Federal Register / Vol. 75, No. 84 / Monday, May 3, 2010 / Rules and Regulations 23167 

to the preparation or review of any 

financial report. 

Dated: April 26, 2010. 

Edward J. DeMarco, 

Acting Director, Federal Housing Finance 

Agency. 

[FR Doc. 2010–10075 Filed 4–30–10; 8:45 am] 

BILLING CODE P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2007–0993; FRL–9144–4] 

Approval and Promulgation of 

Implementation Plans; New Mexico; 

Interstate Transport of Pollution 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Withdrawal of direct final rule. 

SUMMARY: On April 8, 2010 (75 FR 

17868), EPA published a direct final 

rule approving New Mexico State 

Implementation Plan (SIP) revisions that 

addressed one element of the ‘‘good 

neighbor’’ provisions of the Clean Air 

Act (CAA) for the 1997 ozone standards 

and the 1997 PM2.5 standards. The 

direct final action was published 

without prior proposal because EPA 

anticipated no adverse comments. EPA 

stated in the direct final rule that if EPA 

received adverse comments by May 10, 

2010, EPA would publish a timely 

withdrawal in the Federal Register. EPA 

subsequently received timely adverse 

comments on the direct final rule. 

Therefore, EPA is withdrawing the 

direct final approval. EPA will address 

the comments in a subsequent final 

action based on the parallel proposal 

also published on April 8, 2010 (75 FR 

17894). As stated in the parallel 

proposal, EPA will not institute a 

second comment period on this action. 

DATES: The direct final rule published 

on April 8, 2010 (75 FR 17868), is 

withdrawn as of May 3, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Emad Shahin, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733, 

telephone 214–665–6717; fax number 

214–665–7263; e-mail address 

shahin.emad@epa.gov. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Ozone, Particulate matter, Reporting 

and recordkeeping requirements, 

Volatile organic compounds. 

Dated: April 24, 2010. 

Al Armendariz, 

Regional Administrator, Region 6. 

■ Accordingly, the amendments to 40 

CFR 52.1620 published in the Federal 

Register on April 8, 2010 (75 FR 17868), 

which were to become effective on June 

7, 2010, are withdrawn. 

[FR Doc. 2010–10233 Filed 4–30–10; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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? 


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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 ozonedepleting substances? 

The regulatory requirements of the 

stratospheric ozone protection program 

that limit production and consumption 

of ozone-depleting substances are in 40 

CFR part 82, subpart A. The regulatory 

program was originally published in the 

Federal Register on August 12, 1988 (53 

FR 30566), in response to the 1987 

signing and subsequent ratification of 

the Montreal Protocol on Substances 

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 


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Federal Register / Vol. 75, No. 84 / Monday, May 3, 2010 / Rules and Regulations 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 


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1NPMA, National Pest Management Association, 

includes both food processing structures and 

processed foods. 

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-ofyear 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

• 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 


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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

Approved critical uses Approved critical user and location of use 

Limiting critical conditions that exist, or that the approved critical user reasonably expects could arise 

without 

methyl bromide fumigation 

Column A Column B Column C 

PRE-PLANT USES 

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

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

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

Tennessee, and Virginia.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe root knot nematode infestation. 

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

Moderate to severe soilborne disease infestation. 

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation. 

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

Moderate to severe nematode infestation. 

Moderate to severe pythium collar, crown and root rot. 

Moderate to severe southern blight infestation. 

Restrictions on alternatives due to karst topographical 

features. 

(c) Michigan growers ....................................................... Moderate to severe soilborne disease infestation. 

Forest Nursery Seedlings .... (a) Growers in Alabama, Arkansas, Georgia, Louisiana, 

Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and Virginia.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

(b) International Paper and its subsidiaries limited to 

growing locations in Alabama, Arkansas, Georgia, 

South Carolina, and Texas.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

(c) Government-owned seedling nurseries in Illinois, Indiana, Kentucky, Maryland, Missouri, New Jersey, 

Ohio, Pennsylvania, West Virginia, and Wisconsin.

Moderate to severe weed infestation including purple 

and yellow nutsedge infestation. 

Moderate to severe Canada thistle infestation. 

Moderate to severe nematode infestation. 

Moderate to severe soilborne disease infestation. 

(d) Weyerhaeuser Company and its subsidiaries limited 

to growing locations in Alabama, Arkansas, North 

Carolina, and South Carolina.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode or worm infestation. 

(e) Weyerhaeuser Company and its subsidiaries limited 

to growing locations in Oregon and Washington.

Moderate to severe yellow nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

(f) Michigan growers ....................................................... Moderate to severe soilborne disease infestation. 

Moderate to severe Canada thistle infestation. 

Moderate to severe nutsedge infestation. 

Moderate to severe nematode infestation. 

Orchard Nursery Seedlings (a) Members of the Western Raspberry Nursery Consortium limited to growing locations in Washington, 

and members of the California Association of Nursery 

and Garden Centers representing Deciduous Tree 

Fruit Growers.

Moderate to severe nematode infestation. 

Medium to heavy clay soils. 

Local township limits prohibiting 1,3-dichloropropene. 

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

Local township limits prohibiting 1,3-dichloropropene. 

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

grape, walnut, and almond growers.

Moderate to severe nematode infestation. 

Moderate to severe soilborne disease infestation. 

Replanted orchard soils to prevent orchard replant disease. 

Medium to heavy soils. 

Local township limits prohibiting 1,3-dichloropropene. 

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

Moderate to severe nematode infestation. 

Local township limits prohibiting 1,3-dichloropropene. 


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TABLE I—APPROVED CRITICAL USES—Continued 

Approved critical uses Approved critical user and location of use 

Limiting critical conditions that exist, or that the approved critical user reasonably expects could arise 

without 

methyl bromide fumigation 

Column A Column B Column C 

(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 perennial growers ................... Moderate to severe nematode 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, Louisiana, North 

Carolina, South Carolina, Tennessee, and Virginia 

growers.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

Moderate to severe pythium root, collar, crown and root 

rots. 

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

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation. 

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

Moderate to severe nematode infestation, or moderate 

to severe pythium root and collar rots. 

Moderate to severe southern blight infestation, crown or 

root rot. 

Restrictions on alternatives due to karst topographical 

features. 

(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, Illinois, Kentucky, 

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

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

Moderate to severe black root and crown rot. 

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

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

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

Moderate to severe root-knot nematode infestation. 

Moderate to severe yellow and purple nutsedge infestation. 

Sweet Potato Slips ............... (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. 


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TABLE I—APPROVED CRITICAL USES—Continued 

Approved critical uses Approved critical user and location of use 

Limiting critical conditions that exist, or that the approved critical user reasonably expects could arise 

without 

methyl bromide fumigation 

Column A Column B Column C 

(b) Alabama, Arkansas, Florida, Georgia, Kentucky, 

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

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

Restrictions on alternatives due to karst topographical 

features and, in Florida, soils not supporting seepage 

irrigation. 

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

POST-HARVEST USES 

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

USA Rice Millers Association.

Moderate to severe beetle, weevil, or moth infestation. 

Presence of sensitive electronic equipment subject to 

corrosion. 

Time to transition to an alternative. 

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

members of the Pet Food Institute.

Moderate to severe beetle, moth, or cockroach infestation. 

Presence of sensitive electronic equipment subject to 

corrosion. 

Time to transition to an alternative. 

(c) Members of the North American Millers’ Association 

in the U.S..

Moderate to severe beetle infestation. 

Presence of sensitive electronic equipment subject to 

corrosion. 

Time to transition to an alternative. 

(d) Members of the National Pest Management Association treating processed food, cheese, herbs and 

spices, and spaces and equipment in associated 

processing and storage facilities..

Moderate to severe beetle or moth infestation. 

Presence of sensitive electronic equipment subject to 

corrosion. 

Time to transition to an alternative. 

Commodities ........................ (a) California entities storing walnuts, beans, dried 

plums, figs, raisins, and dates (in Riverside county 

only) in California.

Rapid fumigation required to meet a critical market window, such as during the holiday season. 

Dry Cured Pork Products ..... (a) Members of the National Country Ham Association 

and the Association of Meat Processors, Nahunta 

Pork Center (North Carolina), and Gwaltney and 

Smithfield Inc..

Red legged ham beetle infestation. 

Cheese/ham skipper infestation. 

Dermested beetle infestation. 

Ham mite infestation. 

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. 


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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 prephaseout 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 prephaseout inventories for critical uses, 

including the concept of Critical Stock 

Allowances (CSAs) and a prohibition on 

the sale of pre-phaseout inventories for 

critical uses in excess of the amount of 

CSAs held by the seller. In addition, 

EPA noted that pre-phaseout inventories 

were further taken into account through 

the trading provisions that allow CUAs 

to be converted into CSAs. EPA 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 


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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-onekilogram-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 prephaseout 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-ofyear 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 preplant 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 prephaseout stocks is available to critical 

users. This commenter states that nonCUE 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% × 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 


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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 prephaseout 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 yearend 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, 


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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 endusers 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. 


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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 

× Percentage of year’s production to recover from production failure .................................................................................... 62.9% 

= Supply Chain Factor ..................................................................................................................................................................... 2,036,000 

Step 2: Calculate available stocks: 

Existing pre-phaseout inventory on January 1, 2009 (‘‘ES2009’’) ........................................................................................... 4,271,226 

¥ Drawdown of inventory during 2009 (‘‘D2009’’) .................................................................................................................. 1,207,118 

¥ Supply Chain Factor ............................................................................................................................................................ 2,036,000 

= Available stocks (‘‘AS2010’’) = Critical Stock Allowance ............................................................................................................. 1,028,108 

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 and XXI/11) .............................................................................................. 3,235,474 

¥ 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 


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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 nonresearch 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 prephaseout 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 USDAfunded 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 


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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 postharvest 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

Company 

2010 Critical use allowances for pre-plant 

uses * 

(kilograms) 

2010 Critical use allowances for post-harvest 

uses * 

(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 sectorby-sector approach would pose 

significant administrative and practical 

difficulties. For the reasons discussed in 

the preamble to the 2009 CUE rule (74 

FR 19894), the Agency believes that 

under the approach adopted in the 

Framework Rule, the actual critical use 

will closely follow the sector breakout 

listed in the Parties’ decisions. 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 


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TABLE III—ALLOCATION OF CRITICAL

STOCK ALLOWANCES—Continued 

Company 

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 endof-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 noncritical 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 noticeand-comment rulemaking requirements 

under the Administrative Procedure Act 

or any other statute unless the agency 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. For 

purposes of assessing the impacts of this 

rule on small entities, small entity is 

defined as: (1) A small business 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-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

Category NAICS code SIC code 

NAICS Small business size standard (in 

number of employees 

or millions of dollars) 

Agricultural production .. 1112—Vegetable and Melon farming ............. 0171—Berry Crops ......................................... $0.75 million. 

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

1114—Greenhouse, Nursery, and Floriculture 

Production.

0173—Tree Nuts .............................................

0175—Deciduous Tree Fruits (except apple 

orchards and farms).

0179—Fruit and Tree Nuts, NEC.


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Category NAICS code SIC code 

NAICS Small business size standard (in 

number of employees 

or millions of dollars) 

0181—Ornamental Floriculture and Nursery 

Products.

0831—Forest Nurseries and Gathering of 

Forest Products.

Storage Uses ................ 115114—Postharvest Crop activities (except 

Cotton Ginning).

......................................................................... $7 million. 

311211—Flour Milling ..................................... 2041—Flour and Other Grain Mill Products ... 500 employees. 

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

493110—General Warehousing and Storage 4225—General Warehousing and Storage .... $25.5 million. 

493130—Farm Product Warehousing and 

Storage.

4221—Farm Product Warehousing and Storage.$25.5 million. 

Distributors and Applicators.115112—Soil Preparation, Planting and Cultivating.0721—Crop Planting, Cultivation, and Protection.$7 million. 

Producers and Importers.325320—Pesticide and Other Agricultural 

Chemical Manufacturing.

2879—Pesticides and Agricultural Chemicals, 

NEC.

500 employees. 

Agricultural producers of minor crops 

and entities that store agricultural 

commodities are categories of affected 

entities that contain small entities. This 

rule only affects entities that applied to 

EPA for an exemption to the phaseout 

of methyl bromide. In most cases, EPA 

received aggregated requests for 

exemptions from industry consortia. On 

the exemption application, EPA asked 

consortia to describe the number and 

size distribution of entities their 

application covered. EPA estimated that 

3,218 entities petitioned EPA for an 

exemption for the 2005 control period. 

EPA 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 onethird of the entities may be small 

businesses. In addition, other categories 

of affected entities do not contain small 

businesses based on the above 

description. 

After considering the economic 

impacts of this rule on small entities, 

EPA certifies that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

In determining whether a rule has a 

significant economic impact on a 

substantial number of small entities, the 

impact of concern is any significant 

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 


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Federal Register / Vol. 75, No. 84 / Monday, May 3, 2010 / Rules and Regulations 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. 

■ For the reasons stated in the preamble, 

40 CFR Part 82 is amended as follows: 

PART 82—PROTECTION OF 

STRATOSPHERIC OZONE 

■ 1. The authority citation for part 82 

continues to read as follows: 

Authority: 42 U.S.C. 7414, 7601, 7671– 

7671q. 

■ 2. Section 82.8 is amended by revising 

paragraph (c)(1) table and paragraph 

(c)(2) to read as follows: 

§ 82.8 Grant of essential use allowances 

and critical use allowances. 

* * * * * 

(c) * * * 

(1) * * * 

Company 

2010 critical use allowances for pre-plant 

uses * 

(kilograms) 

2010 critical 

use allowances for 

post-harvest 

uses * 

(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 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. 


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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 

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 

Company 

Western Fumigation 

TOTAL—1,028,108 kilograms 

■ 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 

Approved critical uses Approved critical user and location of use 

Limiting critical conditions that exist, or that the approved critical user reasonably expects could arise 

without methyl bromide fumigation 

Column A Column B Column C 

PRE-PLANT USES 

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

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

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

Tennessee, and Virginia.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe root knot nematode infestation. 

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

Moderate to severe soilborne disease infestation. 

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation. 

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

Moderate to severe nematode infestation. 

Moderate to severe pythium collar, crown and root rot. 

Moderate to severe southern blight infestation. 

Restrictions on alternatives due to karst topographical 

features. 

(c) Michigan growers ....................................................... Moderate to severe soilborne disease infestation. 

Forest Nursery Seedlings .... (a) Growers in Alabama, Arkansas, Georgia, Louisiana, 

Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and Virginia.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

(b) International Paper and its subsidiaries limited to 

growing locations in Alabama, Arkansas, Georgia, 

South Carolina, and Texas.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

(c) Government-owned seedling nurseries in Illinois, Indiana, Kentucky, Maryland, Missouri, New Jersey, 

Ohio, Pennsylvania, West Virginia, and Wisconsin.

Moderate to severe weed infestation including purple 

and yellow nutsedge infestation. 

Moderate to severe Canada thistle infestation. 

Moderate to severe nematode infestation. 

Moderate to severe soilborne disease infestation. 

(d) Weyerhaeuser Company and its subsidiaries limited 

to growing locations in Alabama, Arkansas, North 

Carolina, and South Carolina.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode or worm infestation. 

(e) Weyerhaeuser Company and its subsidiaries limited 

to growing locations in Oregon and Washington.

Moderate to severe yellow nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

(f) Michigan growers ....................................................... Moderate to severe soilborne disease infestation. 

Moderate to severe Canada thistle infestation. 

Moderate to severe nutsedge infestation. 

Moderate to severe nematode infestation. 

Orchard Nursery Seedlings (a) Members of the Western Raspberry Nursery Consortium limited to growing locations in Washington, 

and members of the California Association of Nursery 

and Garden Centers representing Deciduous Tree 

Fruit Growers.

Moderate to severe nematode infestation. 

Medium to heavy clay soils. 

Local township limits prohibiting 1,3-dichloropropene. 

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

Local township limits prohibiting 1,3-dichloropropene. 


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Approved critical uses Approved critical user and location of use 

Limiting critical conditions that exist, or that the approved critical user reasonably expects could arise 

without methyl bromide fumigation 

Column A Column B Column C 

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

grape, walnut, and almond growers.

Moderate to severe nematode infestation. 

Moderate to severe soilborne disease infestation. 

Replanted orchard soils to prevent orchard replant disease. 

Medium to heavy soils. 

Local township limits prohibiting 1,3-dichloropropene. 

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

Moderate to severe nematode infestation. 

Local township limits prohibiting 1,3-dichloropropene. 

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

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation. 

(c) Michigan herbaceous perennial growers ................... Moderate to severe nematode 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, Louisiana, North 

Carolina, South Carolina, Tennessee, and Virginia 

growers.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

Moderate to severe pythium root, collar, crown and root 

rots. 

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

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation. 

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

Moderate to severe nematode infestation, or moderate 

to severe pythium root and collar rots. 

Moderate to severe southern blight infestation, crown or 

root rot. 

Restrictions on alternatives due to karst topographical 

features. 

(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, Illinois, Kentucky, 

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

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

Moderate to severe black root and crown rot. 

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

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 


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23186 Federal Register / Vol. 75, No. 84 / Monday, May 3, 2010 / Rules and Regulations 

Approved critical uses Approved critical user and location of use 

Limiting critical conditions that exist, or that the approved critical user reasonably expects could arise 

without methyl bromide fumigation 

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

Moderate to severe root-knot nematode infestation. 

Moderate to severe yellow and purple nutsedge infestation. 

Sweet Potato Slips ............... (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, Georgia, Kentucky, 

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

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

Restrictions on alternatives due to karst topographical 

features and, in Florida, soils not supporting seepage 

irrigation. 

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

POST-HARVEST USES 

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

USA Rice Millers Association.

Moderate to severe beetle, weevil, or moth infestation. 

Presence of sensitive electronic equipment subject to 

corrosion. 

Time to transition to an alternative. 

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

members of the Pet Food Institute.

Moderate to severe beetle, moth, or cockroach infestation. 

Presence of sensitive electronic equipment subject to 

corrosion. 

Time to transition to an alternative. 

(c) Members of the North American Millers’ Association 

in the U.S.

Moderate to severe beetle infestation. 

Presence of sensitive electronic equipment subject to 

corrosion. 

Time to transition to an alternative. 

(d) Members of the National Pest Management Association treating processed food, cheese, herbs and 

spices, and spaces and equipment in associated 

processing and storage facilities.

Moderate to severe beetle or moth infestation. 

Presence of sensitive electronic equipment subject to 

corrosion. 

Time to transition to an alternative. 

Commodities ........................ (a) California entities storing walnuts, beans, dried 

plums, figs, raisins, and dates (in Riverside county 

only) in California.

Rapid fumigation required to meet a critical market window, such as during the holiday season. 

Dry Cured Pork Products ..... (a) Members of the National Country Ham Association 

and the Association of Meat Processors, Nahunta 

Pork Center (North Carolina), and Gwaltney and 

Smithfield Inc.

Red legged ham beetle infestation. 

Cheese/ham skipper infestation. 

Dermested beetle infestation. 

Ham mite infestation. 

[FR Doc. 2010–10226 Filed 4–30–10; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

[Docket No. 100217094–0195–02] 

RIN 0648–AY57 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Reef Fish 

Fishery of the Gulf of Mexico; Red 

Snapper Management Measures 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues this final rule to 

implement a regulatory amendment to 

the Fishery Management Plan for the 

Reef Fish Resources of the Gulf of 

Mexico (FMP) prepared by the Gulf of 

Mexico Fishery Management Council 

(Council). This final rule increases the 

commercial and recreational quotas for 

red snapper and closes the recreational 

red snapper component of the Gulf of 

Mexico (Gulf) reef fish fishery at 12:01 

a.m., local time, July 24, 2010. The 

intended effect of this rule is to help 


erowe on DSK5CLS3C1PROD with RULES