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1 of 52 EO12866 Me Br CUE 2060

- AQ83 Final Rule 20120103 .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: Final r ule. SUMMARY: EPA is authorizing 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 this action under the authority of the Clean Air Act to reflect a recent consens us decision by the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer at the Twent y - Second Meeting of the Parties. DATES: This rule is effective on [insert date of publication]. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA

HQ

- OAR

- 2009

- 0277

. All documents in the docket are listed on the www.regulations.gov web site. Although listed in the index, some information is not publicly available, e.g., CBI or othe r information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and is publicly ava ilable only in hard copy form. Publicly available docket materials are available either electron ically through www.regulations.gov or in hard copy at the Air and Radiation Docket, EPA/DC,*** E.O. 12866 Review

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2 of 52 EPA West, Room 3334, 1301 Constitu tion Ave., NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal hol idays. The telephone number for the Public Reading Room is (202) 566

- 1744, and the telephone number for the Air and Radiation Docket is (202) 566

- 1742).
FOR FURTHER INFORMAT ION CONTACT : For further information about this rule, contact Jeremy Arling b y telephone at (202) 343

- 9055, or by e

- mail at arling.jeremy@epa.gov or by mail at U.S. Environmental Protection Agency, Stratospheric Protection Division, Stratospheric Program Implementation Branch (6205J), 1200 Pennsylvania Avenue, N.W., Washington, D.C ., 20460. You may also visit the methyl bromide section of the ozone layer protection website at www.epa.gov/ozone/mbr for further information about the methyl bromide critical use exemption, other stratospheric ozone protection regulations, the science of ozone layer depletion, and related topics. SUPPLEMENTARY INFORMATION : This rule concerns Clean Air Act (CAA) restrictions on the consumption, production, and use of methyl bromide (a Class I, Group VI controlled substance) for critical uses during calend ar year 201 2

. Under the Clean Air A ct, methyl bromide consumption 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. Consumption is defined under the CAA as production plus imports minus exports. With this action, EPA is authorizing the uses that qualify for the 201 2 critical use exemption as well as specific amounts of methyl bromide t hat may be produced and*** E.O. 12866 Review

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3 of 52 imported, o r sold from pre

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

. Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. Chapter 5, generally provides that rules may not take effect earlier than 30 days after they are published in the Federal Register. EPA is issuing this final rule under section 307(d)(1) of the Clean Air Act, which states: “The provisions of section 553 through 557 . . . of Title 5 shall not, except as expressly provided in this section, apply to ac tions to which this subsection applies.” Thus, section 553(d) of the AP A does not apply to this rule. EPA is nevertheless acting consistently with the policies underlying APA section 553(d) in making this rule effective on [Insert date of publication] . APA section 553(d) allows an effective date less than 30 days after publication "as otherwise provided by the agency for good cause found and published with the rule." Section 5 U.S.C. 553(d)(1) allows an effective date less than 30 days after publication for a rule that “ that grants or recognizes an exemption or relieves a restriction.” 5 U.S.C. § 553(d)(1). Since today‟s action can be considered to either grant an exemption for limited critical uses during 2012 from the general prohibition on production or import of methyl bromide after the phaseout date of January 1, 2005 , or relieve a restricti on that would otherwise prevent production or import of methyl bromide , EPA is making this action effective immediately upon publication. Table of Contents
I. General Information
A. Regulated Entities
II. What Is Methyl Bromide?*** E.O. 12866 Review

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4 of 52 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 Crit ical Uses Authorized by the Parties to the Montreal Protocol?
V. What Is the Critical Use Exemption Process?
A. A. Background of the Process
B. How Does This Rule Relate to Previous Critical Use Exemption Rules?
C. Stocks of Methyl Bromide
D

. Critical Uses
E

. Critical Use Amounts
1. Approach for Determining Critical St ock Allowances
2. Approach for Determining New Production and Import Allowances
3. Summary of Calculations
F

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

. Emissions Minimization
H

. Critical Use Allowance Allocations
I

. Critical Stock Allowance Allocations
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. Pa perwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act*** E.O. 12866 Review

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5 of 52 E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with Indian Tribal
Governments
G. Executive Order 13045: Protection of Chi ldren from Environmental Health and Safety Risks
H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions to Address Envi ronmental Justice in Minority Populations and Low

- Income Populations
K. Congressional Review Act
I. General Information A. Regulated Entities Entities and categories of entities p otentially regulated by this action include producers, importers, and exporters of methyl bromide; applicators and distributors of methyl bromide; and users of methyl bromide that applied for the 2012 critical use exemption including growers of vegetable crops, fruits , and nursery stock , and owners of stored food commodities and structures suc h as grain mills and processors

. This rulemaking does not affect applicants for future control periods. This list is not intended to be exhaustive, but rather to provide a guide for readers regarding en tities likely to be regulated by this action. To determine whether your facility, company, business, or organization could be regulated by this action, you should carefully examine the regulations promulgated at 40 CFR part 82, subpart A. If you have*** E.O. 12866 Review

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6 of 52 quest ions regarding the applicability of this action to a particular entity, consult the person listed in the preceding s ection.
II. What Is Methyl Bromide? Methyl bromide is an odorless, colorless, toxic gas which is used as a broad

spectrum pesticide and is controlled under the CAA as a Class I ozone

- depleting substance (ODS). Methyl bromide was once widely used as a fumigant to control a variety of pests such as insects, weeds, rodents, pathogens, and nematodes. Information on methyl bromide can be found at http://www.epa.gov/ozone/mbr

. Methyl bromide is also regulated by EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and other statutes and regulatory authority, as well as by States under their own statutes and regulatory authority. Under FIFRA, methyl bromide is a restricted use pesticide. Restricted use pesticides are subject to Federal and State requirements governing their sale, distribution, and use. Nothing in this rule implementing Title VI of the Clean Air Act is in tended 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 rule must comply with FIFRA and other pertinent statutory and regulatory requirements for pesticides (including, but not limited to, requirements pertaining to restricted use pesticides) when producing, importing, exporting, acquiring, selling, distributing, transferring, or using m ethyl bromide. The provisions in this action are intended only to implement the CAA restrictions on the production, consumption, and use of methyl bromide for critical uses exempted from the phaseout of methyl bromide.*** E.O. 12866 Review

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7 of 52 III. What Is the Background to the P haseout Regulations for Ozone
- Depleting Substances? The regulatory requirements of the stratospheric ozone protection program that limit production and consumption of ozone

- depleting substances are in 40 CFR part 82, subpart A. The regulatory program was originally published in the Federal Register on August 12, 1988 (53 FR 30566), in response to the 1987 signing and subsequent ratification of the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol). The Montreal Protocol is the international agreement aimed at reducing and eliminating the production and consumption of stratospheric ozone

depleting substances. The United States was one of the original signatories to the 1987 Montreal Protocol and the United States 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 Montreal Protocol. EPA issued regulations to implement this legislation and has since amended the regulations as needed. Methyl bromide was added to the Montreal Protocol as an ozone

- depleti ng substance in 1992 through the Copenhagen Amendment. 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
t he level of methyl bromide production and consumption for industrialized countries. EPA published a 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.*** E.O. 12866 Review

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8 of 52 pr oduction and consumption at the 1991 baseline level of 25,528,270 kilograms, and setting forth the percentage of baseline allowances for methyl bromide granted to companies in each control period (each calendar year) until 2001, when the complete phaseout would occur. This phaseout date was established in response to a petition filed in 1991 under 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.
Th is 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
pro duction 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 agreed to adjustme nts to the methyl bromide control measures and agreed to reduction steps and a 2010 phaseout date for industrialized countries with exemptions for critical uses. At that time, the U.S. continued to have a 2001 phaseout date in accordance with s ection 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 dat e of 2015 for developing ( 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?*** E.O. 12866 Review

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9 of 52 In October 1998, the U.S. Congress amended the Clean Air Act to prohibit the termination of production of methyl bromide prior to January 1, 2005, to require EPA to align the U.S. phaseout of methyl bromide with the schedule specified under the Protocol, and to authorize EPA to provide certain exemptio ns. 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 specifica lly 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 final rulemaking on November 28, 2000 (65 FR 70795), which allowed for the ph ased reduction in methyl bromide consumption specified under the Protocol and extended the phaseout to 2005 while creating a placeholder for critical use exemptions

. 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 rule (the “Framework Rule”) that established the framework for the critic al 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 has subsequently publ ished rules applying the critical use exemption framework for each of the c ontrol periods from 2006 to 2011

. Under the authority of section 604(d)(6) of the CAA, this action authorizes the uses that qualify a s*** E.O. 12866 Review

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10 of 52 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 action 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) of the Montreal Protocol , the Parties have issued several Decisions pertaining to the critical use exemption. These include Decisions IX/6 and Ex. I/4, which set forth criteria for review of critical uses. The status of Decisions is addressed in NRDC v. EPA , (464 F.3d 1, D.C. Cir. 2006) and in EPA‟s “Supplemental Brief for the Respondent,” filed in NRDC v. EPA and available in the docket for this action. In this rule on critical uses for 2012 , EPA is honoring commitments made by the United States in the Montreal Protocol c ontext. V. What is the Critical Use Exemption Process? A. Background of the Process Article 2H of the Montreal Protocol established the cri tical use exemption provision. At the Ninth Meeting of the Parties in 1997 t he Parties agreed to criteria for the exemption , as contained 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 met hyl 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.” EPA promulgated t hese criteria in the definition of “critical use” at 40 CFR 82.3.*** E.O. 12866 Review

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11 of 52 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 alternatives to methyl bromide. Applicants also submit ted data on their use of methyl bromide, research programs into the use of alternatives, and ef

forts to minimize use and emissions. EPA‟s Office of Pesticide Programs reviews the data submitted by applicants, as well as data from governmental and academic sources, to establish whether there are technically and economically feasible alternatives ava ilable for a particular use of methyl bromide, and whether there would be a significant 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 culminates in the development of the U.S. Government‟s 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 advis ory 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 methy l 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 United States Department of Agriculture (USDA) and other departments and institutions of the Federal gov ernment that have regulatory autho rity related to methyl bromide. EPA also provides an*** E.O. 12866 Review

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12 of 52 opportunity for public comment on the amounts of methyl bromide that the agency is proposing to exempt for critical uses and the uses that the agency is proposing as
app roved critical uses

. Additional information 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,” con tained 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 conditi ons. On January 2 2, 2010 , the U.S. Government (USG) submitted the eighth CUN 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 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 critical u ses and allocation amounts reflect the analysis contained in those documents.
B. How Does This Rule Relate to Previous Critical Use Exemption Rules? The December 23, 2004, Framework Rule (69 FR 76982) established the framework for the critical use exempti on 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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13 of 52 An approve d critical user may purchase methyl bromide produced or imported with critical use allowances (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. 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) , t o 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 yea r 2008), 74 FR 19878 (calendar year 2009) , 75 FR 23167 (calendar year 2010) , and 76 FR 60736 (calendar year 2011)

. Today‟s action uses the existing regulatory framework to determine critical uses for 201 2 and the amounts of critical use a llowances (CUAs) and critical stock a llowances (CSAs) to be allocated for those uses. A CUA is the privilege granted through 40 CFR part 82 to produce or import 1 kilogram (kg) of methyl bromide for an approved critical use during the specified control period. Thes e 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 the remaining inventory of mater ial produced or imported prior to the January 1, 2005, phaseout date for an approved critical use during the specified control period. EPA received one comment that the rulemaking process typically is not completed in a timely manner. Methyl bromide prod ucers, importers, and distributers need advance notice of their allowances to ensure material can be manufactured or*** E.O. 12866 Review

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14 of 52 imported and ultimately distributed to growers to meet spring fumigation schedules. The commenter requests that EPA develop a more efficien t process to promulgate the critical use rule so that it is in effect before the control period begins. EPA notes that the
D ecision of the Parties to the Montreal Protocol on critical uses is issued late in the calendar year, and the holders of pre

- phaseou t inventory report their end of year inventory to EPA early the following calendar year, preceding the control period

. This schedule constrains EPA ability to promulgate the rule well in advance of the control period, since t he Decision of the Parties and information on the pre

- phaseout inventory are central to the development of the rule . However, EPA acknowledges that promulgating the rule after the start of the control period is not ideal and will continue to consider means of avoiding that outcome. C. Stocks of Methyl Bromide 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. The aggregate amount of pre

- phaseout methyl bromide reported as being in inventory at the beginning of 2011 was 1,802,715 kg. As in p rior years, the Agency continue s 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.*** E.O. 12866 Review

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15 of 52 As explained in the 2008 CUE Rule, EPA intends to continue releasing the aggregate methyl bromide stockpile data reported under the requirements at 40 CFR 82.13 for the end of each control period. 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 with out notice. EPA did not propose to change the treatment of submitted information but welcomed information concerning the composition of the industry in this regard. The aggregate information for 2003 through 2011 is available in the docket for this rulemak ing.
D . 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 to the presen t decision for each p arty, subject to the condi tions 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 the annex to the present decision which are necessary to satisfy cr itical 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 structures 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*** E.O. 12866 Review

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16 of 52 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 baseli ne), minus available stocks. EPA proposed 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 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)

. This final rule allocates a total critical use exemption in 2012 of 1,022,826 kg (4.0% of baseline) as proposed. Based on updated information, EPA is allocating 810,751 kg (3.2% of baseline) CUAs for new production or import and 212,075 kg ( 0.8 % of baseline) CSAs from pre

- phaseout inventory

. EPA sought comment on the technical analysis contained in the U.S. nomination (available for public review in the docket to this rulemaking), and information regarding
any changes to the registration (including cancellation or new registrations), use , or efficacy of alternatives tha t have transpired after the 2012 U.S. nomination was written. Such information has the potential to alter the technical or economic feasibility of an alternative and could thus cause EPA to modify the analysis that underpins EPA‟s
determin ation as to which uses and what amounts of methyl bromide qualify for the CUE. EPA recognizes that as the market for alternatives evolves, the thresholds for what constitutes “significant market disruption” or “technical and economic feasibility”*** E.O. 12866 Review

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17 of 52 change. E PA received one comment urging the agency to consider greater use of 1,3

- D and sulfuryl fluoride than contained in the technical analysis. This comment repeats a comment submitted by the same commenter on the 2010 CUE Rule but does not provide any new data . EPA has considered the commenter‟s concerns and believes that response contained in the 2010 CUE Rule response to comments, which is available in the docket to this rule , still appropriately addresses this comment

. EPA also proposed to modify the table i n 40 CFR part 82, subpart A, appendix L to reflect the agreed critical use categories identified in Decision XXII/6. EPA is finalizing the list s of critical uses and critical users as proposed. First, EPA is removing from the list of approved critical user s two use r s that did not submit applications for 2012 and therefore were not included in the U.S. nomination. These use r s are International Paper and Weyerhaeuser Company in the forest nursery seedlings sector and beans in the commodities sector. Second, E PA is removing North Carolina and Tennessee strawberry nurseries from the list of approved critical users

. Southeast strawberry g rowers applied for a critical use in 2012. The U.S. did not submit a nomination to UNEP for this use in this geographical locat ion because EPA‟s technical review found that there are alternatives to methyl bromide for Southeast strawberry nurseries

. Third, EPA is limiting the scope of the approved critical use for the National Pest Management Association‟s (NPMA) post harvest fumigations. In past control periods, the scope of the NPMA food processing critical use included “ processed food, cheese, herbs and spices, and spaces and equipment in associated processi ng 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*** E.O. 12866 Review

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18 of 52 as a critical use. MBTOC‟s comments can be found in the Ma y 2010 TEAP Progress Report in the docket to this rule. The Parties‟ Decision reflects the MBTOC
recommendation. EPA is modifying the NPMA critical use to include only “Members of the National Pest Management Association treating cheese storage facilities. ” EPA did not receive any comments objecting to the proposed modifications to the table in 40 CFR part 82, subpart A, appendix L. EPA received three comments agreeing that the proposed critical uses have a continuing need for acces s to methyl bromide unde r a 2012 CUE. One commenter stated that the strict application and review process properly limits the use of methyl bromide, given its effect on the stratospheric ozone layer. EPA also received one comment that there should be no uses of methyl bromide giv en its toxicity and effect on the stratospheric ozone layer. EPA disagrees that all methyl bromide use should stop. The CUN addresses the need for methyl bromide for the
2012 critical uses. In addition, the 2012 critical uses were reviewed by the technical bodies to the Ozone Secretariat and authorized by the Parties to the Montreal Protocol. Concerns about the toxicity of methyl bromide are addressed through the pesticide registration program under FIFRA, as well as other authorities , and are outside the scope of this rulemaking. EPA also received one comment questioning some of t he limiting critical conditions . This commenter has raised the same points in past CUE rulemakings and EPA believes our responses from past rulemakings , which are included in the docket for this rule, rem ain appropriate. EPA 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 produc ts in cases where local township limits on use of*** E.O. 12866 Review

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19 of 52 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 p rovides short (two working days or fewer) notification for a purchase or there is a short period after harvest in which to fumigate and there is limited silo availability for using alternatives.
E . Critical Use Amounts Table C of the annex to Decision XX I I/6 lists critical uses and amounts agreed to by the Parties to the Montreal Protocol. When added together, the total authorization 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 Table D of the annex to Decision XXI I/6

. The difference between the total authorization and the authorized amount of new production is 100,000 kg (0.4% of baseline) , which is the minimum that the Parties expect the U.S. to use from pre

- phaseout inventory on critical uses

. EPA is allocating 810,751 kg ( 3 .2 % of baseline) of new production and import of methyl bromide for critical uses for 2012. EPA is also allocating 212,075 kg ( 0.8 % of baseline) in the form of critical stock a llowances for sale of pre

- phaseout inv entory for critical uses in 2012

. The sub

- sections below explain EPA‟s reasons for allocating the critical use amounts for 2012

. 1. Approach for Determining Critical Stock Allowances The 2004 Framework Rule (69 FR 52366) established the 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*** E.O. 12866 Review

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20 of 52 amou nt of CSAs held by the seller. In addition, the Framework Rule further took pre phaseout inventories into account through the trading provisions that allow CU As to be converted into CSAs. In the Framework Rule, EPA issued CSAs in an amount equal to the difference between the total authorized CUE amount and the amount of new production or import authorized by the Parties. In each of the subsequent CUE allocation rules, EPA has 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 amoun t to reflect available stocks. In the 2006 CUE Rul e, 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 an d import was 3.6% of baseline. In the 2007 rule, EPA added to the min imum amount (6.3% of baseline) an additional amount (1.2% of baseline) for a total of 1,91 4,600 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 C SAs (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 a dditional amount (2.2% of baseline) for a total of 1,028,108 CSAs (4.0% of baseline). In the 2011 rule, EPA added to the minimum amount (0.8% of baseline) an additional amount (1.4% of baseline) for a total of 555,200 CSAs (2.2% of baseline). After determi ning the CSA amount, EPA reduced the portion of CUE methyl bromide to come from new production*** E.O. 12866 Review

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21 of 52 and import such that the total amount of methyl bromide exempted for critical uses did not exceed the total amount authorized by the Parties for that year.
One commenter objected to EPA‟s proposal to allocate 759,744 kg for new production or import. The commenter stated that the Parties authorized 922,826 kg for new production and import and that it is arbitrary and capricious for the agency to allocate any amoun t less than that level of new production. EPA disagrees with the commenter‟s interpretation of Decision XXII/6. In Table D of Decision XXII/6, the Parties authorized 922,826 kg for new production and import “minus available stocks.” Thus, EPA does not beli eve it would be consistent with Decision XXII/6 to authorize 922,826 kg for new production and import without considering available stocks . Rather, EPA is acting consistently with Decision XXII/6 by identifying an amount of “available stocks.” Furthermore, EPA notes, consistent with our position in prior rulemakings, that
t he Agency is not required to allocate the full amount of authorized n ew production and consumption. The Parties only agree to “permit” a particular level of production and consumption; th ey do not

– and cannot

– mandate that the U.S. authorize this level of production and consu mption domestically. Nor does the CAA require EPA to allow the full am ount 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*** E.O. 12866 Review

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22 of 52 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 rec ognized to be available.” Thus, it is clear that individual Parties have the ability to determine th eir level of available stocks. Decision XX II/6 further reinforces this concept by including the phrase “minus avai lable stocks” as a footnote to the United States‟ authorized level of producti on and consumption in Table D. Section 604(d)(6) of the CAA does not require EPA to adjust the amount of new production and import to reflect the availability of stocks; however, as explained in previous rulemakings, making such an adjustment is a reasonable exercise of EPA‟s discretion under this provision. EPA employs the concept of “available stocks” to determine whether to allocate additional CSAs beyond the minimum stock amo unt 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 f actor (SCF). The SCF is EPA‟s technical estimate of the amount of inventory that would be adequate to meet the need for critical use methyl bromide after an unforesee n domestic production failure , until imp orts became available

. 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 s tocks as an inventory reserve. 2. Calcula tion of Available Pre

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23 of 52 For 2012, EPA calculate s 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 201 1 is the existing pre

- phaseout stocks 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 fa ctor for 2012. Us ing this formula, EPA calculated in the proposed rule that there will be 263,082 kg of pre

- phaseout stocks of methyl bromide “available” on January 1, 2012. This final rule incorporates n ew information on the estimated drawdown and calculates 2 12,075 kg of “available” pre

- phaseout stocks on January 1, 2012. This change is discussed below. Existing Stocks In the above formula, “ES 2011 ” is methyl bromide that was produced before the January 1, 2005, phaseout date but is still held by d omestic 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 carri ed over into subsequent years. Nor does it include methyl bromide prod uced 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 feedsto ck or transformation
purposes. EPA considers all pre

- phaseout inventory to be suitable for both pr e - plant and post harvest uses. Similarly, EPA considers inventory methyl bromide to be available to all users, including users in California and t he Southeastern United States. These assumptions are discussed in th e 2009 CUE rule (74 FR 19887). Esti mated 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*** E.O. 12866 Review

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24 of 52 years or used actual reported end of year data if available. A linear estimate would project th at no methyl bromide would remain in inventory on January 1, 2012. EPA does not believe this estimate is 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 wo uld 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 drawdown estimate is the amount of inventory that
will be use d in 2011 on critical uses. This can be no more than the number of CSAs EPA allocated in the final CUE rule. EPA received a comment that the calculation mistakenly used the CSA allocation amount from the proposed 2011 CUE rule, not the final rule.
W hen EPA was developing the proposed 2012 rule, the 2011 rule was s till not finalized. EPA assumed that the fina l 2011 rule would allocate 482,333 kg but it actually allocated 555,200 kg of CSAs. EPA agrees with the commenter that it is appropriate to use the valu e from the final 2011 rule. EPA has updated the estimate of drawdown using the new allocation amount from the 2011 rule and changed the allocation of CSAs and CUAs accordingly

. As discussed in the Technical Support Document, on average only 58% of the
CSA s 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 conservativ ely assumes that 70% of the CSAs allocated for 2011 will be sold. This amount is greater than any year‟s use of CSA allocations. With the revised 2011 allocation amount, EPA estimates that 388,640 kg of inventory will be sold for critical uses in 2011.*** E.O. 12866 Review

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25 of 52 The second element in the drawdown estimate is the amount of methyl bromide used for non - critical uses in 2011. Under the 2006 reregistration decision for methyl bromide, seven non

- critical uses remain on the pre

- plant methyl bromide labels. The uses

are cane berries, 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

se edling trays. Collectively the se pre - plant uses are referred to as “Group II uses.” These Group II uses can continue to use methyl bromide but are restricted to pre

- phaseout inventory. See 76 FR 7200. EPA proposed to estimate the amount of inventory that w ill be sold to these Group II uses in 2011 by averaging the amounts sold in 2006

- 2010 for all

non - critical uses (including both pre

- plant and post

- harvest uses) . There is no clear trend in the pattern of usage which is why EPA proposed to 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 inventory on all n on - 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. EPA is adopt ing this average as its estimate of non

- critica l use in 2011. In summary , EPA is estimating 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 bromi de inventory will be drawn down by 1, 161,640 kg ( 388,640 + 773,000) during 2011. This would result*** E.O. 12866 Review

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26 of 52 in a pre

- phaseout inventory declining from 1,802,715 kg on January 1, 2011, to 641,075 kg on January 1, 2012. Supply Chain Factor The SCF represents EPA‟s te chnical estimate of the amount of pre

- phaseout inventory that would be adequate to meet the need for critical use methyl bromide after an unforeseen domestic production failur e. As described in the 2008 CUE Rule, and the Technical Support Document containe d 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, th e 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 o f the year. While this 15

- week disruption is based on shipping capacity and does no t change year to year, other inputs to EPA‟s analysis do change each year including the total U.S. and global authorizations for methyl bromide and the average seasonal production of critical use methyl bromide in the U.S. EPA estimates that critical use p roduction 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 shor tfall in
2012 w ould be 429 MT. One commenter objects to the use of a supply chain factor in determining an amount of “available stocks” that can be used by critical users. This commenter states that there is no basis for making this allowance for the supposed risk of a catastrophic loss of the methyl bromide production plant. This commenter requests that EPA require that the inventory be exhausted before allowing any additional new production. The*** E.O. 12866 Review

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27 of 52 comment er also states that the calculation is overly conservative because it assumes a catastrophic loss when production is at the peak. EPA has addressed this comment in prior rulemakings; those responses are available in the docket for this rulemaking. Another co mmenter stated that the CSA allocation failed to consider the effect that drawing down the pre

- phaseout inventory would have if there is a catastrophic failure in the domestic supply of methyl bromide in future years. EPA responds, as it did in the 2011 CU E Rule, that the supply chain factor is proportional to the authorized CUE amount. The 2013 authorization and the potential authorization for 2014 continue to decline in pace with both the inventory and therefore so does the supply chain factor.
As EPA st ated 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. Additional 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. In summary, u sing the fo llowing formula AS 2012 = ES 2011 – D 2011 – SCF 2012 , EPA estimates that there will be 212,075 kg of pre

- phaseout stocks of methyl bromide “available” on January 1, 2012

. ( 212,075 = 1,802,715

– 1,161,640

– 429,000). Therefore,
EPA is allocating 212,075 kg as critical s to ck a llowances for 2012.
2 . Approach for Determining New Production and Import Allowances For the 2012 control period, EPA is apply ing the existing methodology established in the Framework Rule. Under this approach, the amount of new production equal s the total amount authorized by the Parties to the Montreal Protocol in Decision*** E.O. 12866 Review

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28 of 52 XX II/6 , minus the CSA amount calculated above, minus any reductions for either
carryover or the uptake of alternatives. Applying this established approach, EPA is exempt ing limited amounts of new production and import of methyl bromide for critic al uses in 2012 in the amount of 810,751 kg ( 3 .2 % of baseline)

. This final amount is greater than the amount proposed because EPA has revised the estimate of available stocks. 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 pro duced 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, expo rted, or sold to end

- users under the critical use exemption in a control period must be repo rted to EPA the following year. EPA uses these reports to calculate the amount of methyl bromide produced or imported 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 i n EPA‟s definition of existing stocks (which was produced prior to the 2005 phaseout ) 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

. The 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 produce d or imported was actually*** E.O. 12866 Review

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29 of 52 sold to end

- users in 2010

. This additional amount was from distributors selling amounts that were carried over from the 2009 control period. EPA proposed to apply the carryover deduction of 0 kg to the new production amount for 2012. One commenter suggested that the lack of a carryover demonstrates excess demand and that EPA should therefore increase the amount of newly produced or imported material. EPA responds that the agency expects material produced or imported for use in a particular control period to be used in that control period and that there typically should not be a carryover

. EPA established t he carryover reduction to account for an over allocation or underuse of allowances in a particular control period and avo id any stockpiling of critical use material . The absence of a carryover does n ot mean that the agency should increase the allocation. EPA‟s carryover calculation 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. All past U.S. Accounting Frameworks for the methyl bromide critical use exemption are available in the public docket for this rulemaking

. Uptake of Alternatives EPA considers new data about alternatives that were not available at the time the U.S. Government submitted the CUN to the Parties and adjust s the allocation for new production and import accordingly. Two alterna tives not considered in the 2012 CUN , which was su bmitted to UNEP in January 2010 , may be used in limited quantities in 2012. EPA proposed to not adjust the allocation considering that the uptake of these two alternatives (iodomethane and DMDS) is expected to be minimal in 2012. One commenter agreed that the uptake will be practically nonexistent.*** E.O. 12866 Review

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30 of 52 In July 2010, EPA registered Dimethyl Disulfide (DMDS) to control nematodes, weeds, and pathogens in tomatoes, peppers, eggplants, curcurbits, strawberries, ornamentals , forest nursery seedlings, and onions. 24 states have now registered DMDS and registrations are pending in four other states. Even though DMDS is registered in states that grow critical use crops, EPA believes that the uptake of this alternative will be minimal in 2012. Use in the 2011 growing season was small because the product was either not registered in the state or the distribution system was still under development. Furthermore, the manufacturer of DMDS, Arkema, has stated that they are limiting the roll

- out of this alternative to ensur e proper applicator training and use of odor mitigation practices

. As stated in the proposed rule, EPA continues to anticipate that growers will use the 2012 growing season to test the fumigant on limited acreage. Therefore, EPA is not reducing the allocat ion of allowances based on the uptake of DMDS in 2012. Second, California registered i odomethane in December of 2010. EPA i s unable to estimate uptake of i odomethane in California during 2012 due to uncertainties created by the California label. Specifical ly, the California label has larger buffer zones and lower use rates than the federal label. EPA does not have efficacy studies at the California label‟s lower use rates and is uncertain how widely it will be adopted without
that data. In addition to the s tate registration, County Agricultural Commissioners must permit each iodomethane application that occurs within their jurisdiction

. One commenter stated that EPA should not be allocating fewer CUEs than the amount authorized by the Parties given EPA‟s January 19, 2011, proposal to revoke the tolerances established for sulfuryl fluoride under section 408 of the Federal Food, Drug, and Cosmetic Act (76 FR 3422). This rule is based on the current status of alternatives*** E.O. 12866 Review

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31 of 52 and is limited to 2012. The proposed tolerance revocation rule includes a staggered implementation scheme so that it is unlikely that any specific revocation will be effective
as soon as 2012 (76 FR 3447). Therefore, EPA has not based the allocation amounts for
2012 on any anticipated impacts of that proposal on methyl bromide use

. EPA did not propose to take any other reductions 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. EP A 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 a nd technical feasibility of all existing and potential alternatives

. EPA also took 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 f aith on statements made by the

a gency in a No Action Assurance letter that producers and importers could assume the final 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 allocated 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 allocation was*** E.O. 12866 Review

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32 of 52 128,382 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 took comment on an alternat ive 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 391,464 kg to reflect the lower CSA al location 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. EPA did not propose this alternative as the lead approach because the number of CUAs in the 2011 rule did not exceed the Parties ‟ production authorization for 2011 and the total CUE a mount for 2011 was unaffected. EPA received one comment in opposition to this approach. The commenter states that the 2011 CUA allocation was proper because it maintained consistency with the No Action Assurance letter and that any “over allocation” in 2011 will self

- correct in future rules. First, any additional new production would reduce the need to use CSAs, which will result in more “available stocks” in next year‟s CUE calculatio n and therefore a higher CSA allocation . Second,
any unused allocation will be captured in EPA‟s calculation of carryover. EPA agrees with this comment and is not finalizing the alternative allocation approach in the final 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 XXI I/6 1,022,826

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33 of 52 = 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 388,640

- Drawdown of inventory for non

- critical uses 773,000

- Supply Chain Factor (Step 1) 429,000 = Available stocks = Critical Stock Allowance 212,075 Step 3 : Calculate new production Total U.S. authorization for 2012 1,022,826

- Critical Stock Allowance (Step 2) 212,075

- Carryover 0

- Uptake of alternatives 0 = New production /import = Critical Use Allowance 810,751

F . 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.D., V.E., and V.I . of this preamble. EPA has solicited comments on the technical and economic basis for determining that the uses listed in this rule meet the criter ia 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.
Th e criterion in Decision IX/6(1)(b)(ii), which refers to the use of available stocks of methyl bromi de, is addressed in sections V.E., V.H., and V.I . 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 rule (71 FR 5989) as well as to the memo in the*** E.O. 12866 Review

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34 of 52 docket titled “Development of 2003 Nomination for a Critical Use Exemptio n for Methyl Bromide for the United States of America” for further elaboration. The remaining considerations are addressed in the nomination documents including : the lack of available technically and economically feasible alternatives under the circumstan ce 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

. Some of these criteria are evaluated in other documents as well. For exam ple , the U.S. has considered the adoption of alternatives and research into methyl bromide alternatives, criterion (1)(b)(iii) in Decision IX/6, in the development of the National Management Strategy submitted to the Ozone Secretariat in December 2005, and up dated in October 2009

. The National Management Strategy addresses all of the aims specified in Decision Ex.I/4(3) to the extent feasible and is available in the docket for this rulemaking. EPA received one comment that the Agency should adjust production and import levels in the 2012 CUE Rule to account for research amounts. EPA received a similar comment on the 2011 CUE Rule. The commenter implied that EPA had a previous policy of adjusting the production and import level upward to provide an allocation f or research. This is not an accurate ch aracterization of EPA‟s policy. Prior to 2010, the U.S. Nomination did contain a separate amount for research. While the Parties approved*** E.O. 12866 Review

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35 of 52 research as a critical use, their decisions encouraged the use of inventory to meet critical research needs. In the corresponding CUE rules, EPA responded to the Parties‟ decisions by reducing the new production/import amounts by the research amount, leaving the research portion of the total critical use exemption to b e met through t he use of CSAs. In the proposed rule, EPA discussed a supplemental critical use nomination of 2,576 kg for research activities in 2012. This nomination was to have been discussed at the Meeting of the Parties in November 2011. EPA proposed to increase the final CSA allocation by up to 2,576 kg after consideration of the action taken by the Parties in November 2011 and comments on research needs. However, prior to the Meeting of the Parties , the U.S. Government withdrew the supplemental nomination. Therefor e, EPA is not increasing the final CSA allocation. Nonetheless, the 2012 nomination and the decision the P arties took in 2010 are broad enough to cover both research and non

research uses. As discussed in the preamble to the 2010 CUE rule (75 FR 23179),

re search is a key element of the critical use process. R esearch on the crops shown in the table in Appendix L to subpart A remains a critical use of methyl bromide

. While researchers may continue to use newly produced material for field, post

- harvest, and

em ission minimization studies requiring the use of methyl bromide, EPA encourages researchers to use pre

- phaseout inventory purchased through the expenditure of CSAs. EPA also encourages distributors to sell inventory to researchers. G . Emissions Minimization Previous decisions have state d 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 p romote environmental*** E.O. 12866 Review

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36 of 52 protection, whenever technically and economically feasible. One commenter asks EPA to require emissions minimization techniques rather than simply encourage them. EPA notes that , although EPA considers application rates in determining CUAs, requiring specific emissions minimization techniques would be outside the scope of the proposed rule. EPA developed a comprehensive strategy for risk mitigation through the 2006 Reregistration Eligibility Decision (RED) for methyl bromide, which is i mplemented through restrictions on how methyl bromide products can be used. This approach does require that methyl bromide labels include directions that treated sites be tarped except for California orchard replant where EPA instead requires deep (18 inch es or greater) shank applications. The RED also incorporated incentives for applicators to use high

barrier tarps, such as virtually impermeable film (VIF), by allowing smaller buffer zones around those sites . In addition to minimizing emissions, use of hi gh

- barrier tarps has the benefit of providing pest control at lower application rates. The amount of methyl bromide nominated by the United States reflects the lower application rates necessary when using high

- barrier tarps, where such tarps are allowed.
E PA will continue to work with the U.S. Department of Agriculture

– Agricultural Research Service (USDA

- ARS) to promote emission reduction techniques. The federal government has invested substantial resources into best practices for methyl bromide use, incl uding emission reduction practices. USDA

- ARS has a national outreach effort to pu blicize the best practices. Users of methyl bromide should continue to make every effort to minimize overall emissions of methyl bromide to the extent consistent with State an d local laws and regulations. EPA also encourages researchers and users who are successfully*** E.O. 12866 Review

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37 of 52 utilizing such techniques to inform EPA of their experiences and to provide such information with their critical use applications

. H . Critical Use Allowance Allocations EPA is allocating critical use allowances for new production or import of methyl bromi de up to the amount of 810,751 kg ( 3 .2 % of baseline) as shown in the table in 40 CFR 82.8(c)(1)

. These allowances expire at the end of the control period and , as explained in the Framework Rule, are not bankable from one year to the next. The CUA allocation is subject to the trading provisions at 40 CFR 82.12, which are discussed in section V.G. of the preamble to 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. EPA‟s Framework Rule proposed several options for allocating critical use allowances, including a sector

- by

sector approach. The agency evaluated the various options based on their economic, environmental, and practical effects. After receiving comments, EPA determined that a lump

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

- plant an d 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. One commenter states that EPA should allocate specifically to each of the Critical Use Categories as authorized by the Parties. The EPA‟s “lump sum” approach, the*** E.O. 12866 Review

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38 of 52 commenter asserts, does not guarantee that critical users have access to methyl bromide and it instead allows those wi th the greatest ability to pay to garner methyl bromide away from other users with approved critical needs. Furthermore, developers of methyl bromide alternatives need assurance that methyl bromide will eventually exit a particular use segment. Allowing an open market for methyl bromide allocation is an economic disincentive for anyone developing alternatives. At a minimum, this commenter supports distinguishing between pre

- plant and post

- harvest sectors as EPA currently does. EPA received a separate commen t favoring the universal allocation approach over a sector

specific allocation. The commenter states that by allocating up to 14 types of allowances the sector specific approach would be overly complex to administer, would create problems for distributors, and would spread allowances among too many producer/importers and distributors. EPA has addressed these comments in prior rulemakings; those responses are available in the docket for this rulemaking. For the reasons discussed in the preamble to the 2009 CUE rule (74 FR 19894), the agency believes that under the universal allocation approach adopted in the Framework Rule, the actual critical use will closely follow the sector breakout listed in the Parties‟ decisions

. I . Critical Stock Allowance Allocation s 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 does no t retain pre - phaseout invento ry. Pre

- phaseout inventory is held by private companies that may sell or distribute it for any use that meets the labeling under FIFRA ,*** E.O. 12866 Review

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39 of 52 whether critical or not

. However, EPA believes that the agency‟s 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 allocating CSAs for the 2012 control period in the amount of 212,075 kg ( 0 .8 % of baseline). This is more 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)

. One commenter stated that the Agency is incorrect to assume that 263,082 kg of
pre - phaseout inventory will be available for critical uses in 2012. Instead, the commenters stated that EPA should allocate only 100,000 kg from stocks. The commenter says that the distributors that own stocks are free to sell them for any purpose, including for non

- CUE uses, and that EPA cannot control how or whether inventory is sold. EPA agrees that the allocation system allows distributors of inventory to respond to market conditions instead of requiring them to sell invent ory to critical users. EPA issues CSAs as a mechanism to track the use of stocks for critical uses. Under section 82.4(p), stocks may not be sold for use on critical uses if the seller does not hold the corresponding amount of CSAs. Critical users may purc hase either newly produced or imported critical use methyl bromide or stocks sold through the expenditure of CSAs. EPA chose this approach, at least in part, to promote market flexibility and efficiency. The fact that distributors can choose to sell to non

- critical users does not mean that the inventory is unavailable to critical users. End of year reported data show that the inventory on December 31, 2010, was 1,802,715 kg. Of this amount, EPA estimates that 212,075 kg of stocks will be available for use i n 2012. EPA also notes that the final rule allocates fewer critical stock allowances than proposed, based on updates to the*** E.O. 12866 Review

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40 of 52 “available stocks” estimation. EPA expects that holders of pre

- phaseout inventory will be able to expend the full amount of CSA allo cations to satisfy the needs of critical users. One commenter also stated that inventory was disproportionately distributed among fewer distributors and thus is unavailable to critical users. EPA collects information annually on the number of companies tha t hold inventory. These data support the comment that some companies no longer maintain any pre

- phaseout inventory. Recent mergers have also resulted in fewer companies holding pre

- phaseout inventory. However, there has not been a significant change in the overall geographic distribution of inventory. It is still held by companies in large amounts in both California and the Southeast, the two largest markets for critical use methyl bromide. EPA does not determine where methyl bromide inventory should be use d, but has always left such decisions to the market. For example, a distributor might prefer to sell inventory to non

critical users to satisfy prior contracts. EPA believes that the inability of a critical user to purchase inventory due to market decisions by distributors would not be a basis for adjusting the allocation of CSAs

. EPA‟s 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 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 por tion of the rulemaking docket and the individual CSA allocations are not listed in the table in 40 CFR 82.8(c)(2)

. EPA notes that it is modifying the table in 40 CFR 82.8(c)(2) to reflect the recent merger of three methyl bromide distributors who are*** E.O. 12866 Review

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41 of 52 also critical stock allowance holders. The revised table removes the individual entries for Hendrix & Dail, Hy

- Yield Products, and Reddick Fumigants and adds an entry for TriEst Ag Group, Inc. EPA will inform the listed companies of their CSA allocations in a l etter following publication of the rule. 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 final rule is a “significant regulatory action” because it was deemed to 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 interagency recommendations have been documented in the docket for this action.
B. Paperwork Reduction Act This action d oes not impose any new information collection burden. The application, recordkeeping, and reporting requirements have already b een established under previous critical use e xemption rulemakings and this action does not change any of those existing requirements. T he Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations at 40 CFR part 82 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and h as 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*** E.O. 12866 Review

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42 of 52 The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule su bject to notice

- and

- comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) a small business as defined by the Small Business Administration‟s re gulations at 13 CFR 121.201 (see Table below ); (2 ) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a popula tion of less than 50,000; and (3 ) a small organization that is any not

- for

- p rofit enterprise which is independently owned and operated and is not dominant in its field. Category NAICS code SIC code NAICS Small business size standard (in number of employees or millions of dollars) Agricultural production 1112

- Vegetable and

Melon farming 0171

- Berry Crops $0.75 million
1113

- Fruit and Nut Tree Farming 0172

- Grapes
1114

- Greenhouse, Nursery, and Floriculture Production 0173

- Tree Nuts 0175

- Deciduous Tree Fruits (except apple orchards and farms) 0179

- Fruit and Tree Nuts, NEC 0181

- Ornamental Floriculture and Nursery Products 0831

- Forest Nurseries and Gathering of Forest Products Storage Uses 115114

- Postharvest

Crop activities (except Cotton Ginning) $7 million

311211

- Flour Milling 2041

- Flour and Other Grain Mill Products 500 employees
311212

- Rice Milling 2044

- Rice Milling 500 employees*** E.O. 12866 Review

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43 of 52 493110

- General Warehousing and Storage 4225

- General Warehousing and Storage $25.5 million

493130

- Farm Product Warehousing and Storage 4221

- Farm Product Warehousing and Storage $25.5 million

Distributors and Applicators 115112

- Soil

Preparation, Planting and Cultivating 0721

- Crop Planting, Cultivation, and Protection $7 million

Producers and Importers 325320

- Pesticide and

Other Agricultural Chemical Manufacturing 2879

- Pesticides and Agricultural Chemicals, NEC 500 employees

Agricultural producers of minor crops and entities that store agricultural commodities are categories of affected entities that contain small entities. This rule only affect s entities that applied to EPA for an exemption to the phaseout of methyl bromide for 2012

. 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 t hat the number will continue to decline as growers stop applying for critical uses. Since many applicants did not provide information on the distribution of sizes of entities covered in their applications, EPA estimated that, based on the above definition, between one

- fourth and one

- third of the entities may be small businesses. In addition, other categories of affected entities do not contain small businesses based on the above description. After considering the economic impacts of today‟s final rule on s mall entities, I certify 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*** E.O. 12866 Review

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44 of 52 on a substantial number of small entities, the impact of concer n 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. §§ 60 3

- 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 subjec t to the rule. Since this rule exempt s methyl bromide for approved critical uses after the phaseout date of January 1, 2005, this action confer s a benefit to users of methyl bromide. EPA estimates in the Regulatory Impact Assessment found in the docket to this rule that the reduced costs resulting from the de

- regulatory creation of the exemption are approximately $22 million to $31 million on an annual basis (using a 3% or 7% discount rate respectively). These reduced costs are dramatic due to the high valu e of methyl bromide for crop production and agriculture related activities. We have therefore concluded that this rule would relieve regulatory burden for all small entities.
D. Unfunded Mandates Reform Act This action contains no Federal mandates under t he 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 provide s 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 the requirements of sections 202 or 205 of the UMRA. This action is also not subject to the*** E.O. 12866 Review

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45 of 52 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 fede ralism implications. It does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule is expected to affect producers, suppliers, importers , and exporters and users of methyl bromide. Thus, Executive Order 13132 does not apply to this rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local govern ments, EPA specifically solicited comment on this action from State and local officials. F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments This ac tion 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 com munities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this action. EPA specifically solicited additional comment on this action from tribal officials. G. Executive Order No. 13045: Protection of Children from Environmental He alth and Safety Risks EPA interprets EO 13045 (62 F.R. 19885, April 23, 1997) as applying*** E.O. 12866 Review

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46 of 52 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
Th is 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 adv erse effect on the supply, distribution, or use of energy. This rule does not pertain to any segment of the energy production economy nor does it regulate any manner of energy

use. Therefore, we have concluded that this rule is not likely to have any adver se 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 stand ards 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 pra ctices) 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*** E.O. 12866 Review

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47 of 52 rulemaking does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low
- Income Populations
E xecutive Order 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 the ir 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 ha s determined that this rule does not have disproportionately high and adverse human health or environmental effects on minority or low

- income populations, because it affects the level of environmental protection equally for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low

- income population

. Any ozone depletion that results from this rule will impact all affected populations equally because ozone depletion is a global environmental problem with environmental and human effects that are, in general, equally distributed across geographical regions of the United States

. K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which*** E.O. 12866 Review

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48 of 52 include s a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A Major rule cannot take effect until 60 days after it is published in the Federal Register. This action not a “major rule” as defined by 5 U.S.C. 804(2). This rule wil l be effective [ Insert date of publication ].

List of Subjects in 40 CFR Part 82

Environmental protection, Ozone depletion, Chemic als, Exports, Imports.

DATE:

____________________

______________________________________________ Lisa P. Jackson, Administrator.
For the reasons stated in the preamble, 40 CFR Part 82 is amended as follows: PART 82
- PROTECTION OF STRATOSPHERIC OZONE 1. The authority citation for part 82 continues to read as follows: Authority : 42 U.S.C. 7414, 7601, 7671

- 7671q. 2. Section 82.8 is amended as follows:

a. by revising the table in paragraph (c)(1) ; Protection of Stratospheric Ozone: The 2012 Critical Use Exemption from the Phaseout of Methyl Bromide (Page 48 of 52)*** E.O. 12866 Review

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49 of 52 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) 201 2 Critical use allowances for post - harvest uses* (kilograms) Great Lakes Chemical Corp. A Chemtura Company 453,744 38,950
Albemarle Corp. 186,590 16,017 ICL

- IP America 103,113 8,851 TriCal, Inc. 3, 211 2 76 Total** 746,657 6 4,094 * 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 allo wances for 2012 on a pro - rata basis in relation to the inventory held by each.
Company Albemarle Degesch America, Inc. Prosource One Bill Clark Pest Control, Inc. Helena Chemical Co. Trical Inc. Burnside Services, Inc. ICL

- IP America Trident Agricultural Products Cardinal Professional Products Industrial Fumigant Company TriEst Ag Group, Inc. Chemtura Corp. Pacific Ag Supplies Inc. Univar Crop Production Services Pest Fog Sales Corp. Western Fumigation TOTAL

– 212,075 kilograms
3. Appendix L to Subpart A is revised to read as follows:*** E.O. 12866 Review

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50 of 52 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

(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 inf estation 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, F lorida, 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 ( 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*** E.O. 12866 Review

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51 of 52 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 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*** E.O. 12866 Review

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52 of 52 Tomatoes (a) Alabama, Arkansas, Florida, Georgia,

Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, and Virginia growers Moderate to severe yellow or purple nutsedge infestation Moderate to severe soilborne disease infestation Moderate to severe nematode infestation Restrictions on alternatives due to karst topographical features and, in Florida, soils not supporting seepage irrigation (b) Maryland growers Moderate to severe fungal pathogen infestation
POST

- HARVEST USES Food Processing (a) Rice millers in the U.S. who are

members of the USA Rice Millers Association Moderate to severe beetle, weevil, or moth infestation Presence of sensitive electronic equipment subject to corrosion Time to transition to an alternative (b) Pet food manufacturing facilities in the U.S. who are members of the Pet Food Institute Moderate to severe beetle, moth, or cockroach infestation Presence of sensitive electronic equipment subject to corrosion Time to transition to an alternative (c) Members of the North American Millers‟ Association in the U.S. Moderate to severe beetle infestation Presence of sensitive electronic equipment subject to 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