clean Air Act, 
which states: ``The provisions of section 553 through 557 * * * of 
Title 5 shall not, except as expressly provided in this section, apply 
to actions to which this subsection applies.'' Thus, section 553(d) of 
the APA does not apply to this rule. EPA is nevertheless acting 
consistently with the policies underlying APA section 553(d) in making 
this rule effective on May 3, 2010. APA section 553(d) provides an 
exception for any action that grants or recognizes an exemption or 
relieves a restriction. This final rule grants an exemption from the 
phaseout of methyl bromide.

Table of Contents

I. General Information
    Regulated Entities
II. What is methyl bromide?

[[Page 23168]]

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
    1. Background of Critical Use Amounts
    2. Calculation of Available Pre-Phaseout Inventory
    3. Approach for Determining Critical Use Amounts
    4. Treatment of Carryover Material
    5. Methyl Bromide Alternatives
    6. Summary of Calculations
    E. The Criteria in Decisions IX/6 and Ex. I/4
    F. Emissions Minimization
    G. Critical Use Allowance Allocations
    H. Critical Stock Allowance Allocations
    I. Stocks of Methyl Bromide
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    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

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; users of methyl bromide, 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 is used in the 
U.S. and throughout the world as a fumigant to control a variety of 
pests such as insects, weeds, rodents, pathogens, and nematodes. 
Information on methyl bromide can be found at http://www.epa.gov/ozone/mbr.
    Methyl bromide is also regulated by EPA under the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA) and other statutes 
and regulatory authority, as well as by States under their own statutes 
and regulatory authority. Under FIFRA, methyl bromide is a restricted 
use pesticide. Restricted use pesticides are subject to Federal and 
State requirements governing their sale, distribution, and use. Nothing 
in this rule implementing the Clean Air Act is intended to derogate 
from provisions in any other Federal, State, or local laws or 
regulations governing actions including, but not limited to, the sale, 
distribution, transfer, and use of methyl bromide. Entities affected by 
provisions of 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 regulations in this action are intended only to implement the CAA 
restrictions on the production, consumption, and use of methyl bromide 
for critical uses exempted from the phaseout of methyl bromide.

III. What is the background to the phaseout regulations for 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. The regulatory program was 
originally published in the Federal Register on August 12, 1988 (53 FR 
30566), in response to the 1987 signing and subsequent ratification of 
the Montreal Protocol on Substances that Deplete the Ozone Layer 
(Montreal Protocol). The Montreal Protocol is the international 
agreement aimed at reducing and eliminating the production and 
consumption of stratospheric ozone-depleting substances. The U.S. was 
one of the original signatories to the 1987 Montreal Protocol and the 
U.S. ratified the Protocol on April 12, 1988. Congress then enacted, 
and President George H.W. Bush signed into law, the Clean Air Act 
Amendments of 1990 (CAAA of 1990) which included Title VI on 
Stratospheric Ozone Protection, codified as 42 U.S.C. Chapter 85, 
Subchapter VI, to ensure that the United States could satisfy its 
obligations under the Protocol. EPA issued regulations to implement 
this legislation and has since amended the regulations as needed.
    Methyl bromide was added to the Protocol as an ozone-depleting 
substance in 1992 through the Copenhagen Amendment to the Protocol. The 
Parties to the Montreal Protocol (Parties) agreed that each 
industrialized country's level of methyl bromide production and 
consumption in 1991 should be the baseline for establishing a freeze in 
the level of methyl bromide production and consumption for 
industrialized countries. EPA published a final rule in the Federal 
Register on December 10, 1993 (58 FR 65018), listing methyl bromide as 
a Class I, Group VI controlled substance, freezing U.S. production and 
consumption at this 1991 baseline level of 25,528,270 kilograms, and 
setting forth the percentage of baseline allowances for methyl bromide 
granted to companies in each control period (each calendar year) until 
2001, when the complete phaseout would occur. This phaseout date was 
established in response to a petition filed in 1991 under Sections 
602(c)(3) and 606(b) of the CAAA of 1990, requesting that EPA list 
methyl bromide as a Class I substance and phase out its production and 
consumption. This date was consistent with Section 602(d) of the CAAA 
of 1990, which for newly listed Class I ozone-depleting substances 
provides that ``no extension [of the phaseout schedule in section 604] 
under this subsection may extend the date for termination of production 
of any class I substance to a date more than 7 years after January 1 of 
the year after the year in which the substance is added to the list of 
class I substances.''
    At the Seventh Meeting of the Parties (MOP) in 1995, the Parties 
made adjustments to the methyl bromide control measures and agreed to 
reduction steps and a 2010 phaseout

[[Page 23169]]

date for industrialized countries with exemptions permitted for 
critical uses. At that time, the U.S. continued to have a 2001 phaseout 
date in accordance with Section 602(d) of the CAAA of 1990. At the 
Ninth MOP in 1997, the Parties agreed to further adjustments to the 
phaseout schedule for methyl bromide in industrialized countries, with 
reduction steps leading to a 2005 phaseout.

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 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 to the 2006, 2007, 2008, and 2009 control 
periods. Under authority of section 604(d)(6) of the CAA, this action 
specifies the uses that will qualify as approved critical uses in 2010 
and the amount of methyl bromide that may be produced, imported, or 
supplied from inventory to satisfy those uses.
    This action reflects Decision XX/5, taken at the Twentieth Meeting 
of the Parties in November 2008 and Decision XXI/11, taken at the 
Twenty First Meeting of the Parties in November 2009. In accordance 
with Article 2H(5), the Parties have issued several Decisions 
pertaining to the critical use exemption. These include Decisions IX/6 
and Ex. I/4, which set forth criteria for review of proposed critical 
uses. The status of Decisions is addressed in NRDC v. EPA, (464 F.3d 1, 
DC Cir. 2006) and in EPA's ``Supplemental Brief for the Respondent,'' 
filed in NRDC v. EPA and available in the docket for this action. In 
this rule, 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). 
The criteria for the exemption initially appeared in Decision IX/6. In 
that Decision, the Parties agreed that ``a use of methyl bromide should 
qualify as `critical' only if the nominating Party determines that: (i) 
The specific use is critical because the lack of availability of methyl 
bromide for that use would result in a significant market disruption; 
and (ii) there are no technically and economically feasible 
alternatives or substitutes available to the user that are acceptable 
from the standpoint of environment and public health and are suitable 
to the crops and circumstances of the nomination.'' These criteria are 
reflected in EPA's definition of ``critical use'' at 40 CFR 82.3.
    In response to EPA's request for critical use exemption 
applications published in the Federal Register on April 17, 2007 (72 FR 
19197), applicants provided data on the technical and economic 
feasibility of using alternatives to methyl bromide. Applicants also 
submitted data on their use of methyl bromide, research programs into 
the use of alternatives to methyl bromide, and efforts to minimize use 
and emissions of methyl bromide.
    EPA's Office of Pesticide Programs reviewed 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 reviewed other parameters of the 
exemption applications such as dosage and emissions minimization 
techniques and applicants' research or transition plans. This 
assessment process culminated 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, reviewed the CUNs of the Parties and made 
recommendations to the Parties on the nominations. The Parties then 
took 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 consulted 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 provided an opportunity for public comment on the 
amounts of methyl bromide that the Agency has determined to be 
necessary for critical uses and the uses that the Agency has determined 
meet the criteria of the critical use exemption.
    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 24, 2008, the U.S. Government (USG) submitted the sixth 
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 2010 critical uses. In February 
2008, MBTOC sent questions to the USG concerning technical and economic 
issues in the 2010 nomination. The USG transmitted responses to MBTOC 
on

[[Page 23170]]

April 10, 2008. The USG provided additional written responses on April 
16, 2009, to questions asked at MBTOC's meeting in Tel Aviv. These 
documents, together with reports by the advisory bodies noted above, 
are in the public docket for this rulemaking. The determination in this 
final rule reflects the analysis contained in those documents.

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), and 74 FR 19878 (calendar year 2009).
    Today's action authorizes specific critical uses for 2010 and the 
amounts of Critical Use Allowances (CUAs) and Critical Stock Allowances 
(CSAs) allocated for those uses. A CUA is the privilege granted through 
40 CFR part 82 to produce or import 1 kg of methyl bromide for an 
approved critical use during the specified control period. These 
allowances expire at the end of the control period and, as explained in 
the Framework Rule, are not bankable from one year to the next. A CSA 
is the right granted through 40 CFR part 82 to sell 1 kg of methyl 
bromide from inventory produced or imported prior to the January 1, 
2005, phaseout date for an approved critical use during the specified 
control period.
    The critical uses authorized in this rule are the uses included in 
the USG's sixth CUN and authorized by the Parties in Decision XX/5 as 
well as the supplemental authorization in Decision XXI/11. EPA is 
utilizing the existing regulatory framework for critical uses. This 
framework is discussed in Section V.D.1 of the preamble. EPA proposed 
and took comment on a modification to the existing framework to ensure 
that the level of new production and import does not increase from one 
year to the next. EPA is not finalizing that modification to the 
existing framework in today's action because the end-of-year reported 
data shows that it would be unnecessary. This is discussed in more 
detail in Section V.D.3 of the preamble. EPA may consider that 
modification in future CUE rulemakings.

C. Critical uses

    In Decision XX/5, taken in November 2008, the Parties to the 
Protocol agreed ``to permit, for the agreed critical use categories for 
2010 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 2010 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 XX/5 for the United States:
     Commodities.
     NPMA food processing structures (cocoa beans removed).\1\
---------------------------------------------------------------------------

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

     Mills and processors.
     Dried cured pork.
     Cucurbits.
     Eggplant--field.
     Forest nursery seedlings.
     Nursery stock--fruit, nut, flower.
     Orchard replant.
     Ornamentals.
     Peppers--field.
     Strawberries--field.
     Strawberry runners.
     Tomatoes--field.
     Sweet potato slips.
    The agreed U.S. critical use levels for 2010 total 3,235,474 
kilograms (kg), which is equivalent to 12.7% of the U.S. 1991 methyl 
bromide consumption baseline of 25,528,270 kg. The maximum amount of 
allowable new production and import for U.S. critical uses is 2,765,474 
kg. This is a combination of the level in Table D of Decision XX/5, 
which is 2,763,456 kg, and the level in Table B of Decision XXI/11, 
which is 2,018 kg. Similarly, the maximum amount for use on critical 
uses is 2,765,474 kg. This is equal to the level in Table C of Decision 
XX/5, which is 2,763,456 kg (10.8% of baseline), as well as an 
additional 2,018 kg authorized for 2010 in Table A of Decision XXI/11 
for southeast strawberry nurseries. Both Decisions noted that these 
amounts were to account for available stocks.
    EPA is allocating a total critical use exemption in 2010 of 
2,983,883 kg (11.7% of baseline). This total amount is comprised of new 
production or import of methyl bromide for critical uses at up to 
1,955,775 kg (7.7% of baseline), and pre-phaseout inventory (i.e., 
stocks) for critical uses of up to 1,028,108 kg (4.0% of baseline). 
These values differ from the proposed rule for three reasons. First, 
the rate of inventory drawdown was less than EPA estimated, thus there 
are ``available stocks'' for 2010. Second, EPA has updated the total 
U.S. authorization, which is the starting point for the ``available 
stocks'' calculation, to include the 2,018 kg authorized in November 
2010 in Decision XXI/11. Further information regarding this 
supplemental authorization appears in the Notice of Proposed Rulemaking 
(74 FR 61084). Third, following prior practice, EPA is subtracting the 
carryover amount from the authorized production amount. EPA has 
adjusted the carryover to reflect late sales reports.
    This final rule modifies 40 CFR part 82, subpart A, appendix L to 
reflect the agreed critical use categories identified in Decision XX/5 
and Decision XXI/11 for the 2010 control period. Additionally, the 
Agency is amending the table of critical uses based, in part, on the 
technical analysis contained in the 2010 U.S. nomination that assesses 
data submitted by applicants to the CUE program as well as public and 
proprietary data on the use of methyl bromide and its alternatives. EPA 
sought comment on the technical analysis contained in the U.S. 
nomination (available for public review in the docket to this 
rulemaking), as well as information regarding changes to the 
registration or use of alternatives that have transpired after the 2010 
U.S. nomination was submitted. Such information has the potential to 
alter the technical or economic feasibility of an alternative and could 
thus cause EPA to modify the analysis that underpins EPA's 
determination as to which uses and what amounts of methyl bromide 
qualify for the CUE. EPA received comments with regard to sulfuryl 
fluoride and iodomethane. These comments did not provide any new data 
justifying changes to EPA's analysis. These comments are discussed in 
Section V.D.5 ``Alternatives'' of the preamble below. EPA recognizes 
that as the market for alternatives evolves, the thresholds for what 
constitutes ``significant market disruption'' or ``technical and 
economic feasibility'' change. For example, the adoption of methyl 
iodide in the southeast U.S

[[Page 23171]]

could transform the circumstances under which these analyses occur. 
Based on the information described above, EPA is determining that the 
uses in Table I: Approved Critical Uses, with the limiting critical 
conditions specified, qualify to obtain and use critical use methyl 
bromide in 2010:

                                         Table I--Approved Critical Uses
----------------------------------------------------------------------------------------------------------------
                                                                                   Limiting critical conditions
                                                                                     that exist, or that the
                                                  Approved critical user and          approved critical user
            Approved critical uses                      location of use           reasonably expects could arise
                                                                                     without  methyl bromide
                                                                                            fumigation
Column A                                       Column B........................  Column C
----------------------------------------------------------------------------------------------------------------
                                                 PRE-PLANT USES
----------------------------------------------------------------------------------------------------------------
Cucurbits....................................  (a) Growers in Delaware,          Moderate to severe soilborne
                                                Maryland, and Michigan.           disease infestation
                                               (b) Growers in Georgia and        Moderate to severe yellow or
                                                Southeastern U.S. limited to      purple nutsedge infestation.
                                                growing locations in Alabama,    Moderate to severe soilborne
                                                Arkansas, Kentucky, Louisiana,    disease infestation.
                                                North Carolina, South Carolina,  Moderate to severe root knot
                                                Tennessee, and Virginia.          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.
                                               (c) Michigan growers............  Moderate to severe soilborne
                                                                                  disease infestation.
----------------------------------------------------------------------------------------------------------------
Forest Nursery Seedlings.....................  (a) Growers in Alabama,           Moderate to severe yellow or
                                                Arkansas, Georgia, Louisiana,     purple nutsedge infestation.
                                                Mississippi, North Carolina,     Moderate to severe soilborne
                                                Oklahoma, South Carolina,         disease infestation.
                                                Tennessee, Texas, and Virginia.  Moderate to severe nematode
                                                                                  infestation.
                                               (b) International Paper and its   Moderate to severe yellow or
                                                subsidiaries limited to growing   purple nutsedge infestation.
                                                locations in Alabama, Arkansas,  Moderate to severe soilborne
                                                Georgia, South Carolina, and      disease infestation.
                                                Texas.
                                               (c) Government-owned seedling     Moderate to severe weed
                                                nurseries in Illinois, Indiana,   infestation including purple
                                                Kentucky, Maryland, Missouri,     and yellow nutsedge
                                                New Jersey, Ohio, Pennsylvania,   infestation.
                                                West Virginia, and Wisconsin.    Moderate to severe Canada
                                                                                  thistle infestation.
                                                                                 Moderate to severe nematode
                                                                                  infestation.
                                                                                 Moderate to severe soilborne
                                                                                  disease infestation.
                                               (d) Weyerhaeuser Company and its  Moderate to severe yellow or
                                                subsidiaries limited to growing   purple nutsedge infestation.
                                                locations in Alabama, Arkansas,  Moderate to severe soilborne
                                                North Carolina, and South         disease infestation.
                                                Carolina.                        Moderate to severe nematode or
                                                                                  worm infestation.
                                               (e) Weyerhaeuser Company and its  Moderate to severe yellow
                                                subsidiaries limited to growing   nutsedge infestation.
                                                locations in Oregon and          Moderate to severe soilborne
                                                Washington.                       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.
----------------------------------------------------------------------------------------------------------------
Orchard Nursery Seedlings....................  (a) Members of the Western        Moderate to severe nematode
                                                Raspberry Nursery Consortium      infestation.
                                                limited to growing locations in  Medium to heavy clay soils.
                                                Washington, and members of the   Local township limits
                                                California Association of         prohibiting 1,3-
                                                Nursery and Garden Centers        dichloropropene.
                                                representing Deciduous Tree
                                                Fruit Growers.
                                               (b) California rose nurseries...  Moderate to severe nematode
                                                                                  infestation.
                                                                                 Local township limits
                                                                                  prohibiting 1,3-
                                                                                  dichloropropene.
----------------------------------------------------------------------------------------------------------------
Orchard Replant..............................  (a) California stone fruit,       Moderate to severe nematode
                                                table and raisin grape, wine      infestation.
                                                grape, walnut, and almond        Moderate to severe soilborne
                                                growers.                          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.

[[Page 23172]]

                                               (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.
                                               (c) Michigan herbaceous           Moderate to severe nematode
                                                perennial growers.                infestation.
                                                                                 Moderate to severe soilborne
                                                                                  disease infestation.
                                                                                 Moderate to severe yellow
                                                                                  nutsedge and other weed
                                                                                  infestation.
                                               (d) New York growers............  Moderate to severe soilborne
                                                                                  disease infestation.
                                                                                 Moderate to severe nematode
                                                                                  infestation.
----------------------------------------------------------------------------------------------------------------
Peppers......................................  (a) Alabama, Arkansas, Kentucky,  Moderate to severe yellow or
                                                Louisiana, North Carolina,        purple nutsedge infestation.
                                                South Carolina, Tennessee, and   Moderate to severe nematode
                                                Virginia growers.                 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.
                                               (d) Michigan growers............  Moderate to severe soilborne
                                                                                  disease infestation.
----------------------------------------------------------------------------------------------------------------
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,   Moderate to severe yellow or
                                                Illinois, Kentucky, Louisiana,    purple nutsedge infestation.
                                                Maryland, Mississippi,           Moderate to severe nematode
                                                Missouri, New Jersey, North       infestation.
                                                Carolina, Ohio, South Carolina,  Moderate to severe black root
                                                Tennessee, and Virginia growers.  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  Moderate to severe black root
                                                growers.                          rot.
                                                                                 Moderate to severe root-knot
                                                                                  nematode infestation.
                                                                                 Moderate to severe yellow and
                                                                                  purple nutsedge infestation.
----------------------------------------------------------------------------------------------------------------
Sweet Potato Slips...........................  (a) California growers..........  Local township limits
                                                                                  prohibiting 1,3-
                                                                                  dichloropropene.
----------------------------------------------------------------------------------------------------------------
Tomatoes.....................................  (a) Michigan growers............  Moderate to severe soilborne
                                                                                  disease infestation.
                                                                                 Moderate to severe fungal
                                                                                  pathogen infestation.

[[Page 23173]]

                                               (b) Alabama, Arkansas, Florida,   Moderate to severe yellow or
                                                Georgia, Kentucky, Louisiana,     purple nutsedge infestation.
                                                Mississippi, North Carolina,     Moderate to severe soilborne
                                                South Carolina, Tennessee, and    disease infestation.
                                                Virginia growers.                Moderate to severe nematode
                                                                                  infestation.
                                                                                 Restrictions on alternatives
                                                                                  due to karst topographical
                                                                                  features and, in Florida,
                                                                                  soils not supporting seepage
                                                                                  irrigation.
                                               (c) Maryland growers............  Moderate to severe fungal
                                                                                  pathogen infestation.
----------------------------------------------------------------------------------------------------------------
                                                POST-HARVEST USES
----------------------------------------------------------------------------------------------------------------
Food Processing..............................  (a) Rice millers in the U.S. who  Moderate to severe beetle,
                                                are members of the USA Rice       weevil, or moth infestation.
                                                Millers Association.             Presence of sensitive
                                                                                  electronic equipment subject
                                                                                  to corrosion.
                                                                                 Time to transition to an
                                                                                  alternative.
                                               (b) Pet food manufacturing        Moderate to severe beetle,
                                                facilities in the U.S. who are    moth, or cockroach
                                                members of the Pet Food           infestation.
                                                Institute.                       Presence of sensitive
                                                                                  electronic equipment subject
                                                                                  to corrosion.
                                                                                 Time to transition to an
                                                                                  alternative.
                                               (c) Members of the North          Moderate to severe beetle
                                                American Millers' Association     infestation.
                                                in the U.S..                     Presence of sensitive
                                                                                  electronic equipment subject
                                                                                  to corrosion.
                                                                                 Time to transition to an
                                                                                  alternative.
                                               (d) Members of the National Pest  Moderate to severe beetle or
                                                Management Association treating   moth infestation.
                                                processed food, cheese, herbs    Presence of sensitive
                                                and spices, and spaces and        electronic equipment subject
                                                equipment in associated           to corrosion.
                                                processing and storage           Time to transition to an
                                                facilities..                      alternative.
----------------------------------------------------------------------------------------------------------------
Commodities..................................  (a) California entities storing   Rapid fumigation required to
                                                walnuts, beans, dried plums,      meet a critical market window,
                                                figs, raisins, and dates (in      such as during the holiday
                                                Riverside county only) in         season.
                                                California.
----------------------------------------------------------------------------------------------------------------
Dry Cured Pork Products......................  (a) Members of the National       Red legged ham beetle
                                                Country Ham Association and the   infestation.
                                                Association of Meat Processors,  Cheese/ham skipper infestation.
                                                Nahunta Pork Center (North       Dermested beetle infestation.
                                                Carolina), and Gwaltney and      Ham mite infestation.
                                                Smithfield Inc..
----------------------------------------------------------------------------------------------------------------

    The critical uses and limiting critical conditions in Table I are 
modified from the 2009 CUE as follows. First, EPA is adding ornamental 
growers in New York that are subject to moderate to severe soilborne 
disease or nematode infestations. This reflects a new application 
submitted for the production of Anemone coronaria in greenhouses and 
approved as part of the U.S. nomination of ornamentals. Greenhouse-
grown anemones in New York are facing a similar situation to other 
crops in this sector. EPA anticipates the usage of methyl bromide will 
be very limited, and has nominated only 272 kg for this use. Second, 
EPA is removing cucurbit growers and pepper growers in Mississippi. 
These two uses were not part of the CUN and therefore the Parties have 
not authorized them as critical uses for 2010. Third, EPA is removing 
bakeries, as they have also transitioned to methyl bromide alternatives 
and thus did not submit an application for the 2010 control period. 
Fourth, EPA is removing ``export to countries which do not allow the 
use of sulfuryl fluoride'' as a limiting critical condition for 
commodities. This limiting critical condition was established for the 
first time in the 2009 CUE rule as a few countries that import 
commodities treated with sulfuryl fluoride were still in the process of 
establishing maximum residue levels (MRLs) for sulfuryl fluoride. All 
countries to which the U.S. exports such commodities have now 
established MRLs. Therefore, EPA no longer believes this to be a 
limiting critical condition. EPA sought comment on these proposed 
changes to the critical uses and their limiting critical conditions. 
EPA received general support from two commenters to adjust the critical 
uses and limiting critical conditions in the manner described above. 
EPA also received one comment questioning some of the limiting critical 
conditions in Table I. This commenter has raised the same questions in 
past CUE rulemakings and EPA has responded to them in past rulemakings. 
EPA provides a copy of those responses in this rule's response to 
comments.
    EPA also proposed to remove North Carolina and Tennessee strawberry 
nursery growers because the Parties had not authorized that use at the 
date of the Proposed Rule. Although the U.S. nominated this use for 
2010, MBTOC did not recommend this use when it recommended the other 
critical uses for 2010. Iodomethane is registered for use on strawberry 
nurseries in these States and the MBTOC initially concluded that this 
substitute is a technologically and economically feasible methyl 
bromide alternative suitable to these crops and circumstances. In 
September 2009, MBTOC received the USG's supplemental request and 
agreed that time is required to conduct commercial scale up of 
iodomethane in this sector.

[[Page 23174]]

MBTOC recommended 2,018 kg for this use in 2010 and at the 21st MOP in 
November 2009, the Parties authorized this as a critical use. The 
Parties also increased the total authorization by 2,018 kg to meet this 
need. In this final rule, EPA is adding North Carolina and Tennessee 
strawberry nursery growers to the list of critical uses. EPA is 
increasing the CSA amount by 2,018 kg to account for this additional 
demand.
    Consistent with the 2009 CUE Rule, 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. 
``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

    Section V.C. of this preamble explains that Table C of the annex to 
Decision XX/5 and Table B of Decision XXI/11 list critical uses and 
amounts agreed to by the Parties to the Montreal Protocol. When added 
together, the authorized critical use amounts for 2010 total 3,235,474 
kilograms (kg), which is equivalent to 12.7% of the U.S. 1991 methyl 
bromide consumption baseline of 25,528,270 kg. The maximum amount of 
new production or import authorized by the Parties is 2,765,474 kg, as 
set forth in Table D of Decision XX/5 (2,763,456 kg) and Table B of 
Decision XXI/11 (2,018 kg), or 10.8% of baseline.
    EPA proposed to exempt limited amounts of new production and import 
of methyl bromide for critical uses for 2010 in the amount of 2,275,715 
kg (8.9% of baseline). EPA also proposed to allow sale of 690,464 kg 
(2.7% of baseline) of existing pre-phaseout inventory for critical uses 
in 2010. In this final rule, EPA is allocating fewer CUAs and more 
CSAs. EPA is allocating 1,955,775 kg (7.7% of baseline) for new 
production or import and up to 1,028,108 kg (4.0% of baseline) of pre-
phaseout inventory (i.e., stocks) to be used for critical uses. These 
values differ from the proposed rule for three reasons. First, as 
discussed below, the rate of inventory drawdown was less than EPA 
estimated. Thus there are ``available stocks'' for 2010. Second, EPA is 
adding 2,018 kg to the total U.S. authorized amount based on the 
decision taken at the 21st MOP. The total U.S. authorized amount is the 
starting point for the ``available stocks'' calculation. Third, 
following prior practice, EPA is subtracting the carryover amount from 
the authorized production amount. EPA has adjusted the carryover to 
reflect late sales reports. The sub-sections below respond to the 
comments and explain EPA's rationale for the critical use amounts for 
2010.
1. Background of Critical Use Amounts
    The 2004 Framework Rule established the provisions governing the 
sale of pre-phaseout inventories for critical uses, including the 
concept of Critical Stock Allowances (CSAs) and a prohibition on the 
sale of pre-phaseout inventories for critical uses in excess of the 
amount of CSAs held by the seller. In addition, EPA noted that pre-
phaseout inventories were further taken into account through the 
trading provisions that allow CUAs to be converted into CSAs. EPA did 
not propose changes to these basic CSA provisions.
    Paragraph 5 of Decision XX/5 further addresses pre-phaseout 
inventory of methyl bromide. The Decision states ``that a Party with a 
critical use exemption level in excess of permitted levels of 
production and consumption for critical uses is to make up any such 
differences between those levels by using quantities of methyl bromide 
from stocks that the Party has recognized to be available.'' 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 the 2006, 2007, 2008, and 2009 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. In 
the 2006 CUE Rule, EPA issued a total of 1,136,008 CSAs, equivalent to 
4.4% of baseline. For 2006, the difference in the Parties' decision 
between the total CUE amount and the amount of new production and 
import was 3.6% of baseline. In the 2007 rule, EPA added to the minimum 
amount (6.3% of baseline) an additional amount (1.2% of baseline) for a 
total of 1,914,600 CSAs (7.5% of baseline). In the 2008 rule, EPA added 
to the minimum amount (3.0% of baseline) an additional amount (3.8% of 
baseline) for a total of 1,729,689 CSAs (6.8% of baseline). In the 2009 
rule, EPA added to the minimum amount (1.2% of baseline) an additional 
amount (6.3% of baseline) for a total of 1,919,193 CSAs (7.5% of 
baseline). After determining the CSA amount, EPA reduced the portion of 
CUE methyl bromide to come from new production and import in each of 
the 2006-2009 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.
    As established in the earlier rulemakings, EPA views the inclusion 
of these additional amounts in the calculation of the year's overall 
CSA level as an appropriate exercise of discretion. The Agency is not 
required to allocate the full amount of authorized new production and 
consumption. The Parties only agree to ``permit'' a particular level of 
production and consumption; they do not--and cannot--mandate that the 
U.S. authorize this level of production and consumption domestically. 
Nor does the CAA require EPA to allow the full amount permitted by the 
Parties. Section 604(d)(6) of the CAA does not require EPA to exempt 
any amount of production and consumption from the phaseout, but instead 
specifies that the Agency ``may'' create an exemption for critical 
uses, providing EPA with substantial discretion.
    When determining the CSA amount for a year, EPA considers what 
portion of existing stocks is ``available'' for critical uses. As 
discussed in prior CUE rulemakings, the Parties to the Protocol 
recognized in their Decisions that the level of existing stocks may 
differ from the level of available stocks. 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.'' 
Decision XX/5, as well as earlier decisions, refers 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. 
Decisions XX/5 and XXI/11 further reinforce this concept by including 
the phrase ``minus available stocks'' as a footnote to the United 
States' authorized level of production and consumption. Section 
604(d)(6) of the CAA does not require EPA to adjust the amount of new 
production and import to reflect the availability of stocks; however, 
as explained in previous rulemakings, making such an adjustment is a 
reasonable exercise of EPA's discretion under this provision.
    EPA has employed the concept of ``available stocks'' in determining 
whether to allocate additional CSAs

[[Page 23175]]

beyond the minimum stock amount stipulated by the Parties. In response 
to stakeholder questions about how EPA derived its CSA amounts, the 
2008 CUE rule established a refined approach for determining the amount 
of existing methyl bromide stocks that is ``available'' for critical 
uses. The approach uses a tool called the supply chain factor (SCF). 
The SCF is EPA's technical estimate of the amount of methyl bromide 
inventory that would be adequate to meet the need for critical use 
methyl bromide after an unforeseen domestic production failure. The SCF 
recognizes the benefit of allowing the private sector to maintain a 
buffer in case of a major supply disruption. However, the SCF is not 
intended to set aside or physically separate stocks as an inventory 
reserve.
2. Calculation of Available Pre-Phaseout Inventory
    In this action, EPA is adjusting the authorized level of new 
production and consumption for critical uses to account for the amount 
of existing pre-phaseout inventory that is ``available'' for critical 
uses. EPA is calculating the amount of existing stocks that is 
available for critical uses in 2010 based on the SCF and formula 
introduced in the 2008 CUE final rule (72 FR 74118). EPA is allowing 
sales of the amount of existing pre-phaseout inventory that the Agency 
has determined to be available for critical uses by issuing an 
equivalent number of CSAs on a one-CSA-per-one-kilogram-of-methyl-
bromide basis.
    EPA calculates the amount of ``available'' stocks as follows, using 
the formula adopted in the 2008 CUE rule: AS2010 = 
ES2009-D2009-SCF2010, where 
AS2010 is the available stocks on January 1, 2010; 
ES2009 is the existing pre-phaseout stocks of methyl bromide 
held in the United States by producers, importers, and distributors on 
January 1, 2009; D2009 is the drawdown or estimated drawdown 
of existing stocks during calendar year 2009; and SCF2010 is 
the supply chain factor for 2010. In the proposed rule, EPA applied 
this formula using an estimated drawdown for calendar year 2009. EPA 
reached a preliminary conclusion that the calculated level of 
``available stocks'' on January 1, 2010, would be a negative number. 
EPA proposed to add an additional step to its determination of the 
level of CSAs to be allocated in 2010 because simply taking the result 
of the available stocks calculation would have resulted in an increase 
in new production before pre-phaseout inventory was depleted. In 
today's action, EPA is not finalizing the modified approach contained 
in the proposed rule; however, EPA may consider that approach in a 
future action. EPA does not need to consider the modified approach 
further in this action because it has acquired end-of-year inventory 
data that result in a different conclusion regarding available stocks. 
As EPA did in the 2009 CUE Rule, EPA is using actual data rather than 
relying on the estimate in the proposed rule. Using the formula 
established in the 2008 CUE Rule and the actual inventory data, EPA 
calculates that there are 1,028,108 kg of ``available stocks'' in 2010. 
EPA is therefore allocating this amount as CSAs, following the approach 
adopted in the 2008 CUE Rule. This calculation and others used to 
determine the allocation of CUAs and CSAs can be found in the docket.
    Existing Stocks. In the above formula, ``ES2009'' refers 
to pre-phaseout inventory--methyl bromide that was produced before the 
January 1, 2005, phaseout date but is still held by domestic producers, 
distributors, and third-party applicators. It does not include material 
held by end users. ES2009 also does not include critical use 
methyl bromide that was produced after January 1, 2005, and carried 
over into subsequent years. Nor does it include methyl bromide produced 
(1) under the QPS exemption, (2) with Article 5 allowances to meet the 
basic domestic needs of Article 5 countries, or (3) for feedstock or 
transformation purposes. EPA considers all pre-phaseout inventory to be 
suitable for both pre-plant and post harvest uses. Similarly, EPA 
considers pre-phaseout inventory to be accessible by all users, 
including those in California and the Southeastern United States.
    One commenter disagrees that the entire existing inventory of pre-
phaseout stocks is available to critical users. This commenter states 
that non-CUE users also use pre-phaseout inventory and that there are 
now a relatively small number of methyl bromide distributors in the 
U.S. EPA is aware that end users who are not approved critical users 
can and do access pre-phaseout inventory. As determined in the 2008 CUE 
Rule, EPA regards this material as ``available'' because it is owned by 
someone other than the end user. While a distributor might choose to 
sell methyl bromide to non-critical users to satisfy prior contracts or 
internal business decisions, this is not the result of any EPA 
regulatory constraint. Issues concerning supply of pre-phaseout 
inventory are addressed in the Response to Comment Document for the 
2008 CUE Rule, which is included in the docket for this rulemaking.
    Supply Chain Factor. The SCF represents EPA's technical estimate of 
the amount of pre-phaseout inventory that would be adequate to meet a 
need for critical use methyl bromide after an unforeseen domestic 
production failure. As described in the 2008 CUE rule, and the 
Technical Support Document contained in the docket to this rule, EPA 
estimates that it would take 15 weeks for significant imports of methyl 
bromide to reach the U.S. in the event of a major supply disruption. 
Consistent with the regulatory framework used in the 2008 and 2009 
rules, the SCF for 2010 conservatively reflects the effect of a supply 
disruption occurring in the peak period of critical use methyl bromide 
production, which is the first quarter of the year. While this 15-week 
disruption is based on shipping capacity and does not change year to 
year, other inputs to EPA's analysis do change each year including the 
total U.S. and global authorizations for methyl bromide and the average 
seasonal production of critical use methyl bromide in the U.S. Using 
updated numbers, EPA estimates that critical use production in the 
first 15 weeks of each year (the peak supply period) currently accounts 
for approximately 63% of annual critical use methyl bromide demand for 
2010. EPA, therefore, estimates that the peak 15-week shortfall in 2010 
could be 2,036,000 kg (63% x 3,235,474 kg).
    As EPA stated in the 2008 and 2009 CUE Rules, the SCF is not a 
``reserve'' or ``strategic inventory'' of methyl bromide but is merely 
an analytical tool used to provide greater transparency. A general 
discussion of the SCF is in the final 2008 CUE rule (72 FR 74118) and 
further detail about the analysis used to derive the value for 2010 is 
provided in the Technical Support Document in the public docket for 
this rulemaking.
    Two commenters object to the use of a supply chain factor in 
determining an amount of ``available stocks'' that can be used by 
critical users. These commenters state that there is no basis for 
making this allowance for the supposed risk of a catastrophic loss of 
the methyl bromide production plant. One commenter also states that the 
calculation is overly conservative because it assumes a catastrophic 
loss when production is at the peak. The commenter also states that the 
calculation incorrectly assumes that growers have no alternative to 
methyl bromide in the event of such a loss. Finally, the commenter 
states that the purpose for such a reserve is undermined by the fact 
that EPA is not actually maintaining the inventory for

[[Page 23176]]

the event of a catastrophic loss but is instead allowing inventory to 
be used by non-critical users. EPA has addressed these comments in 
prior rulemakings; those responses are available in the docket for this 
rulemaking.
    Two commenters also object to EPA's process of determining whether 
the inventory was ``available'' through use of the supply chain factor. 
These commenters request that EPA require that the inventory be 
exhausted before allowing any additional new production. EPA has 
addressed these comments in prior rulemakings; those responses are 
available in the docket for this rulemaking.
    Estimated Drawdown. EPA proposed to estimate the drawdown of 
existing stocks (the D2009 term in the above equation) by 
using a simple linear fit estimation of inventory data from all 
available years. In the 2009 Rule, EPA utilized end-of-year data and 
did not have to estimate the drawdown. Commenters on the 2009 CUE rule 
suggested additional forecasting techniques: Time series forecasting 
(extrapolating past behavior into the future) and change-point 
detection methods (change-point detection is the identification of 
abrupt changes in the generative parameters of sequential data--looking 
at data and calculating when it changes its slope). EPA did not propose 
to use these methods in the 2010 Rule because they would require more 
data than the six data points that EPA has on annual inventory levels. 
EPA welcomed comment on these techniques for forecasting future 
drawdown amounts. EPA also welcomed comment on whether the estimate 
should be limited to a statistical analysis of past inventory levels or 
whether EPA should collect additional data or consider other factors. 
EPA suggested in the 2010 proposed rule that it could collect actual 
data on stocks near the end of the calendar year through EPA's 
information gathering authority under section 114 of the Clean Air Act. 
Alternatively, EPA could revise the regulations to add a reporting 
requirement to facilitate the early collection of this information in 
future years. EPA did not receive any comments on these alternate 
methods for calculating the drawdown or additional reporting 
requirements.
    In the final rule, EPA is not pursuing the alternative statistical 
methods of estimating drawdown discussed above because EPA has received 
end-of-year reporting data. As in the 2009 CUE Rule, EPA is using 
reported data and not relying on an estimate of drawdown. In addition, 
the labeling for methyl bromide is currently being revised through 
EPA's reregistration process under FIFRA section 4. While this does not 
affect the 2010 CUE rule, it will likely change methyl bromide use 
patterns and make previous years' drawdown data less predictive of 
future use. It may also make it easier to estimate the amount of pre-
phaseout inventory that will be used in the future because the uses of 
inventory will be constrained. This may lessen the impetus for more 
frequent reporting, which was suggested by commenters. EPA is therefore 
not including provisions in this rule that would require inventory 
holders to report more frequently than they do now.
    One commenter states that there appeared to be an error in EPA's 
estimate of the drawdown of inventory during 2009. The Technical 
Support Document for the 2008 and 2009 CUE Rules state that the 2007 
inventory was 7,671,000 kg. This is in contrast to the Technical 
Support Document for the Proposed Rule which states that the inventory 
was 7,941,000 kg. EPA explained in the 2009 CUE rule that it corrected 
its assessment of the amount pre-phaseout inventory that was available 
on December 31, 2006, which EPA originally stated was 7,671,091 kg. EPA 
had received late data in 2007 that it did not incorporate into the 
total inventory level for the year. The corrected value for the amount 
of pre-phaseout inventory as of December 31, 2006, was 7,941,009 kg. 
EPA clarified this in the 2009 rule because a change in the inventory 
value affects any estimates used to calculate future drawdown. That 
change does not affect this or last year's allocations because they are 
based on reported data rather than estimates.
    Using end-of-year data, EPA calculates that the pre-phaseout methyl 
bromide inventory, which was 4,271,226 kg on January 1, 2009, was drawn 
down by 1,207,118 kg during 2009. This results in a pre-phaseout 
inventory of 3,064,108 kg on January 1, 2010. The actual drawdown in 
2009 was less than half of the rate estimated in the proposed rule 
(1,207 MT compared to 2,834 MT). The pre-phaseout inventory on December 
31, 2009, is thus double what the Agency calculated in the proposed 
rule (3,064 MT compared to 1,437 MT).
3. Approach for Determining Critical Use Amounts
    In the proposed rule, EPA calculated ``available stocks'' using the 
approach described in Section V.D.2 above. This resulted in a value 
less than zero, meaning that EPA estimated that in 2010 there would no 
longer be an amount of pre-phaseout inventory that meets EPA's 
definition of ``available stocks.'' EPA recognized in the 2008 rule 
that the formula for calculating ``available'' stocks would in some 
future rulemaking yield a number less than the minimum effectively 
stipulated by the Parties (the difference between the total authorized 
critical use amount and the authorized amount of new production and 
imports). In the preambles to the 2008 and 2009 rules, EPA indicated 
that when that occurred, the Agency would issue CSAs equal to the 
minimum amount stipulated by the Parties.
    In the proposed rule, EPA expressed the concern that if it were to 
follow the approach set forth in the 2008 rule, new production and 
import in 2010 could exceed the previous year's level. As explained in 
the proposed rule, this was an additional circumstance that EPA had not 
considered when the Agency previously outlined what future actions it 
might take. To ensure continued progress in reducing U.S. production 
and import of critical use methyl bromide, EPA proposed to limit 2010 
CUAs (i.e., production and import) to the same level as in 2009. EPA 
proposed to make up the remaining critical need by using its discretion 
to increase the CSA allocation proportionately. EPA proposed to 
allocate only the amount of CSAs necessary to make up the difference 
between the overall U.S. critical need and the CUA amount in the 2009 
CUE rule. Three commenters support EPA's proposal not to increase new 
production from the 2009 levels while one commenter is opposed. The 
comment in opposition states that it was entirely foreseeable that the 
amount of new production may have to increase from one year to the 
next. Second, the commenter in opposition states that the proposed 
approach to limit new production fails to follow EPA's established 
procedure for determining CUAs and is therefore an abuse of discretion.
    EPA is not finalizing the approach discussed in the proposed rule 
in today's action because, given the year-end inventory data, 
application of the existing framework will not increase the amount of 
new production compared to 2009. EPA is not deciding whether or not a 
policy limiting new production would be appropriate in some future year 
because the situation prompting its use no longer exists for this rule. 
EPA has recalculated ``available stocks'' using end-of-year inventory 
data rather than using an estimate of drawdown. The pre-phaseout 
inventory on December 31, 2009, is double what the Agency calculated in 
the proposed rule (3,064 MT compared to 1,437 MT). As a result,

[[Page 23177]]

EPA now calculates that 1,028,108 kg of pre-phaseout inventory would be 
``available stocks.'' In this final rule, EPA is applying its existing 
framework to determining CSAs and CUAs and is not finalizing the 
approach limiting new production that was discussed in the proposed 
rule. EPA may consider that approach in future CUE rulemakings.
    EPA continues to recognize that at some date the inventory will be 
drawn down to the SCF level and then below the SCF even if EPA sets the 
CSA amount equal to the difference between the total authorized CUE 
amount and the authorized new production amount. The inventory is a 
finite resource: EPA has made clear in the framework rule in the 
context of discussing the carryover amount that it will not allow the 
inventory to increase. 69 FR 76977. With this action the Agency is 
allowing 1,028,108 kg of methyl bromide to be supplied from pre-
phaseout inventory for critical uses in 2010 by issuing an equivalent 
number of CSAs, and adjusting the amount of CUAs accordingly. EPA 
calculates that there will be sufficient pre-phaseout inventory at the 
beginning of the 2011 control period to satisfy the amount of 2011 
inventory drawdown (200,000 kg) for critical uses identified by the 
Parties in Decision XXI/11.
    To summarize, the critical use amounts authorized by the Parties in 
Decisions XX/5 and XXI/11 for 2010 total 3,235,474 kg. The maximum 
amount of authorized new production or import as set forth in those two 
Decisions is 2,765,474 kg, ``minus available stocks.'' Applying the 
``available stocks'' approach finalized in the 2008 CUE Rule, EPA is 
expecting 1,028,108 kg of 2010 critical use needs to be met from pre-
phaseout inventory and thus is issuing CSAs in that amount. As in past 
years, EPA is adjusting the amount of CUAs accordingly, so that the sum 
of CUAs and CSAs is not greater than the total amount authorized by the 
Parties. Under the existing framework, EPA's practice is to allocate a 
total number of CUAs and CSAs that is less than the total critical use 
amount authorized by the Parties as necessary to account for carry over 
amounts of methyl bromide, amounts for research purposes, or for other 
appropriate reasons, including updated information on alternatives. 
Each of these reductions is discussed below, but only the carry over 
value affects this year's allocation amount. As a result, EPA is 
allowing 1,955,775 kg of new production and import for critical uses in 
2010. EPA has provided these calculations in Section V.D.6 below and in 
a document titled ``CUE Calculation Spreadsheet'' in the docket.
4. Treatment of Carryover Material
    As discussed in the Framework Rule, EPA does not permit the 
building of stocks of methyl bromide produced or imported after January 
1, 2005, under the critical use exemption. Quantities of methyl bromide 
produced, imported, exported, or sold to end-users under the critical 
use exemption in a control period must be reported to EPA the following 
year. EPA uses these reports to calculate the amount of methyl bromide 
produced or imported under the critical use exemption, but not exported 
or sold to end-users in that year. EPA deducts an amount equivalent to 
this ``carryover,'' whether pre-plant or post-harvest, from the total 
level of allowable new production and import in the year following the 
year of the data report. Carryover material (which is produced using 
critical use allowances) is not included in EPA's definition of 
existing stocks (ES) (which applies to pre-phaseout material) because 
this would lead to a double-counting of carryover amounts, and a double 
reduction of critical use allowances (CUAs).
    In 2009, companies reported that 3,036,130 kg of critical use 
methyl bromide were acquired through production or import in 2008. The 
information reported to EPA is that 2,784,539 kg of critical use methyl 
bromide were exported or sold to end-users in 2008. EPA calculates that 
the carryover amount at the end of 2008 was 251,591 kg, which is the 
difference between the reported amount of critical use methyl bromide 
acquired in 2008 and the reported amount of exports or sales of that 
material to end users in 2008 (3,036,130-2,784,539 = 251,591 kg). Using 
the existing framework, EPA is applying the carryover deduction to the 
new production amount as it has in all prior CUE rules. Therefore, EPA 
is reducing the amount of new production by 251,591 kg. EPA calculated 
the carryover amount in the proposed rule though it did not have a 
direct effect on the CUA numbers given the proposed approach to limit 
new production.
    One commenter states that the carryover amount calculated by EPA is 
higher than the amount of unsold material. The commenter reiterates 
suggestions made in prior CUE rules to change the reporting system so 
that EPA could identify non-reporting companies or alternatively 
calculate carryover as the amount of methyl bromide companies report as 
held in inventory. EPA has responded to this comment in previous rules; 
EPA's responses are available in the docket. The commenter also 
requests that EPA pursue companies that it suspects are not reporting. 
EPA stated in the proposed rule that it has contacted companies that it 
suspects may have purchased or sold methyl bromide but had not 
submitted reporting forms. EPA received a few late reports totaling 
15,686 kg. As a result EPA adjusted the carryover amount in this final 
rule.
    EPA's calculation of the amount of carryover at the end of 2008 is 
consistent with the method used in previous CUE rules, and with the 
method agreed to by the Parties in Decision XVI/6, which established 
the Accounting Framework for critical use methyl bromide, for 
calculating column L of the U.S. Accounting Framework. The 2008 U.S. 
Accounting Framework is available in the public docket for this 
rulemaking. EPA notes that the carryover value in the Accounting 
Framework is higher by 17 MT than the number contained in this final 
rule due to additional reports received after EPA provided the 
Accounting Framework to UNEP.
5. Methyl Bromide Alternatives
    EPA considers new data regarding alternatives that were not 
available at the time the U.S. Government submitted its Critical Use 
Nomination (CUN) to the Parties, and adjusts the allocation for new 
production accordingly. For 2010, EPA is not making further reductions 
in post-harvest or pre-plant critical use allowances to reflect the 
transition to alternatives because the 2010 CUN applied transition 
rates for all critical use sectors. The TEAP report of October 2008 
included reductions in its recommendations for critical use categories 
based on the transition rates in the 2010 CUN. The TEAP's 
recommendations were then considered in the Parties' 2010 authorization 
amounts, as listed in Decision XX/5. Therefore, transition rates, which 
account for the uptake of alternatives, have already been applied for 
authorized 2010 critical use amounts.
    Furthermore, the 2012 CUN, which represents the most recent 
analysis and the best available data for methyl bromide alternatives, 
does not conclude that transition rates should be increased for 2010. 
As the 2012 CUN reflects, the United States Government has not found 
new information that supports changing the 2010 transition rates 
included in the 2010 CUN and applied by MBTOC. EPA continues to gather 
information about methyl bromide alternatives through the CUE 
application process, and by other means.

[[Page 23178]]

    The 2010 CUN includes transition rates for iodomethane and there is 
no new information that would suggest changing those rates. Currently, 
iodomethane is registered for use in 47 States. California has not yet 
decided whether to register iodomethane for use in the State. EPA did 
not propose any adjustment based on iodomethane in its proposed rule. 
Two commenters suggest that EPA make additional reductions to the 
allocation to reflect the uptake of iodomethane. One commenter states 
that EPA underestimated the uptake of iodomethane in the 2008 and 2009 
CUE rules and cites the amount of iodomethane sold each year and the 
size of the reduction to the allocations in the 2008 and 2009 rules. 
EPA calculated the uptake of iodomethane in the critical use nomination 
for 2010. EPA would revisit that calculation in this rule if new data 
on market penetration or State registrations warranted such action, as 
it did in the 2008 and 2009 CUE rules. The commenter fails to recognize 
that the Agency has already made a reduction in the nomination. EPA has 
accounted for all State registrations in the 2010 nomination and does 
not believe additional reductions are warranted.
    EPA also stated in its proposed rule that it did not intend to make 
any adjustments to account for the reduced production of Telone in 
2009. Dow AgroSciences commented that they were seeking to increasing 
production of Telone and intended to restore the availability of this 
material to full levels by the end of 2009. One commenter states that 
there may still be some lingering shortages. Another commenter states 
that even if the supply is not fully restored, growers can use 
iodomethane or methyl bromide stockpiles. EPA has received additional 
information on the production and availability of Telone from Dow 
AgroSciences, which the Agency has entered into the CBI portion of the 
docket, and based on that data does not believe that the shortage will 
continue into 2010.
    EPA received a dozen comments from pest control companies and end 
users who use sulfuryl fluoride. These commenters relate their 
experiences using sulfuryl fluoride and expressed support for its 
further use in the post harvest sector. One commenter provided 
additional data in support of sulfuryl fluoride as an effective 
alternative to methyl bromide. EPA responds to the technical data in 
the response to comments. Two commenters state that sulfuryl fluoride 
has been demonstrated to be both effective and economical as a methyl 
bromide alternative in structural fumigations. These commenters state 
that EPA should therefore not authorize any structural applications as 
a critical use and reduce the allocation accordingly. The 2010 CUN 
reflected uptake of sulfuryl fluoride. As discussed above, EPA does not 
have economic data to support an increased transition rate or a 
reduction in the allocation. More information on the uptake of sulfuryl 
fluoride is found in the 2010 CUN and in the response to comments 
document.
    EPA continues to support research and adoption of methyl bromide 
alternatives, and to request information about the economic and 
technical feasibility of all existing and potential alternatives. EPA 
has not received any new data that was not considered by the Parties 
that would lead it to change the transition rates for 2010. Therefore, 
the final rule does not make any adjustments to account for new 
information on the uptake of alternatives.
6. Summary of Calculations
    The calculations described above for determining the level of new 
production and critical stock allowances is summarized in the table 
below:

------------------------------------------------------------------------
                                                            Kilograms
------------------------------------------------------------------------
Step 1: Calculate supply chain factor:
    U.S. authorization for 2010 in Decision XX/5......         3,233,456
    U.S. authorization for 2010 in Decision XXI/11....             2,018
    - Reduction for uptake of alternatives............                 0
    = One year's CUE need.............................         3,235,474
    x Percentage of year's production to recover from              62.9%
     production failure...............................
= Supply Chain Factor.................................         2,036,000
Step 2: Calculate available stocks:
    Existing pre-phaseout inventory on January 1, 2009         4,271,226
     (``ES2009'').....................................
    - Drawdown of inventory during 2009 (``D2009'')...         1,207,118
    - Supply Chain Factor.............................         2,036,000
= Available stocks (``AS2010'') = Critical Stock               1,028,108
 Allowance............................................
Step 3: Calculate carry over:
    Reported as produced/imported in 2008.............         3,036,130
    - Reported as sold in 2008........................         2,784,539
= Carry over..........................................           251,591
Step 4: Calculate new production:
    Total U.S. authorization for 2010 (Decisions XX/5          3,235,474
     and XXI/11)......................................
    - Critical Stock Allowance (Step 2)...............         1,028,108
    - Carryover (Step 3)..............................           251,591
    - Uptake of alternatives..........................                 0
= New production = Critical Use Allowance.............         1,955,775
------------------------------------------------------------------------

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

    Paragraphs 2 and 7 of Decision XX/5 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 2010 control 
period. A discussion of the Agency's application of the criteria in 
paragraph 1 of Decision IX/6 appears in sections V.A., V.C., V.D., and 
V.H. of this preamble. The Agency solicited comments on the technical 
and economic basis for determining that the uses listed in the proposed 
rule meet the criteria of the critical use exemption (CUE). The 
critical use nominations (CUNs) detail how each critical use meets the 
criteria listed in paragraph 1 of Decision IX/6, apart from the 
criterion located at (b)(ii), as well as the criteria in paragraphs 5 
and 6 of Decision Ex. I/4.
    The criterion in Decision IX/6(1)(b)(ii), which refers to the use 
of available stocks of methyl bromide, is addressed in sections V.D., 
V.G., and

[[Page 23179]]

V.H. of this preamble. The Agency has previously provided its 
interpretation of the criterion in Decision IX/6(1)(a)(i) regarding the 
presence of significant market disruption in the absence of an 
exemption, and EPA refers readers to the 2006 CUE final rule (71 FR 
5989) as well as to the memo on the docket titled ``Development of 2003 
Nomination for a Critical Use Exemption for Methyl Bromide for the 
United States of America'' for further elaboration.
    The remaining considerations, including the lack of available 
technically and economically feasible alternatives under the 
circumstance of the nomination; efforts to minimize use and emissions 
of methyl bromide where technically and economically feasible; the 
development of research and transition plans; and the requests in 
Decision Ex. I/4(5) and (6) that Parties consider and implement MBTOC 
recommendations, where feasible, on reductions in the critical use of 
methyl bromide and include information on the methodology they use to 
determine economic feasibility, are addressed in the nomination 
documents.
    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.
    The USG's approach to research changed slightly in the 2010 
nomination. In previous years, while the nomination was broad enough to 
cover both research and non-research uses, the USG nominated a 
separate, additional amount specifically for research purposes. 
However, Decision XVII/9 requested that the Parties ``endeavor to use 
stocks, where available, to meet any demand for methyl bromide for the 
purposes of research and development.'' Therefore, when allocating 
allowances in previous years, EPA subtracted that separate research 
amount from the Parties' authorized production level for the U.S. This 
in effect encouraged the use of stocks for research purposes. For 2010, 
the nomination was again broad enough to cover both research and non-
research uses but the USG did not nominate a separate, additional 
amount specifically for research purposes. Thus, EPA did not propose to 
adjust the production level to subtract this amount.
    One commenter objects to EPA encouraging researchers to use pre-
phaseout inventory. They expressed concern that a further reduction in 
stocks will jeopardize growers' ability to endure a supply chain 
disruption and note that the higher cost and reduced availability of 
pre-phaseout inventory will harm research into alternatives if 
researchers are limited to pre-phaseout inventory. Instead, EPA should 
increase the level of new production that is dedicated for research 
purposes. EPA responds that unlike previous years, the nomination did 
not specifically dedicate an amount for research purposes, thus there 
is no specific amount by which EPA could increase new production. 
Second, because EPA is allowing research as a critical use, the Agency 
is not limiting researchers to inventory. Use of inventory methyl 
bromide for research could reduce the amounts available in case of a 
supply chain disruption but EPA does not anticipate the effect will be 
significant given the small amounts of methyl bromide used for 
research.
    In this final rule, EPA has determined that research on the 
critical use crops shown in the table in Appendix L to subpart A 
remains a critical use of methyl bromide. Research on critical use 
crops is fundamental to the critical use process. Decision IX/6, which 
sets forth the criteria for a ``critical use'' determination, requires 
ongoing research programs in order for a Party to receive critical 
uses:

    (b) That production and consumption, if any, of methyl bromide 
for a critical use should be permitted only if: (iii) It is 
demonstrated that an appropriate effort is being made to evaluate, 
commercialize and secure national regulatory approval of 
alternatives and substitutes, taking into consideration the 
circumstances of the particular nomination * * * Non-Article 5 
Parties [e.g., the U.S.] must demonstrate that research programmes 
are in place to develop and deploy alternatives and substitutes * * 
*

Though the USG did not request an additional amount for 2010, the 
nomination remains consistent with past nominations both in discussing 
how current research affects the use and uptake of alternatives as well 
as the USG's efforts to conduct research. The nomination states, ``As 
noted in our previous nomination, the USG provides a great deal of 
funding and other support for agricultural research, and in particular, 
for research into alternatives for methyl bromide. This support takes 
the form of direct research conducted by the Agricultural Research 
Service (ARS) of USDA, through grants by ARS and CSREES, by IR-4, the 
national USDA-funded project that facilitates research needed to 
support registration of pesticides for specialty crop vegetables, 
fruits and ornamentals, through funding of conferences such as MBAO, 
and through the land grant university system.'' Consistent with past 
practice, EPA is not listing research as a separate entry in the table 
in Appendix L: however, research remains an aspect of the listed 
critical uses. The USG may or may not nominate additional amounts for 
research in future years. Also consistent with past rules, EPA 
continues to request that researchers use pre-phaseout inventory when 
possible.

F. Emissions Minimization

    Decision XX/5, paragraph 11 states that Parties shall request 
critical users to employ ``emission minimization techniques such as 
virtually impermeable films, barrier film technologies, deep shank 
injection and/or other techniques that promote environmental 
protection, whenever technically and economically feasible.'' In the 
judgment of USG scientists, use of virtually impermeable film (VIF) 
tarps allows pest control with lower application rates while minimizing 
emissions. The quantity of methyl bromide nominated by the USG reflects 
the lower application rates necessary when using tarps.
    Two commenters ask EPA to require emissions minimization techniques 
rather than simply encourage them. Rather than mandate emission 
reduction techniques, EPA will continue to work with the U.S. 
Department of Agriculture--Agricultural Research Service (USDA-ARS) to 
promote the techniques on a voluntary basis. As discussed above, the 
Federal government has invested substantial resources into best 
practices for methyl bromide use, including emission reduction 
practices. USDA-ARS has a national outreach effort to publicize the 
best practices. Also, EPA continues to work on the registration of 
promising methyl bromide alternatives.
    Users of methyl bromide should make every effort to minimize 
overall emissions of methyl bromide to the extent consistent with State 
and local laws and regulations. The Agency continues to encourage 
researchers and users who are successfully utilizing such techniques to 
inform EPA of their experiences and for applicants to provide such 
information with their critical use applications. The Agency welcomes 
information on the implementation of emission minimization techniques 
and whether

[[Page 23180]]

and how further emissions could be reduced further.

G. Critical Use Allowance Allocations

    EPA is allocating 2010 critical use allowances for new production 
or import of methyl bromide up to the amount of 1,955,775 kg (7.7% of 
baseline) as shown in Table III below. 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 
allocation of pre-plant and post-harvest CUAs to the entities listed 
below is subject to the trading provisions at 40 CFR 82.12, which are 
discussed in section V.G. of the preamble to the Framework Rule (69 FR 
76982).
    The CUAs are allocated as follows:

                                Table III--Allocation of Critical Use Allowances
----------------------------------------------------------------------------------------------------------------
                                                                   2010 Critical use        2010 Critical use
                                                                  allowances for pre-      allowances for post-
                            Company                                   plant uses *            harvest uses *
                                                                      (kilograms)              (kilograms)
----------------------------------------------------------------------------------------------------------------
Great Lakes Chemical Corp. A Chemtura Company.................                1,102,380                   86,145
Albemarle Corp................................................                  453,324                   35,425
ICL-IP America................................................                  250,516                   19,576
TriCal, Inc...................................................                    7,800                      610
                                                               -------------------------------------------------
    Total **..................................................                1,814,020                  141,755
----------------------------------------------------------------------------------------------------------------
* For production or import of Class I, Group VI controlled substance exclusively for the Pre-Plant or Post-
  Harvest uses specified in appendix L to 40 CFR part 82.
** Due to rounding, numbers may not add exactly.

    Paragraph six of Decision XX/5 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.
    One commenter states that EPA should allocate specifically to each 
of the Critical Use Categories as authorized by the Parties. The EPA's 
``lump sum'' approach, the commenter asserts, does not guarantee that 
critical users have access to methyl bromide and it instead allows 
those with the greatest ability to pay to garner methyl bromide away 
from other users with approved critical needs. Furthermore, this 
commenter states that developers of methyl bromide alternatives need 
assurance that methyl bromide will eventually exit a particular use 
segment. Allowing an open market for methyl bromide allocation is an 
economic disincentive for anyone developing alternatives. At a minimum, 
this commenter supports distinguishing between pre-plant and post-
harvest sectors as EPA currently does.
    The Framework Rule proposed several options for allocating critical 
use allowances, including a sector-by-sector approach. The Agency 
evaluated the various options based on their economic, environmental, 
and practical effects. After receiving comments, EPA determined that a 
lump-sum, or universal, allocation, modified to include distinct caps 
for pre-plant and post-harvest uses, was the most efficient and least 
burdensome approach that would achieve the desired environmental 
results, and that a sector-by-sector approach would pose significant 
administrative and practical difficulties. For the reasons discussed in 
the preamble to the 2009 CUE rule (74 FR 19894), the Agency believes 
that under the approach adopted in the Framework Rule, the actual 
critical use will closely follow the sector breakout listed in the 
Parties' decisions. The commenters' concerns are addressed more 
specifically in the response to comment document.

H. Critical Stock Allowance Allocations

    For the reasons discussed above, EPA is allocating critical stock 
allowances (CSAs) to the entities listed below in Table IV for the 2010 
control period in the amount of 1,028,108 kg (4.0% of baseline). This 
amount reflects the application of the existing framework using end-of-
year data rather than an estimate of drawdown rates. In addition, the 
calculation is based on a higher total U.S. authorization incorporating 
the additional 2,018 kg authorized by the parties in Decision XXI/11 
which added North Carolina and Tennessee strawberry nursery growers to 
the list of critical uses.
    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 below. EPA will inform the 
listed companies of their CSA allocations in a letter following 
publication of the final rule.
    EPA received notice that Hy-Yield Bromine and its assets were 
transferred to a third party named Hy-Yield products, LLC, which is 
owned by Trinity Manufacturing, LLC. EPA is therefore not issuing 
critical stock allowances to Hy-Yield Bromine but rather to Hy-Yield 
Products in this and in subsequent rulemakings.

           Table III--Allocation of Critical Stock Allowances
------------------------------------------------------------------------
                                 Company
-------------------------------------------------------------------------
Albemarle
Bill Clark Pest Control, Inc.
Burnside Services, Inc.
Cardinal Professional Products
Chemtura Corp.
Degesch America, Inc.
Helena Chemical Co.
Hendrix & Dail
Hy-Yield Products, LLC
ICL-IP America
Industrial Fumigation Company
Pacific Ag
Pest Fog Sales Corp.
Prosource One
Reddick Fumigants
Royster-Clark, Inc.
Trical Inc.
Trident Agricultural Products
UAP Southeast (NC)
UAP Southeast (SC)
Univar

[[Page 23181]]

Western Fumigation
    TOTAL--1,028,108 kilograms
------------------------------------------------------------------------

I. Stocks of Methyl Bromide

    An approved critical user may purchase methyl bromide produced or 
imported with CUAs as well as limited inventories of pre-phaseout 
methyl bromide, the combination of which constitute the supply of 
``critical use methyl bromide'' intended to meet the needs of 
authorized critical uses. The Framework Rule established provisions 
governing the sale of pre-phaseout inventories for critical uses, 
including the concept of CSAs and a prohibition on the sale of pre-
phaseout inventories for critical uses in excess of the amount of CSAs 
held by the seller. It also established trading provisions that allow 
critical use allowances (CUAs) to be converted into CSAs. EPA has 
retained these provisions for the 2010 control period.
    The aggregate amount of pre-phaseout methyl bromide reported as 
being in inventory at the beginning of 2009 is 4,271,226 kg. EPA 
calculates using end-of-year data that the aggregate inventory on 
January 1, 2010, was 3,064,108 kg. As in prior years, the Agency will 
continue to closely monitor CUA and CSA data. Further, as stated in the 
final 2006 CUE rule, safety valves continue to exist. 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.
    One commenter states that EPA should not allow non-critical users 
access to methyl bromide inventories. Any such action by EPA 
restricting non-critical users' access to stocks under the Clean Air 
Act would be discretionary. Nothing in the Protocol or the Clean Air 
Act mandates that EPA limit drawdown from inventory for such uses. 
Decision Ex I/3 of the Montreal Protocol, which informs Agency actions 
on methyl bromide, does not require that individual Parties (such as 
the U.S.) prohibit the use of stocks by users whose uses fall outside 
the categories of agreed-upon critical uses. Further detail on the 
issue of non-critical users' access to pre-phaseout inventory is 
available in previous CUE preambles and response to comments documents 
available in the docket. Though EPA is not using authorities under the 
Clean Air Act to restrict the use of pre-phaseout inventory, EPA is 
limiting the crops that will legally be able to use methyl bromide 
through the reregistration process under FIFRA. Users of methyl bromide 
must meet not only the requirements of the Clean Air Act, but also must 
comply with all requirements under FIFRA, including limits on the sale 
of products for pre-planting use for certain crops, and all directions 
for use on product labeling. EPA disagrees that inventory methyl 
bromide should not be allowed on any non-CUE crop. However, EPA has 
determined that the risks posed by the use of methyl bromide, both the 
acute and chronic toxicological effects as well as its ability to 
deplete the ozone layer, would be unacceptable without significant risk 
mitigation measures, including limiting its use to fewer crops.
    As explained in the 2008 CUE final rule, the Agency intends to 
continue releasing the aggregate of methyl bromide stockpile 
information reported to the Agency under the reporting requirements at 
40 CFR 82.13 for the end of each control period. EPA notes that if the 
number of competitors in the industry were to decline appreciably, EPA 
would revisit the question of whether the aggregate is entitled to 
treatment as confidential information and whether to release the 
aggregate without notice. The aggregate information for 2003 through 
2009 is available in the docket for this rulemaking.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and 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 EO 12866 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. 
However, 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 that is identified by the North American Industry 
Classification System (NAICS) Code in the Table below; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.

----------------------------------------------------------------------------------------------------------------
                                                                                     NAICS Small business size
                                                                                       standard (in number of
            Category                    NAICS code                SIC code            employees or millions of
                                                                                              dollars)
----------------------------------------------------------------------------------------------------------------
Agricultural production........  1112--Vegetable and      0171--Berry Crops......  $0.75 million.
                                  Melon farming.
                                 1113--Fruit and Nut      0172--Grapes...........
                                  Tree Farming.
                                 1114--Greenhouse,        0173--Tree Nuts........
                                  Nursery, and            0175--Deciduous Tree
                                  Floriculture             Fruits (except apple
                                  Production.              orchards and farms).
                                                          0179--Fruit and Tree
                                                           Nuts, NEC.

[[Page 23182]]

                                                          0181--Ornamental
                                                           Floriculture and
                                                           Nursery Products.
                                                          0831--Forest Nurseries
                                                           and Gathering of
                                                           Forest Products.
Storage Uses...................  115114--Postharvest      .......................  $7 million.
                                  Crop activities
                                  (except Cotton
                                  Ginning).
                                 311211--Flour Milling..  2041--Flour and Other    500 employees.
                                                           Grain Mill Products.
                                 311212--Rice Milling...  2044--Rice Milling.....  500 employees.
                                 493110--General          4225--General            $25.5 million.
                                  Warehousing and          Warehousing and
                                  Storage.                 Storage.
                                 493130--Farm Product     4221--Farm Product       $25.5 million.
                                  Warehousing and          Warehousing and
                                  Storage.                 Storage.
Distributors and Applicators...  115112--Soil             0721--Crop Planting,     $7 million.
                                  Preparation, Planting    Cultivation, and
                                  and Cultivating.         Protection.
Producers and Importers........  325320--Pesticide and    2879--Pesticides and     500 employees.
                                  Other Agricultural       Agricultural
                                  Chemical Manufacturing.  Chemicals, NEC.
----------------------------------------------------------------------------------------------------------------

    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 estimated in 2008 that this 
had declined to 2,000 end users of critical use methyl bromide. 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 exempts methyl bromide for approved critical uses after the 
phaseout date of January 1, 2005, this action will confer a benefit to 
users of methyl bromide. We have therefore concluded that this rule 
will 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 will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This rule is expected to primarily 
affect producers, suppliers, importers, exporters, and users of methyl 
bromide. Thus, Executive Order 13132 does not apply to this action.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have Tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule does 
not significantly or uniquely affect the communities of Indian Tribal 
governments nor does it impose any enforceable duties on communities of 
Indian Tribal governments. Thus, Executive Order 13175 does not apply 
to this action.

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

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it does not establish an environmental standard intended 
to mitigate health or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This final rule is not a ``significant energy action'' as defined 
in Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. This 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 is not

[[Page 23183]]

likely to have any adverse energy effects.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This action 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 concluded that it is not practicable to determine whether 
there would be disproportionately high and adverse human health or 
environmental effects on minority and/or low income populations from 
this final rule. EPA believes, however, that this action 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 final 
rule will impact all affected populations equally because ozone 
depletion is a global environmental problem with environmental and 
human effects that are, in general, equally distributed across 
geographical regions.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective May 3, 2010.

List of Subjects in 40 CFR Part 82

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

    Dated: April 27, 2010.
Lisa P. Jackson,
Administrator.

0
For the reasons stated in the preamble, 40 CFR Part 82 is amended as 
follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

0
1. The authority citation for part 82 continues to read as follows:

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

0
2. Section 82.8 is amended by revising paragraph (c)(1) table and 
paragraph (c)(2) to read as follows:

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

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

------------------------------------------------------------------------
                                                                 2010
                                                               critical
                                       2010 critical use         use
                                      allowances for pre-     allowances
              Company                     plant uses *        for post-
                                          (kilograms)          harvest
                                                                uses *
                                                             (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp., A                     1,102,380       86,145
 Chemtura Company.................
Albemarle Corp....................                  453,324       35,425
ICL-IP America....................                  250,516       19,576
TriCal, Inc.......................                    7,800          610
                                   -------------------------------------
    Total **......................                1,814,020      141,755
------------------------------------------------------------------------
* 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 2010 on a pro-rata basis in relation to the inventory 
held by each.

[[Page 23184]]

------------------------------------------------------------------------
                                 Company
-------------------------------------------------------------------------
Albemarle
Bill Clark Pest Control, Inc.
Burnside Services, Inc.
Cardinal Professional Products
Chemtura Corp.
Degesch America, Inc.
Helena Chemical Co.
Hendrix & Dail
Hy-Yield Products, LLC
ICL-IP America
Industrial Fumigation Company
Pacific Ag
Pest Fog Sales Corp.
Prosource One
Reddick Fumigants
Royster-Clark, Inc.
Trical Inc.
Trident Agricultural Products
UAP Southeast (NC)
UAP Southeast (SC)
Univar
Western Fumigation
------------------------------------------------------------------------
    TOTAL--1,028,108 kilograms
------------------------------------------------------------------------

0
3. Appendix L to Subpart A is revised to read as follows:

Appendix L to Part 82 Subpart A--Approved Critical Uses and Limiting 
Critical Conditions for Those Uses for the 2010 Control Period

----------------------------------------------------------------------------------------------------------------
                                                                                   Limiting critical conditions
                                                                                     that exist, or that the
                                                  Approved critical user and          approved critical user
            Approved critical uses                      location of use           reasonably expects could arise
                                                                                      without methyl bromide
                                                                                            fumigation
Column A                                       Column B........................  Column C
----------------------------------------------------------------------------------------------------------------
                                                 PRE-PLANT USES
----------------------------------------------------------------------------------------------------------------
Cucurbits....................................  (a) Growers in Delaware,          Moderate to severe soilborne
                                                Maryland, and Michigan.           disease infestation.
                                               (b) Growers in Georgia and        Moderate to severe yellow or
                                                Southeastern U.S. limited to      purple nutsedge infestation.
                                                growing locations in Alabama,    Moderate to severe soilborne
                                                Arkansas, Kentucky, Louisiana,    disease infestation.
                                                North Carolina, South Carolina,  Moderate to severe root knot
                                                Tennessee, and Virginia.          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.
                                               (c) Michigan growers............  Moderate to severe soilborne
                                                                                  disease infestation.
----------------------------------------------------------------------------------------------------------------
Forest Nursery Seedlings.....................  (a) Growers in Alabama,           Moderate to severe yellow or
                                                Arkansas, Georgia, Louisiana,     purple nutsedge infestation.
                                                Mississippi, North Carolina,     Moderate to severe soilborne
                                                Oklahoma, South Carolina,         disease infestation.
                                                Tennessee, Texas, and Virginia.  Moderate to severe nematode
                                                                                  infestation.
                                               (b) International Paper and its   Moderate to severe yellow or
                                                subsidiaries limited to growing   purple nutsedge infestation.
                                                locations in Alabama, Arkansas,
                                                Georgia, South Carolina, and
                                                Texas.
                                                                                 Moderate to severe soilborne
                                                                                  disease infestation.
                                               (c) Government-owned seedling     Moderate to severe weed
                                                nurseries in Illinois, Indiana,   infestation including purple
                                                Kentucky, Maryland, Missouri,     and yellow nutsedge
                                                New Jersey, Ohio, Pennsylvania,   infestation.
                                                West Virginia, and Wisconsin.    Moderate to severe Canada
                                                                                  thistle infestation.
                                                                                 Moderate to severe nematode
                                                                                  infestation.
                                                                                 Moderate to severe soilborne
                                                                                  disease infestation.
                                               (d) Weyerhaeuser Company and its  Moderate to severe yellow or
                                                subsidiaries limited to growing   purple nutsedge infestation.
                                                locations in Alabama, Arkansas,  Moderate to severe soilborne
                                                North Carolina, and South         disease infestation.
                                                Carolina.                        Moderate to severe nematode or
                                                                                  worm infestation.
                                               (e) Weyerhaeuser Company and its  Moderate to severe yellow
                                                subsidiaries limited to growing   nutsedge infestation.
                                                locations in Oregon and          Moderate to severe soilborne
                                                Washington.                       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.
----------------------------------------------------------------------------------------------------------------
Orchard Nursery Seedlings....................  (a) Members of the Western        Moderate to severe nematode
                                                Raspberry Nursery Consortium      infestation.
                                                limited to growing locations in  Medium to heavy clay soils.
                                                Washington, and members of the   Local township limits
                                                California Association of         prohibiting 1,3-
                                                Nursery and Garden Centers        dichloropropene.
                                                representing Deciduous Tree
                                                Fruit Growers.
                                               (b) California rose nurseries...  Moderate to severe nematode
                                                                                  infestation.
                                                                                 Local township limits
                                                                                  prohibiting 1,3-
                                                                                  dichloropropene.
----------------------------------------------------------------------------------------------------------------

[[Page 23185]]

Orchard Replant..............................  (a) California stone fruit,       Moderate to severe nematode
                                                table and raisin grape, wine      infestation.
                                                grape, walnut, and almond        Moderate to severe soilborne
                                                growers.                          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.
                                               (c) Michigan herbaceous           Moderate to severe nematode
                                                perennial growers.                infestation.
                                                                                 Moderate to severe soilborne
                                                                                  disease infestation.
                                                                                 Moderate to severe yellow
                                                                                  nutsedge and other weed
                                                                                  infestation.
                                               (d) New York growers............  Moderate to severe soilborne
                                                                                  disease infestation.
                                                                                 Moderate to severe nematode
                                                                                  infestation.
----------------------------------------------------------------------------------------------------------------
Peppers......................................  (a) Alabama, Arkansas, Kentucky,  Moderate to severe yellow or
                                                Louisiana, North Carolina,        purple nutsedge infestation.
                                                South Carolina, Tennessee, and
                                                Virginia growers.
                                                                                 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.
                                               (d) Michigan growers............  Moderate to severe soilborne
                                                                                  disease infestation.
----------------------------------------------------------------------------------------------------------------
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,   Moderate to severe yellow or
                                                Illinois, Kentucky, Louisiana,    purple nutsedge infestation.
                                                Maryland, Mississippi,           Moderate to severe nematode
                                                Missouri, New Jersey, North       infestation.
                                                Carolina, Ohio, South Carolina,  Moderate to severe black root
                                                Tennessee, and Virginia growers.  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.

[[Page 23186]]

                                               (b) North Carolina and Tennessee  Moderate to severe black root
                                                growers.                          rot.
                                                                                 Moderate to severe root-knot
                                                                                  nematode infestation.
                                                                                 Moderate to severe yellow and
                                                                                  purple nutsedge infestation.
----------------------------------------------------------------------------------------------------------------
Sweet Potato Slips...........................  (a) California growers..........  Local township limits
                                                                                  prohibiting 1,3-
                                                                                  dichloropropene.
----------------------------------------------------------------------------------------------------------------
Tomatoes.....................................  (a) Michigan growers............  Moderate to severe soilborne
                                                                                  disease infestation.
                                                                                 Moderate to severe fungal
                                                                                  pathogen infestation.
----------------------------------------------------------------------------------------------------------------
                                               (b) Alabama, Arkansas, Florida,   Moderate to severe yellow or
                                                Georgia, Kentucky, Louisiana,     purple nutsedge infestation.
                                                Mississippi, North Carolina,
                                                South Carolina, Tennessee, and
                                                Virginia growers.
                                                                                 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.
----------------------------------------------------------------------------------------------------------------
                                               (c) Maryland growers............  Moderate to severe fungal
                                                                                  pathogen infestation.
----------------------------------------------------------------------------------------------------------------
                                                POST-HARVEST USES
----------------------------------------------------------------------------------------------------------------
Food Processing..............................  (a) Rice millers in the U.S. who  Moderate to severe beetle,
                                                are members of the USA Rice       weevil, or moth infestation.
                                                Millers Association.             Presence of sensitive
                                                                                  electronic equipment subject
                                                                                  to corrosion.
                                                                                 Time to transition to an
                                                                                  alternative.
                                               (b) Pet food manufacturing        Moderate to severe beetle,
                                                facilities in the U.S. who are    moth, or cockroach
                                                members of the Pet Food           infestation.
                                                Institute.                       Presence of sensitive
                                                                                  electronic equipment subject
                                                                                  to corrosion.
                                                                                 Time to transition to an
                                                                                  alternative.
                                               (c) Members of the North          Moderate to severe beetle
                                                American Millers' Association     infestation.
                                                in the U.S.                      Presence of sensitive
                                                                                  electronic equipment subject
                                                                                  to corrosion.
                                                                                 Time to transition to an
                                                                                  alternative.
                                               (d) Members of the National Pest  Moderate to severe beetle or
                                                Management Association treating   moth infestation.
                                                processed food, cheese, herbs    Presence of sensitive
                                                and spices, and spaces and        electronic equipment subject
                                                equipment in associated           to corrosion.
                                                processing and storage           Time to transition to an
                                                facilities.                       alternative.
----------------------------------------------------------------------------------------------------------------
Commodities..................................  (a) California entities storing   Rapid fumigation required to
                                                walnuts, beans, dried plums,      meet a critical market window,
                                                figs, raisins, and dates (in      such as during the holiday
                                                Riverside county only) in         season.
                                                California.
----------------------------------------------------------------------------------------------------------------
Dry Cured Pork Products......................  (a) Members of the National       Red legged ham beetle
                                                Country Ham Association and the   infestation.
                                                Association of Meat Processors,  Cheese/ham skipper infestation.
                                                Nahunta Pork Center (North       Dermested beetle infestation.
                                                Carolina), and Gwaltney and      Ham mite infestation.
                                                Smithfield Inc.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2010-10226 Filed 4-30-10; 8:45 am]
BILLING CODE 6560-50-P
```