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EO12866MethylBromideCUE2060-AQ83NPRM20110615.docx

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2009-0277; FRL-]

RIN: 2060-AQ83

Protection of Stratospheric Ozone: The 2012 Critical Use Exemption from the 

Phaseout of Methyl Bromide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing uses that qualify for the 2012 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 2012. 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 Twenty-Second

Meeting of the Parties. EPA is seeking comment on the list of critical uses and on EPA‟s 

determination of the amounts of methyl bromide needed to satisfy those uses.

DATES: Comments must be submitted by [Insert date 30 days after date of 

publication]. Any party requesting a public hearing must notify the contact person listed 

below by 5 p.m. Eastern Standard Time on [Insert date 5 days after date of 

publication]. If a hearing is requested it will be held on [Insert date 15 days after date 

of publication] and comments will be due to the agency [Insert date 45 days after 

publication]. EPA will post information regarding a hearing, if one is requested, on the 

Ozone Protection website www.epa.gov/ozone/strathome.html. Persons interested in 
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attending a public hearing should consult with the contact person below regarding the 

location and time of the hearing.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR2009-0277, by one of the following methods:

www.regulations.gov: Follow the on-line instructions for submitting comments.

Email: a-and-r-Docket@epa.gov

Fax: (202) 566-9744

Phone: (202) 566-1742

U.S. Mail: Docket EPA-HQ-OAR-2009-0277, U.S. Environmental Protection 

Agency, EPA Docket Center, Air and Radiation Docket, Mail Code 28221T, 1200 

Pennsylvania Avenue, NW, Washington, DC 20460

Hand Delivery or Courier: Docket EPA-HQ-OAR-2009-0277, EPA Docket 

Center - Public Reading Room, EPA West Building, Room 3334, 1301 

Constitution Avenue, NW, Washington, DC 20004. Such deliveries are only 

accepted during the Docket‟s normal hours of operation, and special arrangements 

should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-2009-0277. EPA's 

policy is that all comments received will be included in the public docket without change 

and may be made available online at www.regulations.gov, including any personal 

information provided, unless the comment includes information claimed to be 

Confidential Business Information (CBI) or other information whose disclosure is 

restricted by statute. Do not submit information that you consider to be CBI or otherwise 

protected through www.regulations.gov or e-mail. The www.regulations.gov website is 
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an “anonymous access” system, which means EPA will not know your identity or contact 

information unless you provide it in the body of your comment. If you send an e-mail 

comment directly to EPA without going through www.regulations.gov your e-mail 

address will be automatically captured and included as part of the comment that is placed 

in the public docket and made available on the Internet. If you submit an electronic 

comment, EPA recommends that you include your name and other contact information in 

the body of your comment and with any disk or CD-ROM you submit. If EPA cannot 

read your comment due to technical difficulties and cannot contact you for clarification, 

EPA may not be able to consider your comment. Electronic files should avoid the use of 

special characters, any form of encryption, and be free of any defects or viruses. For 

additional information about EPA‟s public docket visit the EPA Docket Center homepage 

at http://www.epa.gov/epahome/dockets.htm.

FOR FURTHER INFORMATION CONTACT: For further information about this 

proposed rule, contact Jeremy Arling by telephone at (202) 343-9055, or by e-mail at 

arling.jeremy@epa.gov or by mail at U.S. Environmental Protection Agency, 

Stratospheric Protection Division, Stratospheric Program Implementation Branch 

(6205J), 1200 Pennsylvania Avenue, N.W., Washington, D.C., 20460. You may also visit 

the methyl bromide section of the Ozone Depletion website of EPA‟s Stratospheric 

Protection Division at www.epa.gov/ozone/mbr for further information about the methyl 

bromide critical use exemption, other Stratospheric Ozone Protection regulations, the 

science of ozone layer depletion, and related topics.

SUPPLEMENTARY INFORMATION:
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This proposed 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 2012. Under the Clean Air Act, methyl bromide 

consumption (consumption is defined under the CAA as production plus imports minus 

exports) and production were 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 proposing and seeking comment on the uses that will 

qualify for the 2012 critical use exemption as well as specific amounts of methyl bromide 

that may be produced and imported, or sold from pre-phaseout inventory (also referred to 

as “stocks” or “inventory”) for proposed critical uses in 2012.

Table of Contents

I. General Information

A. Regulated Entities

B. What Should I Consider When Preparing My Comments?

II. What Is Methyl Bromide?

III. What Is the Background to the Phaseout Regulations for Ozone-Depleting 

Substances?

IV. What Is the Legal Authority for Exempting the Production and Import of Methyl 

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

V. What Is the Critical Use Exemption Process?

A. Background of the Process

B. How Does This Proposed Rule Relate to Previous Critical Use Exemption 

Rules?
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C. Proposed Critical Uses

D. Proposed Critical Use Amounts

1. Approach for Determining Critical Stock Allowances

2. Approach for Determining New Production and Import Allowances

3. 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 and Executive 

Order 13563: Improving Regulation and Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments

G. Executive Order 13045: Protection of Children from Environmental 

Health and Safety Risks

H. Executive Order 13211: Actions that Significantly Affect Energy Supply, 

Distribution, or Use
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I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions to Address Environmental Justice 

in Minority Populations and Low-Income Populations

I. General Information

A. Regulated Entities

Entities potentially regulated by this proposed 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 proposed action. To determine whether 

your facility, company, business, or organization could be regulated by this proposed 

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.

B. What Should I Consider When Preparing My Comments?

1. Confidential Business Information. Do not submit confidential business information 

(CBI) to EPA through www.regulations.gov or e-mail. Clearly mark the part or all of the 

information that you claim to be CBI. For CBI information in a disk or CD-ROM that 

you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify 
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electronically within the disk or CD-ROM the specific information that is claimed as 

CBI. Information so marked will not be disclosed except in accordance with procedures 

set forth in 40 CFR part 2. In addition to one complete version of the comment that 

includes information claimed as CBI, a copy of the comment that does not contain the 

information claimed as CBI must be submitted for inclusion in the public docket.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying 

information (subject heading, Federal Register date, and page number).

• Follow directions - The agency may ask you to respond to specific 

questions or organize comments by referencing a Code of Federal 

Regulations (CFR) part or section number.

• Explain why you agree or disagree; suggest alternatives and substitute 

language for your requested changes.

• Describe any assumptions and provide any technical information and/or 

data that you used.

• If you estimate potential costs or burdens, explain how you arrived at your 

estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns, and suggest 

alternatives.

• Explain your views as clearly as possible, avoiding the use of profanity or 

personal threats.

• Make sure to submit your comments by the comment period deadline 

identified.
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II. What Is Methyl Bromide?

Methyl bromide is an odorless, colorless, toxic gas which is used as a broadspectrum pesticide and is controlled under the CAA as a Class I ozone-depleting 

substance (ODS). Methyl bromide was once widely used as a fumigant to control a 

variety of pests such as insects, weeds, rodents, pathogens, and nematodes. Information 

on 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 proposed 

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 this 

proposal must continue to comply with FIFRA and other pertinent statutory and 

regulatory requirements for pesticides (including, but not limited to, requirements 

pertaining to restricted use pesticides) when importing, exporting, acquiring, selling, 

distributing, transferring, or using methyl bromide for critical uses. The provisions in this 

proposed action are intended only to implement the CAA restrictions on the production, 

consumption, and use of methyl bromide for critical uses exempted from the phaseout of 

methyl bromide. 

III. What Is the Background to the Phaseout Regulations for Ozone-Depleting 

Substances?
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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 ozonedepleting substances. The U.S. was one of the original signatories to the 1987 Montreal 

Protocol and the U.S. ratified the Protocol on April 12, 1988. Congress then enacted, and 

President George H.W. Bush signed into law, the Clean Air Act Amendments of 1990 

(CAAA of 1990) which included Title VI on Stratospheric Ozone Protection, codified as 

42 U.S.C. Chapter 85, Subchapter VI, to ensure that the U.S. 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 
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companies in each control period (each calendar year) until 2001, when the complete 

phaseout would occur. This phaseout date was established in response to a petition filed 

in 1991 under sections 602(c)(3) and 606(b) of the CAAA of 1990, requesting that EPA 

list methyl bromide as a Class I substance and phase out its production and consumption.

This date was consistent with section 602(d) of the CAAA of 1990, which for newly 

listed Class I ozone-depleting substances provides that “no extension [of the phaseout 

schedule in section 604] under this subsection may extend the date for termination of 

production of any class I substance to a date more than 7 years after January 1 of the year 

after the year in which the substance is added to the list of class I substances.”

At the Seventh Meeting of the Parties (MOP) in 1995, the Parties made 

adjustments to the methyl bromide control measures and agreed to reduction steps and a 

2010 phaseout date for industrialized countries with exemptions permitted for critical 

uses. At that time, the U.S. continued to have a 2001 phaseout date in accordance with 

section 602(d) of the CAAA of 1990. At the Ninth MOP in 1997, the Parties agreed to 

further adjustments to the phaseout schedule for methyl bromide in industrialized 

countries, with reduction steps leading to a 2005 phaseout. The Parties also established a 

phaseout date of 2015 for Article 5 countries.

IV. What Is the Legal Authority for Exempting the Production and Import of 

Methyl Bromide for Critical Uses Authorized by the Parties to the Montreal 

Protocol?

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

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

to bring the U.S. phaseout of methyl bromide in line with the schedule specified under 
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the Protocol, and to authorize EPA to provide certain exemptions. These amendments 

were contained in Section 764 of the 1999 Omnibus Consolidated and Emergency 

Supplemental Appropriations Act (Pub. L. 105-277, October 21, 1998) and were codified 

in section 604 of the CAA, 42 U.S.C. 7671c. The amendment that specifically addresses 

the critical use exemption appears at section 604(d)(6), 42 U.S.C. 7671c(d)(6). EPA 

revised the phaseout schedule for methyl bromide production and consumption in a direct 

final rulemaking on November 28, 2000 (65 FR 70795), which allowed for the phased 

reduction in methyl bromide consumption specified under the Protocol and extended the 

phaseout to 2005. EPA again amended the regulations to allow for an exemption for 

quarantine and preshipment (QPS) purposes on July 19, 2001 (66 FR 37751), with an 

interim final rule and with a final rule on January 2, 2003 (68 FR 238).

On December 23, 2004 (69 FR 76982), EPA published a final rule (the 

“Framework Rule”) that established the framework for the critical use exemption; set 

forth a list of approved critical uses for 2005; and specified the amount of methyl 

bromide that could be supplied in 2005 from stocks and new production or import to 

meet the needs of approved critical uses. EPA subsequently published rules applying the 

critical use exemption framework for each of the control periods from 2006 to 2011. 

Under authority of section 604(d)(6) of the CAA, this action proposes the uses that will 

qualify as approved critical uses in 2012 and the amount of methyl bromide that may be 

produced, imported, or supplied from inventory to satisfy those uses.

This proposed action on critical uses for 2012 reflects Decision XXII/6, taken at 

the Twenty-Second Meeting of the Parties in November 2010. In accordance with Article 

2H(5), the Parties have issued several Decisions pertaining to the critical use exemption.
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These include Decisions IX/6 and Ex. I/4, which set forth criteria for review of proposed 

critical uses. The status of Decisions is addressed in NRDC v. EPA, (464 F.3d 1, D.C. 

Cir. 2006) and in EPA‟s “Supplemental Brief for the Respondent,” filed in NRDC v. 

EPA and available in the docket for this action. In this proposed rule on critical uses for 

2012, 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 May 20, 2009 (74 FR 23705), applicants provided data on the 

technical and economic feasibility of using alternatives to methyl bromide. Applicants 
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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 reviews the data submitted by applicants, as 

well as data from governmental and academic sources, to establish whether there are 

technically and economically feasible alternatives available for a particular use of methyl 

bromide, and whether there would be a significant market disruption if no exemption 

were available. In addition, EPA reviews other parameters of the exemption applications 

such as dosage and emissions minimization techniques and applicants‟ research or 

transition plans. This assessment process culminates in the development of a document 

referred to as the critical use nomination (CUN). The U.S. Department of State has 

submitted a CUN annually to the United Nations Environment Programme (UNEP) 

Ozone Secretariat. The Methyl Bromide Technical Options Committee (MBTOC) and 

the Technology and Economic Assessment Panel (TEAP), which are independent 

advisory bodies to Parties to the Montreal Protocol, review the CUNs of the Parties and 

make recommendations to the Parties on the nominations. The Parties then take 

Decisions to authorize critical use exemptions for particular Parties, including how much 

methyl bromide may be supplied for the exempted critical uses. As required in section 

604(d)(6) of the CAA, for each exemption period, EPA consults with the United States 

Department of Agriculture (USDA) and other departments and institutions of the Federal 

government that have regulatory authority related to methyl bromide, and provides an 

opportunity for public comment on the amounts of methyl bromide that the agency is 
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proposing to exempt for critical uses and the uses that the agency is proposing as 

approved critical uses.

More on the domestic review process and methodology employed by the Office of 

Pesticide Programs is available in a detailed memorandum titled “Development of 2003 

Nomination for a Critical Use Exemption for Methyl Bromide for the United States of 

America,” contained in the docket for this rulemaking. While the particulars of the data 

continue to evolve and administrative matters are further streamlined, the technical 

review itself remains rigorous with careful consideration of new technical and economic 

conditions.

On January 22, 2010, the U.S. Government (USG) submitted the eighth

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 

2012 critical uses. In February 2010, MBTOC sent questions to the USG concerning 

technical and economic issues in the 2012 nomination. The USG transmitted responses to 

MBTOC in March, 2010. These documents, together with reports by the advisory bodies 

noted above, are in the public docket for this rulemaking. The proposed critical uses and 

amounts reflect the analysis contained in those documents.

B. How Does This Proposed 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.
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Since publishing the Framework Rule, EPA has annually promulgated regulations 

to exempt from the phaseout of methyl bromide specific quantities of production and 

import for each control period (each calendar year), to determine the amounts that may be 

supplied from pre-phaseout inventory, and to indicate which uses meet the criteria for the 

exemption program for that year. See 71 FR 5985 (calendar year 2006), 71 FR 75386 

(calendar year 2007), 72 FR 74118 (calendar year 2008), 74 FR 19878 (calendar year 

2009), 75 FR 23167 (calendar year 2010), 76 FR 23769 (calendar year 2011 proposal).

Today‟s action proposes to utilize the existing regulatory framework to determine 

critical uses for 2012 and the amounts of Critical Use Allowances (CUAs) and Critical 

Stock Allowances (CSAs) to be 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 that EPA is proposing to approve as 2012 critical uses are the 

uses included in the USG‟s eighth CUN and authorized by the Parties in Decision 

XXII/6. EPA is utilizing the existing regulatory framework for critical uses. This 

framework is discussed in Section V.D.1 of the preamble.

C. Proposed Critical Uses

In Decision XXII/6, taken in November 2010, the Parties to the Protocol agreed 

“to permit, for the agreed critical-use categories for 2012 set forth in table C of the annex 
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to the present decision for each party, subject to the conditions set forth in the present 

decision and in decision Ex.I/4 to the extent that those conditions are applicable, the 

levels of production and consumption for 2012 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 XXII/6

for the United States:

Commodities

National Pest Management Association food processing structures

Mills and processors

Dried cured pork

Cucurbits

Eggplant – field

Forest nursery seedlings

Nursery stock – fruits, nuts, flowers

Orchard replants

Ornamentals

Peppers – field

Strawberry – field

Strawberry runners

Tomatoes – field

Sweet potato slips

The Decision XXII/6 critical use levels for 2012 total 1,022,826 kilograms (kg), 

which is equivalent to 4.0% 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 in Table D of Decision XXII/6 is 922,826 kg (3.6% of baseline), minus 

available stocks.

EPA is proposing a total critical use exemption in 2012 of 1,022,826 kg (4.0% of 

baseline) with new production or import of methyl bromide for critical uses up to 

759,744 kg (3.0% of baseline), and with up to 263,082 kg (1.0% of baseline) coming 

from pre-phaseout inventory (i.e., stocks).
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EPA is seeking comment on the technical analysis contained in the U.S. 

nomination (available for public review in the docket to this rulemaking), and seeks 

information regarding changes to the registration or use of alternatives that have 

transpired after the 2012 U.S. nomination was written. EPA recognizes that as the market 

for alternatives evolves, the thresholds for what constitutes “significant market 

disruption” or “technical and economic feasibility” change. Comments on the technical 

data contained in the nomination or new information could potentially alter the agency‟s 

analysis on the uses and amounts of methyl bromide qualifying for the critical use 

exemption. The agency may, in response to new information, reduce the proposed 

quantities of critical use methyl bromide, or decide not to approve uses authorized by the 

Parties. However, the agency will not increase the quantities or add new uses in the final 

rule beyond those authorized by the Parties.

EPA is also proposing to modify the table in 40 CFR part 82, subpart A, appendix 

L to reflect the agreed critical use categories identified in Decision XXII/6. The agency is 

amending the table of critical uses based in part on the technical analysis contained in the 

2012 U.S. nomination that assesses data submitted by applicants to the CUE program.

First, EPA is proposing to remove from the list of approved critical users those uses that 

did not submit applications and therefore were not included in the U.S. nomination. 

These uses are International Paper and Weyerhaeuser Company in the forest nursery 

seedlings sector and beans in the commodities sector. The Parties have not authorized 

them as critical uses for 2012 and EPA proposes not to list these uses as critical for this 

control period. 
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Second, EPA is proposing to remove North Carolina and Tennessee strawberry 

nurseries. Growers in this sector applied for a critical use in 2012. The U.S. did not 

submit a nomination to UNEP for this use because EPA‟s technical review found that 

there are alternatives to methyl bromide for Southeast strawberry nurseries. The Parties 

have not authorized them as critical uses for 2012 and EPA proposes not to list these uses 

as critical for this control period.

Third, EPA is proposing to reduce the number of allowable uses for the National 

Pest Management Association‟s (NPMA) post harvest fumigations. Past critical uses for 

NPMA included “processed food, cheese, herbs and spices, and spaces and equipment in 

associated processing and storage facilities.” MBTOC found that the nomination for food 

processing facilities was inadequately justified and recommended only cheese storage 

facilities for consideration by the Parties as a critical use. MBTOC‟s comments can be 

found in the May 2010 TEAP Progress Report in the docket to this rule. EPA is 

proposing to modify the NPMA critical use to include only “Members of the National 

Pest Management Association treating cheese storage facilities.” EPA seeks comment on 

these proposed changes to Appendix L.

EPA is not proposing other changes to the table but is repeating the following

clarifications made in previous years for ease of reference. The “local township limits 

prohibiting 1,3-dichloropropene” are prohibitions on the use of 1,3-dichloropropene 

products in cases where local township limits on use of this alternative have been 

reached. In addition, “pet food” under subsection B of Food Processing refers to food for 

domesticated dogs and cats. Finally, “rapid fumigation” for commodities is when a buyer 

provides short (two working days or fewer) notification for a purchase or there is a short 
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period after harvest in which to fumigate and there is limited silo availability for using 

alternatives. 

D. Proposed Critical Use Amounts

Table C of the annex to Decision XXII/6 lists critical uses and amounts agreed to 

by the Parties to the Montreal Protocol. When added together, the total authorized critical 

use for 2012 is 1,022,826 kg, which is equivalent to 4.0% of the U.S. 1991 methyl 

bromide consumption baseline. The maximum amount of new production or import 

authorized by the Parties is 922,826 kg (3.6% of baseline) as set forth in Table D of the 

annex to Decision XXII/6. The difference between the total authorized amount and the 

authorized amount of new production is 100,000 kg (0.4% of baseline). This difference is 

the minimum that the Parties expect the U.S. to use from pre-phaseout inventory on 

critical uses. 

EPA is proposing to allocate 759,744 kg (3.0% of baseline) of new production 

and import of methyl bromide for critical uses for 2012. EPA is also proposing to allocate 

263,082 kg (1.0 % of baseline) in the form of Critical Stock Allowances for sale of prephaseout inventory for critical uses in 2012. EPA is seeking comment on the proposed 

total levels of exempted new production and import for critical uses and the amount of 

material that may be sold from pre-phaseout inventory for critical uses. The sub-sections 

below explain EPA‟s reasons for proposing the above critical use amounts for 2012.

1. Approach for Determining Critical Stock Allowances

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 
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excess of the amount of CSAs held by the seller. In addition, EPA noted that prephaseout inventories were further taken into account through the trading provisions that 

allow CUAs to be converted into CSAs. EPA is not proposing changes to these CSA 

provisions for calendar year 2010.

In the Framework Rule (69 FR 52366), EPA issued CSAs in an amount equal to 

the difference between the total authorized CUE amount and the amount of new 

production or import authorized by the Parties. In each of the CUE allocation rules from

2006 through 2010, 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). In the 2010 rule, EPA added to the minimum 

amount (1.8% of baseline) an additional amount (2.2% of baseline) for a total of 

1,028,108 CSAs (4.0% of baseline). After determining the CSA amount, EPA reduced 

the portion of CUE methyl bromide to come from new production and import such that 
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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. Decision XXII/6 states that “production 

and consumption of methyl bromide for critical uses should be permitted only if methyl 

bromide is not available in sufficient quantity and quality from existing stocks.” In 

addition, earlier decisions refer to the use of “quantities of methyl bromide from stocks 

that the Party has recognized to be available.” Thus, it is clear that individual Parties 

have the ability to determine their level of available stocks. Decision XXII/6 further 

reinforces this concept by including the phrase “minus available stocks” as a footnote to 

the United States‟ authorized level of production and consumption in Table D. Section 
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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 employs the concept of “available stocks” in determining whether to allocate 

additional CSAs 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

For 2012, EPA proposes to calculate the amount of “available” stocks as follows, 

using the formula adopted in the 2008 CUE rule: AS2012 = ES2011 – D2011 – SCF2012, 

where AS2012 is the available stocks on January 1, 2012; ES2011 is the existing prephaseout stocks of methyl bromide held in the United States by producers, importers, and 

distributors on January 1, 2011; D2011 is the estimated drawdown of existing stocks 

during calendar year 2011; and SCF2012 is the supply chain factor for 2012. Using this 
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formula, EPA calculates that there will be 263,082 kg of pre-phaseout stocks of methyl 

bromide “available” on January 1, 2012.

Existing Stocks In the above formula, “ES2011” is methyl bromide that was 

produced before the January 1, 2005, phaseout date but is still held by domestic 

producers, distributors, and third-party applicators as of January 1, 2011. ES2011 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 

quarantine and preshipment (QPS) exemption, 2) with Article 5 allowances to meet the 

basic domestic needs of Article 5 countries, or 3) for feedstock or transformation 

purposes. EPA considers all pre-phaseout inventory to be suitable for both pre-plant and 

post harvest uses. Similarly, EPA considers inventory methyl bromide to be available to 

all users, including users in California and the Southeastern United States. These 

assumptions are discussed in the 2009 CUE rule (74 FR 19887). 

Estimated Drawdown In past CUE rules, EPA either estimated the drawdown of 

existing stocks using a simple linear fit estimation of inventory data from all available 

years or used actual reported end of year data if available. A linear estimate would project 

that no methyl bromide would remain in inventory on January 1, 2012. EPA does not 

believe this estimate to be accurate because it does not consider that the use of inventory 

on critical uses is limited by the allocation of CSAs. A better estimate of drawdown 

would instead add the estimated amount of CSAs that will be expended in 2011 plus the 

estimated amount of methyl bromide that will be used in 2011 for non-critical uses.

The first element of EPA‟s proposed drawdown estimate is the amount of 

inventory that will be used in 2011 on critical uses. This can be no more than the number 
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of CSAs EPA allocates in the final 2011 CUE Rule. For purposes of this estimate, we are 

assuming the number of CSAs allocated in the final 2011 CUE Rule will be the same as 

the number EPA has proposed, which is 482,333 kg. As discussed in the Technical 

Support Document, on average only 58% of the CSAs allocated for a control period are 

reported as sold in that control period. Based on this historical pattern, EPA believes that 

not all of the CSAs will actually be expended in 2011 either. To estimate the number of 

expended CSAs in 2011, EPA conservatively assumes that 70% of the CSAs allocated for 

2011 will be sold. This amount is greater than any year‟s use of CSA allocations. Thus, 

EPA estimates that 337,633 kg of inventory will be sold for critical uses in 2011.

The second element in the drawdown estimate is the amount of methyl bromide 

used on non-critical uses in 2011. Under the recent reregistration decision for methyl 

bromide, seven non-critical uses remain on the pre-plant methyl bromide labels. These 

non-critical uses can continue to use methyl bromide but are restricted to pre-phaseout 

inventory. The uses are caneberries, fresh market tomatoes grown in California, fresh 

market peppers grown in California, Vidalia onions grown in Georgia, ginger grown in 

Hawaii, soils on golf courses and athletic/recreational fields for resurfacing/replanting of 

turf, and tobacco seedling trays. See 76 FR 7200. Collectively they are referred to as 

“Group II uses.” EPA proposes to estimate the amount of inventory that will be sold to 

these Group II uses in 2011 by averaging the amounts sold in 2006-2010 for all noncritical uses. There is no clear trend in the pattern of usage which is why EPA is 

proposing to simply take an average. EPA is not including 2005 because it does not have 

data for that year. These data are contained in EPA‟s annual Accounting Frameworks

submitted to UNEP and are available in the docket. The average use of pre-phaseout 
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inventory on all non-critical uses over the last five years is 773 MT. EPA believes that 

this estimate is conservative because it includes the use of inventory for all non-critical 

uses, not just for Group II uses. Therefore, EPA proposes to adopt this average as its 

estimate of non-critical use in 2011. 

Therefore, EPA proposes to estimate the potential drawdown of inventory in 2011 

as 1) the projected sum of the use of CSAs for 2011 and 2) the estimate for Group II uses 

for 2011. Using this method, EPA projects that the pre-phaseout methyl bromide 

inventory will be drawn down by 1,110,633 kg (337,633 + 773,000) during 2011. This 

would result in a pre-phaseout inventory declining from 1,802,715 kg on January 1, 2011, 

to 692,082 kg on January 1, 2012. EPA welcomes comment on this proposed method of 

calculating inventory drawdown. If EPA receives actual end-of-year reported data on 

inventory levels before this rule is finalized, EPA may substitute that data for this 

estimate.

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 previous CUE allocation rules, the SCF for 2012 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 
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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 42% of 

annual critical use methyl bromide demand. EPA, therefore, estimates that the peak 15-

week shortfall in 2012 could be 429 MT. 

As EPA stated in previous 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 regarding how the Agency determines CSA amounts. Its use in the equation 

above demonstrates that 263,082 kg are available to be allocated. Further 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 the 2012 supply chain factor is provided in 

the Technical Support Document available on the public docket for this rulemaking.

Using the following formula AS2012 = ES2011 – D2011 – SCF2012, EPA estimates 

that there will be 263,082 kg of pre-phaseout stocks of methyl bromide “available” on 

January 1, 2012. (263,082 = 1,802,715 – 1,110,633 – 429,000). Therefore, EPA 

proposes to allocate 263,082 kg as Critical Stock Allowances for 2012.

2. Approach for Determining New Production and Import Allowances

For the 2012 control period, EPA is proposing to apply the existing framework 

established in the Framework Rule. Under this approach, the amount of new production 

would equal the total amount authorized by the Parties to the Montreal Protocol in 

Decision XXII/6, minus the CSA amount detailed above, minus any reductions for 

carryover and the uptake of alternatives. Applying this established approach, EPA is 
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proposing to exempt limited amounts of new production and import of methyl bromide 

for critical uses in 2012 in the amount of 759,744 kg (3.0% of baseline). EPA is taking 

comment on this approach.

Carryover Material The Parties in paragraph 6 of Decision XXII/6 “urge parties

operating under a critical-use exemption to put in place an effective system to discourage 

the accumulation of methyl bromide produced under the exemption.” 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” 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 (which applies to pre-phaseout material) because this would lead to a doublecounting of carryover amounts, and a double reduction of critical use allowances (CUAs).

Unlike past control periods, all critical use methyl bromide that companies 

reported to be produced or imported in 2010 was sold to end users. The information 

reported to EPA is that 1,954,610 kg of critical use methyl bromide was produced or 

imported. A slightly higher amount than the amount produced or imported was actually

sold to end-users in 2010. This additional amount was from distributors selling amounts 

that were carried over from the 2009 control period. Using the existing framework, EPA 
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is proposing to apply the carryover deduction of 0 kg to the new production amount. 

EPA‟s calculation of the amount of carryover at the end of 2010 is consistent with the 

method used in previous CUE rules, and with the method agreed to by the Parties in 

Decision XVI/6 for calculating column L of the U.S. Accounting Framework. Past U.S. 

Accounting Frameworks, including the one for 2010, are available in the public docket 

for this rulemaking.

Uptake of Alternatives EPA also is proposing to continue considering new data 

about alternatives that were not available at the time the U.S. Government submitted its 

CUN to the Parties and adjust the allocation for new production accordingly. Two 

alternatives not considered in the 2012 CUN, which was submitted to UNEP in January 

2010, may potentially be used in 2012. In July 2010, EPA registered Dimethyl Disulfide 

(DMDS) to control nematodes, weeds, and pathogens in tomatoes, peppers, eggplants, 

curcurbits, strawberries, ornamentals and forest nursery seedlings, and onions. Currently, 

12 states have registered DMDS for use in that state. Neither California nor Florida has 

yet to register DMDS. EPA anticipates uptake during 2012 to be minimal as the primary

states with critical uses have not yet registered the alternative. In addition, once 

registered, growers are likely to experiment on only a limited number of acres. 

Second, California registered Iodomethane in December of 2010. EPA is unable 

to estimate uptake of Iodomethane in California during 2012 due to uncertainties created 

by the California label, specifically impacts of larger buffer zones and the lack of efficacy 

studies at the California label‟s lower use rates. Use has to be approved at the county 

level- only once. On cue crops
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While EPA is not proposing a specific amount of reduction to account for the 

uptake of these alternatives, EPA will consider new data received during the comment 

period. If the registration status of either of these alternatives changes, EPA is proposing 

to estimate and account for that uptake in the final rule. EPA is not proposing to take any 

other reductions for alternatives because the 2012 CUN properly applied transition rates 

for all other alternatives. The TEAP report of October 2010 included reductions in its 

recommendations for critical use categories based on the transition rates in the 2012

CUN. The TEAP‟s recommendations were then considered in the Parties‟ 2012

authorization amounts, as listed in Decision XXII/6. Therefore, transition rates, which 

account for the uptake of alternatives, have already been applied for authorized 2012

critical use amounts. EPA continues to gather information about methyl bromide 

alternatives through the CUE application process, and by other means. EPA also 

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.

In addition, EPA is taking comment on an issue raised in the proposed 2011 CUE 

rule. In that rulemaking, EPA proposed a critical-use allowance allocation of 1,500,000 

kg for 2011, given that regulated entities had been acting in good faith on statements 

made by the Agency in No Action Assurance letters that producers and importers could 

assume the allocation would be at least that much. While the total allocation was not 

affected, the amount of new production was 128,382 kg more than what EPA would have 

proposed for 2011 had the CSA and CUA amounts been based on the “available stocks” 

calculation using end of year inventory data. It also means that the critical stock 
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allocation was 128,382 kg less than the amount of “available stocks.” EPA stated in the 

2011 proposed rule that the Agency could reduce critical-use allowances for new 

production and import in the 2012 allocation rule to account for this difference.

EPA is taking comment on an alternative approach in which EPA would allocate 

631,362 kg (2.5% of baseline) of CUAs for 2012. This amount is 128,382 kg less than the 

proposed CUA amount. The CSA amount could remain either at 263,082 kg or be 

increased to 391,464 kg reflect the lower CSA allocation in 2011. The total allocation for 

2012 would be 894,444 kg or 1,022,826 kg depending on how many CSAs are issued 

under this alternative. While EPA is taking comment on this alternative, EPA is not 

proposing it as the lead approach because the number of allowances in the 2011 rule did 

not exceed the Parties authorization for 2011. It would not result in carryover, which as 

described above, is the methyl bromide compound being held over into a subsequent 

control period rather than merely the allowances. In addition, any effects that the 2011 

CSA allocation had on the amount of pre-phaseout inventory used in 2011 is captured in 

the “available stocks” analysis contained in this rule.

3. Summary of Calculations

The calculations described above for determining the level of new production and 

critical stock allowances are summarized in the table below:

Step 1: Calculate supply chain factor Kilograms

U.S. authorization for 2012 in Decision XXII/6 1,022,826

- Reduction for uptake of alternatives 0

= One year's CUE need 1,022,826

x Percentage of year's production to recover from production failure 42%

= Supply Chain Factor 429,000

Step 2: Calculate available stocks

Existing pre-phaseout inventory on January 1, 2011 1,802,715

- Drawdown of inventory for critical uses 337,633

- Drawdown of inventory for non-critical uses 773,000
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- Supply Chain Factor (Step 1) 429,000

= Available stocks = Critical Stock Allowance 263,082

Step 3: Calculate new production

Total U.S. authorization for 2012 1,022,826

- Critical Stock Allowance (Step 2) 263,082

- Carryover 0

- Uptake of alternatives 0 

= New production/import = Critical Use Allowance 759,744

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

Paragraphs 2 and 5 of Decision XXII/6 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 2012 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. In section V.C. the agency solicits comments on the 

technical and economic basis for determining that the uses listed in this proposed rule 

meet the criteria of the critical use exemption. The CUNs detail how each proposed 

critical use meets the criteria listed in paragraph 1 of Decision IX/6, apart from the 

criterion located at (b)(ii), as well as the criteria in paragraphs 5 and 6 of Decision Ex. 

I/4. 

The criterion in Decision IX/6(1)(b)(ii), which refers to the use of available stocks 

of methyl bromide, is addressed in sections V.D., V.G., and 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.
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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, updated in October 2009, as well as 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.

As discussed in the 2010 CUE Rule, EPA is no longer making an additional 

reduction to new production to account for approved research amounts. In the 2012 CUN, 

as in the 2010 CUN, the USG did not nominate a separate, additional amount specifically 

for research purposes; thus, EPA is not proposing to adjust the production level to 

subtract this amount. The nomination was again broad enough to cover both research and 

non-research uses. As discussed in the 2010 CUE rule, research is a key element of the 

critical use process. EPA therefore is retaining research on the critical use crops shown in 
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the table in Appendix L to subpart A as a critical use of methyl bromide. Therefore, 

researchers may continue to use newly produced methyl bromide, as well as pre-phaseout 

inventory purchased through the expenditure of CSAs, for field studies requiring the use 

of methyl bromide.

F. Emissions Minimization

Previous decisions have stated that Parties shall request critical users to employ 

emission minimization techniques such as virtually impermeable films, barrier film 

technologies, deep shank injection and/or other techniques that promote environmental 

protection, whenever technically and economically feasible. Through the recent 

Reregistration Eligibility Decision (RED) for methyl bromide, the agency requires that

methyl bromide applications be tarped except for California orchard replant where EPA 

instead requires deep (18 inches or greater) shank applications. The RED also encourages

the use of high-barrier tarps, such as virtually impermeable film (VIF), by providing 

credits that applicators can use to minimize their buffer zones. In addition to minimizing 

emissions, use of high-barrier tarps has the benefit of providing pest control at lower 

application rates. The amount of methyl bromide nominated by the USG reflects the 

lower application rates necessary when using high-barrier tarps, where such tarps are 

allowed. Emissions minimization efforts should not be limited to pre-plant fumigations.

While the RED addresses emissions minimization only in the context of pre-plant 

fumigation, EPA also urges users to reduce emissions from structures and port facilities 

through the use of recapture technologies.

Users of methyl bromide should continue to make every effort to minimize 

overall emissions of methyl bromide to the extent consistent with State and local laws 
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and regulations. The agency encourages researchers and users who are successfully 

utilizing such techniques to inform EPA of their experiences as part of their comments on 

this proposed rule and to provide such information with their critical use applications. In 

addition, the agency welcomes comments on the implementation of emission 

minimization techniques and whether and how emissions could be reduced further.

G. Critical Use Allowance Allocations

EPA is proposing to allocate 2012 critical use allowances for new production or 

import of methyl bromide up to the amount of 759,744 kg (3.0% of baseline) as shown in 

the proposed changes to the table in 40 CFR 82.8(c)(1). EPA is seeking comment on the 

total levels and allocations of exempted new production or import for pre-plant and postharvest critical uses in 2012. 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 

proposed CUA allocation is subject to the trading provisions at 40 CFR 82.12, which are 

discussed in section V.G. of the preamble to the Framework Rule (69 FR 76982).

Paragraph 3 of Decision XXII/6 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 prior Decisions 

authorizing critical uses. The language from these Decisions calls on Parties to endeavor 

to allocate critical use methyl bromide on a sector basis. The Framework Rule proposed 

several options for allocating critical use allowances, including a sector-by-sector 

approach. The agency evaluated the various options based on their economic, 

environmental, and practical effects. After receiving comments, EPA determined that a 
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lump-sum, or universal, allocation, modified to include distinct caps for pre-plant and 

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

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

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

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

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

sector breakout listed in the Parties‟ decisions, but continues to welcome comments on 

this issue.

H. Critical Stock Allowance Allocations

A preambular paragraph to Decision XXII/6 states “that parties should reduce 

their stocks of methyl bromide retained for employment in critical-use exemptions to a 

minimum in as short a time period as possible.” EPA notes that the U.S. Government is 

not retaining pre-phaseout inventory for any particular purpose. Pre-phaseout inventory 

is held by private companies who may sell to any use that meets the labeling under 

FIFRA. However, EPA believes that its practice of encouraging the use of inventory by 

allocating CSAs equivalent to all “available stocks” is consistent with this statement by 

the Parties. EPA is proposing to allocate CSAs for the 2012 control period in the amount 

of 263,082 kg (1.0% of baseline). This amount is greater than the difference between the 

total U.S. CUE amount approved by the Parties and the permitted level of U.S. 

production and consumption. For 2012, that difference is 100,000 kg (0.4% of baseline).

EPA‟s proposed 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 
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information as confidential. NRDC v. Leavitt, 2006 WL 667327 (D.D.C. March 14, 

2006). Therefore, the documentation regarding company-specific allocation of CSAs is in 

the confidential portion of the rulemaking docket and the individual CSA allocations are 

not listed in the table in 40 CFR 82.8(c)(2). EPA will inform the listed companies of their 

CSA allocations in a letter following publication of the final rule.

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 agreed critical uses. The Framework Rule established provisions 

governing the sale of pre-phaseout inventories for critical uses, including the concept of 

CSAs and a prohibition on the sale of pre-phaseout inventories for critical uses in excess 

of the amount of CSAs held by the seller. It also established trading provisions that allow 

CUAs to be converted into CSAs. EPA is not proposing to change these provisions.

The aggregate amount of pre-phaseout methyl bromide reported as being in 

inventory at the beginning of 2011 is 1,802,715 kg. As in prior years, the Agency will 

continue to closely monitor CUA and CSA data. As stated in the final 2006 CUE Rule, if 

an inventory shortage occurs, EPA may consider various options including authorizing 

the conversion of a limited number of CSAs to CUAs through a rulemaking, bearing in 

mind the upper limit on U.S. production/import for critical uses. In sections V.D. and 

V.G. of this preamble, EPA seeks comment on the amount of critical use methyl bromide 

to come from stocks compared to new production and import.
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As explained in the 2008 CUE Rule, the agency intends to continue releasing the 

aggregate of methyl bromide stockpile information reported to the agency under the 

reporting requirements at 40 CFR 82.13 for the end of each control period. 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. EPA is not proposing to 

change the treatment of submitted information but welcomes information concerning the 

composition of the industry in this regard. The aggregate information for 2003 through 

2011 is available in the docket for this rulemaking.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 

13563: Improving Regulation and Regulatory Review

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this 

proposal is a “significant regulatory action.” This action is likely to result in a rule that 

may raise novel legal or policy issues. Accordingly, EPA submitted this action to the 

Office of Management and Budget (OMB) for review under Executive Orders 12866 and 

13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB 

recommendations have been documented in the docket for this action.

B. Paperwork Reduction Act

This action does not impose any new information collection burden. The 

application, recordkeeping, and reporting requirements have already been established 

under previous Critical Use Exemption rulemakings and this action does not propose to 

change any of those existing requirements. The Office of Management and Budget 
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(OMB) has previously approved the information collection requirements contained in the 

existing regulations at 40 CFR part 82 under the provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-0482. The OMB 

control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

The RFA generally requires an agency to prepare a regulatory flexibility analysis 

of any rule subject to notice-and-comment rulemaking requirements under the 

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

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

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

jurisdictions. For purposes of assessing the impacts of this rule on small entities, small 

entity is defined as: (1) a small business that is identified by the North American Industry 

Classification System (NAICS) Code in the Table below; (2) a small governmental 

jurisdiction that is a government of a city, county, town, school district or special district 

with a population of less than 50,000; and (3) a small organization that is any not-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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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 proposed 

rule would only affect entities that applied to EPA for an exemption to the phaseout of 

methyl bromide. In most cases, EPA received aggregated requests for exemptions from 

industry consortia. On the exemption application, EPA asked consortia to describe the 

number and size distribution of entities their application covered. EPA estimated that 

3,218 entities petitioned EPA for an exemption for the 2005 control period. EPA revised 

this estimate in 2011 down to 1,800 end users of critical use methyl bromide. EPA 

believes that the number continues to decline as growers cease applying for critical uses. 

Since many applicants did not provide information on the distribution of sizes of entities 

covered in their applications, EPA estimated that, based on the above definition, between 

one-fourth and one-third of the entities may be small businesses. In addition, other 
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categories of affected entities do not contain small businesses based on the above 

description.

After considering the economic impacts of this proposed rule on small entities, 

EPA certifies that this action will not have a significant economic impact on a substantial 

number of small entities. In determining whether a rule has a significant economic impact 

on a substantial number of small entities, the impact of concern is any significant adverse

economic impact on small entities, since the primary purpose of the regulatory flexibility 

analyses is to identify and address regulatory alternatives “which minimize any 

significant economic impact of the proposed rule on small entities.” (5 U.S.C. §§ 603-

604). Thus, an agency may certify that a rule will not have a significant economic impact 

on a substantial number of small entities if the rule relieves a regulatory burden, or 

otherwise has a positive economic effect on all of the small entities subject to the rule.

Since this rule would exempt methyl bromide for approved critical uses after the 

phaseout date of January 1, 2005, this action would confer a benefit to users of methyl 

bromide. We have therefore concluded that this proposed rule would relieve regulatory 

burden for all small entities.

D. Unfunded Mandates Reform Act

This action contains no Federal mandates under the provisions of Title II of the 

Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, 

or tribal governments or the private sector. The action imposes no enforceable duty on 

any State, local or tribal governments or the private sector. Instead, this action would 

provide an exemption for the manufacture and use of a phased out compound and would

not impose any new requirements on any entities. Therefore, this action is not subject to 
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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 proposed rule is expected to 

primarily affect producers, suppliers, importers, and exporters and users of methyl 

bromide. Thus, Executive Order 13132 does not apply to this proposed rule. In the spirit 

of Executive Order 13132, and consistent with EPA policy to promote communications 

between EPA and State and local governments, EPA specifically solicits comment on this 

proposed action from State and local officials.

F. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments

This action does not have tribal implications, as specified in Executive Order 

13175 (65 FR 67249, November 9, 2000). This rule does not significantly or uniquely 

affect the communities of Indian tribal governments nor does it impose any enforceable 

duties on communities of Indian tribal governments. Thus, Executive Order 13175 does 

not apply to this action.

G. Executive Order No. 13045: Protection of Children from Environmental Health 

and Safety Risks

EPA interprets EO 13045 (62 F.R. 19885, April 23, 1997) as applying 
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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 proposed 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 proposed 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 proposed rule is not 

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 No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use 

voluntary consensus standards in its regulatory activities unless to do so would be 

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 
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proposed rulemaking does not involve technical standards. Therefore, EPA is not 

considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in 

Minority Populations and Low-Income Populations

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental justice. Its main provision directs federal agencies, to 

the greatest extent practicable and permitted by law, to make environmental justice part 

of their mission by identifying and addressing, as appropriate, disproportionately high 

and adverse human health or environmental effects of their programs, policies, and 

activities on minority populations and low-income populations in the United States.

EPA has determined that this proposed rule will not have disproportionately high 

and adverse human health or environmental effects on minority or low-income 

populations, because it affects the level of environmental protection equally for all 

affected populations without having any disproportionately high and adverse human 

health or environmental effects on any population, including any minority or low-income 

population. Any ozone depletion that results from this proposed rule will impact all 

affected populations equally because ozone depletion is a global environmental problem 

with environmental and human effects that are, in general, equally distributed across 

geographical regions.
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List of Subjects in 40 CFR Part 82

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

DATE: ____________________

______________________________________________

Lisa P. Jackson, 

Administrator.

For the reasons stated in the preamble, 40 CFR Part 82 is proposed to be amended as 

follows:

PART 82- PROTECTION OF STRATOSPHERIC OZONE

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

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

2. Section 82.8 is amended as follows:

a. by revising the table in paragraph (c)(1);

b. by revising paragraph (c)(2) including the table.

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

* * * * *

(c) * * *

(1) * * * 

Company 2012 Critical use allowances for 

pre-plant uses* (kilograms)

2012 Critical use allowances for 

post-harvest uses* (kilograms)

Great Lakes Chemical Corp.

A Chemtura Company

425,197 36,499

Albemarle Corp. 174,851 15,009

ICL-IP America 96,626 8,294

TriCal, Inc. 3,009 258

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

Phaseout of Methyl Bromide (Page 44 of 48)
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Total** 699,683 60,061

* 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 2012 on a pro-rata basis 

in relation to the inventory held by each.

Company

Albemarle Helena Chemical Co. Prosource One 

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

Burnside Services, Inc. Hy Yield Products Trical Inc.

Cardinal Professional Products ICL-IP America Trident Agricultural Products

Chemtura Corp. Industrial Fumigant Company Univar

Crop Production Services Pacific Ag Supplies Inc. Western Fumigation

Degesch America, Inc. Pest Fog Sales Corp.

TOTAL –263,082 kilograms

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

APPENDIX L TO SUBPART A OF PART 82 – APPROVED CRITICAL USES 

AND LIMITING CRITICAL CONDITIONS FOR THOSE USES FOR THE 2012

CONTROL PERIOD

Column A Column B Column C

Approved 

Critical Uses

Approved Critical User and Location 

of Use

Limiting Critical Conditions

that exist, or that the approved critical user reasonably 

expects could arise without methyl bromide fumigation:

PRE-PLANT USES

Cucurbits (a) Growers in Delaware and Maryland Moderate to severe soilborne disease infestation
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(b) Growers in Georgia and Southeastern 

U.S. limited to growing locations in 

Alabama, Arkansas, Kentucky, 

Louisiana, Mississippi, North Carolina, 

South Carolina, Tennessee, and Virginia

Moderate to severe yellow or purple nutsedge infestation

Moderate to severe soilborne disease infestation 

Moderate to severe root knot nematode infestation

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

Moderate to severe soilborne disease infestation

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation

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

Moderate to severe nematode infestation

Moderate to severe pythium collar, crown and root rot

Moderate to severe southern blight infestation

Restrictions on alternatives due to karst topographical 

features

Forest 

Nursery 

Seedlings

(a) Southern Forest Nursery 

Management Cooperative (Growers in 

Alabama, Arkansas, Florida, Georgia, 

Kentucky, 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) Northeastern Forest and Conservation 

Nursery Association (Governmentowned 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

(c) Michigan Seedling Growers Moderate to severe soilborne disease infestation

Moderate to severe Canada thistle infestation

Moderate to severe nutsedge infestation

Moderate to severe nematode infestation

Nursery 

Stock (Fruit, 

Nut, Flower)

(a) Members of the California 

Association of Nursery and Garden 

Centers representing Deciduous Tree 

Fruit Growers

Moderate to severe nematode infestation

Medium to heavy clay soils

Local township limits prohibiting 1,3-dichloropropene

(b) California rose nurseries Moderate to severe nematode infestation

Local township limits prohibiting 1,3-dichloropropene

Orchard 

Replant

California stone fruit, table and raisin 

grape, wine grape, walnut, and almond 

growers

Moderate to severe nematode infestation

Moderate to severe soilborne disease infestation

Replanted orchard soils to prevent orchard replant 

disease

Medium to heavy soils

Local township limits prohibiting 1,3-dichloropropene

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

Moderate to severe nematode infestation

Local township limits prohibiting 1,3-dichloropropene

(b) Florida growers Moderate to severe weed infestation

Moderate to severe soilborne disease infestation

Moderate to severe nematode infestation

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation
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Peppers (a) Alabama, Arkansas, Kentucky, 

Louisiana, Mississippi, North Carolina, 

South Carolina, Tennessee, and Virginia 

growers

Moderate to severe yellow or purple nutsedge infestation 

Moderate to severe nematode infestation

Moderate to severe pythium root, collar, crown and root 

rots

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

Moderate to severe soilborne disease infestation

Moderate to severe nematode infestation

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation

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

Moderate to severe nematode infestation, or moderate to 

severe pythium root and collar rots

Moderate to severe southern blight infestation, crown or 

root rot

Restrictions on alternatives due to karst topographical 

features

Strawberry 

Fruit

(a) California growers Moderate to severe black root rot or crown rot

Moderate to severe yellow or purple nutsedge infestation

Moderate to severe nematode infestation

Local township limits prohibiting 1,3-dichloropropene

Time to transition to an alternative

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

Moderate to severe nematode infestation

Moderate to severe soilborne disease infestation

Carolina geranium or cut-leaf evening primrose 

infestation

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation

(c) Alabama, Arkansas, Georgia, Illinois, 

Kentucky, Louisiana, Maryland, 

Mississippi, Missouri, New Jersey, North 

Carolina, Ohio, South Carolina, 

Tennessee, and Virginia growers

Moderate to severe yellow or purple nutsedge infestation

Moderate to severe nematode infestation

Moderate to severe black root and crown rot

Strawberry 

Nurseries

California growers Moderate to severe soilborne disease infestation

Moderate to severe yellow or purple nutsedge infestation

Moderate to severe nematode infestation

Sweet Potato 

Slips

California growers Local township limits prohibiting 1,3-dichloropropene

Tomatoes (a) Alabama, Arkansas, Florida, Georgia, 

Kentucky, Louisiana, Mississippi, North 

Carolina, South Carolina, Tennessee, and 

Virginia growers

Moderate to severe yellow or purple nutsedge infestation 

Moderate to severe soilborne disease infestation

Moderate to severe nematode infestation 

Restrictions on alternatives due to karst topographical 

features and, in Florida, soils not supporting seepage 

irrigation

(b) Maryland growers Moderate to severe fungal pathogen infestation

POST-HARVEST USES

Food 

Processing

(a) Rice millers in the U.S. who are 

members of the USA Rice Millers 

Association

Moderate to severe beetle, weevil, or moth infestation

Presence of sensitive electronic equipment subject to 

corrosion

Time to transition to an alternative
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(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 cheese 

storage facilities

Mite infestation 

Commodities California entities storing walnuts, dried 

plums, figs, raisins, and dates (in 

Riverside county only) in California.

Rapid fumigation required to meet a critical market 

window, such as during the holiday season

Dry Cured 

Pork Products

Members of the National Country Ham 

Association and the Association of Meat 

Processors, Nahunta Pork Center (North 

Carolina), and Gwaltney and Smithfield 

Inc.

Red legged ham beetle infestation

Cheese/ham skipper infestation

Dermested beetle infestation

Ham mite infestation