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1 of 48 EO12866MethylBromideCUE2060
- AQ83NPRM20110615.docx ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 82 [EPA
- HQ
- OAR
- 2009
- 0277 ; FRL
- ] RIN: 2060
- AQ83 Protection of Stratospheric Ozone: The 201 2 Critical Use Exemption from the Phaseout of Methyl Bromide AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed r ule. SUMMARY: EPA is proposing uses that qualify for the 201 2 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 201 2

. EPA is taking action under the authority of the Clean Air Act to reflect a recent consensus de cision taken by the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer at the Twent y - 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 nee ded 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 requ ested, on the Ozone Protection website www.epa.gov/ozone/strathome.html

. Persons interested in*** E.O. 12866 Review

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2 of 48 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
- OAR
2009
- 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 operat ion, 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 commen t 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*** E.O. 12866 Review

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3 of 48 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 d irectly 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 INFORMAT ION 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 :*** E.O. 12866 Review

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4 of 48 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

cr itical uses during calendar year 201 2

. 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, s uch 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 201 2 critical use exemption as well as specific amounts of methyl bromide
t ha t may be produced and imported, or sold from pre

- phaseout inventory (also referred to as “stocks” or “inventory”) for proposed critical uses in 201 2

. 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 P arties to the Montreal Protocol?
V. What Is the Critical Use Exemption Process?
A. A. Background of the Process
B. How Does This Proposed Rule Relate to Previous Critical Use Exemption Rules?*** E.O. 12866 Review

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5 of 48 C. Proposed Critical Uses
D. Proposed Critical Use Amounts
1. Approach for Determining Critical St ock 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 Allo cations
H. Critical Stock Allowance Allocations
I. Stocks of Methyl Bromide
V I

. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review
B. Pap erwork 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 Chil dren from Environmental Health and Safety Risks
H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use*** E.O. 12866 Review

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6 of 48 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 suc h 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 s ection.
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*** E.O. 12866 Review

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7 of 48 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 comme nt that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for i nclusion in the public docket.
2. Tips for Preparing Your Comments. When submitting comments, remember to:

• Identi fy 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 Federa l 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 estimat e 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, avoidi ng the use of profanity or personal threats.

• Make sure to submit your comments by the comment period deadline identified.*** E.O. 12866 Review

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8 of 48 II. What Is Methyl Bromide? Methyl bromide is an odorless, colorless, toxic gas which is used as a broad

spectrum pesticide and is co ntrolled 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 ht tp://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 dero gate 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 FIF RA 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 bro mide 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 B ackground to the Phaseout Regulations for Ozone
- Depleting Substances?*** E.O. 12866 Review

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9 of 48 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 regul atory 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 Montre al 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 Pr otocol 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 19 92 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. produ ction 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*** E.O. 12866 Review

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10 of 4 8 companies in each control period (each calendar year) until 2001, when the complete phaseout wo uld occur. This phaseout date was established in response to a petition filed in 1991 under s ections 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 s ection 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 produ ction 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

s ection 60 2(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*** E.O. 12866 Review

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11 of 48 the Protocol, and to authorize EPA to provide certain exem ptions. 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 s ection 604 of the CAA, 42 U.S.C. 7671c. The amendment that speci fically addresses the cri tical use exemption appears at s ection 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 o n 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 exem ption; 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 app lying the critical use exemption framework for each of the c ontrol periods from 2006 to 2011

. Under authority of section 604(d)(6) of the CAA, this action proposes the uses that will qualify a s approved critical uses in 2012 and the amount of methyl bromid e that may be produced, imported, or supplied from inventory to satisfy those uses. This proposed action on critical uses for 2012 reflects Decision XX I I/ 6 , taken at the Twent y - Second Meetin g of the Parties in November 2010

. In accordance with Article 2H( 5), the Parties have issued several Decisions pertaining to the critical use exemption.*** E.O. 12866 Review

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12 of 48 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 Montrea l 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 eco nomically 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 definiti on of “critical use” at 40 CFR
82.3. In response to EPA‟s request for critical use exemption applications published in the Federal Register on May 2 0, 2009 (74 FR 23705 ) , applicants provide d data on the technical and economic feasibility of using alternat ives to methyl bromide. Applicants*** E.O. 12866 Review

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13 of 48 also submit ted 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 review s 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 sig nificant market disruption if no exemption were avai l able. 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 cu lminates 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 th en 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 s ection 604(d)(6) of the CAA, for each exemption pe riod, EPA consults with the U nited 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 th e agency is*** E.O. 12866 Review

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14 of 48 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 furth er streamlined, the technical review itself remains rigorous with careful consideration of new technical and economic conditions. On January 2 2, 2010 , the U.S. Government (USG) submitted the eighth Nomination for a Critical Use Exemption for Methyl Bromi de for the United States of
America to the Ozone Secretariat of the UNEP. This nomination contained the request for
201 2 critical uses. In February 2010 , MBTOC sent questions to the USG concerning technical and economic issues in the 201 2 nomination. The U SG 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 docume nts. 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.*** E.O. 12866 Review

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15 of 48 Since publishing the Framework Rule, EPA has annually promulgated regul ations 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 c riteria 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 pr oposal)

. Today‟s action proposes to utilize the existing regulatory framework to determine critical uses for 201 2 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
XX II /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 XX I I/ 6 , taken in November 2010 , the Parties to the Protocol agreed “to permit, for the agreed c ritical

- use categories for 201 2 set forth in table C of the annex*** E.O. 12866 Review

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16 of 48 to the presen t decision for each p arty, 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 201 2 set forth in table D of t he 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 I I/ 6 for the United States :

Commodities National Pest Management Association f ood processing stru ctures Mills and processors Dried cured pork Cucurbits Eggplant

– field Forest nursery seedlings Nursery stock

– fruit s , nut s , flower s Orchard replant s Ornamentals Peppers

– field Strawberry

– field Strawberry runners Tomatoes

– field Sweet potato slips The Decision XX I I/ 6 critical use level s for 201 2 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 XX I I/ 6 is 922,826 kg ( 3.6 % of baseline), minus available stocks. EPA is proposing a total critical use exemption in 201 2 of 1, 022,826 kg ( 4.0 % of baseline) with new production or import of methyl bromide for c ritical 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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17 of 48 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 tha t have transpired after the 2012 U.S. nomination was written. EPA recognizes that as the market for alternatives evolves, the threshol ds 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 m ethyl 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 in crease 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 XX I I/ 6

. T he agency is amending the table of critical uses based in part on the technical analysis contained in the
201 2 U.S. nomination that assesses data submitted by applicants to the CUE program

. First, EPA is proposing to remove from the list of approved criti cal users those uses that did not submit applications and the refore 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 use s as critical for this control period.*** E.O. 12866 Review

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18 of 48 Second, EPA is proposing to remove North Carolina and Tennessee strawberry nurseries. G rowers in this sector applied fo r a critical use in 2012 . T he 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 storag e 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 M anagement 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*** E.O. 12866 Review

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19 of 48 period after harvest in which to fumigate and t here is limited silo availability for using alternatives. D. Proposed Critical Use Amounts Table C of the annex to Decision XX II/6 lists critical uses and amounts agreed to by the Parties to the Montreal Protocol. When added together, the total authorized critical use for 201 2 is 1,022,826 kg , which is equivalent to 4.0 % of the U.S. 1991 methyl bromide consumption baseline. T he maximum amount of new production or import authorized by the Parties is 922,826 kg ( 3.6 % of baseline) as set forth in Ta ble D of the annex to Decision XXI I/6

. The difference between the total authorized amount and the authorized amount of new production is 1 00,000 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 pre

phaseout inv entory 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 f rom 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 gove rning the sale of pre

phaseout inventories for critical uses, including the concept of Critical Stock Allowances (CSAs) and a prohibition on the sale of pre

- phaseout inventories for critical uses in*** E.O. 12866 Review

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20 of 48 excess of the amount of CSAs held by the seller. In addi tion, EPA noted that pre

phaseout 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 is sued 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 am ount (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 additi onal 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*** E.O. 12866 Review

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21 of 48 the total amount of methyl bromide exempted fo r 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

e xercise 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 criti cal 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 s tocks. Decision XXII /6 states that “production and consumption of methyl bromide for critical uses sh ould 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 XX II/6 further reinforces this concept by including the phrase “minus available stocks” as a footnote to the U nited States‟ authorized level of production and consumption in Table D. Section*** E.O. 12866 Review

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22 of 48 604(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 rulemakin gs, 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. I n 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
Fo r 2012, EPA proposes to calculate the amount of “available” stocks as follows, using the formula adopted in the 2008 CUE rule: AS 2012 = ES 2011 – D 2011 – SCF 2012 , where AS 2012 is the available stocks on January 1, 2012; ES 2011 is the existing pre

phaseout s tocks of methyl bromide held in the United States by producers, importers, and distributors on January 1, 2011; D 2011 is the estimated drawdown of existing stocks during calendar year 2011; and SCF 2012 is the supply chain factor for 2012. Using this*** E.O. 12866 Review

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23 of 48 formu la, 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, “ES 2011 ” is methyl bromide that was produced before the January 1, 2005, phaseout date but is st ill held by domestic producers, distributors, and third

- party applicators as of January 1, 2011. ES 2011 does not include critical use methyl bromide that was produced after January 1, 2005, and carried over into subsequent years. Nor does it include meth yl 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 esti mate 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*** E.O. 12866 Review

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24 of 48 of CSAs EPA allocates in the final 2011 CUE Rule. For purposes of this estimate, we are assumi ng 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 f or 20 11 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 invent ory. The uses are caneberries, fresh market tomatoes grown in California , fresh market peppers grown in Califo rnia , Vidalia onions grown in Geor gia, ginger grown in Hawaii, soils on golf courses and athletic/recreational fields for resurfacing/ replanting o f 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 n on critical 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

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25 of 48 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 CSA s 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 decl ining 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 finalize d, 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 p roduction 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 sup ply 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*** E.O. 12866 Review

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26 of 48 EPA‟s analysis do change each year including the total U.S. and global authorizations for methyl bromide and the aver age 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 t o 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 AS 2012 = ES 2011 – D 2011 – SCF 2012 , 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
pro poses to allocate 263,082 kg as Critical Stock Allowances for 2012.
2 . A pproach 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 XX II/6 , minus the CSA amount detailed above, minus any reductions for carryover and the uptake of alternatives. Applying this established approach, EPA is*** E.O. 12866 Review

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27 of 48 proposing to exempt limited amounts of new production and import of methyl bromide for critic al uses in 2012 in the amount of 759,744 kg ( 3 .0 % of baseline)

. EPA is taking comment on this approach. Carryover Materia l 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
p roduced 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 repo rted to EPA the following year. EP A 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

amoun t 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 double

counting of carryover amounts, and a double reduction of critical use allowances (CUAs). Unlike past control periods, all critical use methyl bromide that c ompanies reported to be produced or import ed in 2010 was sold to end users

. T he information reported to EPA is that 1,95 4,610 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*** E.O. 12866 Review

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28 of 48 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 Par ties 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 av ailable 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 alterna tives not considered in the 2012 CUN , which was su bmitted to UNEP in January
2010 , may potentially be used in 2012. In July 2010, EPA registered Dimethyl Disulfide (DMDS) to control nema todes, weed s, and pathogens in tomatoes, peppers, eggplants, curcurbits , strawberries, ornamentals and forest nursery seedlings, and onions. Currently, 12 states have register ed 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 a re 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*** E.O. 12866 Review

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29 of 48 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 201 2 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 201 2
CUN. The TEAP‟s recommendations were then considered in the Parties‟ 201 2 authorization amounts, as listed in Decision XX I I / 6

. Therefore, transition rates, which
account for the uptake of alternatives , have already been applied for authorized 201 2 critical use amounts. EPA continues to gather information about meth yl 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 go od 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 tha n what EPA woul d 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*** E.O. 12866 Review

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30 of 48 allocation was 128,382 kg less than the amount of “available stocks.” EPA stated in t he 2011 proposed rule that the A gency 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. T he CSA amount c ould remain either at 263,082 kg or b e increased to 391,46 4 kg reflect the lower CSA allocation in 2011

. T he 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 l ead 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 r ather 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 calculati ons 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 XXI I/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

- phase out 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*** E.O. 12866 Review

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31 of 48 - 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 XX I I / 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 201 2 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 t he 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 crite rion 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.*** E.O. 12866 Review

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32 of 48 The remaining considerations, including the lack of available technically and economically feasible alternatives under the circumstance of the nomination; efforts to minimize u se 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 Secretaria t 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 rulema king. As discussed in the 2010 CUE Rule, EPA is no longer making an additional reduction to new production to account for approv ed research amounts. In the 2012 CUN, as in the 2010 CUN, t he 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. T he nomination was again broad enough to cover both research and

non - research uses

. As discussed in the 2010 CUE rule , research i s a key element of the critical use process. EPA therefore is retaining research on the critical use crops shown in*** E.O. 12866 Review

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33 of 48 the table in Appendix L to subpart A as a critical use of methyl bromide. Therefore, researchers may continue to use newly produced methyl b romide, 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 state d that Parties shall request critical users to employ emiss ion 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 Rereg istration Eligibility Decision (RED) for methyl bromide, t he 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, u se 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 fum igations.
W hile 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*** E.O. 12866 Review

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34 of 48 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 201 2 critical use allowances for new production or impo rt of methyl bromi de 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 pos t

harvest critical uses in 201 2

. 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 t he Framework Rule (69 FR 76982). Paragraph 3 of Decision XX I I / 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 a gency evaluated the various options based on their economic, environmental, and practical effects. After receiving comments, EPA determined that a*** E.O. 12866 Review

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35 of 48 lump

- sum, or universal, allocation, modified to include distinct caps for pre

- plant and post

- harvest uses, wa s 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. C ritical 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 note s 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 enco uraging 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
sh are 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*** E.O. 12866 Review

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36 of 48 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 u ser may purchase methyl bromide produced or imported with CUAs as well as limited inven tories 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 inventor ies 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 20 11 is 1,802,715 kg

. As in prior years, the Agency will continue to closely monitor CUA and CSA data. A s stated in the final 2006 CUE R ule, i f 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.*** E.O. 12866 Review

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37 of 48 As explained in the 2008 CUE R ule, the agency intend s 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 de cline 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 w elcomes information concerning the composition of the industry in this regard. The aggregate informa tion for 2003 through
2011 is available in the docket for this rulemaking. VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Pl anning 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 requiremen ts have already been established under previous Critical Use Exemption rulemakings and this action does not propose to change any of those existing requirements. T he Office of Management and Budget*** E.O. 12866 Review

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38 of 48 (OMB) has previously approved the information collection r equirements 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 h as assigned OMB control number 2060

- 0482. The OMB control numbers for EPA's regulations in 40 CFR are liste d 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 stat ute 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 assessi ng 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 governm ent of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not

- for

profit enterprise which is independently owned and operated and is not dominant in its field. 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*** E.O. 12866 Review

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39 of 48 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

me thyl 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. E PA 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 us es. 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 ad dition, other*** E.O. 12866 Review

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40 of 48 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 econom ic 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 pr imary 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 meth yl 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*** E.O. 12866 Review

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41 of 48 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 a nd 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 significan tly 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*** E.O. 12866 Review

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42 of 48 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 S upply, 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 conclud ed 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 specif ications, 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 ap plicable voluntary consensus standards. This*** E.O. 12866 Review

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43 of 48 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 Justi ce 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 an d 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 populat ions 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 result s 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.*** E.O. 12866 Review

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44 of 48 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 a nd critical use allowances

. * * * * * (c) * * * (1) * * *
Company 2012 Critical use allowances for pre - plant uses* (kilograms) 201 2 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)*** E.O. 12866 Review

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45 of 48 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 critic al stock allowances for 2012 on a pro - rata basis in relat ion 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 CONDIT IONS 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*** E.O. 12866 Review

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46 of 48 (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 Restric tions 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 inf estation

( b ) Northeastern Forest and Conservation Nursery Association ( 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
( 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 orcha rd 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 featu res and soils not supporting seepage irrigation*** E.O. 12866 Review

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47 of 48 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 Restri ctions 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 sev ere 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*** E.O. 12866 Review

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48 of 48 (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 corros ion 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