29218 Federal Register / Vol. 77, No. 96 / Thursday, May 17, 2012 / Rules and Regulations 

PART 522—IMPLANTATION OR 

INJECTABLE DOSAGE FORM NEW 

ANIMAL DRUGS 

■ 6. The authority citation for 21 CFR 

part 522 continues to read as follows: 

Authority: 21 U.S.C. 360b. 

■ 7. In § 522.313c, revise paragraphs (b), 

(e)(2)(ii), (e)(3)(ii), (e)(4)(ii), and (e)(8)(i) 

to read as follows: 

§ 522.313c Ceftiofur sodium. 

* * * * * 

(b) Sponsors. See Nos. 000009, 

000409, and 068330 in § 510.600(c) of 

this chapter. 

* * * * * 

(e) * * * 

(2) * * * 

(ii) Indications for use. For treatment 

of bovine respiratory disease (shipping 

fever, pneumonia) associated with 

Mannheimia haemolytica, Pasteurella 

multocida, and Histophilus somni. Also, 

for the treatment of acute bovine 

interdigital necrobacillosis (foot rot, 

pododermatitis) associated with 

Fusobacterium necrophorum and 

Bacteroides melaninogenicus. 

* * * * * 

(3) * * * 

(ii) Indications for use. For treatment 

of sheep respiratory disease (sheep 

pneumonia) associated with 

Mannheimia haemolytica and 

Pasteurella multocida. 

* * * * * 

(4) * * * 

(ii) Indications for use. For treatment 

of caprine respiratory disease (goat 

pneumonia) associated with 

Mannheimia haemolytica and 

Pasteurella multocida. 

* * * * * 

(8) * * * 

(i) Amount. 1.0 mg/lb (2.2 mg/kg) 

body weight by subcutaneous injection. 

Treatment should be repeated at 24- 

hour intervals for 5 to 14 days. 

* * * * * 

PART 558—NEW ANIMAL DRUGS FOR 

USE IN ANIMAL FEEDS 

■ 8. The authority citation for 21 CFR 

part 558 continues to read as follows: 

Authority: 21 U.S.C. 360b, 371. 

■ 9. In § 558.363, revise paragraph 

(d)(1)(i) introductory text to read as 

follows: 

§ 558.363 Narasin. 

* * * * * 

(d) * * * 

(1) * * * 

(i) Amount per ton. Narasin, 54 to 90 

grams. 

* * * * * 

Dated: May 7, 2012. 

Bernadette Dunham, 

Director, Center for Veterinary Medicine. 

[FR Doc. 2012–11937 Filed 5–16–12; 8:45 am] 

BILLING CODE 4160–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 82 

[EPA–HQ–OAR–2009–0277; FRL–9668–3] 

RIN 2060–AQ83 

Protection of Stratospheric Ozone: The 

2012 Critical Use Exemption From the 

Phaseout of Methyl Bromide 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is authorizing uses that 

qualify for the 2012 critical use 

exemption and the amount of methyl 

bromide that may be produced, 

imported, or supplied from existing prephaseout inventory for those uses in 

2012. EPA is taking this action under 

the authority of the Clean Air Act to 

reflect a recent consensus decision by 

the Parties to the Montreal Protocol on 

Substances that Deplete the Ozone 

Layer at the Twenty-Second Meeting of 

the Parties. 

DATES: This rule is effective on May 17, 

2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2009–0277. All 

documents in the docket are listed on 

the www.regulations.gov web site. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and is publicly available 

only in hard copy form. Publicly 

available docket materials are available 

either electronically through 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket, EPA/DC, 

EPA West, Room 3334, 1301 

Constitution Ave. NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Air 

and Radiation Docket is (202) 566– 

1742). 

FOR FURTHER INFORMATION CONTACT: For 

further information about this rule, 

contact Jeremy Arling by telephone at 

(202) 343–9055, or by email at 

arling.jeremy@epa.gov or by mail at U.S. 

Environmental Protection Agency, 

Stratospheric Protection Division, 

Stratospheric Program Implementation 

Branch (6205J), 1200 Pennsylvania 

Avenue NW., Washington, DC 20460. 

You may also visit the methyl bromide 

section of the ozone layer protection 

Web site at www.epa.gov/ozone/mbr for 

further information about the methyl 

bromide critical use exemption, other 

stratospheric ozone protection 

regulations, the science of ozone layer 

depletion, and related topics. 

SUPPLEMENTARY INFORMATION: This rule 

concerns Clean Air Act (CAA) 

restrictions on the consumption, 

production, and use of methyl bromide 

(a Class I, Group VI controlled 

substance) for critical uses during 

calendar year 2012. Under the Clean Air 

Act, methyl bromide consumption and 

production were phased out on January 

1, 2005, apart from allowable 

exemptions, such as the critical use 

exemption and the quarantine and 

preshipment (QPS) exemption. 

Consumption is defined under the CAA 

as production plus imports minus 

exports. With this action, EPA is 

authorizing the uses that qualify for the 

2012 critical use exemption as well as 

specific amounts of methyl bromide that 

may be produced and imported, or sold 

from pre-phaseout inventory (also 

referred to as ‘‘stocks’’) for critical uses 

in 2012. 

Section 553(d) of the Administrative 

Procedure Act (APA), 5 U.S.C. Chapter 

5, generally provides that rules may not 

take effect earlier than 30 days after they 

are published in the Federal Register. 

EPA is issuing this final rule under 

section 307(d)(1) of the Clean Air Act, 

which states: ‘‘The provisions of section 

553 through 557 * * * of Title 5 shall 

not, except as expressly provided in this 

section, apply to actions to which this 

subsection applies.’’ Thus, section 

553(d) of the APA does not apply to this 

rule. EPA is nevertheless acting 

consistently with the policies 

underlying APA section 553(d) in 

making this rule effective on May 17, 

2012. APA section 553(d) allows an 

effective date less than 30 days after 

publication ‘‘as otherwise provided by 

the agency for good cause found and 

published with the rule.’’ Section 5 

U.S.C. 553(d)(1) allows an effective date 

less than 30 days after publication for a 

rule that ‘‘that grants or recognizes an 

exemption or relieves a restriction.’’ 5 

U.S.C. 553(d)(1). Since today’s action 

can be considered to either grant an 

exemption for limited critical uses 

during 2012 from the general 


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prohibition on production or import of 

methyl bromide after the phaseout date 

of January 1, 2005, or relieve a 

restriction that would otherwise prevent 

production or import of methyl 

bromide, EPA is making this action 

effective immediately upon publication. 

Table of Contents 

I. General Information 

A. Regulated entities 

II. What is methyl bromide? 

III. What is the background to the phaseout 

regulations for ozone-depleting 

substances? 

IV. What is the legal authority for exempting 

the production and import of methyl 

bromide for critical uses authorized by 

the parties to the Montreal Protocol? 

V. What is the critical use exemption 

process? 

A. A. Background of the Process 

B. How does this rule relate to previous 

critical use exemption rules? 

C. Stocks of Methyl Bromide 

D. Critical Uses 

E. Critical Use Amounts 

F. Critical Use Allowance Allocations 

G. Critical Stock Allowance Allocations 

H. The Criteria in Decisions IX/6 and Ex. 

I/4 

I. Emissions Minimization 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

I. General Information 

A. Regulated Entities 

Entities and categories of entities 

potentially regulated by this action 

include producers, importers, and 

exporters of methyl bromide; 

applicators and distributors of methyl 

bromide; and users of methyl bromide 

that applied for the 2012 critical use 

exemption including growers of 

vegetable crops, fruits, and nursery 

stock, and owners of stored food 

commodities and structures such as 

grain mills and processors. This 

rulemaking does not affect applicants 

for future control periods. 

This list is not intended to be 

exhaustive, but rather to provide a guide 

for readers regarding entities likely to be 

regulated by this action. To determine 

whether your facility, company, 

business, or organization could be 

regulated by this action, you should 

carefully examine the regulations 

promulgated at 40 CFR part 82, subpart 

A. If you have questions regarding the 

applicability of this action to a 

particular entity, consult the person 

listed in the preceding section. 

II. What is methyl bromide? 

Methyl bromide is an odorless, 

colorless, toxic gas which is used as a 

broad-spectrum pesticide and is 

controlled under the CAA as a Class I 

ozone-depleting substance (ODS). 

Methyl bromide was once widely used 

as a fumigant to control a variety of 

pests such as insects, weeds, rodents, 

pathogens, and nematodes. Information 

on methyl bromide can be found at 

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

Methyl bromide is also regulated by 

EPA under the Federal Insecticide, 

Fungicide, and Rodenticide Act (FIFRA) 

and other statutes and regulatory 

authority, as well as by States under 

their own statutes and regulatory 

authority. Under FIFRA, methyl 

bromide is a restricted use pesticide. 

Restricted use pesticides are subject to 

Federal and State requirements 

governing their sale, distribution, and 

use. Nothing in this rule implementing 

Title VI of the Clean Air Act is intended 

to derogate from provisions in any other 

Federal, State, or local laws or 

regulations governing actions including, 

but not limited to, the sale, distribution, 

transfer, and use of methyl bromide. 

Entities affected by this rule must 

comply with FIFRA and other pertinent 

statutory and regulatory requirements 

for pesticides (including, but not limited 

to, requirements pertaining to restricted 

use pesticides) when producing, 

importing, exporting, acquiring, selling, 

distributing, transferring, or using 

methyl bromide. The provisions in this 

action are intended only to implement 

the CAA restrictions on the production, 

consumption, and use of methyl 

bromide for critical uses exempted from 

the phaseout of methyl bromide. 

III. What is the background to the 

phaseout regulations for ozonedepleting substances? 

The regulatory requirements of the 

stratospheric ozone protection program 

that limit production and consumption 

of ozone-depleting substances are in 40 

CFR part 82, subpart A. The regulatory 

program was originally published in the 

Federal Register on August 12, 1988 (53 

FR 30566), in response to the 1987 

signing and subsequent ratification of 

the Montreal Protocol on Substances 

that Deplete the Ozone Layer (Montreal 

Protocol). The Montreal Protocol is the 

international agreement aimed at 

reducing and eliminating the 

production and consumption of 

stratospheric ozone-depleting 

substances. The United States was one 

of the original signatories to the 1987 

Montreal Protocol and the United States 

ratified the Protocol on April 12, 1988. 

Congress then enacted, and President 

George H.W. Bush signed into law, the 

Clean Air Act Amendments of 1990 

(CAAA of 1990) which included Title VI 

on Stratospheric Ozone Protection, 

codified as 42 U.S.C. Chapter 85, 

Subchapter VI, to ensure that the U.S. 

could satisfy its obligations under the 

Montreal Protocol. EPA issued 

regulations to implement this legislation 

and has since amended the regulations 

as needed. 

Methyl bromide was added to the 

Montreal Protocol as an ozone-depleting 

substance in 1992 through the 

Copenhagen Amendment. The Parties to 

the Montreal Protocol (Parties) agreed 

that each industrialized country’s level 

of methyl bromide production and 

consumption in 1991 should be the 

baseline for establishing a freeze in the 

level of methyl bromide production and 

consumption for industrialized 

countries. EPA published a rule in the 

Federal Register on December 10, 1993 

(58 FR 65018), listing methyl bromide as 

a Class I, Group VI controlled substance, 

freezing U.S. production and 

consumption at the 1991 baseline level 

of 25,528,270 kilograms, and setting 

forth the percentage of baseline 

allowances for methyl bromide granted 

to companies in each control period 

(each calendar year) until 2001, when 

the complete phaseout would occur. 

This phaseout date was established in 

response to a petition filed in 1991 

under sections 602(c)(3) and 606(b) of 

the CAAA of 1990, requesting that EPA 

list methyl bromide as a Class I 

substance and phase out its production 

and consumption. This date was 

consistent with section 602(d) of the 

CAAA of 1990, which for newly listed 

Class I ozone-depleting substances 

provides that ‘‘no extension [of the 

phaseout schedule in section 604] under 

this subsection may extend the date for 

termination of production of any class I 

substance to a date more than 7 years 

after January 1 of the year after the year 

in which the substance is added to the 

list of class I substances.’’ 


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At the Seventh Meeting of the Parties 

(MOP) in 1995, the Parties agreed to 

adjustments to the methyl bromide 

control measures and agreed to 

reduction steps and a 2010 phaseout 

date for industrialized countries with 

exemptions for critical uses. At that 

time, the U.S. continued to have a 2001 

phaseout date in accordance with 

section 602(d) of the CAAA of 1990. At 

the Ninth MOP in 1997, the Parties 

agreed to further adjustments to the 

phaseout schedule for methyl bromide 

in industrialized countries, with 

reduction steps leading to a 2005 

phaseout. The Parties also established a 

phaseout date of 2015 for developing 

(Article 5) countries. 

IV. What is the legal authority for 

exempting the production and import of 

methyl bromide for critical uses 

authorized by the parties to the 

Montreal Protocol? 

In October 1998, the U.S. Congress 

amended the Clean Air Act to prohibit 

the termination of production of methyl 

bromide prior to January 1, 2005, to 

require EPA to align the U.S. phaseout 

of methyl bromide with the schedule 

specified under the Protocol, and to 

authorize EPA to provide certain 

exemptions. These amendments were 

contained in Section 764 of the 1999 

Omnibus Consolidated and Emergency 

Supplemental Appropriations Act (Pub. 

L. 105–277, October 21, 1998) and were 

codified in section 604 of the CAA, 42 

U.S.C. 7671c. The amendment that 

specifically addresses the critical use 

exemption appears at section 604(d)(6), 

42 U.S.C. 7671c(d)(6). EPA revised the 

phaseout schedule for methyl bromide 

production and consumption in a 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 while creating a placeholder for 

critical use exemptions. EPA again 

amended the regulations to allow for an 

exemption for quarantine and 

preshipment (QPS) purposes on July 19, 

2001 (66 FR 37751), with an interim 

final rule and with a final rule on 

January 2, 2003 (68 FR 238). 

On December 23, 2004 (69 FR 76982), 

EPA published a rule (the ‘‘Framework 

Rule’’) that established the framework 

for the 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 has subsequently 

published rules applying the critical use 

exemption framework for each of the 

control periods from 2006 to 2011. 

Under the authority of section 604(d)(6) 

of the CAA, this action authorizes the 

uses that qualify as approved critical 

uses in 2012 and the amount of methyl 

bromide that may be produced, 

imported, or supplied from inventory to 

satisfy those uses. 

This action reflects Decision XXII/6, 

taken at the Twenty-Second Meeting of 

the Parties in November 2010. In 

accordance with Article 2H(5) of the 

Montreal Protocol, the Parties have 

issued several Decisions pertaining to 

the critical use exemption. These 

include Decisions IX/6 and Ex. I/4, 

which set forth criteria for review of 

critical uses. The status of Decisions is 

addressed in NRDC v. EPA, (464 F.3d 1, 

DC Cir. 2006) and in EPA’s 

‘‘Supplemental Brief for the 

Respondent,’’ filed in NRDC v. EPA and 

available in the docket for this action. In 

this rule on critical uses for 2012, EPA 

is honoring commitments made by the 

United States in the Montreal Protocol 

context. 

V. What is the critical use exemption 

process? 

A. Background of the Process 

Article 2H of the Montreal Protocol 

established the critical use exemption 

provision. At the Ninth Meeting of the 

Parties in 1997 the Parties agreed to 

criteria for the exemption, as contained 

in Decision IX/6. In that Decision, the 

Parties agreed that ‘‘a use of methyl 

bromide should qualify as ‘critical’ only 

if the nominating Party determines that: 

(i) The specific use is critical because 

the lack of availability of 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.’’ EPA promulgated 

these criteria in the definition of 

‘‘critical use’’ at 40 CFR 82.3. 

In response to EPA’s request for 

critical use exemption applications 

published in the Federal Register on 

May 20, 2009 (74 FR 23705), applicants 

provided data on the technical and 

economic feasibility of using 

alternatives to methyl bromide. 

Applicants also submitted data on their 

use of methyl bromide, research 

programs into the use of alternatives, 

and efforts to minimize use and 

emissions. 

EPA’s Office of Pesticide Programs 

reviews the data submitted by 

applicants, as well as data from 

governmental and academic sources, to 

establish whether there are technically 

and economically feasible alternatives 

available for a particular use of methyl 

bromide, and whether there would be a 

significant market disruption if no 

exemption were available. In addition, 

EPA reviews other parameters of the 

exemption applications such as dosage 

and emissions minimization techniques 

and applicants’ research or transition 

plans. This assessment process 

culminates in the development of the 

U.S. Government’s critical use 

nomination (CUN). The U.S. 

Department of State has submitted a 

CUN annually to the United Nations 

Environment Programme (UNEP) Ozone 

Secretariat. The Methyl Bromide 

Technical Options Committee (MBTOC) 

and the Technology and Economic 

Assessment Panel (TEAP), which are 

advisory bodies to Parties to the 

Montreal Protocol, review the CUNs of 

the Parties and make recommendations 

to the Parties on the nominations. The 

Parties then take Decisions to authorize 

critical use exemptions for particular 

Parties, including how much methyl 

bromide may be supplied for the 

exempted critical uses. As required in 

section 604(d)(6) of the CAA, for each 

exemption period, EPA consults with 

the United States Department of 

Agriculture (USDA) and other 

departments and institutions of the 

Federal government that have regulatory 

authority related to methyl bromide. 

EPA also provides an opportunity for 

public comment on the amounts of 

methyl bromide that the agency is 

proposing to exempt for critical uses 

and the uses that the agency is 

proposing as approved critical uses. 

Additional information on the 

domestic review process and 

methodology employed by the Office of 

Pesticide Programs is available in a 

detailed memorandum titled 

‘‘Development of 2003 Nomination for a 

Critical Use Exemption for Methyl 

Bromide for the United States of 

America,’’ contained in the docket for 

this rulemaking. While the particulars of 

the data continue to evolve and 

administrative matters are further 

streamlined, the technical review itself 

remains rigorous with careful 

consideration of new technical and 

economic conditions. 

On January 22, 2010, the U.S. 

Government (USG) submitted the eighth 

CUN to the Ozone Secretariat of the 

UNEP. This nomination contained the 

request for 2012 critical uses. In 

February 2010, MBTOC sent questions 

to the USG concerning technical and 

economic issues in the 2012 

nomination. The USG transmitted 


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responses to MBTOC in March, 2010. 

These documents, together with reports 

by the advisory bodies noted above, are 

in the public docket for this rulemaking. 

The critical uses and allocation amounts 

reflect the analysis contained in those 

documents. 

B. How does this rule relate to previous 

critical use exemption rules? 

The December 23, 2004, Framework 

Rule (69 FR 76982) established the 

framework for the critical use 

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. 

An approved critical user may 

purchase methyl bromide produced or 

imported with critical use allowances 

(CUAs) as well as limited inventories of 

pre-phaseout methyl bromide, the 

combination of which constitute the 

supply of ‘‘critical use methyl bromide’’ 

intended to meet the needs of agreed 

critical uses. Since publishing the 

Framework Rule, EPA has annually 

promulgated regulations to exempt from 

the phaseout of methyl bromide specific 

quantities of production and import for 

each control period (each calendar 

year), to determine the amounts that 

may be supplied from pre-phaseout 

inventory, and to indicate which uses 

meet the criteria for the exemption 

program for that year. See 71 FR 5985 

(calendar year 2006), 71 FR 75386 

(calendar year 2007), 72 FR 74118 

(calendar year 2008), 74 FR 19878 

(calendar year 2009), 75 FR 23167 

(calendar year 2010), and 76 FR 60736 

(calendar year 2011). 

Today’s action uses the existing 

regulatory framework to determine 

critical uses for 2012 and the amounts 

of critical use allowances (CUAs) and 

critical stock allowances (CSAs) to be 

allocated for those uses. A CUA is the 

privilege granted through 40 CFR part 

82 to produce or import 1 kilogram (kg) 

of methyl bromide for an approved 

critical use during the specified control 

period. These allowances expire at the 

end of the control period and, as 

explained in the Framework Rule, are 

not bankable from one year to the next. 

A CSA is the right granted through 40 

CFR part 82 to sell 1 kg of methyl 

bromide from the remaining inventory 

of material produced or imported prior 

to the January 1, 2005, phaseout date for 

an approved critical use during the 

specified control period. 

C. Stocks of Methyl Bromide 

The Framework Rule established 

provisions governing the sale of prephaseout inventories for critical uses, 

including the concept of CSAs and a 

prohibition on the sale of pre-phaseout 

inventories for critical uses in excess of 

the amount of CSAs held by the seller. 

It also established trading provisions 

that allow CUAs to be converted into 

CSAs. 

The aggregate amount of pre-phaseout 

methyl bromide reported as being in 

inventory at the beginning of 2011 was 

1,802,715 kg. As in prior years, the 

Agency continues to closely monitor 

CUA and CSA data. As stated in the 

final 2006 CUE Rule, if an inventory 

shortage occurs, EPA may consider 

various options including authorizing 

the conversion of a limited number of 

CSAs to CUAs through a rulemaking, 

bearing in mind the upper limit on U.S. 

production/import for critical uses. 

As explained in the 2008 CUE Rule, 

EPA intends to continue releasing the 

aggregate methyl bromide stockpile data 

reported under the requirements at 40 

CFR 82.13 for the end of each control 

period. If the number of competitors in 

the industry were to decline 

appreciably, EPA may revisit the 

question of whether the aggregate is 

entitled to treatment as confidential 

business information and whether to 

release the aggregate without notice. 

EPA did not propose to change the 

treatment of submitted information but 

welcomes relevant information 

concerning the composition of the 

industry. EPA did not receive any 

information suggesting that the number 

of companies has declined to the point 

that EPA should consider treating the 

aggregate as confidential information. 

The aggregate information for 2003 

through 2011 is available in the docket 

for this rulemaking. 

D. Critical Uses 

In Decision XXII/6, taken in 

November 2010, the Parties to the 

Protocol agreed ‘‘to permit, for the 

agreed critical-use categories for 2012 

set forth in table C of the annex to the 

present decision for each party, subject 

to the conditions set forth in the present 

decision and in decision Ex.I/4 to the 

extent that those conditions are 

applicable, the levels of production and 

consumption for 2012 set forth in table 

D of the annex to the present decision 

which are necessary to satisfy critical 

uses * * *’’ The following uses are 

those set forth in table C of the annex 

to Decision XXII/6 for the United States: 

• Commodities 

• National Pest Management 

Association food processing 

structures 

• Mills and processors 

• Dried cured pork 

• Cucurbits 

• Eggplant—field 

• Forest nursery seedlings 

• Nursery stock—fruits, nuts, flowers 

• Orchard replants 

• Ornamentals 

• Peppers—field 

• Strawberry—field 

• Strawberry runners 

• Tomatoes—field 

• Sweet potato slips 

EPA sought comment on the technical 

analysis contained in the U.S. 

nomination (available for public review 

in the docket to this rulemaking), and 

information regarding any changes to 

the registration (including cancellation 

or new registrations), use, or efficacy of 

alternatives that have transpired after 

the 2012 U.S. nomination was written. 

Such information has the potential to 

alter the technical or economic 

feasibility of an alternative and could 

thus cause EPA to modify the analysis 

that underpins EPA’s determination as 

to which uses and what amounts of 

methyl bromide qualify for the CUE. 

EPA recognizes that as the market for 

alternatives evolves, the thresholds for 

what constitutes ‘‘significant market 

disruption’’ or ‘‘technical and economic 

feasibility’’ change. EPA received one 

comment urging the agency to consider 

greater use of 1,3–D and sulfuryl 

fluoride than contained in the technical 

analysis. This comment repeats a 

comment submitted by the same 

commenter on the 2010 CUE Rule but 

does not provide any new data. EPA has 

considered the commenter’s concerns 

and believes that response contained in 

the 2010 CUE Rule response to 

comments, which is available in the 

docket to this rule, still appropriately 

addresses this comment. 

EPA proposed to modify the table in 

40 CFR part 82, subpart A, appendix L 

to reflect the agreed critical use 

categories identified in Decision XXII/6. 

EPA is finalizing the lists of critical uses 

and critical users as proposed. First, 

EPA is removing from the list of 

approved critical users two users that 

did not submit applications for 2012 

and therefore were not included in the 

U.S. nomination. These users are 

International Paper and Weyerhaeuser 

Company in the forest nursery seedlings 

sector and beans in the commodities 

sector. 

Second, EPA is removing North 

Carolina and Tennessee strawberry 

nurseries from the list of approved 


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29222 Federal Register / Vol. 77, No. 96 / Thursday, May 17, 2012 / Rules and Regulations 

critical users. Southeast strawberry 

growers applied for a critical use in 

2012. The U.S. did not submit a 

nomination to UNEP for this use in this 

geographical location because EPA’s 

technical review found that there are 

alternatives to methyl bromide for 

Southeast strawberry nurseries. 

Third, EPA is limiting the scope of the 

approved critical use for the National 

Pest Management Association’s (NPMA) 

post harvest fumigations. In past control 

periods, the scope of the NPMA food 

processing critical use included 

‘‘processed food, cheese, herbs and 

spices, and spaces and equipment in 

associated processing and storage 

facilities.’’ MBTOC found that the 

nomination for food processing facilities 

was inadequately justified and 

recommended only cheese storage 

facilities for consideration by the Parties 

as a critical use. MBTOC’s comments 

can be found in the May 2010 TEAP 

Progress Report in the docket to this 

rule. The Parties’ Decision reflects the 

MBTOC recommendation. EPA is 

modifying the NPMA critical use to 

include only ‘‘Members of the National 

Pest Management Association treating 

cheese storage facilities.’’ 

EPA did not receive any comments 

objecting to the proposed modifications 

to the table in 40 CFR part 82, subpart 

A, appendix L. EPA received three 

comments agreeing that the proposed 

critical uses have a continuing need for 

access to methyl bromide under a 2012 

CUE. One commenter stated that the 

strict application and review process 

properly limits the use of methyl 

bromide, given its effect on the 

stratospheric ozone layer. EPA also 

received comment that there should be 

no uses of methyl bromide given its 

toxicity and effect on the stratospheric 

ozone layer. EPA disagrees that all 

methyl bromide use should stop. The 

CUN addresses the need for methyl 

bromide for the 2012 critical uses. In 

addition, the 2012 critical uses were 

reviewed by the technical bodies to the 

Ozone Secretariat and authorized by the 

Parties to the Montreal Protocol. 

Concerns about the toxicity of methyl 

bromide are addressed through the 

pesticide registration program under 

FIFRA, as well as other authorities, and 

are outside the scope of this rulemaking. 

EPA also received one comment 

questioning some of the limiting critical 

conditions. This commenter has raised 

the same points in past CUE 

rulemakings and EPA believes our 

responses from past rulemakings, which 

are included in the docket for this rule, 

remain appropriate. 

EPA is repeating the following 

clarifications made in previous years for 

ease of reference. The ‘‘local township 

limits prohibiting 1,3-dichloropropene’’ 

are prohibitions on the use of 1,3- 

dichloropropene products in cases 

where local township limits on use of 

this alternative have been reached. In 

addition, ‘‘pet food’’ under subsection B 

of Food Processing refers to food for 

domesticated dogs and cats. Finally, 

‘‘rapid fumigation’’ for commodities is 

when a buyer provides short (two 

working days or fewer) notification for 

a purchase or there is a short period 

after harvest in which to fumigate and 

there is limited silo availability for 

using alternatives. 

E. Critical Use Amounts 

Table C of the annex to Decision XXII/ 

6 lists critical uses and amounts agreed 

to by the Parties to the Montreal 

Protocol. When added together, the total 

authorization for 2012 is 1,022,826 kg, 

which is equivalent to 4.0% of the U.S. 

1991 methyl bromide consumption 

baseline. The maximum amount of new 

production or import authorized by the 

Parties is 922,826 kg (3.6% of baseline) 

as set forth in Table D of the annex to 

Decision XXII/6. The difference between 

the total authorization and the 

authorized amount of new production is 

100,000 kg (0.4% of baseline), which is 

the minimum that the Parties expect the 

U.S. to use from pre-phaseout inventory 

on critical uses. 

EPA is finalizing the amount of new 

production and import discussed in the 

proposed rule. With this final rule, EPA 

is allocating 759,744 kg (3.0% of 

baseline) of new production and import 

of methyl bromide for critical uses for 

2012. EPA is also allocating 263,082 kg 

(1.0% of baseline) in the form of critical 

stock allowances for sale of prephaseout inventory for critical uses in 

2012. 

In the proposed rule, EPA used the 

methodology established in the 2008 

CUE Rule to determine the level of 

‘‘available stocks,’’ from which the 

CSAs are calculated. At the time of the 

proposed rule, EPA estimated that 

263,082 kg of pre-phaseout inventory 

would be ‘‘available’’ for use in 2012. 

Therefore, EPA proposed allocating 

263,082 kg of critical stock allowances 

for 2012. Using the calculation 

described in the proposed rule, EPA 

then proposed a CUA amount of 

759,744 kg. 

Due to the timing of the 2012 CUE 

rulemaking, EPA issued a No Action 

Assurance letter December 21, 2011. 

This letter allowed critical use 

allowance holders to continue 

producing and importing methyl 

bromide beyond December 31, 2011, in 

the absence of allowances, subject to 

certain conditions. The No Action 

Assurance allows for the production 

and import of 379,872 kg and the sale 

of 131,541 kg from pre-phaseout 

inventory for critical uses. The No 

Action Assurance levels were half the 

amounts contained in the proposed rule 

to allow for changes to the final rule 

after new inventory data were received. 

At the end of February, distributors 

reported to EPA the amount of prephaseout inventory that was still under 

their ownership as of December 31, 

2011. These data show that the prephaseout inventory was greater than the 

estimates that formed the basis of the 

CSA and CUA amounts in the proposed 

rule. In the proposed rule, EPA 

estimated that the inventory would 

decline to 692,082 kg at the end of 2011. 

The reported data show that the 

remaining inventory was actually 

1,248,876 kg. 

The amount of inventory drawdown 

was so low compared to EPA’s estimates 

in the proposed rule that if EPA were to 

apply the framework calculation 

detailed in the proposed rule to the new 

data, the new production levels would 

be less than what is allowed under the 

No Action Assurance (these calculations 

are available in the docket for this 

rulemaking). The No Action Assurance 

allows for the production and import of 

379,872 kg and the sale of 131,541 kg 

from pre-phaseout inventory for critical 

uses. Under the framework calculation 

based on new inventory data, the 

allocation would be 202,950 kg of new 

production/import and 819,876 kg of 

inventory. 

Hence, EPA is not finalizing a critical 

use allocation of 202,950 kg for 2012. 

This amount would be below what is 

currently allowed for production/import 

in the No Action Assurance letter. 

Regulated entities have been acting on 

the amounts in the No Action Assurance 

letter in good faith, and may have 

already produced up to the allowed 

level. In addition, EPA never 

determined that the No Action 

Assurance levels for CUAs and CSAs 

would be sufficient for an entire year. 

When this situation occurred during the 

development of the 2011 CUE Rule, EPA 

finalized the new production amount 

allowed under the No Action Assurance 

and allocated CSAs up to the full level 

authorized by the Parties. Were EPA to 

follow this approach in this 2012 Rule, 

EPA would finalize 379,872 kg of new 

production and import and 819,876 kg 

of critical stock allowances. For the 

reasons discussed below, EPA is not 

following this approach but rather is 

finalizing the amounts discussed in the 

proposed rule. 


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Federal Register / Vol. 77, No. 96 / Thursday, May 17, 2012 / Rules and Regulations 29223 

An allocation of 202,950 kg, or even 

379,872 kg (i.e., an amount consistent 

with the No Action Assurance) for new 

production and import would be 

substantially less than the amount 

proposed, which was 759,744 kg. These 

circumstances are substantially different 

from the 2011 rule, when EPA proposed 

to authorize 1,500,000 kg of new 

production, and issued a No Action 

Assurance for that same amount of new 

production. While EPA provided the 

public with an explanation of how it 

calculated its proposed authorization for 

CUE, and noted that it might adjust 

those calculations with new data, EPA 

believes the results of the methodology 

using the updated data now available 

are sufficiently different that additional 

notice and the opportunity to comment 

would be warranted before using that 

data as the basis for a final CUE 

authorization. At the same time, EPA 

recognizes that regulated entities, 

including manufacturers and critical 

users of methyl bromide, are in need of 

a final CUE rule for calendar year 2012. 

EPA did not propose, and is not 

considering, a total authorization of less 

than 1,022,826 kg for critical uses in 

2012. EPA has weighed the benefit of reopening for comment the allocation of 

the total authorization between critical 

use allowances and critical stock 

allowances against the time-sensitive 

need for a CUE authorization for the 

current calendar year and concluded 

that re-opening the allocation for 

comment is not warranted. Accordingly, 

EPA is finalizing its proposed 

allocations of 759,744 kg of critical use 

allowances and 263,082 kg of critical 

stock allowances for 2012. 

EPA received a comment that the 

calculation mistakenly used the CSA 

allocation amount from the proposed 

2011 CUE rule, not the final rule. When 

EPA was developing the proposed 2012 

rule, the 2011 rule was still not 

finalized. EPA assumed that the final 

2011 rule would allocate 482,333 kg but 

it actually allocated 555,200 kg of CSAs. 

The commenter requests that the 

estimated drawdown calculation be 

updated. EPA agrees with the 

commenter that EPA would have used 

the value from the final 2011 rule, had 

it been available when EPA was 

developing the proposed 2012 rule. EPA 

has used the updated CSA value from 

the final 2011 rule, as well as updated 

inventory information, in calculating 

how the formula used in the proposal 

would allocate the CUE authorization. 

However, as noted above, EPA is not 

basing the allocation in this final rule on 

that formula. 

One commenter objected to EPA’s 

proposal to allocate 759,744 kg for new 

production or import. The commenter 

stated that the Parties authorized 

922,826 kg for new production and 

import and that it is arbitrary and 

capricious for the agency to allocate any 

amount less than that level of new 

production. EPA disagrees with the 

commenter’s interpretation of Decision 

XXII/6. In Table D of Decision XXII/6, 

the Parties authorized 922,826 kg for 

new production and import ‘‘minus 

available stocks.’’ Thus, EPA does not 

believe it would be consistent with 

Decision XXII/6 to authorize 922,826 kg 

for new production and import without 

considering available stocks. 

Furthermore, EPA notes, consistent with 

our position in prior rulemakings, that 

the Agency is not required to allocate 

the full amount of authorized new 

production and consumption. The 

Parties only agree to ‘‘permit’’ a 

particular level of production and 

consumption; they do not—and 

cannot—mandate that the U.S. authorize 

this level of production and 

consumption domestically. Nor does the 

CAA require EPA to allow the full 

amount permitted by the Parties. 

Section 604(d)(6) of the CAA does not 

require EPA to exempt any amount of 

production and consumption from the 

phaseout, but instead specifies that the 

Agency ‘‘may’’ create an exemption for 

critical uses, providing EPA with 

substantial discretion. 

When determining the CSA amount 

for a year, EPA considers what portion 

of existing stocks is ‘‘available’’ for 

critical uses. As discussed in prior CUE 

rulemakings, the Parties to the Protocol 

recognized in their Decisions that the 

level of existing stocks may differ from 

the level of available stocks. Decision 

XXII/6 states that ‘‘production and 

consumption of methyl bromide for 

critical uses should be permitted only if 

methyl bromide is not available in 

sufficient quantity and quality from 

existing stocks.’’ In addition, earlier 

decisions refer to the use of ‘‘quantities 

of methyl bromide from stocks that the 

Party has recognized to be available.’’ 

Thus, it is clear that individual Parties 

have the ability to determine their level 

of available stocks. Decision XXII/6 

further reinforces this concept by 

including the phrase ‘‘minus available 

stocks’’ as a footnote to the United 

States’ authorized level of production 

and consumption in Table D. Section 

604(d)(6) of the CAA does not require 

EPA to adjust the amount of new 

production and import to reflect the 

availability of stocks; however, as 

explained in previous rulemakings, 

making such an adjustment is a 

reasonable exercise of EPA’s discretion 

under this provision. 

One commenter objects to the use of 

a supply chain factor in determining an 

amount of ‘‘available stocks’’ that can be 

used by critical users and requests that 

EPA require that the inventory be 

exhausted before allowing any 

additional new production. The 

commenter also states that the 

calculation of the supply chain factor is 

overly conservative because it assumes 

a catastrophic loss when production is 

at the peak. EPA has addressed this 

comment in prior rulemakings; those 

responses are available in the docket for 

this rulemaking. 

Another commenter stated that the 

CSA allocation failed to consider the 

effect that drawing down the prephaseout inventory would have if there 

is a catastrophic failure in the domestic 

supply of methyl bromide in future 

years. EPA believes that the calculation 

of the supply chain factor (which 

reflects the level of authorized CUE use 

as it declines) was adequate 

consideration of the possibility of a 

future catastrophic interruption in the 

domestic supply of methyl bromide. 

Although EPA is not relying on 

calculation of a supply chain factor and 

the formula it proposed to use to 

allocate CSAs in this final rule, EPA 

notes that the CSA allocation is lower 

under this final rule than if EPA had 

relied on that formula, because more 

methyl bromide remains in prephaseout inventory than anticipated. 

Unlike past control periods, all 

critical use methyl bromide that 

companies reported to be produced or 

imported in 2010 was sold to end users. 

The information reported to EPA is that 

1,954,610 kg of critical use methyl 

bromide was produced or imported. A 

slightly higher amount than the amount 

produced or imported was actually sold 

to end-users in 2010. This additional 

amount was from distributors selling 

amounts that were carried over from the 

2009 control period. Thus, EPA did not 

propose to apply any carryover 

deduction to the new production 

amount for 2012. 

One commenter suggested that the 

lack of a carryover demonstrates excess 

demand and that EPA should therefore 

increase the amount of newly produced 

or imported material. EPA responds that 

the agency expects material produced or 

imported for use in a particular control 

period to be used in that control period 

and that there typically should not be a 

carryover. EPA established the carryover 

reduction to account for an over 

allocation or underuse of allowances in 

a particular control period and avoid 

any stockpiling of critical use material. 


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29224 Federal Register / Vol. 77, No. 96 / Thursday, May 17, 2012 / Rules and Regulations 

The absence of a carryover does not 

mean that the agency should increase 

the allocation. EPA’s carryover 

calculation is consistent with the 

method used in previous CUE rules, and 

with the method agreed to by the Parties 

in Decision XVI/6 for calculating 

column L of the U.S. Accounting 

Framework. All past U.S. Accounting 

Frameworks for the methyl bromide 

critical use exemption are available in 

the public docket for this rulemaking. 

EPA considers new data about 

alternatives that were not available at 

the time the U.S. Government submitted 

the CUN to the Parties and adjusts the 

allocation for new production and 

import accordingly. Two alternatives 

not considered in the 2012 CUN, which 

was submitted to UNEP in January 2010, 

may be used in limited quantities in 

2012. EPA proposed to not adjust the 

allocation considering that the uptake of 

these two alternatives (iodomethane and 

DMDS) is expected to be minimal in 

2012. One commenter agreed that the 

uptake will be practically nonexistent. 

In July 2010, EPA registered Dimethyl 

Disulfide (DMDS) to control nematodes, 

weeds, and pathogens in tomatoes, 

peppers, eggplants, curcurbits, 

strawberries, ornamentals, forest 

nursery seedlings, and onions. Twentyfour states have now registered DMDS 

and registrations are pending in four 

other states. Even though DMDS is 

registered in states that grow critical use 

crops, EPA believes that the uptake of 

this alternative will be minimal in 2012. 

Use in the 2011 growing season was 

small because the product was either 

not registered in the state or the 

distribution system was still under 

development. Furthermore, the 

manufacturer of DMDS, Arkema, has 

stated that they are limiting the roll-out 

of this alternative to ensure proper 

applicator training and use of odor 

mitigation practices. As stated in the 

proposed rule, EPA continues to 

anticipate that growers will use the 2012 

growing season to test the fumigant on 

limited acreage. Therefore, EPA is not 

reducing the allocation of allowances 

based on the uptake of DMDS in 2012. 

Second, California registered 

iodomethane in December of 2010. EPA 

is unable to estimate uptake of 

iodomethane in California during 2012 

due to uncertainties created by the 

California label. Specifically, the 

California label has larger buffer zones 

and lower use rates than the federal 

label. EPA does not have efficacy 

studies at the California label’s lower 

use rates and is uncertain how widely 

it will be adopted without that data. In 

addition to the state registration, County 

Agricultural Commissioners must 

permit each iodomethane application 

that occurs within their jurisdiction. 

One commenter stated that EPA 

should not be allocating fewer CUEs 

than the amount authorized by the 

Parties given EPA’s January 19, 2011, 

proposal to revoke the tolerances 

established for sulfuryl fluoride under 

section 408 of the Federal Food, Drug, 

and Cosmetic Act (76 FR 3422). This 

rule is based on the current status of 

alternatives and is limited to 2012. The 

proposed tolerance revocation rule 

includes a staggered implementation 

scheme so that it is unlikely that any 

specific revocation will be effective as 

soon as 2012 (76 FR 3447). Therefore, 

EPA has not based the allocation 

amounts for 2012 on any anticipated 

impacts of that proposal on methyl 

bromide use. 

EPA did not propose to take any other 

reductions because the 2012 CUN 

properly applied transition rates for all 

other alternatives. The TEAP report of 

October 2010 included reductions in its 

recommendations for critical use 

categories based on the transition rates 

in the 2012 CUN. The TEAP’s 

recommendations were then considered 

in the Parties’ 2012 authorization 

amounts, as listed in Decision XXII/6. 

Therefore, transition rates, which 

account for the uptake of alternatives, 

have already been applied for 

authorized 2012 critical use amounts. 

EPA continues to gather information 

about methyl bromide alternatives 

through the CUE application process, 

and by other means. EPA also continues 

to support research and adoption of 

methyl bromide alternatives, and to 

request information about the economic 

and technical feasibility of all existing 

and potential alternatives. 

EPA also took comment on an issue 

raised in the proposed 2011 CUE rule. 

In that rulemaking, EPA proposed a 

critical-use allowance allocation of 

1,500,000 kg for 2011, given that 

regulated entities had been acting in 

good faith on statements made by the 

agency in a No Action Assurance letter 

that producers and importers could 

assume the final allocation would be at 

least that much. While the total 

allocation was not affected, the amount 

of new production was 128,382 kg more 

than what EPA would have allocated for 

2011 had the CSA and CUA amounts 

been based on the ‘‘available stocks’’ 

calculation using end of year inventory 

data. It also means that the critical stock 

allocation was 128,382 kg less than the 

amount of ‘‘available stocks.’’ EPA 

stated in the 2011 proposed rule that the 

Agency could reduce critical-use 

allowances for new production and 

import in the 2012 allocation rule to 

account for this difference. 

EPA took comment on an alternative 

approach in which EPA would allocate 

631,362 kg (2.5% of baseline) of CUAs 

for 2012. This amount is 128,382 kg less 

than the proposed CUA amount. The 

CSA amount could remain either at 

263,082 kg or be increased to 391,464 kg 

to reflect the lower CSA allocation in 

2011. The total allocation for 2012 

would be 894,444 kg or 1,022,826 kg 

depending on how many CSAs are 

issued under this alternative. EPA did 

not propose this alternative as the lead 

approach because the number of CUAs 

in the 2011 rule did not exceed the 

Parties’ production authorization for 

2011 and the total CUE amount for 2011 

was unaffected. EPA received one 

comment in opposition to this 

approach. The commenter states that the 

2011 CUA allocation was proper 

because it maintained consistency with 

the No Action Assurance letter and that 

any ‘‘over allocation’’ in 2011 will selfcorrect in future rules. First, any 

additional new production would 

reduce the need to use CSAs, which will 

result in more ‘‘available stocks’’ in next 

year’s CUE calculation and therefore a 

higher CSA allocation. Second, any 

unused allocation will be captured in 

EPA’s calculation of carryover. After 

considering this issue, EPA is not 

finalizing the alternative allocation 

approach in the final rule. 

EPA received one comment that the 

rulemaking process typically is not 

completed in a timely manner. Methyl 

bromide producers, importers, and 

distributers need advance notice of their 

allowances to ensure material can be 

manufactured or imported and 

ultimately distributed to growers to 

meet spring fumigation schedules. The 

commenter requests that EPA develop a 

more efficient process to promulgate the 

critical use rule so that it is in effect 

before the control period begins. EPA 

notes that the Parties to the Montreal 

Protocol take their decision to authorize 

critical uses typically a year before the 

control period at issue. This schedule, 

coupled with the Clean Air Act section 

604(d)(6) requirement to provide notice 

and the opportunity for public 

comment, makes it difficult for EPA to 

complete the rule in advance of the 

control period, since the Decisions of 

the Parties are central to the 

development of the rule. However, EPA 

acknowledges that promulgating the 

rule after the start of the control period 

is not ideal. EPA will consider means of 

streamlining the Critical Use Exemption 

rulemaking in the future so that the rule 

can be issued prior to the start of the 

control period. 


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Federal Register / Vol. 77, No. 96 / Thursday, May 17, 2012 / Rules and Regulations 29225 

F. Critical Use Allowance Allocations 

EPA is allocating critical use 

allowances for new production or 

import of methyl bromide up to the 

amount of 759,744 kg (3.0% of baseline) 

as shown in the table in 40 CFR 

82.8(c)(1). These allowances expire at 

the end of the control period and, as 

explained in the Framework Rule, are 

not bankable from one year to the next. 

The CUA allocation is subject to the 

trading provisions at 40 CFR 82.12, 

which are discussed in section V.G. of 

the preamble to the Framework Rule (69 

FR 76982). 

Paragraph 3 of Decision XXII/6 states 

‘‘that Parties shall endeavor to license, 

permit, authorize or allocate quantities 

of critical-use methyl bromide as listed 

in tables A and C of the annex to the 

present decision.’’ This is similar to 

language in prior Decisions authorizing 

critical uses. The language from these 

Decisions calls on Parties to endeavor to 

allocate critical use methyl bromide on 

a sector basis. EPA’s Framework Rule 

proposed several options for allocating 

critical use allowances, including a 

sector-by-sector approach. The agency 

evaluated the various options based on 

their economic, environmental, and 

practical effects. After receiving 

comments, EPA determined that a 

lump-sum, or universal, allocation, 

modified to include distinct caps for 

pre-plant 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. 

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, developers of 

methyl bromide alternatives need 

assurance that methyl bromide will 

eventually exit a particular use segment. 

Allowing an open market for methyl 

bromide allocation is an economic 

disincentive for anyone developing 

alternatives. At a minimum, this 

commenter supports distinguishing 

between pre-plant and post-harvest 

sectors as EPA currently does. EPA 

received a separate comment favoring 

the universal allocation approach over a 

sector-specific allocation. The 

commenter states that by allocating up 

to 14 types of allowances the sector 

specific approach would be overly 

complex to administer, would create 

problems for distributors, and would 

spread allowances among too many 

producer/importers and distributors. 

EPA has addressed these comments in 

prior rulemakings; those responses are 

available in the docket for this 

rulemaking. 

For the reasons discussed in the 

preamble to the 2009 CUE rule (74 FR 

19894), the agency believes that under 

the universal allocation approach 

adopted in the Framework Rule, the 

actual critical use will closely follow the 

sector breakout listed in the Parties’ 

decisions. 

G. Critical Stock Allowance Allocations 

The 2004 Framework Rule (69 FR 

52366) established the provisions 

governing the sale of pre-phaseout 

inventories for critical uses, including 

the concept of CSAs and a prohibition 

on the sale of pre-phaseout inventories 

for critical uses in excess of the amount 

of CSAs held by the seller. In addition, 

the Framework Rule further took prephaseout inventories into account 

through the trading provisions that 

allow CUAs to be converted into CSAs. 

A preambular paragraph to Decision 

XXII/6 states ‘‘that parties should 

reduce their stocks of methyl bromide 

retained for employment in critical-use 

exemptions to a minimum in as short a 

time period as possible.’’ EPA notes that 

the U.S. Government does not retain 

pre-phaseout inventory. Pre-phaseout 

inventory is held by private companies 

that may sell or distribute it for any use 

that meets the labeling under FIFRA, 

whether critical or not. EPA believes it 

is responsibly managing the stocks of 

pre-phaseout inventory through the CUE 

authorization process. Prior rulemakings 

have generally allocated higher amounts 

from stocks than the minimum set forth 

in the Parties’ decisions. Through the 

careful management, aggregate amounts 

have been reduced by 93% since the 

end of 2003. In addition, EPA has 

undertaken a broader use of its 

regulatory authorities under FIFRA to 

progressively limit U.S. domestic use of 

stocks to critical uses. While it is not 

possible to predict the exact date by 

which all remaining pre-2005 inventory 

will be exhausted, under the FIFRA 

process any small remaining quantities 

in 2015 will likely be entirely devoted 

to uses that have been identified as 

critical under the process developed 

since 2005 to address critical needs of 

developed countries. EPA is allocating 

CSAs for the 2012 control period in the 

amount of 263,082 kg (1.0% of 

baseline). This is more than the 

difference between the total U.S. CUE 

amount approved by the Parties and the 

permitted level of U.S. production and 

consumption. For 2012, that difference 

is 100,000 kg (0.4% of baseline). 

One commenter stated that the 

Agency is incorrect to assume that 

263,082 kg of pre-phaseout inventory 

will be available for critical uses in 

2012. Instead, the commenter stated that 

EPA should allocate only 100,000 kg 

from stocks. The commenter says that 

the distributors that own stocks are free 

to sell them for any purpose, including 

for non-CUE uses, and that EPA cannot 

control how or whether inventory is 

sold. EPA agrees that the allocation 

system allows distributors of inventory 

to respond to market conditions instead 

of requiring them to sell inventory to 

critical users. EPA issues CSAs as a 

mechanism to track the use of stocks for 

critical uses. Under section 82.4(p), 

stocks may not be sold for use on 

critical uses if the seller does not hold 

the corresponding amount of CSAs. 

Critical users may purchase either 

newly produced or imported critical use 

methyl bromide or stocks sold through 

the expenditure of CSAs. EPA chose this 

approach, at least in part, to promote 

market flexibility and efficiency. EPA’s 

formula for calculating the amount of 

‘‘available stocks’’ contains a variable 

representing the drawdown of prephaseout inventory prior to the 

beginning of the relevant control period. 

EPA has attempted to estimate the 

amounts of pre-phaseout inventory 

expected to be sold to critical and noncritical users. EPA recognizes that its 

estimates have become increasingly 

inexact in characterizing actual 

drawdown of pre-phaseout inventory, as 

the amounts in inventory have declined 

over time. EPA intends to consider the 

adequacy of using this formula to assess 

‘‘available stocks’’ in a future action. 

However, the fact that distributors can 

choose to sell to non-critical users does 

not necessarily mean that the inventory 

is largely unavailable to critical users. In 

fact, regulatory changes under the 

FIFRA labeling requirements discussed 

above will likely mean that remaining 

stocks are increasingly only available to 

U.S. critical uses. End of year reported 

data show that the inventory on 

December 31, 2011, was 1,248,876 kg. 

EPA expects that holders of prephaseout inventory will be able to 

expend the full amount of CSA 

allocations to satisfy the needs of 

critical users. 

One commenter also stated that 

inventory was disproportionately 

distributed among fewer distributors 

and thus is unavailable to critical users. 

EPA collects information annually on 

the number of companies that hold 


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29226 Federal Register / Vol. 77, No. 96 / Thursday, May 17, 2012 / Rules and Regulations 

inventory. These data support the 

comment that some companies no 

longer maintain any pre-phaseout 

inventory. Recent mergers have also 

resulted in fewer companies holding 

pre-phaseout inventory. However, there 

has not been a significant change in the 

overall geographic distribution of 

inventory. It is still held by companies 

in large amounts in both California and 

the Southeast, the two largest markets 

for critical use methyl bromide. EPA 

will continue to consider the question of 

availability of stocks in light of 

declining inventory and distributors in 

future actions. However, as noted above 

EPA believes that holders of prephaseout inventory will be able to 

expend the full amount of CSA 

allocations in 2012 to satisfy the needs 

of critical users. 

EPA’s allocation of CSAs is based on 

each company’s proportionate share of 

the aggregate inventory. In 2006, the 

United States District Court for the 

District of Columbia upheld EPA’s 

treatment of company-specific methyl 

bromide inventory information as 

confidential. NRDC v. Leavitt, 2006 WL 

667327 (D.D.C. March 14, 2006). 

Therefore, the documentation regarding 

company-specific allocation of CSAs is 

in the confidential portion of the 

rulemaking docket and the individual 

CSA allocations are not listed in the 

table in 40 CFR 82.8(c)(2). EPA notes 

that it is modifying the table in 40 CFR 

82.8(c)(2) to reflect the recent merger of 

three methyl bromide distributors who 

are also critical stock allowance holders. 

The revised table removes the 

individual entries for Hendrix & Dail, 

Hy-Yield Products, and Reddick 

Fumigants and adds an entry for TriEst 

Ag Group, Inc. EPA will inform the 

listed companies of their CSA 

allocations in a letter following 

publication of the rule. 

H. The Criteria in Decisions IX/6 and 

Ex. I/4 

Paragraphs 2 and 5 of Decision XXII/ 

6 request Parties to ensure that the 

conditions or criteria listed in Decisions 

Ex. I/4 and IX/6, paragraph 1, are 

applied to exempted critical uses for the 

2012 control period. A discussion of the 

agency’s application of the criteria in 

paragraph 1 of Decision IX/6 appears in 

sections V.A., V.D., V.E., and V.G. of 

this preamble. EPA has solicited 

comments on the technical and 

economic basis for determining that the 

uses listed in this rule meet the criteria 

of the critical use exemption. The CUNs 

detail how each proposed critical use 

meets the criteria listed in paragraph 1 

of Decision IX/6, apart from the 

criterion located at (b)(ii), as well as the 

criteria in paragraphs 5 and 6 of 

Decision Ex. I/4. 

The criterion in Decision IX/ 

6(1)(b)(ii), which refers to the use of 

available stocks of methyl bromide, is 

addressed in sections V.E., V.F., and 

V.G. of this preamble. The agency has 

previously provided its interpretation of 

the criterion in Decision IX/6(1)(a)(i) 

regarding the presence of significant 

market disruption in the absence of an 

exemption, and EPA refers readers to 

the 2006 CUE rule (71 FR 5989) as well 

as to the memo in the 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 are 

addressed in the nomination documents 

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. 

Some of these criteria are evaluated in 

other documents as well. For example, 

the U.S. has considered the adoption of 

alternatives and research into methyl 

bromide alternatives, criterion (1)(b)(iii) 

in Decision IX/6, in the development of 

the National Management Strategy 

submitted to the Ozone Secretariat in 

December 2005, and updated in October 

2009. The National Management 

Strategy addresses all of the aims 

specified in Decision Ex.I/4(3) to the 

extent feasible and is available in the 

docket for this rulemaking. 

EPA received one comment that the 

Agency should adjust production and 

import levels in the 2012 CUE Rule to 

account for research amounts. EPA 

received a similar comment on the 2011 

CUE Rule. The commenter implied that 

EPA had a previous policy of adjusting 

the production and import level upward 

to provide an allocation for research. 

This is not an accurate characterization 

of EPA’s policy. Prior to 2010, the U.S. 

Nomination did contain a separate 

amount for research. While the Parties 

approved research as a critical use, their 

decisions encouraged the use of 

inventory to meet critical research 

needs. In the corresponding CUE rules, 

EPA responded to the Parties’ decisions 

by reducing the new production/import 

amounts by the research amount, 

leaving the research portion of the total 

critical use exemption to be met through 

the use of CSAs. 

In the proposed rule, EPA discussed 

a supplemental critical use nomination 

of 2,576 kg for research activities in 

2012. This nomination was to have been 

discussed at the Meeting of the Parties 

in November 2011. EPA proposed to 

increase the final CSA allocation by up 

to 2,576 kg after consideration of the 

action taken by the Parties in November 

2011 and comments on research needs. 

However, prior to the Meeting of the 

Parties, the U.S. Government withdrew 

the supplemental nomination. 

Therefore, EPA is not increasing the 

final CSA allocation. Nonetheless, the 

2012 nomination and the decision the 

Parties took in 2010 are broad enough to 

cover both research and non-research 

uses. As discussed in the preamble to 

the 2010 CUE rule (75 FR 23179), 

research is a key element of the critical 

use process. Research on the crops 

shown in the table in Appendix L to 

subpart A remains a critical use of 

methyl bromide. While researchers may 

continue to use newly produced 

material for field, post-harvest, and 

emission minimization studies requiring 

the use of methyl bromide, EPA 

encourages researchers to use prephaseout inventory purchased through 

the expenditure of CSAs. EPA also 

encourages distributors to make 

inventory available to researchers, to 

promote the continuing effort to assist 

growers to transition critical use crops 

to alternatives. 

I. Emissions Minimization 

Previous decisions have stated that 

Parties shall request critical users to 

employ emission minimization 

techniques such as virtually 

impermeable films, barrier film 

technologies, deep shank injection and/ 

or other techniques that promote 

environmental protection, whenever 

technically and economically feasible. 

One commenter asks EPA to require 

emissions minimization techniques 

rather than simply encourage them. EPA 

notes that, although EPA considers 

application rates in determining CUAs, 

requiring specific emissions 

minimization techniques would be 

outside the scope of the proposed rule. 

EPA developed a comprehensive 

strategy for risk mitigation through the 

2006 Reregistration Eligibility Decision 

(RED) for methyl bromide, which is 

implemented through restrictions on 

how methyl bromide products can be 

used. This approach does require that 

methyl bromide labels include 

directions that treated sites be tarped 

except for California orchard replant 


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where EPA instead requires deep (18 

inches or greater) shank applications. 

The RED also incorporated incentives 

for applicators to use high-barrier tarps, 

such as virtually impermeable film 

(VIF), by allowing smaller buffer zones 

around those sites. In addition to 

minimizing emissions, use of highbarrier tarps has the benefit of providing 

pest control at lower application rates. 

The amount of methyl bromide 

nominated by the United States reflects 

the lower application rates necessary 

when using high-barrier tarps, where 

such tarps are allowed. 

EPA will continue to work with the 

U.S. Department of Agriculture— 

Agricultural Research Service (USDA– 

ARS) to promote emission reduction 

techniques. The federal government has 

invested substantial resources into best 

practices for methyl bromide use, 

including emission reduction practices. 

USDA–ARS has a national outreach 

effort to publicize the best practices. 

Users of methyl bromide should 

continue to make every effort to 

minimize overall emissions of methyl 

bromide to the extent consistent with 

State and local laws and regulations. 

EPA also encourages researchers and 

users who are successfully utilizing 

such techniques to inform EPA of their 

experiences and to provide such 

information with their critical use 

applications. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order (EO) 12866 

(58 FR 51735, October 4, 1993), this 

final rule is a ‘‘significant regulatory 

action’’ because it was deemed to raise 

novel legal or policy issues. 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011) and any changes made 

in response to interagency 

recommendations have been 

documented in the docket for this 

action. 

B. Paperwork Reduction Act 

This action 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. The Office of 

Management and Budget (OMB) has 

previously approved the information 

collection requirements contained in the 

existing regulations at 40 CFR part 82 

under the provisions of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq. 

and has assigned OMB control number 

2060–0482. The OMB control numbers 

for EPA’s regulations in 40 CFR are 

listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The RFA generally requires an agency 

to prepare a regulatory flexibility 

analysis of any rule subject to noticeand-comment rulemaking requirements 

under the Administrative Procedure Act 

or any other statute unless the agency 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. For 

purposes of assessing the impacts of this 

rule on small entities, small entity is 

defined as: (1) A small business as 

defined by the Small Business 

Administration’s regulations at 13 CFR 

121.201 (see Table below); (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

Category NAICS code SIC code 

NAICS Small business size standard (in 

number of employees 

or millions of dollars) 

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

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

1114—Greenhouse, Nursery, and Floriculture 

Production.

0173—Tree Nuts.

0175—Deciduous Tree Fruits (except apple 

orchards and farms).

0179—Fruit and Tree Nuts, NEC.

0181—Ornamental Floriculture and Nursery 

Products.

0831—Forest Nurseries and Gathering of 

Forest Products.

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

Cotton Ginning).

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

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

500 employees.

31121—Rice Milling ........................................ 2044—Rice Milling .......................................... 500 employees 

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

493130—Farm Product Warehousing and 

Storage.

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

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

Producers and Importers.325320—Pesticide and Other Agricultural 

Chemical Manufacturing.

2879—Pesticides and Agricultural Chemicals, 

NEC.

500 employees 

Agricultural producers of minor crops 

and entities that store agricultural 

commodities are categories of affected 

entities that contain small entities. This 

rule only affects entities that applied to 

EPA for an exemption to the phaseout 

of methyl bromide for 2012. In most 

cases, EPA received aggregated requests 

for exemptions from industry consortia. 

On the exemption application, EPA 

asked consortia to describe the number 

and size distribution of entities their 


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29228 Federal Register / Vol. 77, No. 96 / Thursday, May 17, 2012 / Rules and Regulations 

application covered. EPA estimated that 

3,218 entities petitioned EPA for an 

exemption for the 2005 control period. 

EPA revised this estimate in 2011 down 

to 1,800 end users of critical use methyl 

bromide. EPA believes that the number 

will continue to decline as growers stop 

applying for critical uses. Since many 

applicants did not provide information 

on the distribution of sizes of entities 

covered in their applications, EPA 

estimated that, based on the above 

definition, between one-fourth and onethird of the entities may be small 

businesses. In addition, other categories 

of affected entities do not contain small 

businesses based on the above 

description. 

After considering the economic 

impacts of today’s final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

In determining whether a rule has a 

significant economic impact 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 confers a benefit to users of 

methyl bromide. EPA estimates in the 

Regulatory Impact Assessment found in 

the docket to this rule that the reduced 

costs resulting from the de-regulatory 

creation of the exemption are 

approximately $22 million to $31 

million on an annual basis (using a 3% 

or 7% discount rate respectively). These 

reduced costs are dramatic due to the 

high value of methyl bromide for crop 

production and agriculture related 

activities. We have therefore concluded 

that this rule would relieve regulatory 

burden for all small entities. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under 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 would not impose any 

new requirements on any entities. 

Therefore, this action is not subject to 

the requirements of sections 202 or 205 

of the UMRA. This action is also not 

subject to the 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 does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This rule is 

expected to affect producers, suppliers, 

importers, and exporters and users of 

methyl bromide. Thus, Executive Order 

13132 does not apply to this rule. In the 

spirit of Executive Order 13132, and 

consistent with EPA policy to promote 

communications between EPA and State 

and local governments, EPA specifically 

solicited comment on this action from 

State and local officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This rule does not significantly or 

uniquely affect the communities of 

Indian tribal governments nor does it 

impose any enforceable duties on 

communities of Indian tribal 

governments. Thus, Executive Order 

13175 does not apply to this action. EPA 

specifically solicited additional 

comment on this action from tribal 

officials. 

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 

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 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 

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 rulemaking 

does not involve technical standards. 

Therefore, EPA did not consider the use 

of any voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of 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 

does not have disproportionately high 

and adverse human health or 

environmental effects on minority or 

low-income populations, because it 

affects the level of environmental 


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protection equally for all affected 

populations without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. 

Any ozone depletion that results from 

this rule will impact all affected 

populations equally because ozone 

depletion is a global environmental 

problem with environmental and 

human effects that are, in general, 

equally distributed across geographical 

regions of the United States. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A Major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective May 17, 2012. 

List of Subjects in 40 CFR Part 82 

Environmental protection, Chemicals, 

Exports, Imports, Ozone depletion. 

Dated: May 11, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the 

preamble, 40 CFR Part 82 is amended as 

follows: 

PART 82—PROTECTION OF 

STRATOSPHERIC OZONE 

■ 1. The authority citation for part 82 

continues to read as follows: 

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

7671q. 

■ 2. Section 82.8 is amended as follows: 

■ a. By revising the table in paragraph 

(c)(1); 

■ b. By revising paragraph (c)(2) 

including the table. 

§ 82.8 Grant of essential use allowances 

and critical use allowances. 

* * * * * 

(c) * * * 

(1) * * * 

Company 

2012 Critical 

use allowances for preplant uses * 

(kilograms) 

2012 Critical 

use allowances for postharvest uses * 

(kilograms) 

Great Lakes Chemical Corp. A Chemtura Company .............................................................................................. 425,197 36,499 

Albemarle Corp ........................................................................................................................................................ 174,851 15,009 

ICL–IP America ........................................................................................................................................................ 96,626 8,294 

TriCal, Inc ................................................................................................................................................................ 3,009 258 

Total** .............................................................................................................................................................. 699,683 60,061 

* For production or import of Class I, Group VI controlled substance exclusively for the Pre-Plant or Post-Harvest uses specified in appendix L 

to this subpart. 

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

(2) Allocated critical stock allowances 

granted for specified control period. The 

following companies are allocated 

critical stock allowances for 2012 on a 

pro-rata basis in relation to the 

inventory held by each. 

Company 

Albemarle 

Degesch America, Inc. 

Prosource One 

Bill Clark Pest Control, Inc. 

Helena Chemical Co. 

Trical Inc. 

Burnside Services, Inc. 

ICL–IP America 

Trident Agricultural Products 

Cardinal Professional Products 

Industrial Fumigant Company 

TriEst Ag Group, Inc. 

Chemtura Corp. 

Pacific Ag Supplies Inc. 

Univar 

Crop Production Services 

Pest Fog Sales Corp. 

Western Fumigation 

TOTAL—263,082 kilograms 

■ 3. Appendix L to Subpart A is revised 

to read as follows: 

APPENDIX L TO SUBPART A OF 

PART 82—APPROVED CRITICAL 

USES AND LIMITING CRITICAL 

CONDITIONS FOR THOSE USES FOR 

THE 2012 CONTROL PERIOD 

Approved critical uses Approved critical user and location of use 

Limiting critical conditions that exist, or that the 

approved critical user reasonably expects could arise 

without methyl bromide fumigation 

Column A Column B Column C 

PRE–PLANT USES 

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

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

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

Carolina, Tennessee, and Virginia.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe root knot nematode infestation. 

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

Moderate to severe soilborne disease infestation. 

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation. 


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Approved critical uses Approved critical user and location of use 

Limiting critical conditions that exist, or that the 

approved critical user reasonably expects could arise 

without methyl bromide fumigation 

Column A Column B Column C 

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

Moderate to severe nematode infestation. 

Moderate to severe pythium collar, crown and root rot. 

Moderate to severe southern blight infestation. 

Restrictions on alternatives due to karst topographical 

features. 

Forest Nursery Seedlings .... (a) Southern Forest Nursery Management Cooperative 

(Growers in Alabama, Arkansas, Florida, Georgia, 

Kentucky, Louisiana, Mississippi, North Carolina, 

Oklahoma, South Carolina, Tennessee, Texas, and 

Virginia).

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

(b) Northeastern Forest and Conservation Nursery Association (Government-owned seedling nurseries in 

Illinois, Indiana, Kentucky, Maryland, Missouri, New 

Jersey, Ohio, Pennsylvania, West Virginia, and Wisconsin).

Moderate to severe weed infestation including purple 

and yellow nutsedge infestation. 

Moderate to severe Canada thistle infestation. 

Moderate to severe nematode infestation. 

Moderate to severe soilborne disease infestation. 

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

Moderate to severe Canada thistle infestation. 

Moderate to severe nutsedge infestation. 

Moderate to severe nematode infestation. 

Nursery Stock (Fruit, Nut, 

Flower).

(a) Members of the California Association of Nursery 

and Garden Centers representing Deciduous Tree 

Fruit Growers.

Moderate to severe nematode infestation. 

Medium to heavy clay soils. 

Local township limits prohibiting 1,3-dichloropropene. 

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

Local township limits prohibiting 1,3-dichloropropene. 

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

grape, walnut, and almond growers.

Moderate to severe nematode infestation. 

Moderate to severe soilborne disease infestation. 

Replanted 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. 

Peppers ................................ (a) Alabama, Arkansas, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, 

and Virginia growers.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

Moderate to severe pythium root, collar, crown and root 

rots. 

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

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation. 

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

Moderate to severe nematode infestation, or moderate 

to severe pythium root and collar rots. 

Moderate to severe southern blight infestation, crown or 

root rot. 

Restrictions on alternatives due to karst topographical 

features. 

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

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

Local township limits prohibiting 1,3-dichloropropene. 

Time to transition to an alternative. 


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Approved critical uses Approved critical user and location of use 

Limiting critical conditions that exist, or that the 

approved critical user reasonably expects could arise 

without methyl bromide fumigation 

Column A Column B Column C 

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

Moderate to severe nematode infestation. 

Moderate to severe soilborne disease infestation. 

Carolina geranium or cut-leaf evening primrose infestation. 

Restrictions on alternatives due to karst topographical 

features and soils not supporting seepage irrigation. 

(c) Alabama, Arkansas, Georgia, Illinois, Kentucky, 

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

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

Moderate to severe black root and crown rot. 

Strawberry Nurseries ........... California growers ........................................................... Moderate to severe soilborne disease infestation. 

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

Sweet Potato Slips ............... California growers ........................................................... Local township limits prohibiting 1,3-dichloropropene. 

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

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

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

Restrictions on alternatives due to karst topographical 

features and, in Florida, soils not supporting seepage 

irrigation. 

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

POST–HARVEST USES 

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

USA Rice Millers Association.

Moderate to severe beetle, weevil, or moth infestation. 

Presence of sensitive electronic equipment subject to 

corrosion. 

Time to transition to an alternative. 

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

members of the Pet Food Institute.

Moderate to severe beetle, moth, or cockroach infestation. 

Presence of sensitive electronic equipment subject to 

corrosion. 

Time to transition to an alternative. 

(c) Members of the North American Millers’ Association 

in the U.S.

Moderate to severe beetle infestation. 

Presence of sensitive electronic equipment subject to 

corrosion. 

Time to transition to an alternative. 

(d) Members of the National Pest Management Association treating cheese storage facilities.Mite infestation. 

Commodities ........................ California entities storing walnuts, dried plums, figs, raisins, and dates (in Riverside county only) in California.Rapid fumigation required to meet a critical market window, such as during the holiday season. 

Dry Cured Pork Products ..... Members of the National Country Ham Association and 

the Association of Meat Processors, Nahunta Pork 

Center (North Carolina), and Gwaltney and Smithfield 

Inc.

Red legged ham beetle infestation. 

Cheese/ham skipper infestation. 

Dermested beetle infestation. 

Ham mite infestation. 

[FR Doc. 2012–11972 Filed 5–16–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 272 

[EPA–R06–2011–0484 FRL–9652–9a] 

Oklahoma: Incorporation by Reference 

of Approved State Hazardous Waste 

Management Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: The Solid Waste Disposal Act, 

as amended, commonly referred to as 

the Resource Conservation and 

Recovery Act (RCRA), allows the 

Environmental Protection Agency (EPA) 

to authorize States to operate their 

hazardous waste management programs 

in lieu of the Federal program. The EPA 

uses the regulations entitled ‘‘Approved 

State Hazardous Waste Management 

Programs’’ to provide notice of the 

authorization status of State programs 

and to incorporate by reference those 

provisions of the State statutes and 

regulations that will be subject to the 

EPA’s inspection and enforcement. The 

rule codifies in the regulations the prior 

approval of Oklahoma’s hazardous 

waste management program and 

incorporates by reference authorized 

provisions of the State’s statutes and 

regulations. 

DATES: This regulation is effective July 

16, 2012, unless the EPA receives 

adverse written comment on this 

regulation by the close of business June 

18, 2012. If the EPA receives such 

comments, it will publish a timely 

withdrawal of this immediate final rule 


srobinson on DSK4SPTVN1PROD with RULES