ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2009-0351; FRL-]

RIN: 2060-AP62

Protection of Stratospheric Ozone: The 2010 Critical Use Exemption from the 

Phaseout of Methyl Bromide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: This final rule authorizes uses of methyl bromide that qualify for the 2010 

critical use exemption and the amount of methyl bromide that may be produced, 

imported, or supplied from existing pre-phaseout inventory for those uses in 2010. EPA 

is taking action under the authority of the Clean Air Act to reflect a recent consensus 

decision taken by the Parties to the Montreal Protocol on Substances that Deplete the 

Ozone Layer at the Twentieth Meeting of the Parties.

DATES: This rule is effective on [insert date of publication].

ADDRESSES: EPA has established a docket for this action identified under EPA-HQOAR-2009-0351. All documents in the docket are listed on the 

http://www.regulations.gov site. Although listed in the index, some information is not 

publicly available, e.g., CBI or other information whose disclosure is restricted by statute. 

Certain other material, such as copyrighted material, is not placed on the Internet and will 

be publicly available only in hard copy form. Publicly available docket materials are 

available only through http://www.regulations.gov or in hard copy. To obtain copies of 

materials in hard copy, please call the EPA Docket Center at (202) 564-1744 between the 
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hours of 8:30 a.m.—4:30 p.m. E.S.T., Monday—Friday, excluding legal holidays, to 

schedule an appointment. The EPA Docket Center’s Public Reading Room address is 

EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Jeremy Arling by telephone at (202) 

343-9055, or by e-mail at arling.jeremy@epa.gov or by mail at U.S. Environmental 

Protection Agency, Stratospheric Protection Division, Stratospheric Program 

Implementation Branch (6205J), 1200 Pennsylvania Avenue, N.W., Washington, D.C., 

20460. You may also visit the Ozone Depletion website of EPA’s Stratospheric 

Protection Division at www.epa.gov/ozone/strathome.html for further information about 

EPA’s Stratospheric Ozone Protection regulations, the science of ozone layer depletion, 

and related topics.

SUPPLEMENTARY INFORMATION:

This final rule concerns Clean Air Act (CAA) restrictions on the consumption, 

production, and use of methyl bromide (a Class I, Group VI controlled substance) for 

critical uses during calendar year 2010. Under the Clean Air Act, methyl bromide 

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

exports) and production was phased out on January 1, 2005, apart from allowable 

exemptions, such as the critical use exemption and the quarantine and preshipment (QPS) 

exemption. With this action, EPA is authorizing the uses that qualify for the 2010 critical 

use exemption as well as specific amounts of methyl bromide that may be produced, 

imported, or supplied from pre-phaseout inventory for critical uses in 2010.

Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. Chapter 5, 

generally provides that rules may not take effect earlier than 30 days after they are 
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published in the Federal Register. EPA is issuing this final rule under section 307(d)(1) 

of the Clean Air Act, which states: “The provisions of section 553 through 557 . . . of 

Title 5 shall not, except as expressly provided in this section, apply to actions to which 

this subsection applies.” Thus, section 553(d) of the APA does not apply to this rule. 

EPA is nevertheless acting consistently with the policies underlying APA section 553(d) 

in making this rule effective on [Insert date of publication]. APA section 553(d) 

provides an exception for any action that grants or recognizes an exemption or relieves a 

restriction. This final rule grants an exemption from the phaseout of methyl bromide.

Table of Contents

I. General Information

Regulated Entities

II. What Is Methyl Bromide?

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

Substances?

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

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

V. What Is the Critical Use Exemption (CUE) Process?

A. Background of the Process

B. How Does This Rule Relate to Previous CUE Rules?

C. Critical Uses

D. Critical Use Amounts

1. Background of Critical Use Amounts

2. Calculation of Available Pre-Phaseout Inventory
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3. Approach for Determining Critical Use Amounts

4. Treatment of Carryover Material

5. Methyl Bromide Alternatives

6. Summary of Calculations

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

F. Emissions Minimization

G. Critical Use Allowance Allocations

H. Critical Stock Allowance Allocations

I. Stocks of Methyl Bromide

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

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

Governments

G. Executive Order 13045: Protection of Children from Environmental 

Health and Safety Risks

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

Distribution, or Use

I. National Technology Transfer and Advancement Act
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J. Executive Order 12898: Federal Actions to Address Environmental 

Justice in Minority Populations and Low-Income Populations

K. Congressional Review Act

I. General Information

Regulated Entities

Entities potentially regulated by this action are those associated with the 

production, import, export, sale, application, and use of methyl bromide covered by an 

approved critical use exemption. Potentially regulated categories and entities include 

producers, importers, and exporters of methyl bromide; applicators and distributors of 

methyl bromide; users of methyl bromide, e.g., farmers of vegetable crops, fruits, and 

nursery stock; and owners of stored food commodities and structures such as grain mills 

and processors.

This list is not intended to be exhaustive, but rather to provide a guide for readers 

regarding entities likely to be regulated by this action. To determine whether your 

facility, company, business, or organization could be regulated by this action, you should 

carefully examine the regulations promulgated at 40 CFR part 82, subpart A. If you have 

questions regarding the applicability of this action to a particular entity, consult the 

person listed in the preceding section.

II. What Is Methyl Bromide?

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

substance (ODS). Methyl bromide is used in the U.S. and throughout the world as a 

fumigant to control a variety of pests such as insects, weeds, rodents, pathogens, and 
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nematodes. Information on methyl bromide can be found at 

http://www.epa.gov/ozone/mbr.

Methyl bromide is also regulated by EPA under the Federal Insecticide, 

Fungicide, and Rodenticide Act (FIFRA) and other statutes and regulatory authority, as 

well as by States under their own statutes and regulatory authority. Under FIFRA, 

methyl bromide is a restricted use pesticide. Restricted use pesticides are subject to 

Federal and State requirements governing their sale, distribution, and use. Nothing in this 

rule implementing the Clean Air Act is intended to derogate from provisions in any other 

Federal, State, or local laws or regulations governing actions including, but not limited to, 

the sale, distribution, transfer, and use of methyl bromide. Entities affected by provisions 

of this rule must continue to comply with FIFRA and other pertinent statutory and 

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

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

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

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

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

methyl bromide. 

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

Substances?

The regulatory requirements of the stratospheric ozone protection program that 

limit production and consumption of ozone-depleting substances are in 40 CFR part 82, 

subpart A. The regulatory program was originally published in the Federal Register on 

August 12, 1988 (53 FR 30566), in response to the 1987 signing and subsequent 
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ratification of the Montreal Protocol on Substances that Deplete the Ozone Layer 

(Montreal Protocol). The Montreal Protocol is the international agreement aimed at 

reducing and eliminating the production and consumption of stratospheric ozonedepleting substances. The U.S. was one of the original signatories to the 1987 Montreal 

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

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

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

42 U.S.C. Chapter 85, Subchapter VI, to ensure that the United States could satisfy its 

obligations under the Protocol. EPA issued regulations to implement this legislation and 

has since amended the regulations as needed.

Methyl bromide was added to the Protocol as an ozone-depleting substance in 

1992 through the Copenhagen Amendment to the Protocol. The Parties to the Montreal 

Protocol (Parties) agreed that each industrialized country’s level of methyl bromide 

production and consumption in 1991 should be the baseline for establishing a freeze in 

the level of methyl bromide production and consumption for industrialized countries. 

EPA published a final rule in the Federal Register on December 10, 1993 (58 FR 

65018), listing methyl bromide as a Class I, Group VI controlled substance, freezing U.S. 

production and consumption at this 1991 baseline level of 25,528,270 kilograms, and 

setting forth the percentage of baseline allowances for methyl bromide granted to 

companies in each control period (each calendar year) until 2001, when the complete 

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

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

list methyl bromide as a Class I substance and phase out its production and consumption. 
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This date was consistent with Section 602(d) of the CAAA of 1990, which for newly 

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

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

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

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

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

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

2010 phaseout date for industrialized countries with exemptions permitted for critical 

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

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

further adjustments to the phaseout schedule for methyl bromide in industrialized 

countries, with reduction steps leading to a 2005 phaseout. 

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

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

Protocol?

In October 1998, the U.S. Congress amended the CAA to prohibit the termination 

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

U.S. phaseout of methyl bromide in line with the schedule specified under the Protocol, 

and to authorize EPA to provide certain exemptions. These amendments were contained 

in Section 764 of the 1999 Omnibus Consolidated and Emergency Supplemental 

Appropriations Act (Pub. L. 105-277, October 21, 1998) and were codified in section 604 

of the CAA, 42 U.S.C. 7671c. The amendment that specifically addresses the critical use 

exemption appears at section 604(d)(6), 42 U.S.C. 7671c(d)(6). EPA revised the 
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phaseout schedule for methyl bromide production and consumption in a direct final 

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

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

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

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

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

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

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

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

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

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

critical use exemption framework to the 2006, 2007, 2008, and 2009 control periods. 

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

qualify as approved critical uses in 2010 and the amount of methyl bromide that may be 

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

This action reflects Decision XX/5, taken at the Twentieth Meeting of the Parties 

in November 2008 and Decision XXI/11, taken at the Twenty First Meeting of the Parties 

in November 2009. In accordance with Article 2H(5), the Parties have issued several 

Decisions pertaining to the critical use exemption. These include Decisions IX/6 and Ex. 

I/4, which set forth criteria for review of proposed critical uses. The status of Decisions 

is addressed in NRDC v. EPA, (464 F.3d 1, 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 
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action. In this rule, EPA is honoring commitments made by the United States in the 

Montreal Protocol context.

V. What is the Critical Use Exemption Process?

A. Background of the Process

The critical use exemption is designed to permit the production and import of 

methyl bromide for uses that do not have technically and economically feasible 

alternatives and for which the lack of methyl bromide would result in significant market 

disruption (40 CFR 82.3). The criteria for the exemption initially appeared in Decision 

IX/6. In that Decision, the Parties agreed that “a use of methyl bromide should qualify as 

‘critical’ only if the nominating Party determines that: (i) The specific use is critical 

because the lack of availability of methyl bromide for that use would result in a 

significant market disruption; and (ii) there are no technically and economically feasible 

alternatives or substitutes available to the user that are acceptable from the standpoint of 

environment and public health and are suitable to the crops and circumstances of the 

nomination.” These criteria are reflected in EPA’s definition of “critical use” at 40 CFR 

82.3.

In response to EPA’s request for critical use exemption applications published in 

the Federal Register on April 17, 2007 (72 FR 19197), applicants provided data on the 

technical and economic feasibility of using alternatives to methyl bromide. Applicants 

also submitted data on their use of methyl bromide, research programs into the use of 

alternatives to methyl bromide, and efforts to minimize use and emissions of methyl 

bromide.
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EPA’s Office of Pesticide Programs reviewed the data submitted by applicants, as 

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

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

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

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

applications such as dosage and emissions minimization techniques and applicants’ 

research or transition plans. This assessment process culminated in the development of a 

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

State has submitted a CUN annually to the United Nations Environment Programme 

(UNEP) Ozone Secretariat. The Methyl Bromide Technical Options Committee 

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

independent advisory bodies to Parties to the Montreal Protocol, reviewed the CUNs of 

the Parties and made recommendations to the Parties on the nominations. The Parties 

then took Decisions to authorize critical use exemptions for particular Parties, including 

how much methyl bromide may be supplied for the exempted critical uses. As required 

in section 604(d)(6) of the CAA, for each exemption period, EPA consulted with the 

United States Department of Agriculture (USDA) and other departments and institutions 

of the Federal government that have regulatory authority related to methyl bromide, and 

provided an opportunity for public comment on the amounts of methyl bromide that the 

Agency has determined to be necessary for critical uses and the uses that the Agency has 

determined meet the criteria of the critical use exemption.

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

Pesticide Programs is available in a detailed memorandum titled “Development of 2003 
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Nomination for a Critical Use Exemption for Methyl Bromide for the United States of 

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

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

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

conditions.

On January 24, 2008, the U.S. Government (USG) submitted the sixth 

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

America to the Ozone Secretariat of the UNEP. This nomination contained the request 

for 2010 critical uses. In February 2008, MBTOC sent questions to the USG concerning 

technical and economic issues in the 2010 nomination. The USG transmitted responses 

to MBTOC on April 10, 2008. The USG provided additional written responses on April 

16, 2009, to questions asked at MBTOC’s meeting in Tel Aviv. These documents, 

together with reports by the advisory bodies noted above, are in the public docket for this 

rulemaking. The determination in this final rule reflects the analysis contained in those 

documents.

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

The December 23, 2004, Framework Rule (69 FR 76982) established the 

framework for the critical use exemption program in the U.S., including definitions, 

prohibitions, trading provisions, and recordkeeping and reporting obligations. The 

preamble to the Framework Rule included EPA’s determinations on key issues for the 

critical use exemption program.

Since publishing the Framework Rule, EPA has annually promulgated regulations 

to exempt from the phaseout of methyl bromide specific quantities of production and 
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import for each control period (each calendar year), to determine the amounts that may be 

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

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

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

2009). 

Today’s action authorizes specific critical uses for 2010 and the amounts of 

Critical Use Allowances (CUAs) and Critical Stock Allowances (CSAs) allocated for 

those uses. These are the uses included in the USG’s sixth CUN and authorized by the 

Parties in Decision XX/5 as well as the supplemental authorization in Decision XXI/11. 

EPA is utilizing the existing regulatory framework for critical uses. EPA proposed and 

took comment on a modification to the existing framework to ensure that the level of new 

production and import does not increase from one year to the next. EPA is not finalizing

that modification to the existing framework in today’s action because the end-of-year 

reported data shows that it would be unnecessary. This is discussed in more detail in 

Section V.D.3 of the preamble. EPA may consider that modification in future CUE 

rulemakings. 

C. Critical Uses

In Decision XX/5, taken in November 2008, the Parties to the Protocol agreed “to 

permit, for the agreed critical use categories for 2010 set forth in table C of the annex to 

the present decision for each Party, subject to the conditions set forth in the present 

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

of production and consumption for 2010 set forth in table D of the annex to the present 

decision which are necessary to satisfy critical uses ...”
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The following uses are those set forth in table C of the annex to Decision XX/5

for the United States:

 Commodities

 NPMA food processing structures (cocoa beans removed)1

 Mills and processors

 Dried cured pork

 Cucurbits

 Eggplant – field

 Forest nursery seedlings

 Nursery stock – fruit, nut, flower

 Orchard replant

 Ornamentals

 Peppers – field

 Strawberries – field

 Strawberry runners

 Tomatoes – field

 Sweet potato slips

The agreed U.S. critical use levels for 2010 total 3,235,474 kilograms (kg), which 

is equivalent to 12.7% of the U.S. 1991 methyl bromide consumption baseline of 

25,528,270 kg. The maximum amount of allowable new production and import for U.S. 

critical uses is 2,765,474 kg. This is a combination of the level in Table D of Decision 

XX/5, which is 2,763,456 kg, and the level in Table B of Decision XXI/11, which is 

2,018 kg. Similarly, the maximum amount for use on critical uses is 2,765,474 kg. This 

is equal to the level in Table C of Decision XX/5, which is 2,763,456 kg (10.8% of 

baseline), as well as an additional 2,018 kg authorized for 2010 in Table A of Decision 

XXI/11 for southeast strawberry nurseries. Both Decisions noted that these amounts 

were to account for available stocks. 

 

1

 NPMA, National Pest Management Association, includes both food processing structures and processed 

foods.
15

EPA is allocating a total critical use exemption in 2010 of 2,983,883 kg (11.7% of 

baseline). This total amount is comprised of new production or import of methyl 

bromide for critical uses at up to 1,955,775 kg (7.7% of baseline), and pre-phaseout 

inventory (i.e., stocks) for critical uses of up to 1,028,108 kg (4.0% of baseline). These 

values differ from the proposed rule for three reasons. First, the rate of inventory 

drawdown was less than EPA estimated, thus there are “available stocks” for 2010. 

Second, EPA has updated the total U.S. authorization, which is the starting point for the 

“available stocks” calculation, to include the 2,018 kg authorized in November 2010 in 

Decision XXI/11. Further information regarding this supplemental authorization appears 

in the Notice of Proposed Rulemaking (74 FR 61084). Third, following prior practice, 

EPA is subtracting the carryover amount from the authorized production amount. EPA 

has adjusted the carryover to reflect late sales reports. 

This final rule modifies 40 CFR part 82, subpart A, appendix L to reflect the 

agreed critical use categories identified in Decision XX/5 and Decision XXI/11 for the 

2010 control period. Additionally, the Agency is amending the table of critical uses 

based, in part, on the technical analysis contained in the 2010 U.S. nomination that 

assesses data submitted by applicants to the CUE program as well as public and 

proprietary data on the use of methyl bromide and its alternatives. EPA sought comment 

on the technical analysis contained in the U.S. nomination (available for public review in 

the docket to this rulemaking), as well as information regarding changes to the 

registration or use of alternatives that have transpired after the 2010 U.S. nomination was 

submitted. Such information has the potential to alter the technical or economic 

feasibility of an alternative and could thus cause EPA to modify the analysis that 
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underpins EPA’s determination as to which uses and what amounts of methyl bromide 

qualify for the CUE. EPA received comments with regard to sulfuryl fluoride and 

iodomethane. These comments did not provide any new data justifying changes to EPA’s 

analysis. These comments are discussed in Section V.D.5 “Alternatives” of the preamble 

below. EPA recognizes that as the market for alternatives evolves, the thresholds for 

what constitutes “significant market disruption” or “technical and economic feasibility” 

change. For example, the adoption of methyl iodide in the southeast U.S could transform 

the circumstances under which these analyses occur. Based on the information described 

above, EPA is determining that the uses in Table I: Approved Critical Uses, with the 

limiting critical conditions specified, qualify to obtain and use critical use methyl 

bromide in 2010:

Table I: Approved Critical Uses 

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, Maryland, and 

Michigan

Moderate to severe soilborne disease infestation

(b) Growers in Georgia and Southeastern 

U.S. limited to growing locations in 

Alabama, Arkansas, Kentucky, 

Louisiana, North Carolina, South 

Carolina, Tennessee, and Virginia 

Moderate to severe yellow or purple nutsedge infestation

Moderate to severe soilborne disease infestation 

Moderate to severe root knot nematode infestation

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

Moderate to severe soilborne disease infestation

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation

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

Moderate to severe nematode infestation

Moderate to severe pythium collar, crown and root rot

Moderate to severe southern blight infestation

Restrictions on alternatives due to karst topographical 

features

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

Nursery 

Seedlings

(a) Growers in Alabama, Arkansas, 

Georgia, Louisiana, Mississippi, North 

Carolina, Oklahoma, South Carolina, 

Tennessee, Texas, and Virginia 

Moderate to severe yellow or purple nutsedge infestation 

Moderate to severe soilborne disease infestation

Moderate to severe nematode infestation

(b) International Paper and its 

subsidiaries limited to growing locations 

in Alabama, Arkansas, Georgia, South 

Carolina, and Texas 

Moderate to severe yellow or purple nutsedge infestation 

Moderate to severe soilborne disease infestation

(c) Government-owned seedling 

nurseries in Illinois, Indiana, Kentucky, 

Maryland, Missouri, New Jersey, Ohio, 

Pennsylvania, West Virginia, and 

Wisconsin

Moderate to severe weed infestation including purple and 

yellow nutsedge infestation

Moderate to severe Canada thistle infestation

Moderate to severe nematode infestation

Moderate to severe soilborne disease infestation

(d) Weyerhaeuser Company and its 

subsidiaries limited to growing locations 

in Alabama, Arkansas, North Carolina, 

and South Carolina 

Moderate to severe yellow or purple nutsedge infestation 

Moderate to severe soilborne disease infestation

Moderate to severe nematode or worm infestation 

(e) Weyerhaeuser Company and its 

subsidiaries limited to growing locations 

in Oregon and Washington 

Moderate to severe yellow nutsedge infestation

Moderate to severe soilborne disease infestation

(f) Michigan growers Moderate to severe soilborne disease infestation

Moderate to severe Canada thistle infestation

Moderate to severe nutsedge infestation

Moderate to severe nematode infestation

Orchard 

Nursery 

Seedlings

(a) Members of the Western Raspberry 

Nursery Consortium limited to growing 

locations in Washington, and members 

of the California Association of Nursery 

and Garden Centers representing 

Deciduous Tree Fruit Growers

Moderate to severe nematode infestation

Medium to heavy clay soils

Local township limits prohibiting 1,3-dichloropropene

(b) California rose nurseries Moderate to severe nematode infestation

Local township limits prohibiting 1,3-dichloropropene

Orchard 

Replant

(a) California stone fruit, table and raisin 

grape, wine grape, walnut, and almond 

growers

Moderate to severe nematode infestation

Moderate to severe soilborne disease infestation

Replanted orchard soils to prevent orchard replant 

disease

Medium to heavy soils

Local township limits prohibiting 1,3-dichloropropene

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

Moderate to severe nematode infestation

Local township limits prohibiting 1,3-dichloropropene

(b) Florida growers Moderate to severe weed infestation

Moderate to severe soilborne disease infestation

Moderate to severe nematode infestation

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation

(c) Michigan herbaceous perennial 

growers

Moderate to severe nematode infestation

Moderate to severe soilborne disease infestation

Moderate to severe yellow nutsedge and other weed 

infestation

(d) New York growers Moderate to severe soilborne disease infestation

Moderate to severe nematode infestation
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Peppers (a) Alabama, Arkansas, Kentucky, 

Louisiana, North Carolina, South 

Carolina, Tennessee, and Virginia 

growers

Moderate to severe yellow or purple nutsedge infestation 

Moderate to severe nematode infestation

Moderate to severe pythium root, collar, crown and root 

rots

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

Moderate to severe soilborne disease infestation

Moderate to severe nematode infestation

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation

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

Moderate to severe nematode infestation, or moderate to 

severe pythium root and collar rots

Moderate to severe southern blight infestation, crown or 

root rot

Restrictions on alternatives due to karst topographical 

features

(d) Michigan growers Moderate to severe soilborne disease infestation

Strawberry 

Fruit

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

Moderate to severe yellow or purple nutsedge infestation

Moderate to severe nematode infestation

Local township limits prohibiting 1,3-dichloropropene

Time to transition to an alternative

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

Moderate to severe nematode infestation

Moderate to severe soilborne disease infestation

Carolina geranium or cut-leaf evening primrose 

infestation

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation

(c) Alabama, Arkansas, Georgia, Illinois, 

Kentucky, Louisiana, Maryland, 

Mississippi, Missouri, New Jersey, North 

Carolina, Ohio, South Carolina, 

Tennessee, and Virginia growers

Moderate to severe yellow or purple nutsedge infestation

Moderate to severe nematode infestation

Moderate to severe black root and crown rot

Strawberry 

Nurseries

(a) California growers Moderate to severe soilborne disease infestation

Moderate to severe yellow or purple nutsedge infestation

Moderate to severe nematode infestation

(b) North Carolina and Tennessee 

growers

Moderate to severe black root rot

Moderate to severe root-knot nematode infestation

Moderate to severe yellow and purple nutsedge 

infestation

Sweet Potato 

Slips

(a) California growers Local township limits prohibiting 1,3-dichloropropene

Tomatoes (a) Michigan growers Moderate to severe soilborne disease infestation

Moderate to severe fungal pathogen infestation

(b) Alabama, Arkansas, Florida, Georgia, 

Kentucky, Louisiana, Mississippi, North 

Carolina, South Carolina, Tennessee, and 

Virginia growers

Moderate to severe yellow or purple nutsedge infestation 

Moderate to severe soilborne disease infestation

Moderate to severe nematode infestation 

Restrictions on alternatives due to karst topographical 

features and, in Florida, soils not supporting seepage 

irrigation

(c) Maryland growers Moderate to severe fungal pathogen infestation
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POST-HARVEST USES

Food 

Processing

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

members of the USA Rice Millers 

Association

Moderate to severe beetle, weevil, or moth infestation

Presence of sensitive electronic equipment subject to 

corrosion

Time to transition to an alternative

(b) Pet food manufacturing facilities in 

the U.S. who are members of the Pet 

Food Institute

Moderate to severe beetle, moth, or cockroach infestation

Presence of sensitive electronic equipment subject to 

corrosion

Time to transition to an alternative

(c) Members of the North American 

Millers’ Association in the U.S.

Moderate to severe beetle infestation

Presence of sensitive electronic equipment subject to 

corrosion

Time to transition to an alternative

(d) Members of the National Pest 

Management Association treating 

processed food, cheese, herbs and spices, 

and spaces and equipment in associated 

processing and storage facilities.

Moderate to severe beetle or moth infestation

Presence of sensitive electronic equipment subject to 

corrosion

Time to transition to an alternative

Commodities (a) California entities storing walnuts, 

beans, dried plums, figs, raisins, and 

dates (in Riverside county only) in 

California

Rapid fumigation required to meet a critical market 

window, such as during the holiday season

Dry Cured 

Pork Products

(a) Members of the National Country 

Ham Association and the Association of 

Meat Processors, Nahunta Pork Center 

(North Carolina), and Gwaltney and 

Smithfield Inc.

Red legged ham beetle infestation

Cheese/ham skipper infestation

Dermested beetle infestation

Ham mite infestation

The critical uses and limiting critical conditions in Table I are modified from the 

2009 CUE as follows. First, EPA is adding ornamental growers in New York that are 

subject to moderate to severe soilborne disease or nematode infestations. This reflects a 

new application submitted for the production of Anemone coronaria in greenhouses and 

approved as part of the U.S. nomination of ornamentals. Greenhouse-grown anemones in 

New York are facing a similar situation to other crops in this sector. EPA anticipates the 

usage of methyl bromide will be very limited, and has nominated only 272 kg for this 

use. Second, EPA is removing cucurbit growers and pepper growers in Mississippi. 

These two uses were not part of the CUN and therefore the Parties have not authorized 

them as critical uses for 2010. Third, EPA is removing bakeries, as they have also 
20

transitioned to methyl bromide alternatives and thus did not submit an application for the 

2010 control period. Fourth, EPA is removing “export to countries which do not allow 

the use of sulfuryl fluoride” as a limiting critical condition for commodities. This limiting 

critical condition was established for the first time in the 2009 CUE rule as a few 

countries that import commodities treated with sulfuryl fluoride were still in the process 

of establishing maximum residue levels (MRLs) for sulfuryl fluoride. All countries to 

which the U.S. exports such commodities have now established MRLs. Therefore, EPA 

no longer believes this to be a limiting critical condition. EPA sought comment on these 

proposed changes to the critical uses and their limiting critical conditions. EPA received 

general support from two commenters to adjust the critical uses and limiting critical 

conditions in the manner described above. EPA also received one comment questioning 

some of the limiting critical conditions in Table I. This commenter has raised the same 

questions in past CUE rulemakings and EPA has responded to them in past rulemakings. 

EPA provides a copy of those responses in this rule’s response to comments. 

EPA also proposed to remove North Carolina and Tennessee strawberry nursery 

growers because the Parties had not authorized that use at the date of the Proposed Rule. 

Although the U.S. nominated this use for 2010, MBTOC did not recommend this use 

when it recommended the other critical uses for 2010. Iodomethane is registered for use 

on strawberry nurseries in these states and the MBTOC initially concluded that this 

substitute is a technologically and economically feasible methyl bromide alternative

suitable to these crops and circumstances. In September 2009, MBTOC received the 

USG’s supplemental request and agreed that time is required to conduct commercial scale 

up of iodomethane in this sector. MBTOC recommended 2,018 kg for this use in 2010 
21

and at the 21st MOP in November 2009, the Parties authorized this as a critical use. The 

Parties also increased the total authorization by 2,018 kg to meet this need. In this final 

rule, EPA is adding North Carolina and Tennessee strawberry nursery growers to the list 

of critical uses. EPA is increasing the CSA amount by 2,018 kg to account for this 

additional demand.

Consistent with the 2009 CUE Rule, EPA repeats the following clarifications 

made in previous years for ease of reference. The “local township limits prohibiting 1,3-

dichloropropene” are prohibitions on the use of 1,3-dichloropropene products in cases 

where local township limits on use of this alternative have been reached. “Pet food” 

under subsection B of Food Processing refers to food for domesticated dogs and cats. 

Finally, “rapid fumigation” for commodities is when a buyer provides short (two working 

days or fewer) notification for a purchase or there is a short period after harvest in which 

to fumigate and there is limited silo availability for using alternatives. 

D. Critical Use Amounts 

Section V.C. of this preamble explains that Table C of the annex to Decision 

XX/5 and Table B of Decision XXI/11 list critical uses and amounts agreed to by the 

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

amounts for 2010 total 3,235,474 kilograms (kg), which is equivalent to 12.7% of the 

U.S. 1991 methyl bromide consumption baseline of 25,528,270 kg. The maximum 

amount of new production or import authorized by the Parties is 2,765,474 kg, as set 

forth in Table D of Decision XX/5 (2,763,456 kg) and Table B of Decision XXI/11 

(2,018 kg), or 10.8% of baseline. 
22

EPA proposed to exempt limited amounts of new production and import of 

methyl bromide for critical uses for 2010 in the amount of 2,275,715 kg (8.9% of 

baseline). EPA also proposed to allow sale of 690,464 kg (2.7% of baseline) of existing 

pre-phaseout inventory for critical uses in 2010. In this final rule, EPA is allocating 

fewer CUAs and more CSAs. EPA is allocating 1,955,775 kg (7.7% of baseline) for new 

production or import and up to 1,028,108 kg (4.0% of baseline) of pre-phaseout inventory 

(i.e., stocks) to be used for critical uses. These values differ from the proposed rule for 

three reasons. First, as discussed below, the rate of inventory drawdown was less than 

EPA estimated. Thus there are “available stocks” for 2010. Second, EPA is adding

2,018 kg to the total U.S. authorized amount based on the decision taken at the 21st MOP.

The total U.S. authorized amount is the starting point for the “available stocks” 

calculation. Third, following prior practice, EPA is subtracting the carryover amount 

from the authorized production amount. EPA has adjusted the carryover to reflect late 

sales reports. The sub-sections below respond to the comments and explain EPA’s 

rationale for the critical use amounts for 2010.

1. Background of Critical Use Amounts

The 2004 Framework Rule established the provisions governing the sale of prephaseout inventories for critical uses, including the concept of Critical Stock Allowances 

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

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

allow CUAs to be converted into CSAs. EPA did not propose changes to these basic 

CSA provisions.
23

Paragraph 5 of Decision XX/5 further addresses pre-phaseout inventory of methyl 

bromide. The Decision states “that a Party with a critical use exemption level in excess of 

permitted levels of production and consumption for critical uses is to make up any such 

differences between those levels by using quantities of methyl bromide from stocks that 

the Party has recognized to be available.” In the Framework Rule (69 FR 52366), EPA 

issued CSAs in an amount equal to the difference between the total authorized CUE 

amount and the amount of new production or import authorized by the Parties.

In the 2006, 2007, 2008, and 2009 CUE Rules, EPA allocated CSAs in amounts 

that represented not only the difference between the total authorized CUE amount and the 

amount of authorized new production and import but also an additional amount to reflect 

available stocks. In the 2006 CUE Rule, EPA issued a total of 1,136,008 CSAs, 

equivalent to 4.4% of baseline. For 2006, the difference in the Parties’ decision between 

the total CUE amount and the amount of new production and import was 3.6% of 

baseline. In the 2007 rule, EPA added to the minimum amount (6.3% of baseline) an 

additional amount (1.2% of baseline) for a total of 1,914,600 CSAs (7.5% of baseline). 

In the 2008 rule, EPA added to the minimum amount (3.0% of baseline) an additional 

amount (3.8% of baseline) for a total of 1,729,689 CSAs (6.8% of baseline). In the 2009 

rule, EPA added to the minimum amount (1.2% of baseline) an additional amount (6.3% 

of baseline) for a total of 1,919,193 CSAs (7.5% of baseline). After determining the CSA 

amount, EPA reduced the portion of CUE methyl bromide to come from new production 

and import in each of the 2006-2009 control periods such that the total amount of methyl 

bromide exempted for critical uses did not exceed the total amount authorized by the 

Parties for that year. 
24

As established in the earlier rulemakings, EPA views the inclusion of these 

additional amounts in the calculation of the year’s overall CSA level as an appropriate 

exercise of discretion. The Agency is not required to allocate the full amount of 

authorized new production and consumption. The Parties only agree to “permit” a

particular level of production and consumption; they do not – and cannot – mandate that 

the U.S. authorize this level of production and consumption domestically. Nor does the 

CAA require EPA to allow the full amount permitted by the Parties. Section 604(d)(6) of 

the CAA does not require EPA to exempt any amount of production and consumption 

from the phaseout, but instead specifies that the Agency “may” create an exemption for 

critical uses, providing EPA with substantial discretion. 

When determining the CSA amount for a year, EPA considers what portion of 

existing stocks is “available” for critical uses. As discussed in prior CUE rulemakings, 

the Parties to the Protocol recognized in their Decisions that the level of existing stocks 

may differ from the level of available stocks. For example, Decision IX/6 states that 

“production and consumption, if any, of methyl bromide for critical uses should be 

permitted only if . . . methyl bromide is not available in sufficient quantity and quality 

from existing stocks.” Decision XX/5, as well as earlier decisions, refers to use of 

“quantities of methyl bromide from stocks that the Party has recognized to be available.” 

Thus, it is clear that individual Parties have the ability to determine their level of 

available stocks. Decisions XX/5 and XXI/11 further reinforce this concept by including 

the phrase “minus available stocks” as a footnote to the United States’ authorized level of 

production and consumption. Section 604(d)(6) of the CAA does not require EPA to 

adjust the amount of new production and import to reflect the availability of stocks; 
25

however, as explained in previous rulemakings, making such an adjustment is a 

reasonable exercise of EPA’s discretion under this provision. 

EPA has employed the concept of “available stocks” in determining whether to 

allocate additional CSAs beyond the minimum stock amount stipulated by the Parties. In 

response to stakeholder questions about how EPA derived its CSA amounts, the 2008 

CUE rule established a refined approach for determining the amount of existing methyl 

bromide stocks that is “available” for critical uses. The approach uses a tool called the 

supply chain factor (SCF). The SCF is EPA’s technical estimate of the amount of methyl 

bromide inventory that would be adequate to meet the need for critical use methyl 

bromide after an unforeseen domestic production failure. The SCF recognizes the benefit 

of allowing the private sector to maintain a buffer in case of a major supply disruption. 

However, the SCF is not intended to set aside or physically separate stocks as an 

inventory reserve. 

2. Calculation of Available Pre-Phaseout Inventory

In this action, EPA is adjusting the authorized level of new production and 

consumption for critical uses to account for the amount of existing pre-phaseout 

inventory that is “available” for critical uses. EPA is calculating the amount of existing 

stocks that is available for critical uses in 2010 based on the SCF and formula introduced 

in the 2008 CUE final rule (72 FR 74118). EPA is allowing sales of the amount of 

existing pre-phaseout inventory that the Agency has determined to be available for 

critical uses by issuing an equivalent number of CSAs on a one-CSA-per-one-kilogramof-methyl-bromide basis.
26

EPA calculates the amount of “available” stocks as follows, using the formula 

adopted in the 2008 CUE rule: AS2010 = ES2009 – D2009 – SCF2010, where AS2010 is the 

available stocks on January 1, 2010; ES2009 is the existing pre-phaseout stocks of methyl 

bromide held in the United States by producers, importers, and distributors on January 1, 

2009; D2009 is the drawdown or estimated drawdown of existing stocks during calendar 

year 2009; and SCF2010 is the supply chain factor for 2010. In the proposed rule, EPA 

applied this formula using an estimated drawdown for calendar year 2009. EPA reached 

a preliminary conclusion that the calculated level of “available stocks” on January 1, 

2010, would be a negative number. EPA proposed to add an additional step to its 

determination of the level of CSAs to be allocated in 2010 because simply taking the 

result of the available stocks calculation would have resulted in an increase in new 

production before pre-phaseout inventory was depleted. In today’s action, EPA is not 

finalizing the modified approach contained in the proposed rule; however, EPA may 

consider that approach in a future action. EPA does not need to consider the modified 

approach further in this action because it has acquired end-of-year inventory data that 

result in a different conclusion regarding available stocks. As EPA did in the 2009 CUE 

Rule, EPA is using actual data rather than relying on the estimate in the proposed rule. 

Using the formula established in the 2008 CUE Rule and the actual inventory data, EPA 

calculates that there are 1,028,108 kg of “available stocks” in 2010. EPA is therefore 

allocating this amount as CSAs, following the approach adopted in the 2008 CUE Rule. 

This calculation and others used to determine the allocation of CUAs and CSAs can be 

found in the docket.
27

Existing Stocks. In the above formula, “ES2009” refers to pre-phaseout inventory –

methyl bromide that was produced before the January 1, 2005, phaseout date but is still 

held by domestic producers, distributors, and third-party applicators. It does not include 

material held by end users. ES2009 also does not include critical use methyl bromide that 

was produced after January 1, 2005, and carried over into subsequent years. Nor does it 

include methyl bromide produced 1) under the QPS exemption, 2) with Article 5 

allowances to meet the basic domestic needs of Article 5 countries, or 3) for feedstock or 

transformation purposes. EPA considers all pre-phaseout inventory to be suitable for 

both pre-plant and post harvest uses. Similarly, EPA considers pre-phaseout inventory to 

be accessible by all users, including those in California and the Southeastern United 

States. 

One commenter disagrees that the entire existing inventory of pre-phaseout stocks 

is available to critical users. This commenter states that non-CUE users also use prephaseout inventory and that there are now a relatively small number of methyl bromide 

distributors in the U.S. EPA is aware that end users who are not approved critical users 

can and do access pre-phaseout inventory. As determined in the 2008 CUE Rule, EPA 

regards this material as “available” because it is owned by someone other than the end 

user. While a distributor might choose to sell methyl bromide to non-critical users to 

satisfy prior contracts or internal business decisions, this is not the result of any EPA 

regulatory constraint. Issues concerning supply of pre-phaseout inventory are addressed 

in the Response to Comment Document for the 2008 CUE Rule, which is included in the 

docket for this rulemaking.
28

Supply Chain Factor. The SCF represents EPA’s technical estimate of the 

amount of pre-phaseout inventory that would be adequate to meet a need for critical use 

methyl bromide after an unforeseen domestic production failure. As described in the 

2008 CUE rule, and the Technical Support Document contained in the docket to this rule, 

EPA estimates that it would take 15 weeks for significant imports of methyl bromide to 

reach the U.S in the event of a major supply disruption. Consistent with the regulatory 

framework used in the 2008 and 2009 rules, the SCF for 2010 conservatively reflects the 

effect of a supply disruption occurring in the peak period of critical use methyl bromide

production, which is the first quarter of the year. While this 15-week disruption is based 

on shipping capacity and does not change year to year, other inputs to EPA’s analysis do 

change each year including the total U.S. and global authorizations for methyl bromide 

and the average seasonal production of critical use methyl bromide in the U.S. Using 

updated numbers, EPA estimates that critical use production in the first 15 weeks of each 

year (the peak supply period) currently accounts for approximately 63% of annual critical 

use methyl bromide demand for 2010. EPA, therefore, estimates that the peak 15-week 

shortfall in 2010 could be 2,036,000 kg (63% x 3,235,474 kg). 

As EPA stated in the 2008 and 2009 CUE Rules, the SCF is not a “reserve” or 

“strategic inventory” of methyl bromide but is merely an analytical tool used to provide 

greater transparency. A general discussion of the SCF is in the final 2008 CUE rule (72 

FR 74118) and further detail about the analysis used to derive the value for 2010 is 

provided in the Technical Support Document in the public docket for this rulemaking.

Two commenters object to the use of a supply chain factor in determining an 

amount of “available stocks” that can be used by critical users. These commenters state 
29

that there is no basis for making this allowance for the supposed risk of a catastrophic 

loss of the methyl bromide production plant. One commenter also states that the 

calculation is overly conservative because it assumes a catastrophic loss when production 

is at the peak. The commenter also states that the calculation incorrectly assumes that 

growers have no alternative to methyl bromide in the event of such a loss. Finally, the 

commenter states that the purpose for such a reserve is undermined by the fact that EPA 

is not actually maintaining the inventory for the event of a catastrophic loss but is instead 

allowing inventory to be used by non-critical users. EPA has addressed these comments 

in prior rulemakings; those responses are available in the docket for this rulemaking.

Two commenters also object to EPA’s process of determining whether the 

inventory was “available” through use of the supply chain factor. These commenters 

request that EPA require that the inventory be exhausted before allowing any additional 

new production. EPA has addressed these comments in prior rulemakings; those 

responses are available in the docket for this rulemaking. 

Estimated Drawdown. EPA proposed to estimate the drawdown of existing 

stocks (the D2009 term in the above equation) by using a simple linear fit estimation of 

inventory data from all available years. In the 2009 Rule, EPA utilized end-of-year data 

and did not have to estimate the drawdown. Commenters on the 2009 CUE rule 

suggested additional forecasting techniques: time series forecasting (extrapolating past 

behavior into the future) and change-point detection methods (change-point detection is 

the identification of abrupt changes in the generative parameters of sequential data -

looking at data and calculating when it changes its slope). EPA did not propose to use 

these methods in the 2010 Rule because they would require more data than the six data 
30

points that EPA has on annual inventory levels. EPA welcomed comment on these 

techniques for forecasting future drawdown amounts. EPA also welcomed comment on 

whether the estimate should be limited to a statistical analysis of past inventory levels or 

whether EPA should collect additional data or consider other factors. EPA suggested in 

the 2010 proposed rule that it could collect actual data on stocks near the end of the 

calendar year through EPA’s information gathering authority under section 114 of the 

Clean Air Act. Alternatively, EPA could revise the regulations to add a reporting 

requirement to facilitate the early collection of this information in future years. EPA did 

not receive any comments on these alternate methods for calculating the drawdown or 

additional reporting requirements. 

In the final rule, EPA is not pursuing the alternative statistical methods of 

estimating drawdown discussed above because EPA has received end-of-year reporting 

data. As in the 2009 CUE Rule, EPA is using reported data and not relying on an 

estimate of drawdown. In addition, the labeling for methyl bromide is currently being 

revised through EPA’s reregistration process under FIFRA section 4. While this does not 

affect the 2010 CUE rule, it will likely change methyl bromide use patterns and make 

previous years’ drawdown data less predictive of future use. It may also make it easier to 

estimate the amount of pre-phaseout inventory that will be used in the future because the 

uses of inventory will be constrained. This may lessen the impetus for more frequent 

reporting, which was suggested by commenters. EPA is therefore not including 

provisions in this rule that would require inventory holders to report more frequently than 

they do now.
31

One commenter states that there appeared to be an error in EPA’s estimate of the 

drawdown of inventory during 2009. The Technical Support Document for the 2008 and 

2009 CUE Rules state that the 2007 inventory was 7,671,000 kg. This is in contrast to 

the Technical Support Document for the Proposed Rule which states that the inventory 

was 7,941,000 kg. EPA explained in the 2009 CUE rule that it corrected its assessment of 

the amount pre-phaseout inventory that was available on December 31, 2006, which EPA 

originally stated was 7,671,091 kg. EPA had received late data in 2007 that it did not 

incorporate into the total inventory level for the year. The corrected value for the amount 

of pre-phaseout inventory as of December 31, 2006, was 7,941,009 kg. EPA clarified this 

in the 2009 rule because a change in the inventory value affects any estimates used to 

calculate future drawdown. That change does not affect this or last year’s allocations 

because they are based on reported data rather than estimates.

Using end-of-year data, EPA calculates that the pre-phaseout methyl bromide 

inventory, which was 4,271,226 kg on January 1, 2009, was drawn down by 1,207,118 kg 

during 2009. This results in a pre-phaseout inventory of 3,064,108 kg on January 1, 

2010. The actual drawdown in 2009 was less than half of the rate estimated in the 

proposed rule (1,207 MT compared to 2,834 MT). The pre-phaseout inventory on 

December 31, 2009, is thus double what the Agency calculated in the proposed rule 

(3,064 MT compared to 1,437 MT).

3. Approach for Determining Critical Use Amounts

In the proposed rule, EPA calculated “available stocks” using the approach 

described in Section V.D.2 above. This resulted in a value less than zero, meaning that 

EPA estimated that in 2010 there would no longer be an amount of pre-phaseout 
32

inventory that meets EPA’s definition of “available stocks.” EPA recognized in the 2008 

rule that the formula for calculating “available” stocks would in some future rulemaking

yield a number less than the minimum effectively stipulated by the Parties (the difference 

between the total authorized critical use amount and the authorized amount of new 

production and imports). In the preambles to the 2008 and 2009 rules, EPA indicated 

that when that occurred, the Agency would issue CSAs equal to the minimum amount 

stipulated by the Parties. 

In the proposed rule, EPA expressed the concern that if it were to follow the 

approach set forth in the 2008 rule, new production and import in 2010 could exceed the 

previous year’s level. As explained in the proposed rule, this was an additional 

circumstance that EPA had not considered when the Agency previously outlined what 

future actions it might take. To ensure continued progress in reducing U.S. production 

and import of critical use methyl bromide, EPA proposed to limit 2010 CUAs (i.e., 

production and import) to the same level as in 2009. EPA proposed to make up the 

remaining critical need by using its discretion to increase the CSA allocation 

proportionately. EPA proposed to allocate only the amount of CSAs necessary to make 

up the difference between the overall U.S. critical need and the CUA amount in the 2009 

CUE rule. Three commenters support EPA’s proposal not to increase new production 

from the 2009 levels while one commenter is opposed. The comment in opposition states 

that it was entirely foreseeable that the amount of new production may have to increase 

from one year to the next. Second, the commenter in opposition states that the proposed 

approach to limit new production fails to follow EPA’s established procedure for 

determining CUAs and is therefore an abuse of discretion.
33

EPA is not finalizing the approach discussed in the proposed rule in today’s 

action because, given the year-end inventory data, application of the existing framework 

will not increase the amount of new production compared to 2009. EPA is not deciding 

whether or not a policy limiting new production would be appropriate in some future year 

because the situation prompting its use no longer exists for this rule. EPA has 

recalculated “available stocks” using end-of-year inventory data rather than using an 

estimate of drawdown. The pre-phaseout inventory on December 31, 2009, is double 

what the Agency calculated in the proposed rule (3,064 MT compared to 1,437 MT). As a 

result, EPA now calculates that 1,028,108 kg of pre-phaseout inventory would be 

“available stocks.” In this final rule, EPA is applying its existing framework to 

determining CSAs and CUAs and is not finalizing the approach limiting new production 

that was discussed in the proposed rule. EPA may consider that approach in future CUE 

rulemakings.

EPA continues to recognize that at some date the inventory will be drawn down to 

the SCF level and then below the SCF even if EPA sets the CSA amount equal to the 

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

amount. The inventory is a finite resource: EPA has made clear in the framework rule in 

the context of discussing the carryover amount that it will not allow the inventory to 

increase. 69 FR 76977. With this action the Agency is allowing 1,028,108 kg of methyl 

bromide to be supplied from pre-phaseout inventory for critical uses in 2010 by issuing 

an equivalent number of CSAs, and adjusting the amount of CUAs accordingly. EPA 

calculates that there will be sufficient pre-phaseout inventory at the beginning of the 2011 
34

control period to satisfy the amount of 2011 inventory drawdown (200,000 kg) for critical 

uses identified by the Parties in Decision XXI/11.

To summarize, the critical use amounts authorized by the Parties in Decisions 

XX/5 and XXI/11 for 2010 total 3,235,474 kg. The maximum amount of authorized new 

production or import as set forth in those two Decisions is 2,765,474 kg, “minus available 

stocks.” Applying the “available stocks” approach finalized in the 2008 CUE Rule, EPA 

is expecting 1,028,108 kg of 2010 critical use needs to be met from pre-phaseout 

inventory and thus is issuing CSAs in that amount. As in past years, EPA is adjusting the 

amount of CUAs accordingly, so that the sum of CUAs and CSAs is not greater than the 

total amount authorized by the Parties. Under with the existing framework, EPA’s 

practice is to allocate a total number of CUAs and CSAs that is less than the total critical 

use amount authorized by the Parties as necessary to account for carry over amounts of 

methyl bromide, amounts for research purposes, or for other appropriate reasons, 

including updated information on alternatives. Each of these reductions is discussed 

below, but only the carry over value affects this year’s allocation amount. As a result,

EPA is allowing 1,955,775 kg of new production and import for critical uses in 2010.

EPA has provided these calculations in Section V.D.6 below and in a document titled 

“CUE Calculation Spreadsheet” in the docket.

4. Treatment of Carryover Material

As discussed in the Framework Rule, EPA does not permit the building of stocks 

of methyl bromide produced or imported after January 1, 2005, under the critical use 

exemption. Quantities of methyl bromide produced, imported, exported, or sold to endusers under the critical use exemption in a control period must be reported to EPA the 
35

following year. EPA uses these reports to calculate the amount of methyl bromide 

produced or imported under the critical use exemption, but not exported or sold to endusers in that year. EPA deducts an amount equivalent to this “carryover,” whether preplant or post-harvest, from the total level of allowable new production and import in the 

year following the year of the data report. Carryover material (which is produced using

critical use allowances) is not included in EPA’s definition of existing stocks (ES) (which 

applies to pre-phaseout material) because this would lead to a double-counting of 

carryover amounts, and a double reduction of critical use allowances (CUAs). 

In 2009, companies reported that 3,036,130 kg of critical use methyl bromide 

were acquired through production or import in 2008. The information reported to EPA is 

that 2,784,539 kg of critical use methyl bromide were exported or sold to end-users in 

2008. EPA calculates that the carryover amount at the end of 2008 was 251,591 kg, 

which is the difference between the reported amount of critical use methyl bromide 

acquired in 2008 and the reported amount of exports or sales of that material to end users 

in 2008 (3,036,130 - 2,784,539 = 251,591 kg). Using the existing framework, EPA is 

applying the carryover deduction to the new production amount as it has in all prior CUE 

rules. Therefore, EPA is reducing the amount of new production by 251,591 kg. EPA 

calculated the carryover amount in the proposed rule though it did not have a direct effect 

on the CUA numbers given the proposed approach to limit new production.

One commenter states that the carryover amount calculated by EPA is higher than 

the amount of unsold material. The commenter reiterates suggestions made in prior CUE 

rules to change the reporting system so that EPA could identify non-reporting companies 

or alternatively calculate carryover as the amount of methyl bromide companies report as 
36

held in inventory. EPA has responded to this comment in previous rules; EPA’s 

responses are available in the docket. The commenter also requests that EPA pursue 

companies that it suspects are not reporting. EPA stated in the proposed rule that it has 

contacted companies that it suspects may have purchased or sold methyl bromide but had 

not submitted reporting forms. EPA received a few late reports totaling 15,686 kg. As a 

result EPA adjusted the carryover amount in this final rule.

EPA’s calculation of the amount of carryover at the end of 2008 is consistent with 

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

Decision XVI/6, which established the Accounting Framework for critical use methyl 

bromide, for calculating column L of the U.S. Accounting Framework. The 2008 U.S. 

Accounting Framework is available in the public docket for this rulemaking. EPA notes 

that the carryover value in the Accounting Framework is higher by 17 MT than the 

number contained in this final rule due to additional reports received after EPA provided 

the Accounting Framework to UNEP.

5. Methyl Bromide Alternatives

EPA considers new data regarding alternatives that were not available at the time 

the U.S. Government submitted its Critical Use Nomination (CUN) to the Parties, and 

adjusts the allocation for new production accordingly. For 2010, EPA is not making

further reductions in post-harvest or pre-plant critical use allowances to reflect the 

transition to alternatives because the 2010 CUN applied transition rates for all critical use 

sectors. The TEAP report of October 2008 included reductions in its recommendations 

for critical use categories based on the transition rates in the 2010 CUN. The TEAP’s 

recommendations were then considered in the Parties’ 2010 authorization amounts, as 
37

listed in Decision XX/5. Therefore, transition rates, which account for the uptake of 

alternatives, have already been applied for authorized 2010 critical use amounts.

Furthermore, the 2012 CUN, which represents the most recent analysis and the 

best available data for methyl bromide alternatives, does not conclude that transition rates 

should be increased for 2010. As the 2012 CUN reflects, the United States Government 

has not found new information that supports changing the 2010 transition rates included 

in the 2010 CUN and applied by MBTOC. EPA continues to gather information about 

methyl bromide alternatives through the CUE application process, and by other means. 

The 2010 CUN includes transition rates for iodomethane and there is no new 

information that would suggest changing those rates. Currently, iodomethane is 

registered for use in 47 states. California has not yet decided whether to register 

iodomethane for use in the state. EPA did not propose any adjustment based on 

iodomethane in its proposed rule. Two commenters suggest that EPA make additional 

reductions to the allocation to reflect the uptake of iodomethane. One commenter states

that EPA underestimated the uptake of iodomethane in the 2008 and 2009 CUE rules and 

cites the amount of iodomethane sold each year and the size of the reduction to the 

allocations in the 2008 and 2009 rules. EPA calculated the uptake of iodomethane in the 

critical use nomination for 2010. EPA would revisit that calculation in this rule if new 

data on market penetration or state registrations warranted such action, as it did in the 

2008 and 2009 CUE rules. The commenter fails to recognize that the Agency has already 

made a reduction in the nomination. EPA has accounted for all state registrations in the 

2010 nomination and does not believe additional reductions are warranted.
38

EPA also stated in its proposed rule that it did not intend to make any adjustments 

to account for the reduced production of Telone in 2009. Dow AgroSciences commented 

that they were seeking to increasing production of Telone and intended to restore the 

availability of this material to full levels by the end of 2009. One commenter states that 

there may still be some lingering shortages. Another commenter states that even if the 

supply is not fully restored, growers can use iodomethane or methyl bromide stockpiles. 

EPA has received additional information on the production and availability of Telone

from Dow AgroSciences, which the Agency has entered into the CBI portion of the 

docket, and based on that data does not believe that the shortage will continue into 2010.

EPA received a dozen comments from pest control companies and end users who 

use sulfuryl fluoride. These commenters relate their experiences using sulfuryl fluoride 

and expressed support for its further use in the post harvest sector. One commenter 

provided additional data in support of sulfuryl fluoride as an effective alternative to 

methyl bromide. EPA responds to the technical data in the response to comments. Two 

commenters state that sulfuryl fluoride has been demonstrated to be both effective and 

economical as a methyl bromide alternative in structural fumigations. These commenters 

state that EPA should therefore not authorize any structural applications as a critical use 

and reduce the allocation accordingly. The 2010 CUN reflected uptake of sulfuryl 

fluoride. As discussed above, EPA does not have economic data to support an increased 

transition rate or a reduction in the allocation. More information on the uptake of sulfuryl 

fluoride is found in the 2010 CUN and in the response to comments document.

EPA continues to support research and adoption of methyl bromide alternatives, 

and to request information about the economic and technical feasibility of all existing and 
39

potential alternatives. EPA has not received any new data that was not considered by the 

Parties that would lead it to change the transition rates for 2010. Therefore, the final rule 

does not make any adjustments to account for new information on the uptake of 

alternatives.

6. Summary of Calculations

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

critical stock allowances is summarized in the table below:

Step 1: Calculate supply chain factor Kilograms

U.S. authorization for 2010 in Decision XX/5 3,233,456

U.S. authorization for 2010 in Decision XXI/11 2,018

- Reduction for uptake of alternatives 0

= One year's CUE need 3,235,474

x Percentage of year's production to recover from production failure 62.9%

= Supply Chain Factor 2,036,000

Step 2: Calculate available stocks

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

- Drawdown of inventory during 2009 ("D2009") 1,207,118

- Supply Chain Factor 2,036,000

= Available stocks ("AS2010") = Critical Stock Allowance 1,028,108

Step 3: Calculate carry over

Reported as produced/imported in 2008 3,036,130

- Reported as sold in 2008 2,784,539

= Carry over 251,591

Step 4: Calculate new production

Total U.S. authorization for 2010 (Decisions XX/5 and XXI/11) 3,235,474

- Critical Stock Allowance (Step 2) 1,028,108

- Carryover (Step 3) 251,591

- Uptake of alternatives 0

= New production = Critical Use Allowance 1,955,775

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

Paragraphs 2 and 7 of Decision XX/5 request Parties to ensure that the conditions 

or criteria listed in Decisions Ex. I/4 and IX/6, paragraph 1, are applied to exempted 

critical uses for the 2010 control period. A discussion of the Agency’s application of the 
40

criteria in paragraph 1 of Decision IX/6 appears in sections V.A., V.C., V.D., and V.H. of 

this preamble. The Agency solicited comments on the technical and economic basis for 

determining that the uses listed in the proposed rule meet the criteria of the critical use 

exemption (CUE). The critical use nominations (CUNs) detail how each critical use 

meets the criteria listed in paragraph 1 of Decision IX/6, apart from the criterion located 

at (b)(ii), as well as the criteria in paragraphs 5 and 6 of Decision Ex. I/4. 

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

of methyl bromide, is addressed in sections V.D., V.G., and V.H. of this preamble. The 

Agency has previously provided its interpretation of the criterion in Decision 

IX/6(1)(a)(i) regarding the presence of significant market disruption in the absence of an 

exemption, and EPA refers readers to the 2006 CUE final rule (71 FR 5989) as well as to 

the memo on the docket titled “Development of 2003 Nomination for a Critical Use 

Exemption for Methyl Bromide for the United States of America” for further elaboration.

The remaining considerations, including the lack of available technically and 

economically feasible alternatives under the circumstance of the nomination; efforts to 

minimize use and emissions of methyl bromide where technically and economically 

feasible; the development of research and transition plans; and the requests in Decision 

Ex. I/4(5) and (6) that Parties consider and implement MBTOC recommendations, where 

feasible, on reductions in the critical use of methyl bromide and include information on 

the methodology they use to determine economic feasibility, are addressed in the 

nomination documents.

Some of these criteria are evaluated in other documents as well. For example, the 

U.S. has further considered matters regarding the adoption of alternatives and research 
41

into methyl bromide alternatives, criterion (1)(b)(iii) in Decision IX/6, in the 

development of the National Management Strategy submitted to the Ozone Secretariat in 

December 2005 and in ongoing consultations with industry. The National Management 

Strategy addresses all of the aims specified in Decision Ex.I/4(3) to the extent feasible 

and is available in the docket for this rulemaking.

The USG’s approach to research changed slightly in the 2010 nomination. In

previous years, while the nomination was broad enough to cover both research and nonresearch uses, the USG nominated a separate, additional amount specifically for research 

purposes. However, Decision XVII/9 requested that the Parties “endeavor to use stocks,

where available, to meet any demand for methyl bromide for the purposes of research and

development.” Therefore, when allocating allowances in previous years, EPA subtracted 

that separate research amount from the Parties’ authorized production level for the U.S. 

This in effect encouraged the use of stocks for research purposes. For 2010, the 

nomination was again broad enough to cover both research and non-research uses but the 

USG did not nominate a separate, additional amount specifically for research purposes. 

Thus, EPA did not propose to adjust the production level to subtract this amount.

One commenter objects to EPA encouraging researchers to use pre-phaseout 

inventory. They expressed concern that a further reduction in stocks will jeopardize 

growers’ ability to endure a supply chain disruption and note that the higher cost and 

reduced availability of pre-phaseout inventory will harm research into alternatives if 

researchers are limited to pre-phaseout inventory. Instead, EPA should increase the level 

of new production that is dedicated for research purposes. EPA responds that unlike 

previous years, the nomination did not specifically dedicate an amount for research 
42

purposes, thus there is no specific amount by which EPA could increase new production. 

Second, because EPA is allowing research as a critical use, the Agency is not limiting 

researchers to inventory. Use of inventory methyl bromide for research could reduce the

amounts available in case of a supply chain disruption but EPA does not anticipate the 

effect will be significant given the small amounts of methyl bromide used for research.

In this final rule, EPA has determined that research on the critical use crops 

shown in the table in Appendix L to subpart A remains a critical use of methyl bromide. 

Research on critical use crops is fundamental to the critical use process. Decision IX/6, 

which sets forth the criteria for a “critical use” determination, requires ongoing research 

programs in order for a Party to receive critical uses:

(b) That production and consumption, if any, of methyl bromide for a critical use

should be permitted only if: (iii) It is demonstrated that an appropriate effort is

being made to evaluate, commercialize and secure national regulatory approval of

alternatives and substitutes, taking into consideration the circumstances of the

particular nomination...Non-Article 5 Parties [e.g., the U.S.] must demonstrate

that research programmes are in place to develop and deploy alternatives and

substitutes...

Though the USG did not request an additional amount for 2010, the nomination remains

consistent with past nominations both in discussing how current research affects the use

and uptake of alternatives as well as the USG’s efforts to conduct research. The

nomination states, “As noted in our previous nomination, the USG provides a great deal

of funding and other support for agricultural research, and in particular, for research into

alternatives for methyl bromide. This support takes the form of direct research conducted
43

by the Agricultural Research Service (ARS) of USDA, through grants by ARS and

CSREES, by IR-4, the national USDA-funded project that facilitates research needed to

support registration of pesticides for specialty crop vegetables, fruits and ornamentals,

through funding of conferences such as MBAO, and through the land grant university

system.” Consistent with past practice, EPA is not listing research as a separate entry in 

the table in Appendix L: however, research remains an aspect of the listed critical uses.

The USG may or may not nominate additional amounts for research in future years. Also 

consistent with past rules, EPA continues to request that researchers use pre-phaseout 

inventory when possible. 

F. Emissions Minimization

Decision XX/5, paragraph 11 states that Parties shall request critical users to 

employ “emission minimization techniques such as virtually impermeable films, barrier 

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

environmental protection, whenever technically and economically feasible.” In the 

judgment of USG scientists, use of virtually impermeable film (VIF) tarps allows pest 

control with lower application rates while minimizing emissions. The quantity of methyl 

bromide nominated by the USG reflects the lower application rates necessary when using 

tarps. 

Two commenters ask EPA to require emissions minimization techniques rather 

than simply encourage them. Rather than mandate emission reduction techniques, EPA 

will continue to work with the U.S. Department of Agriculture – Agricultural Research 

Service (USDA-ARS) to promote the techniques on a voluntary basis. As discussed 

above, the federal government has invested substantial resources into best practices for 
44

methyl bromide use, including emission reduction practices. USDA-ARS has a national 

outreach effort to publicize the best practices. Also, EPA continues to work on the 

registration of promising methyl bromide alternatives.

Users of methyl bromide should make every effort to minimize overall emissions 

of methyl bromide to the extent consistent with State and local laws and regulations. The 

Agency continues to encourage researchers and users who are successfully utilizing such 

techniques to inform EPA of their experiences and for applicants to provide such 

information with their critical use applications. The Agency welcomes information on 

the implementation of emission minimization techniques and whether and how further 

emissions could be reduced further.

G. Critical Use Allowance Allocations

EPA is allocating 2010 critical use allowances for new production or import of 

methyl bromide up to the amount of 1,955,775 kg (7.7% of baseline) as shown in Table 

III below. Each critical use allowance (CUA) is equivalent to 1 kg of critical use methyl 

bromide. These allowances expire at the end of the control period and, as explained in 

the Framework Rule, are not bankable from one year to the next. The allocation of preplant and post-harvest CUAs to the entities listed below is subject to the trading 

provisions at 40 CFR 82.12, which are discussed in section V.G. of the preamble to the 

Framework Rule (69 FR 76982).

The CUAs are allocated as follows:

Table III: Allocation of Critical Use Allowances

Company 2010 Critical use allowances for 

pre-plant uses* (kilograms)

2010 Critical use allowances for 

post-harvest uses* (kilograms)

Great Lakes Chemical Corp.

A Chemtura Company

1,102,380 86,145
45

Albemarle Corp. 453,324 35,425

ICL-IP America 250,516 19,576

TriCal, Inc. 7,800 610

Total** 1,814,020 141,755

* For production or import of Class I, Group VI controlled substance exclusively for the 

Pre-Plant or Post-Harvest uses specified in appendix L to 40 CFR part 82. 

** Due to rounding, numbers may not add exactly.

Paragraph six of Decision XX/5 states “that Parties shall endeavor to license, 

permit, authorize or allocate quantities of critical-use methyl bromide as listed in tables A 

and C of the annex to the present decision.” This is similar to language in Decisions 

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

endeavor to allocate critical use methyl bromide on a sector basis.

One commenter states that EPA should allocate specifically to each of the Critical 

Use Categories as authorized by the Parties. The EPA’s “lump sum” approach, the 

commenter asserts, does not guarantee that critical users have access to methyl bromide

and it instead allows those with the greatest ability to pay to garner methyl bromide away 

from other users with approved critical needs. Furthermore, this commenter states that 

developers of methyl bromide alternatives need assurance that methyl bromide will 

eventually exit a particular use segment. Allowing an open market for methyl bromide

allocation is an economic disincentive for anyone developing alternatives. At a minimum, 

this commenter supports distinguishing between pre-plant and post-harvest sectors as 

EPA currently does.

The Framework Rule proposed several options for allocating critical use 

allowances, including a sector-by-sector approach. The Agency evaluated the various 

options based on their economic, environmental, and practical effects. After receiving 

comments, EPA determined that a lump-sum, or universal, allocation, modified to 
46

include distinct caps for pre-plant and post-harvest uses, was the most efficient and least 

burdensome approach that would achieve the desired environmental results, and that a 

sector-by-sector approach would pose significant administrative and practical difficulties. 

For the reasons discussed in the preamble to the 2009 CUE rule (74 FR 19894), the 

Agency believes that under the approach adopted in the Framework Rule, the actual 

critical use will closely follow the sector breakout listed in the Parties’ decisions. The 

commenters’ concerns are addressed more specifically in the response to comment 

document. 

H. Critical Stock Allowance Allocations

For the reasons discussed above, EPA is allocating critical stock allowances 

(CSAs) to the entities listed below in Table IV for the 2010 control period in the amount 

of 1,028,108 kg (4.0% of baseline). This amount reflects the application of the existing 

framework using end-of-year data rather than an estimate of drawdown rates. In 

addition, the calculation is based on a higher total U.S. authorization incorporating the 

additional 2,018 kg authorized by the parties in Decision XXI/11 which added North 

Carolina and Tennessee strawberry nursery growers to the list of critical uses.

EPA’s allocation of CSAs is based on each company’s proportionate share of the 

aggregate inventory. In 2006, the United States District Court for the District of 

Columbia upheld EPA’s treatment of company-specific methyl bromide inventory 

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

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

in the confidential portion of the rulemaking docket and the individual CSA allocations 
47

are not listed in the table below. EPA will inform the listed companies of their CSA 

allocations in a letter following publication of the final rule. 

EPA received notice that Hy-Yield Bromine and its assets were transferred to a 

third party named Hy-Yield products, LLC, which is owned by Trinity Manufacturing, 

LLC. EPA is therefore not issuing critical stock allowances to Hy-Yield Bromine but 

rather to Hy-Yield Products in this and in subsequent rulemakings.

Table III: Allocation of Critical Stock Allowances 

Company

Albemarle Hy-Yield Products, LLC Royster-Clark, Inc.

Bill Clark Pest Control, Inc. ICL-IP America Trical Inc.

Burnside Services, Inc. Industrial Fumigation Company Trident Agricultural Products

Cardinal Professional Products Pacific Ag UAP Southeast (NC)

Chemtura Corp. Pest Fog Sales Corp. UAP Southeast (SC)

Degesch America, Inc. Prosource One Univar

Helena Chemical Co. Reddick Fumigants Western Fumigation

Hendrix & Dail

TOTAL –1,028,108 kilograms

I. Stocks of Methyl Bromide

An approved critical user may purchase methyl bromide produced or imported 

with CUAs as well as limited inventories of pre-phaseout methyl bromide, the 

combination of which constitute the supply of “critical use methyl bromide” intended to 

meet the needs of authorized critical uses. The Framework Rule established provisions 

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

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

of the amount of CSAs held by the seller. It also established trading provisions that allow 
48

critical use allowances (CUAs) to be converted into CSAs. EPA has retained these 

provisions for the 2010 control period.

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

inventory at the beginning of 2009 is 4,271,226 kg. EPA calculates using end-of-year 

data that the aggregate inventory on January 1, 2010, was 3,064,108 kg. As in prior 

years, the Agency will continue to closely monitor CUA and CSA data. Further, as stated 

in the final 2006 CUE rule, safety valves continue to exist. If an inventory shortage 

occurs, EPA may consider various options including authorizing the conversion of a 

limited number of CSAs to CUAs through a rulemaking, bearing in mind the upper limit 

on U.S. production/import for critical uses.

One commenter states that EPA should not allow non-critical users access to 

methyl bromide inventories. Any such action by EPA restricting non-critical users’ 

access to stocks under the Clean Air Act would be discretionary. Nothing in the Protocol 

or the Clean Air Act mandates that EPA limit drawdown from inventory for such uses. 

Decision Ex I/3 of the Montreal Protocol, which informs Agency actions on methyl 

bromide, does not require that individual Parties (such as the U.S.) prohibit the use of 

stocks by users whose uses fall outside the categories of agreed-upon critical uses. 

Further detail on the issue of non-critical users’ access to pre-phaseout inventory is 

available in previous CUE preambles and response to comments documents available in 

the docket. Though EPA is not using authorities under the Clean Air Act to restrict the 

use of pre-phaseout inventory, EPA is limiting the crops that will legally be able to use 

methyl bromide through the reregistration process under FIFRA. Users of methyl 

bromide must meet not only the requirements of the Clean Air Act, but also must comply 
49

with all requirements under FIFRA, including limits on the sale of products for preplanting use for certain crops, and all directions for use on product labeling. EPA 

disagrees that inventory methyl bromide should not be allowed on any non-CUE crop. 

However, EPA has determined that the risks posed by the use of methyl bromide, both 

the acute and chronic toxicological effects as well as its ability to deplete the ozone layer, 

would be unacceptable without significant risk mitigation measures, including limiting its 

use to fewer crops.

As explained in the 2008 CUE final rule, the Agency intends to continue releasing

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

reporting requirements at 40 CFR 82.13 for the end of each control period. EPA notes 

that if the number of competitors in the industry were to decline appreciably, EPA would 

revisit the question of whether the aggregate is entitled to treatment as confidential 

information and whether to release the aggregate without notice. The aggregate 

information for 2003 through 2009 is available in the docket for this rulemaking.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

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

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

novel legal or policy issues. Accordingly, EPA submitted this action to the Office of 

Management and Budget (OMB) for review under EO 12866 and any changes made in 

response to OMB recommendations have been documented in the docket for this action.

B. Paperwork Reduction Act
50

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

application, recordkeeping, and reporting requirements have already been established 

under previous Critical Use Exemption rulemakings and this action does not change any 

of those existing requirements. However, the Office of Management and Budget (OMB) 

has previously approved the information collection requirements contained in the existing 

regulations at 40 CFR part 82 under the provisions of the Paperwork Reduction Act, 44 

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

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

C. Regulatory Flexibility Act

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

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

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

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

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

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

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

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

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

with a population of less than 50,000; and (3) a small organization that is any not-forprofit enterprise which is independently owned and operated and is not dominant in its 

field.

Category NAICS code SIC code NAICS Small business 

size standard (in 

number of employees 

or millions of dollars)
51

1112- Vegetable and Melon 

farming

0171- Berry Crops

1113- Fruit and Nut Tree 

Farming

0172- Grapes

0173- Tree Nuts

0175- Deciduous Tree Fruits 

(except apple orchards and 

farms)

0179- Fruit and Tree Nuts, NEC

0181- Ornamental Floriculture 

and Nursery Products

Agricultural 

production

1114- Greenhouse, 

Nursery, and Floriculture 

Production

0831- Forest Nurseries and 

Gathering of Forest Products

$0.75 million

115114- Postharvest Crop 

activities (except Cotton 

Ginning)

$7 million

311211- Flour Milling 2041- Flour and Other Grain 

Mill Products

500 employees

311212- Rice Milling 2044- Rice Milling 500 employees 

493110- General 

Warehousing and Storage

4225- General Warehousing and 

Storage

$25.5 million

Storage 

Uses

493130- Farm Product 

Warehousing and Storage

4221- Farm Product 

Warehousing and Storage

$25.5 million

Distributors 

and 

Applicators

115112- Soil Preparation, 

Planting and Cultivating

0721- Crop Planting, Cultivation, 

and Protection

$7 million

Producers 

and 

Importers

325320- Pesticide and 

Other Agricultural 

Chemical Manufacturing

2879- Pesticides and Agricultural 

Chemicals, NEC

500 employees

Agricultural producers of minor crops and entities that store agricultural 

commodities are categories of affected entities that contain small entities. This rule only 

affects entities that applied to EPA for an exemption to the phaseout of methyl bromide. 

In most cases, EPA received aggregated requests for exemptions from industry consortia. 

On the exemption application, EPA asked consortia to describe the number and size 

distribution of entities their application covered. EPA estimated that 3,218 entities 

petitioned EPA for an exemption for the 2005 control period. EPA estimated in 2008 that 

this had declined to 2,000 end users of critical use methyl bromide. Since many 
52

applicants did not provide information on the distribution of sizes of entities covered in 

their applications, EPA estimated that, based on the above definition, between one-fourth 

and one-third of the entities may be small businesses. In addition, other categories of 

affected entities do not contain small businesses based on the above description.

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

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

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

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

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

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

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

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

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

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

Since this rule exempts methyl bromide for approved critical uses after the phaseout date 

of January 1, 2005, this action will confer a benefit to users of methyl bromide. We have 

therefore concluded that this rule will relieve regulatory burden for all small entities.

D. Unfunded Mandates Reform Act

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

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

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

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

an exemption for the manufacture and use of a phased out compound and does not 
53

impose any new requirements on any entities. Therefore, this action is not subject to the 

requirements of sections 202 or 205 of the UMRA. This action is also not subject to the 

requirements of section 203 of UMRA because it contains no regulatory requirements 

that might significantly or uniquely affect small governments. 

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have substantial 

direct effects on the States, on the relationship between the national government and the 

States, or on the distribution of power and responsibilities among the various levels of 

government, as specified in Executive Order 13132. This rule is expected to primarily 

affect producers, suppliers, importers, exporters, and users of methyl bromide. Thus, 

Executive Order 13132 does not apply to this action. 

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

Governments

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

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

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

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

not apply to this action. 

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

and Safety Risks

EPA interprets EO 13045 (62 F.R. 19885, April 23, 1997) as applying 

only to those regulatory actions that concern health or safety risks, such that the 

analysis required under section 5-501 of the EO has the potential to influence the 
54

regulation. This action is not subject to EO 13045 because it does not establish an 

environmental standard intended to mitigate health or safety risks.

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

Distribution, or Use

This final rule is not a “significant energy action” as defined in Executive Order 

13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, 

Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a 

significant adverse effect on the supply, distribution, or use of energy. This rule does not 

pertain to any segment of the energy production economy nor does it regulate any manner 

of energy use. Therefore, we have concluded that this rule is not likely to have any 

adverse energy effects.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 

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

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

inconsistent with applicable law or otherwise impractical. Voluntary consensus standards 

are technical standards (e.g., materials specifications, test methods, sampling procedures, 

and business practices) that are developed or adopted by voluntary consensus standards 

bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the 

Agency decides not to use available and applicable voluntary consensus standards. 

This action does not involve technical standards. Therefore, EPA did not consider 

the use of any voluntary consensus standards.
55

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

Minority Populations and Low-Income Populations

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

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

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

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

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

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

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

adverse human health or environmental effects on minority or low-income populations, 

because it affects the level of environmental protection equally for all affected 

populations without having any disproportionately high and adverse human health or 

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

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

populations equally because ozone depletion is a global environmental problem with 

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

geographical regions.

K. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a 

rule may take effect, the agency promulgating the rule must submit a rule report, which 

includes a copy of the rule, to each House of the Congress and to the Comptroller 

General of the United States. EPA will submit a report containing this rule and other 
56

required information to the U.S. Senate, the U.S. House of Representatives, and the 

Comptroller General of the United States prior to publication of the rule in the Federal 

Register. A Major rule cannot take effect until 60 days after it is published in the Federal

Register. This action not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be 

effective [Insert date of publication].

List of Subjects in 40 CFR Part 82

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

DATE: ____________________

______________________________________________

Lisa P. Jackson, 

Administrator.

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

PART 82- PROTECTION OF STRATOSPHERIC OZONE

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

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

2. Section 82.8 is amended by revising the table in paragraph (c)(1) and paragraph (c)(2) 

to read as follows:

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

* * * * *

(c) * * *

(1) * * * 

Protection of Stratospheric Ozone: The 2010 Critical Use Exemption from the 

Phaseout of Methyl Bromide (Page 56 of 61)
57

Company 2010 Critical use allowances for 

pre-plant uses* (kilograms)

2010 Critical use allowances for 

post-harvest uses* (kilograms)

Great Lakes Chemical Corp.

A Chemtura Company

1,102,380 86,145

Albemarle Corp. 453,324 35,425

ICL-IP America 250,516 19,576

TriCal, Inc. 7,800 610

Total** 1,814,020 141,755

* For production or import of Class I, Group VI controlled substance exclusively for the 

Pre-Plant or Post-Harvest uses specified in appendix L to this subpart.

** Due to rounding, numbers do not add exactly.

(2) Allocated critical stock allowances granted for specified control period. The 

following companies are allocated critical stock allowances for 2010 on a pro-rata basis 

in relation to the inventory held by each.

Company

Albemarle Hy-Yield Products, LLC Royster-Clark, Inc.

Bill Clark Pest Control, Inc. ICL-IP America Trical Inc.

Burnside Services, Inc. Industrial Fumigation Company Trident Agricultural Products

Cardinal Professional Products Pacific Ag UAP Southeast (NC)

Chemtura Corp. Pest Fog Sales Corp. UAP Southeast (SC)

Degesch America, Inc. Prosource One Univar

Helena Chemical Co. Reddick Fumigants Western Fumigation

Hendrix & Dail

TOTAL –1,028,108 kilograms

3. Appendix L to Subpart A is revised to read as follows:
58

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

LIMITING CRITICAL CONDITIONS FOR THOSE USES FOR THE 2010 

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, Maryland, and 

Michigan

Moderate to severe soilborne disease infestation 

(b) Growers in Georgia and Southeastern 

U.S. limited to growing locations in 

Alabama, Arkansas, Kentucky, 

Louisiana, North Carolina, South 

Carolina, Tennessee, and Virginia 

Moderate to severe yellow or purple nutsedge infestation

Moderate to severe soilborne disease infestation 

Moderate to severe root knot nematode infestation

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

Moderate to severe soilborne disease infestation

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation

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

Moderate to severe nematode infestation

Moderate to severe pythium collar, crown and root rot

Moderate to severe southern blight infestation

Restrictions on alternatives due to karst topographical 

features

(c) Michigan growers Moderate to severe soilborne disease infestation 

Forest 

Nursery 

Seedlings

(a) Growers in Alabama, Arkansas, 

Georgia, Louisiana, Mississippi, North 

Carolina, Oklahoma, South Carolina, 

Tennessee, Texas, and Virginia 

Moderate to severe yellow or purple nutsedge infestation 

Moderate to severe soilborne disease infestation

Moderate to severe nematode infestation

(b) International Paper and its 

subsidiaries limited to growing locations 

in Alabama, Arkansas, Georgia, South 

Carolina, and Texas 

Moderate to severe yellow or purple nutsedge infestation 

Moderate to severe soilborne disease infestation

(c) Government-owned seedling 

nurseries in Illinois, Indiana, Kentucky, 

Maryland, Missouri, New Jersey, Ohio, 

Pennsylvania, West Virginia, and 

Wisconsin

Moderate to severe weed infestation including purple and 

yellow nutsedge infestation

Moderate to severe Canada thistle infestation

Moderate to severe nematode infestation

Moderate to severe soilborne disease infestation

(d) Weyerhaeuser Company and its 

subsidiaries limited to growing locations 

in Alabama, Arkansas, North Carolina, 

and South Carolina 

Moderate to severe yellow or purple nutsedge infestation 

Moderate to severe soilborne disease infestation

Moderate to severe nematode or worm infestation 
59

(e) Weyerhaeuser Company and its 

subsidiaries limited to growing locations 

in Oregon and Washington 

Moderate to severe yellow nutsedge infestation

Moderate to severe soilborne disease infestation

(f) Michigan growers Moderate to severe soilborne disease infestation

Moderate to severe Canada thistle infestation

Moderate to severe nutsedge infestation

Moderate to severe nematode infestation

Orchard 

Nursery 

Seedlings

(a) Members of the Western Raspberry 

Nursery Consortium limited to growing 

locations in Washington, and members 

of the California Association of Nursery 

and Garden Centers representing 

Deciduous Tree Fruit Growers

Moderate to severe nematode infestation

Medium to heavy clay soils

Local township limits prohibiting 1,3-dichloropropene

(b) California rose nurseries Moderate to severe nematode infestation

Local township limits prohibiting 1,3-dichloropropene

Orchard 

Replant

(a) California stone fruit, table and raisin 

grape, wine grape, walnut, and almond 

growers

Moderate to severe nematode infestation

Moderate to severe soilborne disease infestation

Replanted orchard soils to prevent orchard replant 

disease

Medium to heavy soils

Local township limits prohibiting 1,3-dichloropropene

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

Moderate to severe nematode infestation

Local township limits prohibiting 1,3-dichloropropene

(b) Florida growers Moderate to severe weed infestation

Moderate to severe soilborne disease infestation

Moderate to severe nematode infestation

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation

(c) Michigan herbaceous perennial 

growers

Moderate to severe nematode infestation

Moderate to severe soilborne disease infestation

Moderate to severe yellow nutsedge and other weed 

infestation

(d) New York growers Moderate to severe soilborne disease infestation

Moderate to severe nematode infestation

Peppers (a) Alabama, Arkansas, Kentucky, 

Louisiana, North Carolina, South 

Carolina, Tennessee, and Virginia 

growers

Moderate to severe yellow or purple nutsedge infestation 

Moderate to severe nematode infestation

Moderate to severe pythium root, collar, crown and root 

rots

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

Moderate to severe soilborne disease infestation

Moderate to severe nematode infestation

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation

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

Moderate to severe nematode infestation, or moderate to 

severe pythium root and collar rots

Moderate to severe southern blight infestation, crown or 

root rot

Restrictions on alternatives due to karst topographical 

features

(d) Michigan growers Moderate to severe soilborne disease infestation
60

Strawberry 

Fruit

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

Moderate to severe yellow or purple nutsedge infestation

Moderate to severe nematode infestation

Local township limits prohibiting 1,3-dichloropropene

Time to transition to an alternative

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

Moderate to severe nematode infestation

Moderate to severe soilborne disease infestation

Carolina geranium or cut-leaf evening primrose 

infestation

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation

(c) Alabama, Arkansas, Georgia, Illinois, 

Kentucky, Louisiana, Maryland, 

Mississippi, Missouri, New Jersey, North 

Carolina, Ohio, South Carolina, 

Tennessee, and Virginia growers

Moderate to severe yellow or purple nutsedge infestation

Moderate to severe nematode infestation

Moderate to severe black root and crown rot

Strawberry 

Nurseries

(a) California growers Moderate to severe soilborne disease infestation

Moderate to severe yellow or purple nutsedge infestation

Moderate to severe nematode infestation

(b) North Carolina and Tennessee 

growers

Moderate to severe black root rot

Moderate to severe root-knot nematode infestation

Moderate to severe yellow and purple nutsedge 

infestation

Sweet Potato 

Slips

(a) California growers Local township limits prohibiting 1,3-dichloropropene

Tomatoes (a) Michigan growers Moderate to severe soilborne disease infestation

Moderate to severe fungal pathogen infestation

(b) Alabama, Arkansas, Florida, Georgia, 

Kentucky, Louisiana, Mississippi, North 

Carolina, South Carolina, Tennessee, and 

Virginia growers

Moderate to severe yellow or purple nutsedge infestation 

Moderate to severe soilborne disease infestation

Moderate to severe nematode infestation 

Restrictions on alternatives due to karst topographical 

features and, in Florida, soils not supporting seepage 

irrigation

(c) Maryland growers Moderate to severe fungal pathogen infestation

POST-HARVEST USES

Food 

Processing

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

members of the USA Rice Millers 

Association

Moderate to severe beetle, weevil, or moth infestation

Presence of sensitive electronic equipment subject to 

corrosion

Time to transition to an alternative

(b) Pet food manufacturing facilities in 

the U.S. who are members of the Pet 

Food Institute

Moderate to severe beetle, moth, or cockroach infestation

Presence of sensitive electronic equipment subject to 

corrosion

Time to transition to an alternative

(c) Members of the North American 

Millers’ Association in the U.S.

Moderate to severe beetle infestation

Presence of sensitive electronic equipment subject to 

corrosion

Time to transition to an alternative

(d) Members of the National Pest 

Management Association treating 

processed food, cheese, herbs and spices, 

and spaces and equipment in associated 

processing and storage facilities.

Moderate to severe beetle or moth infestation

Presence of sensitive electronic equipment subject to 

corrosion

Time to transition to an alternative
61

Commodities (a) California entities storing walnuts, 

beans, dried plums, figs, raisins, and 

dates (in Riverside county only) in 

California

Rapid fumigation required to meet a critical market 

window, such as during the holiday season

Dry Cured 

Pork Products

(a) Members of the National Country 

Ham Association and the Association of 

Meat Processors, Nahunta Pork Center 

(North Carolina), and Gwaltney and 

Smithfield Inc.

Red legged ham beetle infestation

Cheese/ham skipper infestation

Dermested beetle infestation

Ham mite infestation