19878 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 

FOR FURTHER INFORMATION CONTACT: 

Melanie R. Berson, Center for Veterinary 

Medicine (HFV–110), Food and Drug 

Administration, 7500 Standish Pl., 

Rockville, MD 20855, 240–276–8337, 

e-mail: melanie.berson@fda.hhs.gov. 

SUPPLEMENTARY INFORMATION: Pfizer, 

Inc., 235 East 42d St., New York, NY 

10017–5755, filed a supplement to 

NADA 141–152 that provides for topical 

veterinary prescription use of 

REVOLUTION (selamectin) in dogs and 

cats. The supplemental NADA revises 

the minimum age of treatment from 6 

weeks to 8 weeks for kittens. The 

supplemental NADA is approved as of 

April 6, 2009, and the regulations are 

amended in 21 CFR 524.2098 to reflect 

the approval. 

Approval of these supplemental 

NADAs did not require review of 

additional safety or effectiveness data or 

information. Therefore, a freedom of 

information summary is not required. 

The agency has determined under 21 

CFR 25.33(a)(1) that this action is of a 

type that does not individually or 

cumulatively have a significant effect on 

the human environment. Therefore, 

neither an environmental assessment 

nor an environmental impact statement 

is required. 

This rule does not meet the definition 

of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because 

it is a rule of ‘‘particular applicability.’’ 

Therefore, it is not subject to the 

congressional review requirements in 5 

U.S.C. 801–808. 

List of Subjects in 21 CFR Part 524 

Animal drugs. 

■ Therefore, under the Federal Food, 

Drug, and Cosmetic Act and under 

authority delegated to the Commissioner 

of Food and Drugs and redelegated to 

the Center for Veterinary Medicine, 21 

CFR part 524 is amended as follows: 

PART 524—OPHTHALMIC AND 

TOPICAL DOSAGE FORM NEW 

ANIMAL DRUGS 

■ 1. The authority citation for 21 CFR 

part 524 continues to read as follows: 

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

§ 524.2098 [Amended] 

■ 2. In § 524.2098, in the last sentence 

in paragraph (d)(2), remove ‘‘For dogs 

and cats 6 weeks of age and older’’ and 

in its place add ‘‘For dogs 6 weeks of 

age and older, and cats 8 weeks of age 

and older’’. 

Dated: April 23, 2009. 

Steven D. Vaughn, 

Director, Office of New Animal Drug 

Evaluation, Center for Veterinary Medicine. 

[FR Doc. E9–9901 Filed 4–29–09; 8:45 am] 

BILLING CODE 4160–01–S 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2009–0296] 

Security Zone; Portland Rose Festival 

on Willamette River 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of enforcement of 

regulation. 

SUMMARY: The Coast Guard will enforce 

the Portland Rose Festival Security 

Zone on the Willamette River from 1 

p.m. on June 3, 2009, until 10 a.m. June 

8, 2009. This action is necessary to 

ensure the safety and security of 

maritime traffic, including the public 

vessels present, on the Willamette River 

during the Portland Rose Festival. 

During the enforcement period, entry 

into the security zone detailed in 33 

CFR 165.1312 is prohibited unless 

authorized by the Captain of the Port 

Portland or his designated 

representative. 

DATES: The regulations in 33 CFR 

165.1312 will be enforced from 1 p.m. 

on June 3, 2009, through 10 a.m. on June 

8, 2009. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this notice, call 

or e-mail MST1 Jaime Sayers, 

Waterways Management, U.S. Coast 

Guard Sector Portland; telephone 503– 

240–9319, e-mail 

Jaime.A.Sayers@uscg.mil. 

SUPPLEMENTARY INFORMATION: The Coast 

Guard will enforce the security zone for 

the Portland Rose Festival detailed in 33 

CFR 165.1312 from 1 p.m. on June 3, 

2009, until 10 a.m. on June 8, 2009. 

Under the provisions of 33 CFR 

165.1312, entry into the zone 

established by that section is prohibited 

unless authorized by the Captain of the 

Port Portland or his designated 

representative. Spectator vessels may 

transit outside the security zone but 

may not anchor, block, loiter in, or 

impede the transit of ship parade 

participants or official patrol vessels. 

The Coast Guard may be assisted by 

other Federal, State or local law 

enforcement agencies in enforcing this 

regulation. 

This notice is issued under authority 

of 33 CFR 165.1312 and 5 U.S.C. 552(a). 

In addition to this notice in the Federal 

Register, the Coast Guard will provide 

the maritime community with 

notification of this enforcement period 

via Local Notice to Mariners and marine 

information broadcasts. 

Dated: April 16, 2009. 

F.G. Myer, 

Captain, U.S. Coast Guard, Captain of the 

Port Portland. 

[FR Doc. E9–9992 Filed 4–29–09; 8:45 am] 

BILLING CODE 4910–15–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 82 

[EPA–HQ–OAR–2008–0009; FRL–8899–5] 

RIN 2060–AO78 

Protection of Stratospheric Ozone: The 

2009 Critical Use Exemption From the 

Phaseout of Methyl Bromide 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This final rule authorizes uses 

of methyl bromide that qualify for the 

2009 critical use exemption and the 

amount of methyl bromide that may be 

produced, imported, or supplied from 

existing pre-phaseout inventory for 

those uses in 2009. EPA is taking action 

under the authority of the Clean Air Act 

to reflect a consensus decision taken at 

the Nineteenth Meeting of by the Parties 

to the Montreal Protocol on Substances 

that Deplete the Ozone Layer. 

DATES: This rule is effective on April 30, 

2009. 

ADDRESSES: EPA has established a 

docket for this action identified under 

EPA–HQ–OAR–2008–0009. All 

documents in the docket are listed on 

the http://www.regulations.gov site. 

Although listed in the index, some 

information is not publicly available, 

e.g., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available only through http:// 

www.regulations.gov or in hard copy. To 

obtain copies of materials in hard copy, 

please call the EPA Docket Center at 

(202) 564–1744 between the hours of 

8:30 a.m.–4:30 p.m. E.S.T., Monday– 

Friday, excluding legal holidays, to 

schedule an appointment. The EPA 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 19879 

Docket Center’s Public Reading Room 

address is EPA/DC, EPA West, Room 

3334, 1301 Constitution Ave., NW., 

Washington, DC. 

FOR FURTHER INFORMATION CONTACT: 

Jeremy Arling by telephone at (202) 

343–9055, or by e-mail at 

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

Environmental Protection Agency, 

Stratospheric Protection Division, 

Stratospheric Program Implementation 

Branch (6205J), 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460. 

You may also visit the Ozone Depletion 

Web site of EPA’s Stratospheric 

Protection Division at http:// 

www.epa.gov/ozone/strathome.html for 

further information about EPA’s 

Stratospheric Ozone Protection 

regulations, the science of ozone layer 

depletion, and related topics. 

SUPPLEMENTARY INFORMATION: This final 

rule concerns Clean Air Act (CAA) 

restrictions on the consumption, 

production, and use of methyl bromide 

(a Class I, Group VI controlled 

substance) for critical uses during 

calendar year 2009. Under the Clean Air 

Act, methyl bromide consumption 

(consumption is defined under the CAA 

as production plus imports minus 

exports) and production was phased out 

on January 1, 2005, apart from allowable 

exemptions, such as the critical use 

exemption and the quarantine and 

preshipment exemption. With this 

action, EPA is authorizing the uses that 

will qualify for the 2009 critical use 

exemption as well as specific amounts 

of methyl bromide that may be 

produced, imported, or sold from prephaseout inventory for proposed critical 

uses in 2009. 

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 April 30, 

2009. APA section 553(d) provides an 

exception for any action that grants or 

recognizes an exemption or relieves a 

restriction. This final rule grants an 

exemption from the phaseout of methyl 

bromide. 

Table of Contents 

I. General Information 

Regulated Entities 

II. What Is Methyl Bromide? 

III. What Is the Background to the Phaseout 

Regulations for Ozone Depleting 

Substances? 

IV. What Is the Legal Authority for 

Exempting the Production and Import of 

Methyl Bromide for Critical Uses 

Authorized by the Parties to the 

Montreal Protocol? 

V. What Is the Critical Use Exemption 

Process? 

A. Background of the Process 

B. How Does This Final Rule Relate to 

Previous CUE Rules? 

C. Critical Uses 

D. Critical Use Amounts 

1. Background of Critical Use Amounts 

2. Calculation of Available Pre-Phaseout 

Inventory 

a. Estimated Drawdown 

b. Supply Chain Factor 

3. Approach for Determining Critical Use 

Amounts 

4. Treatment of Carryover Material 

5. Amounts for Research Purposes 

6. Methyl Bromide Alternatives 

7. Summary of Calculations 

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

I/4 

F. Emissions Minimization 

G. Critical Use Allowance Allocations 

H. Critical Stock Allowance Allocations 

I. Stocks of Methyl Bromide 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

I. General Information 

Regulated Entities 

Entities potentially regulated by this 

action are those associated with the 

production, import, export, sale, 

application, and use of methyl bromide 

covered by an approved critical use 

exemption. Potentially regulated 

categories and entities include 

producers, importers, and exporters of 

methyl bromide; applicators and 

distributors of methyl bromide; users of 

methyl bromide, e.g., farmers of 

vegetable crops, fruits and nursery 

stock; owners of stored food 

commodities and structures such as 

grain mills and processors; and 

agricultural researchers. 

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 is used in the U.S. and 

throughout the world as a fumigant to 

control a variety of pests such as insects, 

weeds, rodents, pathogens, and 

nematodes. Information on methyl 

bromide can be found at http:// 

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

www.unep.org/ozone. 

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 final rule 

implementing the Clean Air Act is 

intended to derogate from provisions in 

any other Federal, State, or local laws or 

regulations governing actions including, 

but not limited to, the sale, distribution, 

transfer, and use of methyl bromide. 

Entities affected by this action must 

continue to comply with FIFRA and 

other pertinent statutory and regulatory 

requirements for pesticides when 

importing, exporting, acquiring, selling, 

distributing, transferring, or using 

methyl bromide for critical uses. The 

regulations in this final rule only 

implement the CAA restrictions on the 

production, consumption, and use of 

methyl bromide for critical uses 

exempted from the phaseout of methyl 

bromide. 

III. What Is the Background to the 

Phaseout Regulations for Ozone 

Depleting Substances? 

The regulatory requirements that limit 

production and consumption of ozonedepleting substances are in 40 CFR part 

82, subpart A. The Montreal Protocol on 

19880 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 

Substances that Deplete the Ozone 

Layer (Montreal Protocol) is the 

international agreement aimed at 

reducing and eliminating the 

production and consumption of 

stratospheric ozone-depleting 

substances. The U.S. was one of the 

original signatories to the 1987 Montreal 

Protocol and the U.S. ratified the 

Protocol on April 12, 1988. Congress 

then enacted, and President George 

H.W. Bush signed into law, the Clean 

Air Act Amendments of 1990 (CAAA of 

1990) which included Title VI on 

Stratospheric Ozone Protection, codified 

as 42 U.S.C. Chapter 85, Subchapter VI, 

to ensure that the United States could 

satisfy its obligations under the 

Protocol. EPA issued regulations to 

implement this legislation and has 

amended them as needed. 

Methyl bromide was added to the 

Protocol as an ODS in 1992 through the 

Copenhagen Amendment to the 

Protocol. The Parties to the Montreal 

Protocol agreed that each industrialized 

country’s level of methyl bromide 

production and consumption in 1991 

should be the baseline for establishing 

a freeze in the level of methyl bromide 

production and consumption for 

industrialized countries. EPA published 

a final rule in the Federal Register on 

December 10, 1993 (58 FR 65018), 

listing methyl bromide as a Class I, 

Group VI controlled substance, freezing 

U.S. production and consumption at 

this 1991 baseline level of 25,528,270 

kilograms, and setting 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.’’ 

At the Seventh Meeting of the Parties 

(MOP) in 1995, the Parties made 

adjustments to the methyl bromide 

control measures and agreed to 

reduction steps and a 2010 phaseout 

date for industrialized countries with 

exemptions permitted for critical uses. 

At that time, the U.S. continued to have 

a 2001 phaseout date in accordance 

with Section 602(d) of the CAAA of 

1990. At the Ninth MOP in 1997, the 

Parties agreed to further adjustments to 

the phaseout schedule for methyl 

bromide in industrialized countries, 

with reduction steps leading to a 2005 

phaseout. 

IV. What Is the Legal Authority for 

Exempting the Production and Import 

of Methyl Bromide for Critical Uses 

Authorized by the Parties to the 

Montreal Protocol? 

In October 1998, the U.S. Congress 

amended the CAA to prohibit the 

termination of production of methyl 

bromide prior to January 1, 2005, to 

require EPA to bring the U.S. phaseout 

of methyl bromide in line with the 

schedule specified under the Protocol, 

and to authorize EPA to provide certain 

exemptions. These amendments were 

codified in Section 604 of the CAA, 42 

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

specifically addresses the critical use 

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

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

phaseout schedule for methyl bromide 

production and consumption in a direct 

final rulemaking on November 28, 2000 

(65 FR 70795), which allowed for the 

phased reduction in methyl bromide 

consumption specified under the 

Protocol and extended the phaseout to 

2005. EPA again amended the 

regulations to allow for an exemption 

for quarantine and preshipment (QPS) 

purposes on July 19, 2001 (66 FR 

37751), with an interim final rule and 

with a final rule on January 2, 2003 (68 

FR 238). 

On December 23, 2004 (69 FR 76982), 

EPA published a final rule that 

established the framework for the 

critical use exemption, listed 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. Since then, 

EPA has published rules applying the 

critical use exemption (CUE) framework 

to subsequent control periods. Under 

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

CAA, this action lists the uses that will 

qualify as approved critical uses in 2009 

and the amount of methyl bromide that 

may be produced, imported, or supplied 

from inventory to satisfy those uses. 

This action reflects Decision XIX/9, 

taken at the Nineteenth Meeting of the 

Parties in September 2007. In 

accordance with Article 2H(5), the 

Parties have issued several Decisions 

pertaining to the critical use exemption. 

These include Decisions IX/6 and Ex. 

I/4, which set forth criteria for review of 

proposed critical uses. The status of 

Decisions is addressed in NRDC v. EPA, 

(464 F.3d 1, 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 final rule, EPA is honoring 

commitments made by the United States 

in the Montreal Protocol context. 

V. What Is the Critical Use Exemption 

Process? 

A. Background of the Process 

The critical use exemption permits 

the production and import of methyl 

bromide for uses that do not have 

technically and economically feasible 

alternatives. On May 8, 2003, the 

Agency published its first notice in the 

Federal Register (68 FR 24737) 

announcing the availability of the 

application for a critical use exemption 

and the deadline for submission of the 

requisite data. EPA informed applicants 

that they may apply as individuals or as 

part of a group of users (a ‘‘consortium’’) 

who face the same limiting critical 

conditions (i.e., specific conditions that 

establish a critical need for methyl 

bromide). EPA has repeated this process 

annually since then. 

The criteria for the exemption 

initially appeared in Decision IX/6. In 

that Decision, the Parties agreed that ‘‘a 

use of methyl bromide should qualify as 

‘critical’ only if the nominating Party 

determines that: (i) The specific use is 

critical because the lack of availability 

of methyl bromide for that use would 

result in a significant market disruption; 

and (ii) there are no technically and 

economically feasible alternatives or 

substitutes available to the user that are 

acceptable from the standpoint of 

environment and public health and are 

suitable to the crops and circumstances 

of the nomination.’’ These criteria are 

reflected in EPA’s definition of ‘‘critical 

use’’ at 40 CFR 82.3. 

In response to the annual requests for 

critical use exemption applications 

published in the Federal Register, 

applicants provide data on the technical 

and economic feasibility of using 

alternatives to methyl bromide. 

Applicants also submit data on their use 

of methyl bromide, on research 

programs into the use of alternatives to 

methyl bromide, and on efforts to 

minimize use and emissions of methyl 

bromide. 

EPA’s Office of Pesticide Programs 

reviews the data submitted by 

applicants, as well as data from 

governmental and academic sources, to 

establish whether there are technically 

and economically feasible alternatives 

available for a particular use of methyl 

bromide and whether there would be a 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 19881 

1NPMA, National Pest Management Association, 

includes both food processing structures and 

processed foods. This year’s exemption does not 

include cocoa beans. 

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 

critical use nomination (CUN). The U.S. 

Department of State submits the CUN 

annually to the United Nations 

Environment Programme (UNEP) Ozone 

Secretariat. The Methyl Bromide 

Technical Options Committee (MBTOC) 

and the Technology and Economic 

Assessment Panel (TEAP), which are 

independent advisory bodies to Parties 

to the Montreal Protocol, subsequently 

review the CUNs of the various 

countries and make recommendations to 

the Parties on the nominations. The 

Parties then take a Decision to authorize 

a critical use exemption for a particular 

country. The Decision also identifies 

how much methyl bromide may be 

supplied for the exempted critical uses. 

As required in Section 604(d)(6) of the 

Clean Air Act, for each exemption 

period, EPA consults with the United 

States Department of Agriculture and 

other departments and institutions of 

the Federal government that have 

regulatory authority related to methyl 

bromide, and provides an opportunity 

for public comment on the amounts of 

methyl bromide that the Agency has 

determined to be necessary for critical 

uses and the uses that the Agency has 

determined meet the criteria of the 

critical use exemption. 

More on the domestic review process 

and methodology employed by the 

Office of Pesticide Programs is available 

in a detailed memorandum titled 

‘‘Development of 2003 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 December 22, 2006, the U.S. 

Government (USG) submitted the fifth 

CUN to the Ozone Secretariat. This fifth 

nomination contained the request for 

2009 critical uses. In February 2007, 

MBTOC sent questions to the USG 

concerning technical and economic 

issues in the 2009 nomination. The USG 

transmitted preliminary responses to 

MBTOC on March 13, 2007. The USG 

received a second round of questions 

from MBTOC and submitted responses 

to those questions in May, 2007. These 

documents, together with reports by the 

advisory bodies noted above, are in the 

public docket for this rulemaking. The 

determination in this final rule reflects 

the analysis contained in those 

documents. 

B. How Does This Final Rule Relate to 

Previous CUE Rules? 

The December 23, 2004, Framework 

Rule (69 FR 76982) established the 

operational framework for the CUE 

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 

CUE program. 

Since then, EPA has annually 

promulgated regulations to exempt from 

the phaseout of methyl bromide specific 

quantities of production and import for 

each control period and to indicate 

which uses meet the criteria for the 

exemption program for that year. See 71 

FR 5985 (2006 control period), 71 FR 

75386 (2007 control period), and 72 FR 

74118 (2008 control period). 

Today’s action authorizes specific 

critical uses for 2009 and the amounts 

of critical use allowances (CUAs) and 

critical stock allowances (CSAs) 

allocated for those uses. These are the 

uses included in the USG’s fifth CUN 

and authorized by the Parties in 

Decision XIX/9. EPA is not modifying 

the Framework Rule or the approach to 

determining the level of available stocks 

finalized in the 2008 CUE rule 

published on December 28, 2007. 

C. Critical Uses 

In Decision XIX/9, taken in September 

2007, the Parties to the Protocol agreed 

‘‘to permit, for the agreed critical use 

categories for 2009, set forth in table C 

of the annex to the present decision for 

each Party, subject to the conditions set 

forth in the present decision and 

decision Ex.I/4 to the extent that those 

conditions are applicable, the levels of 

production and consumption for 2009 

set forth in table D of the annex to the 

present decision which are necessary to 

satisfy critical uses. * * *’’ 

Table C of the annex to Decision XIX/ 

9 lists the following uses: Commodities, 

NPMA food processing structures (cocoa 

beans removed),1 Mills and processors, 

Dried cured pork, Cucurbits, Eggplant— 

field, Forest nursery seedlings, Nursery 

stock—fruit, nut, flower, Orchard 

replant, Ornamentals, Peppers—field, 

Strawberry—field, Strawberry runners, 

Tomatoes—field, Sweet potato slips. 

The agreed critical use levels for 2009 

total 4,261,974 kilograms (kg), which is 

equivalent to 16.7% of the U.S. 1991 

methyl bromide consumption baseline 

of 25,528,270 kg. However, the 

maximum amount of allowable new 

production and import as set forth in 

Table D of Decision XIX/9 is 3,961,974 

kg (15.5% of baseline), minus available 

stocks. For the reasons described in 

Section V.D of this preamble, EPA is 

allowing limited amounts of new 

production or import of methyl bromide 

for critical uses for 2009 up to the 

amount of 2,275,715 kg (8.9% of 

baseline), with 1,919,193 kg (7.5% of 

baseline) coming from pre-phaseout 

inventory (i.e., stocks). 

This final rule modifies 40 CFR part 

82, subpart A, Appendix L to reflect the 

agreed critical use categories identified 

in Decision XIX/9 for the 2009 control 

period. The Agency is amending the 

table of critical uses based, in part, on 

the technical analysis contained in the 

2009 U.S. nomination that assesses data 

submitted by applicants to the CUE 

program as well as public and 

proprietary data on the use of methyl 

bromide and its alternatives. EPA 

sought comment on the technical 

analysis (which is provided in the 

docket) and as well as information 

regarding changes to the registration or 

use of alternatives that may have 

transpired after the 2009 U.S. 

nomination was written. The Agency 

stated that 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 critical use exemption. 

Based on the information described 

above, EPA is determining that the uses 

in Table I: Approved Critical Uses, with 

the limiting critical conditions 

specified, qualify to obtain and use 

critical use methyl bromide in 2009. 

19882 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 

TABLE I—APPROVED CRITICAL USES

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, Maryland, and 

Michigan.

Moderate to severe soilborne disease infestation. 

A need for methyl bromide for research purposes. 

(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. 

A need for methyl bromide for research purposes. 

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. 

A need for methyl bromide for research purposes. 

(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. 

A need for methyl bromide for research purposes. 

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

A need for methyl bromide for research purposes. 

Forest Nursery Seedlings.(a) Growers in Alabama, Arkansas, Georgia, 

Louisiana, Mississippi, North Carolina, 

Oklahoma, South Carolina, Tennessee, 

Texas, and Virginia.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

(b) International Paper and its subsidiaries 

limited to growing locations in Alabama, Arkansas, Georgia, South Carolina, and 

Texas.

Moderate to severe yellow or purple nutsedge infestation Moderate 

to severe soilborne disease infestation. 

(c) Government-owned seedling nurseries in 

Illinois, Indiana, Kentucky, Maryland, Missouri, New Jersey, Ohio, Pennsylvania, 

West Virginia, and Wisconsin.

Moderate to severe weed infestation including purple and yellow 

nutsedge infestation. 

Moderate to severe Canada thistle infestation. 

Moderate to severe nematode infestation. 

Moderate to severe soilborne disease infestation. 

(d) Weyerhaeuser Company and its subsidiaries limited to growing locations in Alabama, Arkansas, North Carolina, and South 

Carolina.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode or worm infestation. 

(e) Weyerhaeuser Company and its subsidiaries limited to growing locations in Oregon 

and Washington.

Moderate to severe yellow nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

(f) Michigan growers ........................................ Moderate to severe soilborne disease infestation. 

Moderate to severe Canada thistle infestation. 

Moderate to severe nutsedge infestation. 

Moderate to severe nematode infestation. 

Orchard Nursery Seedlings.(a) Members of the Western Raspberry Nursery Consortium limited to growing locations 

in Washington, and members of the California Association of Nursery and Garden 

Centers representing Deciduous Tree Fruit 

Growers.

Moderate to severe nematode infestation. 

Medium to heavy clay soils. 

Local township limits prohibiting 1,3-dichloropropene. 

A need for methyl bromide for research purposes. 

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

Local township limits prohibiting 1,3-dichloropropene. 

A need for methyl bromide for research purposes. 

Orchard Replant ............ (a) California stone fruit, table and raisin 

grape, wine grape, walnut, and almond 

growers.

Moderate to severe nematode infestation. 

Moderate to severe soilborne disease infestation. 

Replanted orchard soils to prevent orchard replant disease. 

Medium to heavy soils. 

Local township limits prohibiting 1,3-dichloropropene. 

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

Moderate to severe nematode infestation. 

Local township limits prohibiting 1,3-dichloropropene. 

A need for methyl bromide for research purposes. 

(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. 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 19883 

TABLE I—APPROVED CRITICAL USES—Continued 

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 

A need for methyl bromide for research purposes. 

(c) Michigan herbaceous perennial growers ... Moderate to severe nematode infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe yellow nutsedge and other weed infestation. 

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. 

A need for methyl bromide for research purposes. 

(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. 

A need for methyl bromide for research purposes. 

(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. 

A need for methyl bromide for research purposes 

(d) Michigan growers ....................................... Moderate to severe soilborne disease infestation. 

A need for methyl bromide for research purposes. 

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. 

A need for methyl bromide for research purposes. 

(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. 

A need for methyl bromide for research purposes. 

(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. 

A need for methyl bromide for research purposes 

Strawberry Nurseries .... (a) California growers ...................................... Moderate to severe soilborne disease infestation. 

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

A need for methyl bromide for research purposes. 

(b) North Carolina and Tennessee growers .... Moderate to severe black root rot. 

Moderate to severe root-knot nematode infestation. 

Moderate to severe yellow and purple nutsedge infestation. 

A need for methyl bromide for research purposes. 

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

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

Moderate to severe fungal pathogen infestation. 

A need for methyl bromide for research purposes. 

(b) Alabama, Arkansas, Florida, Georgia, 

Kentucky, Louisiana, Mississippi, North 

Carolina, South Carolina, Tennessee, and 

Virginia growers.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

Restrictions on alternatives due to karst topographical features and, 

in Florida, soils not supporting seepage irrigation. 

A need for methyl bromide for research purposes. 

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

POST-HARVEST USES 

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

of the USA Rice Millers Association.

Moderate to severe beetle, weevil, or moth infestation. 

Presence of sensitive electronic equipment subject to corrosion. 

Time to transition to an alternative. 

(b) Pet food manufacturing facilities in the 

U.S. who are members of the Pet Food Institute.

Moderate to severe beetle, moth, or cockroach infestation. 

Presence of sensitive electronic equipment subject to corrosion. 

Time to transition to an alternative. 

(c) Bakeries in the U.S .................................... Presence of sensitive electronic equipment subject to corrosion. 

19884 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 

TABLE I—APPROVED CRITICAL USES—Continued 

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 

Time to transition to an alternative. 

(d) 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. 

(e) Members of the National Pest Management Association treating processed food, 

cheese, herbs and spices, and spaces and 

equipment in associated processing and 

storage facilities.

Moderate to severe beetle or moth infestation. 

Presence of sensitive electronic equipment subject to corrosion. 

Time to transition to an alternative. 

Commodities ................. (a) California entities storing walnuts, beans, 

dried plums, figs, raisins, and dates (in Riverside county only) in California.

Rapid fumigation required to meet a critical market window, such as 

during the holiday season. 

Export to countries which do not allow the use of sulfuryl fluoride. 

A need for methyl bromide for research purposes. 

Dry Cured Pork Products.(a) Members of the National Country Ham Association and the Association of Meat Processors, Nahunta Pork Center (North Carolina), and Gwaltney and Smithfield Inc.Red legged ham beetle infestation. 

Cheese/ham skipper infestation. 

Dermested beetle infestation. 

Ham mite infestation. 

EPA proposed revising the 

description of the National Pest 

Management Association (NPMA) to 

remove the term cocoa beans in storage 

and associated spaces. NPMA has 

transitioned to sulfuryl fluoride for 

cocoa bean fumigation and such 

fumigations were not included in the 

CUN or approved by the Parties. NPMA 

requested that instead of the proposed 

description, EPA describe their 

members as ‘‘Members of the National 

Pest Management Association treating 

processed food, cheese, dried milk, 

herbs and spices, and spaces and 

equipment in associated processing and 

storage facilities.’’ The use of methyl 

bromide for dried milk was not 

included in the CUN or approved by the 

Parties. Therefore, EPA agrees with 

NPMA’s revised description except for 

the inclusion of dried milk. 

EPA proposed adding ‘‘restrictions on 

alternatives due to karst topographical 

features and soils not supporting 

seepage irrigation’’ as a limiting critical 

condition for Georgia grown peppers 

and eggplants. Dow AgroSciences 

commented that there are no soil 

restrictions on the uses of 1,3-D in 

Georgia and asked that that limiting 

critical condition be revised. Dow 

AgroSciences is correct that ‘‘soils not 

supporting seepage irrigation’’ is not a 

limiting critical condition for Georgia 

and the final rule reflects this change. 

EPA intended this limiting critical 

condition to only reflect restrictions due 

to karst topographical features. This 

change does not affect the amount of 

critical use methyl bromide EPA is 

allocating because EPA’s analysis only 

assumed limitations due to karst 

topographical features. 

EPA proposal inadvertently included 

‘‘Local township limits prohibiting 1,3- 

dichloropropene’’ as a limiting critical 

condition for tomato growers in the 

Southeast. There are no such township 

limits in the Southeast. Instead, this 

critical condition should have been 

‘‘Restrictions on alternatives due to 

karst topographical features and, in 

Florida, soils not supporting seepage 

irrigation,’’ as was the language in the 

2008 CUE Rule. The final rule has 

added back the appropriate limiting 

critical condition for those growers in 

the Southeast. 

EPA proposed adding tomatoes grown 

in Maryland as a critical use when 

limited by ‘‘high water tables and 

proximity to environmentally sensitive 

estuaries which limit use of 1,3-D.’’ Dow 

AgroSciences commented that there are 

no restrictions on the uses of 1,3-D 

products in Maryland associated with 

high water tables or environmentally 

sensitive estuaries and asked that that 

Maryland tomatoes thus not be 

approved as a critical use. EPA has 

ascertained that there is no labeling 

restriction concerning high water tables 

or environmentally sensitive estuaries 

for 1,3-D and thus the final rule does not 

include this as a limiting critical 

condition. Moderate to severe fungal 

pathogen infestation still remains a 

limiting critical condition for Maryland 

tomatoes, as authorized by the Parties to 

the Protocol. Therefore, EPA is 

approving Maryland tomatoes as an 

authorized critical use. Removing the 

language concerning high water tables 

and proximity to environmentally 

sensitive estuaries does not affect the 

amount of critical use methyl bromide 

EPA is allocating because EPA’s 

analysis did not include use or acreage 

estimates where this limiting critical 

condition would apply. Therefore, EPA 

is not reducing the estimated amount of 

demand or the amount of new 

production based on this change. 

EPA also proposed adding ‘‘export to 

countries which do not allow the use of 

sulfuryl fluoride’’ as a limiting critical 

condition for commodities. Dow 

AgroSciences commented that import 

Maximum Residue Levels (MRLs) exist 

in countries that import commodities 

treated with sulfuryl fluoride and asked 

that this limiting critical condition be 

removed. EPA disagrees with that this 

limiting critical condition be removed. 

EPA has accounted for the Codex MRLs 

in the 2007 nomination for use in 2009. 

However, many countries that the U.S. 

exports to set their own MRLs and many 

have not yet done so for sulfuryl 

fluoride. Therefore EPA is retaining the 

limiting critical condition for the use of 

methyl bromide in the commodities 

sector. 

Dow AgroSciences also had other 

comments on limiting critical 

conditions that have existed in prior 

CUE Rules. EPA has addressed those 

comments in the Response to Comments 

document contained in the docket for 

this rule. 

EPA is finalizing most of the proposed 

changes to the table in Appendix L, 

with the exception of the three issues 

discussed above. The remaining changes 

reflect the recommendations made by 

MBTOC and the critical uses authorized 

by the Parties to the Protocol. 

Specifically, the changes between this 

year’s critical uses and those in 2008 

are: adding cucurbits grown in 

Maryland and Delaware as a critical use 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 19885 

under the limiting critical conditions 

listed in the table; moving herbaceous 

perennials grown in Michigan from 

forest nursery seedlings to ornamentals; 

adding ‘‘restrictions on alternatives due 

to karst topographical features’’ as a 

limiting critical condition for Georgia 

grown peppers; adding tomatoes grown 

in Maryland as a critical use under the 

limiting critical conditions of ‘‘moderate 

to severe fungal pathogen infestation’’; 

adding ‘‘export to countries which do 

not allow the use of sulfuryl fluoride’’ 

as a limiting critical condition for 

commodities; and revising the 

description of NPMA to remove cocoa 

beans as was done in the CUN, but in 

a manner consistent with the CUN. 

In addition, EPA is making the 

following editorial changes to Table I to 

remove redundancy and ensure that the 

limiting critical conditions are 

described uniformly throughout. First, 

EPA has consolidated, into the same 

row, all critical users with the same 

limiting critical condition within a 

critical use. Second, EPA moved 

clarifying information from the table to 

the preamble to improve readability. 

Thus, EPA clarifies here that the ‘‘local 

township limits prohibiting 1,3- 

dichloropropene’’ are prohibitions on 

the use of 1,3-dichloropropene products 

because 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. EPA does not intend 

for these edits to change the effect of 

any of the limiting critical conditions, 

the approved critical user, location of 

use, or any other aspect of the table. 

Since the critical use exemption was 

first established, many critical users 

have transitioned to alternatives and a 

variety of sectors that were once critical 

uses no longer are. These uses include 

ginger, golf courses and turf production, 

tobacco, cocoa beans, and pistachios. 

The categories listed in Table I were 

designated as critical uses for 2009 in 

Decision XIX/9 of the Parties. The 

amount of methyl bromide approved for 

research purposes is included in the 

amount of methyl bromide approved by 

the Parties for the commodities for 

which ‘‘research purposes’’ is indicated 

as a limiting critical condition in Table 

I. As explained in Section V.D.5., EPA 

is issuing CSAs to allow the sale of 

22,171 kg of methyl bromide from 

existing stocks for research purposes, 

and adjusting new production 

accordingly. 

In accordance with the 

recommendations in Tables 4 and 8 of 

the TEAP’s August 2007 Final Report 

titled ‘‘Evaluations of 2007 Critical Use 

Nominations for Methyl Bromide and 

Related Matters,’’ available on the 

docket for this rulemaking, EPA is 

allowing the following to use critical 

use methyl bromide for research 

purposes: commodities, cucurbits, 

eggplant (field), nursery stock (fruit, nut, 

flower), orchard replant, ornamentals, 

peppers (field), strawberry (field), 

strawberry runners, sweet potato slips, 

and tomatoes (field). As discussed 

below, EPA allows the use of newlyproduced methyl bromide for research 

purposes but encourages researchers to 

use pre-phaseout inventory by reducing 

the amount of new production by the 

amount the Parties authorize for 

research. In their applications to EPA, 

these sectors identified research 

programs that require the use of methyl 

bromide. 

D. Critical Use Amounts 

Section V.C. of this preamble explains 

that Table C of the annex to Decision 

XIX/9 lists critical uses and amounts 

agreed to by the Parties to the Montreal 

Protocol. When added together, the 

authorized critical use amounts for 2009 

total 4,261,974 kilograms (kg), which is 

equivalent to 16.7% of the U.S. 1991 

methyl bromide consumption baseline 

of 25,528,270 kg as defined at 40 CFR 

82.3. However, the maximum amount of 

authorized new production or import as 

set forth in Table D of the annex to 

Decision XIX/9 is 3,961,974 kg (15.5% 

of baseline), ‘‘minus available stocks.’’ 

EPA’s allocation of critical use 

allowances and critical stock allowances 

for 2009 applies the existing regulatory 

framework to the amounts authorized by 

the Parties to reflect the following 

factors: 

(a) The amount of available stocks; 

(b) The amount of unused critical use 

methyl bromide at the end of 2007 (the 

carryover amount); and 

(c) The amount of methyl bromide 

authorized for research purposes. 

Using the existing framework, EPA 

also proposed a reduction to 

accommodate a certain amount of 

transition to the recently registered 

fumigant iodomethane for some preplant uses. Given recent information 

concerning the reduced production of 

another alternative, Telone, EPA is not 

making a reduction for the uptake of 

alternatives in this final rule. 

Commenters’ concerns about each of 

these reductions are described in the 

sections below. 

EPA proposed to issue 1,617,921 kg 

(6.3% of baseline) of critical use 

allowances (CUAs) and 2,576,987 kg 

(10.1% of baseline) of critical stock 

allowances (CSAs). Generally, 

commenters were opposed to the 

proposed level of new production, 

stating it would be insufficient to meet 

the needs of critical users and would 

result in shortages in some areas. Based 

on comments received on the proposed 

rule, as well as additional data, EPA is 

issuing 2,275,715 kg (8.9% of baseline) 

of critical use allowances, which allow 

limited amounts of new production and 

import of methyl bromide for 2009 

critical uses up to the amount of 

2,275,715 kg as shown in Table III. EPA 

is also issuing 1,919,193 kg (7.5% of 

baseline) of critical stock allowances, 

which allow sales of 1,919,193 kg from 

existing pre-phaseout inventories for 

critical uses in 2009. The sub-sections 

below explain EPA’s reasons for issuing 

these critical use amounts for 2009. 

1. Background of Critical Use Amounts 

The December 23, 2004, Framework 

Rule and subsequent CUE rules each 

took note of language regarding stocks of 

methyl bromide in relevant decisions of 

the Parties. In developing this action, 

the Agency noted that paragraph seven 

of Decision XIX/9 contains the 

following language: ‘‘that each Party 

which has an agreed critical use renews 

its commitment to ensure that the 

criteria in paragraph 1 of decision IX/6 

are applied when licensing, permitting 

or authorizing critical use of methyl 

bromide and, in particular, the criterion 

laid down in paragraph 1(b)(ii) of 

decision IX/6.’’ Language calling on 

Parties to address pre-phaseout 

inventory also appears in prior 

Decisions related to the critical use 

exemption. 

In the Framework Rule, which 

established the architecture of the CUE 

program and set out the exempted levels 

of critical use for 2005, EPA interpreted 

paragraph 5 of Decision Ex. I/3, which 

is similar to Decision XIX/9(7), ‘‘as 

meaning that the U.S. should not 

authorize critical use exemptions 

without including provisions addressing 

drawdown from stocks for critical uses’’ 

(69 FR 76987). Consistent with that 

interpretation, the Framework Rule 

established provisions governing the 

sale of pre-phaseout inventories for 

critical uses, including the concept of 

CSAs and a prohibition on the sale of 

pre-phaseout inventories for critical 

uses in excess of the amount of CSAs 

held by the seller. In addition, EPA 

noted that pre-phaseout inventories 

were further taken into account through 

the trading provisions that allow CUAs 

19886 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 

to be converted into CSAs. In 

developing this final rule, EPA did not 

propose changes to these basic CSA 

provisions. 

Paragraph 5 of Decision XIX/9 further 

addresses pre-phaseout inventory of 

methyl bromide. The Decision states 

‘‘that a Party with a critical use 

exemption level in excess of permitted 

levels of production and consumption 

for critical uses is to make up any such 

differences between those levels by 

using quantities of methyl bromide from 

stocks that the Party has recognized to 

be available.’’ In the August 25, 2004, 

proposed Framework Rule (69 FR 

52366), EPA proposed to adjust the 

authorized level of new production and 

consumption for critical uses by the 

amount of ‘‘available stocks.’’ The 

methodology for determining the 

amount of available stocks considered 

exports, methyl bromide for feedstock 

uses, and the need for a buffer in case 

of catastrophic events. However, the 

final Framework Rule did not adopt the 

proposed methodology for determining 

available stocks. Instead, for the 2005 

control period EPA issued CSAs in an 

amount equal to the difference between 

the total authorized CUE amount and 

the amount of new production or import 

authorized by the Parties (Total 

Authorized CUE Amount—Authorized 

New Production and Import). 

EPA issued CSAs for the 2006, 2007, 

and 2008 control periods that 

represented not only the difference 

between the total authorized CUE 

amount and the amount of authorized 

new production and import but also an 

additional amount. In the 2006 CUE 

Rule, EPA issued a total of 1,136,008 

CSAs, equivalent to 4.4% of baseline. 

For that control period, the difference in 

the Parties’ decision between the total 

CUE amount and the amount of new 

production and import was 3.6% of 

baseline. In the 2007 rule, EPA added to 

the minimum amount (6.3% of baseline) 

an additional amount (1.2% of baseline) 

for a total of 1,914,600 CSAs (7.5% of 

baseline). In the 2008 rule, EPA added 

to the minimum amount (3.0% of 

baseline) an additional amount (3.8% of 

baseline) for a total of 1,729,689 CSAs 

(6.8% of baseline). EPA reduced the 

portion of CUE methyl bromide to come 

from new production and import in 

each of the 2006–2008 control periods 

accordingly in order to ensure that the 

total critical use allocation did not 

exceed the total amount authorized by 

the Parties for that year. 

As established in these earlier 

rulemakings, EPA views the allocation 

of additional CSA amounts as an 

appropriate exercise of its discretion. 

The Agency is not required to allocate 

the full amount of authorized new 

production and consumption. The 

Parties agreed to ‘‘permit’’ a particular 

level of production and consumption; 

they did not—and could not—mandate 

that the U.S. authorize this level of 

production and consumption 

domestically. Nor does the CAA require 

EPA to exempt the full amount 

permitted by the Parties. Section 

604(d)(6) of the Clean Air Act (CAA) 

does not require EPA to exempt any 

amount of production and consumption 

for critical uses, but instead specifies 

that the Agency ‘‘may’’ exempt amounts 

for production, import, and 

consumption, thus providing EPA with 

substantial discretion in creating critical 

use exemptions. 

The Methyl Bromide Industry Panel 

commented that EPA abused its 

discretion by proposing to allocate a 

much greater number of CSAs than 

required by the Parties to the Protocol. 

EPA believes that it has the discretion 

to allocate beyond the minimum stock 

drawdown set forth in the Parties’ 

decision, as described above. EPA’s 

basis for setting the specific CSA 

amount is detailed in the remainder of 

this notice. 

Prior to determining the CSA amount 

for a particular year, EPA considers 

what portion of ‘‘existing’’ stocks is 

‘‘available’’ for critical uses. As 

discussed in the 2008 rulemaking, the 

Parties to the Protocol recognized in 

their Decisions that the level of existing 

stocks may differ from the level of 

available stocks. For example, Decision 

IX/6 states that ‘‘production and 

consumption, if any, of methyl bromide 

for critical uses should be permitted 

only if * * * methyl bromide is not 

available in sufficient quantity and 

quality from existing stocks.’’ In 

addition, Decision XIX/9, as well as 

earlier decisions, refers to use of 

‘‘quantities of methyl bromide from 

stocks that the Party has recognized to 

be available.’’ Thus, it is clear that 

individual Parties have the ability to 

determine their level of available stocks. 

Decision XIX/9 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 Clean Air Act 

does not require that EPA 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. 

In this action, EPA did not propose to 

change its practice of adjusting the level 

of new production and import 

authorized by the Parties to reflect the 

availability of stocks. 

EPA introduced in the 2008 CUE rule 

a refined approach for determining the 

amount of existing methyl bromide 

stocks that is available for critical uses 

(72 FR 74118). That approach involves 

the concept of a ‘‘Supply Chain Factor’’ 

(SCF). The SCF represents EPA’s 

technical estimate of the amount of 

methyl bromide inventory that would be 

adequate to meet a need for critical use 

methyl bromide after an unforeseen 

domestic production failure. The SCF is 

used in the formula finalized in the 

2008 CUE rule for calculating the 

available stocks. That formula is 

expressed as AS = ES¥D¥SCF, where 

AS = available stocks; ES = existing prephaseout stocks of methyl bromide held 

in the United States by producers, 

importers, and distributors; and D = 

estimated drawdown of existing stocks. 

In the 2008 CUE rule, EPA stated that 

it would use this refined approach in 

2008 and each year thereafter as 

appropriate and feasible (72 FR 14134). 

EPA is not changing the SCF concept or 

the formula finalized in the 2008 CUE 

rule for calculating the available stocks, 

with the exception that for 2009 EPA 

will not estimate the drawdown of 

existing stocks during 2008 but rather, 

as was encouraged by commenters, use 

the actual drawdown based on end-ofyear reported data. The SCF approach 

continues to be appropriate and feasible, 

as it is the most reasonable, efficient, 

and transparent way for the Agency to 

continue to facilitate responsible 

management of the pre-phaseout 

inventory. 

2. Calculation of Available Pre-Phaseout 

Inventory 

In this action, EPA is adjusting the 

authorized level of new production and 

consumption for critical uses to account 

for the amount of existing pre-phaseout 

inventory that is ‘‘available’’ for critical 

uses. EPA is calculating the amount of 

existing stocks that is available for 

critical uses in 2009 based on the SCF 

and formula introduced in the 2008 

CUE final rule (72 FR 74118). EPA is 

allowing sales of the amount of existing 

pre-phaseout inventory that the Agency 

has determined to be available for 

critical uses by issuing an equivalent 

number of CSAs on a one-CSA-per-onekilogram-of-methyl-bromide basis. 

As described in the 2008 CUE Rule, 

EPA calculates the amount of available 

stocks as follows: AS2009 = 

ES2008¥D2008¥SCF2009, where AS2009 is 

the available stocks on January 1, 2009; 

ES2008 is the existing pre-phaseout 

stocks of methyl bromide held in the 

United States by producers, importers, 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 19887 

and distributors on January 1, 2008; 

D2008 is the estimated drawdown of 

existing stocks during calendar year 

2008; and SCF2009 is the supply chain 

factor for 2009. 

EPA received comment from MBIP 

that the Agency has not adequately 

explained why using a formulaic 

approach is preferable to utilizing an 

amount of stocks that is more consistent 

with past control periods. In response, 

EPA notes that the formula for 

calculating available stocks is not a new 

approach: It was finalized in the 2008 

CUE Rule. Information on the 

development of that formula can be 

found in the proposed and final 2008 

CUE Rules, as well as in the Technical 

Support Document for the 2008 control 

period, which is included in the docket 

for today’s action. In addition, the CSA 

amount allocated in today’s final rule is 

within the same range as past 

allocations. In previous control periods, 

EPA has authorized CSAs ranging from 

4.4% to 7.5% of baseline. As discussed 

below, EPA is finalizing a CSA amount 

of 7.5% of baseline. 

As established in the 2008 CUE Rule, 

‘‘ES2008’’ refers to pre-phaseout 

inventory—i.e., existing stocks of 

methyl bromide that was produced 

before January 1, 2005, and that is still 

held by domestic producers, 

distributors, and third-party applicators. 

January 1, 2005, was the phaseout date 

for production and import of methyl 

bromide in the United States. ES2008

does not include critical use methyl 

bromide that was produced after 

January 1, 2005, and carried over into 

subsequent years. EPA addresses the 

carryover amount in section V.D.4 of 

this preamble. ‘‘ES2008’’ also does not 

include methyl bromide produced (1) 

under the quarantine and preshipment 

(QPS) exemption, (2) with Article 5 

allowances to meet the basic domestic 

needs of Article 5 countries, or (3) for 

feedstock or transformation purposes. 

Methyl bromide produced for QPS uses 

or for export to Article 5 countries may 

not be sold to domestic entities for 

critical uses and, therefore, is separate 

from the CUE program. Thus, such 

amounts have been removed from the 

calculation of the amount of ‘‘available 

stocks’’ for critical uses. 

In the proposed rule, EPA stated that 

unless the Agency received evidence to 

the contrary, it would assume that all 

pre-phaseout inventory is suitable for 

both pre-plant and post-harvest uses. 

EPA is making this assumption because 

the Agency has received no data that 

show that pre-phaseout inventory is 

mixed with chloropicrin and is 

unsuitable for post-harvest uses. One 

commenter requested that EPA require 

inventory holders to report information 

regarding the purity of their stocks. EPA 

does not believe that such a step is 

necessary. EPA has not received any 

data through comments or other means 

indicating that some pre-phaseout 

inventory is unsuitable for particular 

critical uses due to its formulation. 

Therefore, this final rule assumes that 

all pre-phaseout inventory is suitable for 

all uses. 

The Agency also sought comment on 

its presumption that geographic location 

is not a factor in the availability of prephaseout inventory. EPA based this 

conclusion on the geographic 

distribution of the companies that are 

granted CSAs (See Table IV) as well as 

end of year reporting data submitted by 

CSA holders regarding the size of their 

inventory. EPA continues to believe that 

geography is not a factor in inventory 

methyl bromide. However, commenters 

did cite regional shortages of 

inventoried methyl bromide and 

questioned the actual availability of prephaseout inventory. First, commenters 

said that pre-phaseout inventory is held 

by only a small number of distributors. 

EPA’s end-of-year reporting data 

support this comment and this has been 

the case since methyl bromide was 

phased out in 2005. These distributors, 

however, serve the major markets for 

methyl bromide. Thus, even though 

there may be a small number of 

distributors, this does not necessarily 

limit the ability to supply customers in 

different regions. 

Second, EPA has received comment 

that these distributors will likely 

continue to supply their existing client 

base, which consist mainly of non-CUE 

users. These commenters also state that 

EPA has no authority to require 

distributors to sell their material to 

critical users. As a result, the 

commenters state that critical users who 

are unable to purchase newly produced 

material will not have access to any 

methyl bromide and that the Agency 

should assume all inventoried material 

to be unavailable and increase the 

amount of new production to the level 

authorized by the Parties. 

EPA disagrees that it should allocate 

increased production of new methyl 

bromide in response to distributors’ 

decisions not to sell their pre-phaseout 

inventory to critical users. Issues 

concerning supply of pre-phaseout 

inventory are addressed in the Response 

to Comment Document for the 2008 

CUE Rule. Briefly, EPA regards this 

material as ‘‘available’’ because it is 

owned by someone other than the end 

user. While a distributor might prefer to 

sell methyl bromide to non-critical users 

to satisfy prior contracts or internal 

business decisions, this is not the result 

of any EPA regulatory constraint. EPA 

does not currently require the sale of 

inventory to critical users. However, 

beginning in 2010, distributors will be 

unable to sell to non-critical users due 

to labeling changes to methyl bromide. 

Under the Reregistration Eligibility 

Determination (RED) for methyl 

bromide soil fumigation uses issued in 

July 2008, uses already considered 

critical by the Parties have been 

considered eligible for reregistration, 

along with QPS uses. More information 

is available in the methyl bromide RED, 

available on the Web at: http:// 

www.epa.gov/oppsrrd1/REDs/ 

methylbromide-red.pdf. 

a. Estimated Drawdown 

In the 2008 CUE rule, EPA estimated 

the drawdown of existing stocks (D2008) 

by using a simple linear fit estimation 

of inventory data from all available 

years. For the 2009 CUE rule, EPA 

proposed to estimate drawdown using 

an exponential projection. Using that 

method, EPA projected that the prephaseout methyl bromide inventory, 

which was 6,457,806 kg on January 1, 

2008, would be drawn down by 

1,528,806 kg during 2008 resulting in a 

pre-phaseout inventory of 4,929,000 kg 

on January 1, 2009. Under the 

exponential model, 2,576,987 kg (10.1% 

of baseline) of existing pre-phaseout 

stocks of methyl bromide would have 

been deemed ‘‘available’’ for critical 

uses on January 1, 2009. EPA also 

provided the results of the linear model 

for comment. Under the linear model, 

EPA estimated a much greater 

drawdown leading to a lower amount of 

available stocks, 777 MT (3% of 

baseline), in 2009. EPA invited 

comment on those two different 

analyses or any alternative method of 

estimating drawdown. Comments were 

unanimous that EPA should use actual 

end-of-year data on inventory levels 

instead of a statistical estimate of 

drawdown. EPA agrees that it would be 

less accurate to use an estimate when 

the Agency has actual reported data at 

the time it is preparing the final rule. 

Therefore, for 2009, EPA is using actual 

end-of-year data submitted to the 

Agency under the reporting 

requirements of 40 CFR 82.13. EPA 

responds to additional comments about 

various statistical methods in the 

response to comments document. EPA 

is not deciding in this action how to 

calculate the drawdown for future years. 

Such calculations may use an estimate 

or actual reported data depending on 

the timing of those future rules. 

The Methyl Bromide Industry Panel, 

in its comment to the Agency, provided 

19888 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 

EPA with preliminary data regarding the 

size of the pre-phaseout inventory. 

MBIP collected this data through an 

outside accounting firm who contacted 

most of the CSA holders in midDecember. The data showed that in midDecember, the inventory was 4,252,931 

kilograms. EPA welcomed this initial 

estimate because it provided crucial 

early information in formulating a final 

rule before the end of year data was 

reported February 15. The Agency may 

find such information to be useful in 

drafting future CUE allocation rules as 

well. In this final rule, EPA is using the 

actual end-of-year data as it is more 

complete than the information MBIP 

submitted. 

The reported inventory on December 

31, 2008, was 4,271,226 kg. This is less 

than the 4,929,000 kilograms that EPA 

estimated under the exponential model 

(although more than the 3,129,000 kg 

estimated by the linear model). This 

means that the drawdown for 2008 was 

2,186,600 kg. The effect of this value on 

the levels for new production and CSAs 

is discussed in more detail below. 

EPA also asked for comment on its 

discussion of the market conditions that 

could be affecting the decline in 

inventory use, including whether 

inventory during 2008 is being depleted 

at rates similar to 2007 or whether it is 

being depleted faster than that. For 

2008, the drawdown did not appear to 

have adhered precisely to either an 

exponential or linear curve. EPA still 

believes that the market conditions in 

2008 are substantively different from 

those in 2004, as described in the 

proposed rule. First, the Critical Use 

Exemption process did not exist in 

2004, as that was the last year of the 

methyl bromide phaseout. EPA believes 

that the economics and use patterns 

since the 2005 phaseout differ from 

those pre-phaseout. Second, at the 

beginning of 2004, the inventory was 

16,422,000 kg MT, a substantially higher 

amount than an inventory of 4,271,226 

kg at the end of 2008. Third, the price 

of methyl bromide has increased 

roughly 30–50% since 2004. Therefore, 

today growers face stronger economic 

incentive to use alternatives and reduce 

application rates than they did in 2004. 

Fourth, more alternatives are available, 

including sulfuryl fluoride and 

iodomethane, reducing the total demand 

for methyl bromide. However, the 

comments suggest that the rate of 

drawdown at this point is based mostly 

on the business decisions of the 

companies that hold pre-phaseout 

inventory. In the proposed rule, EPA 

stated that less of the inventory was 

used for non-critical uses in 2007 than 

2006. In 2006, 1,519 MT of pre-phaseout 

inventory was for non-critical uses, 

whereas in 2007, this dropped to 291 

MT. This pattern does not appear to 

continue through 2008. Preliminary 

review of the data submitted for 2008 

show an increase in sales of inventory 

for non-critical uses. The exact amounts 

will be contained in the 2008 

Accounting Framework submitted to 

UNEP in late spring 2009. 

The goal of EPA’s methodology for the 

CSA allocation is to allocate CSAs equal 

to ‘‘available stocks’’ such that the 

private sector has the flexibility to retain 

in inventory the amount needed in case 

of a catastrophic supply chain failure 

(the Supply Chain Factor). As the 

Agency stated in the 2008 CUE Rule and 

in Section V.D.3 below, once the 

inventory declines below the SCF level, 

the Agency will not require any 

additional drawdown of stocks beyond 

what is required in the authorization by 

the Parties to the Protocol for that 

control period. 

b. Supply Chain Factor 

The supply chain factor (SCF) 

represents EPA’s technical estimate of 

the amount of pre-phaseout inventory 

that would be adequate to meet a need 

for critical use methyl bromide after an 

unforeseen domestic production failure. 

As described in the 2008 CUE rule, EPA 

estimated that in the event of a major 

supply disruption, it would take 15 

weeks for significant imports of methyl 

bromide to reach the U.S. Using 

updated numbers on average production 

during each quarter of the year, EPA 

estimated in the proposed 2009 CUE 

rule that critical use production in the 

first 15 weeks of each year (the peak 

supply period) accounts for 55% of 

annual critical use methyl bromide 

production. In the proposed rule, EPA 

estimated that the peak 15-week 

shortfall in 2009 could be 2,352,013 kg 

(55.186% × 4,261,974 kg). EPA received 

two comments regarding the SCF. The 

MBIP generally supported the inclusion 

of the SCF but commented that it should 

be equivalent to one year’s supply of 

material rather than 55%, which they 

asserted would not be sufficient to meet 

the needs of critical users were a 

catastrophic disruption to occur. EPA 

disagrees with this comment, as it 

relates to decisions made in the 2008 

CUE Rule rather than any new decisions 

made for 2009. MBIP made the same 

comment in the 2008 proposed rule and 

EPA responded to their comments in the 

2008 Response to Comments document 

contained in the docket to this rule. As 

EPA states in that document, the SCF is 

based on conservative assumptions 

about the effect of a disruption. 

MBIP also commented that the rate of 

inventory drawdown that would result 

from the new production levels in the 

proposed rule would lead to too little 

stockpiled methyl bromide for a Supply 

Chain Factor in 2010 and beyond. EPA 

disagrees that this will occur. First, as 

discussed elsewhere, this final rule 

allocates more for new production and 

authorizes less to be taken from stocks 

than the proposed rule. Second, EPA 

has calculated a preliminary estimate of 

the SCF for 2010 based on the amounts 

authorized by the Parties, and believes 

that there will be sufficient inventory to 

meet the SCF. 

Ultimately, MBIP’s comment appears 

to be based on the assumption that the 

Agency seeks through this rule to 

deplete the inventory to zero. EPA 

reiterates that the Agency’s purpose in 

utilizing the SCF is to give the private 

sector the flexibility to retain in 

inventory the amount needed in case of 

a catastrophic supply chain failure. EPA 

does believe that the amount of 

drawdown should exceed the minimum 

amount required by the Parties to the 

Protocol as long as the inventory 

remains above the SCF level. While 

MBIP’s comment suggested that EPA 

simply maintain the same level of CSAs 

as was finalized last year, the Agency 

believes that using the available stocks 

formula adopted in the 2008 CUE Rule 

provides a more rigorous approach. 

While MBIP states that under the 

proposed rule, the level of existing 

stocks would be ‘‘dangerously close to 

EPA’s 55% SCF target,’’ EPA believes 

that this is appropriate, as it is the 

Agency’s goal to draw down inventory 

levels to the SCF target. 

EPA also received comments from 

Dow AgroSciences, which argued that 

the SCF is unnecessarily conservative, 

given the remoteness of an event such 

as an unforeseen domestic production 

failure occurring. As EPA stated in the 

2008 CUE Rule, the Agency did not 

conduct a statistical or probability 

analysis of the likelihood of this 

scenario. EPA recognizes that a 

catastrophic loss is unlikely, but this 

does not obviate the need to plan for 

such a scenario. Methyl bromide, unlike 

most commercial chemicals, is 

produced at only one facility. Therefore, 

a scenario in which this facility 

completely ceases production is of 

special concern. While EPA expects 

private entities to take prudent steps to 

protect themselves, EPA does not wish 

to render them incapable of maintaining 

a reasonable supply buffer. 

EPA explained in the 2008 CUE rule 

that the SCF is affected by the uptake of 

alternatives, because the SCF is based 

on the peak demand and the uptake of 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 19889 

alternatives affects the peak demand for 

methyl bromide. The proposed rule did 

not adjust for the uptake of iodomethane 

because the analysis had not yet been 

completed. Since then, EPA has 

developed projections for uptake of 

iodomethane in 2009. Nevertheless, the 

allocation in the final rule does not 

explicitly reflect uptake of iodomethane 

because, due to the Telone shortage 

discussed below, the Agency is not 

making any reductions to account for 

the uptake of alternatives. Therefore, 

EPA will finalize the proposed value of 

2,352,013 kg for the SCF. Consistent 

with the 2008 CUE rule, this is a 

conservative estimate of the amount of 

methyl bromide needed to cover a 

supply disruption during the estimated 

peak 15-week period of critical use 

supply. 

As stated in the 2008 CUE Rule, EPA 

reiterates that the SCF is not a ‘‘reserve’’ 

or ‘‘strategic inventory’’ of methyl 

bromide. Rather, it is merely an 

analytical tool used to provide greater 

transparency regarding how the Agency 

determines CSA amounts, in cases 

where CSA amounts are greater than the 

amounts stipulated by the Parties. For 

further general discussion of the SCF, 

see the final 2008 CUE rule (72 FR 

74118). Further detail about the analysis 

used to derive the value for the 2009 

SCF is provided in the Technical 

Support Document available on the 

public docket for this rulemaking. 

3. Approach for Determining Critical 

Use Amounts 

In the proposed rule, EPA applied the 

SCF to estimate that 2,576,987 of prephaseout inventory would be ‘‘available 

stocks’’. Following its CSA allocation 

framework, EPA proposed to allow the 

sale of 2,576,987 kg from existing stocks 

for critical uses in 2008 by allocating an 

equivalent number of CSAs. As in past 

years, EPA proposed to adjust the 

critical use allowance (CUA) amounts 

accordingly, so that the total number of 

CUAs and CSAs is not greater than the 

total critical use amount authorized by 

the Parties. The proposed rule noted 

that under EPA’s framework, the 

Agency may allocate a total number of 

CUAs and CSAs that is less than the 

total critical use amount authorized by 

the Parties for 2009 to account for 

carryover amounts of methyl bromide, 

amounts for research purposes or other 

appropriate reasons, including updated 

information on alternatives. 

EPA received one comment that the 

total number of CUAs and CSAs should 

not be less than the amount authorized 

by the Parties to the Protocol because 

the full amount is needed for critical 

uses. In making reductions for research 

purposes and to account for carryover 

material, EPA is following its existing 

framework. The reductions for these 

purposes are both necessary and 

appropriate, as discussed below. 

Furthermore, these reductions are 

minor. While the Parties approved 

4,261,974 kg (or 16.7% of baseline) for 

use in 2009, this final rule allocates 

4,194,908 kg (or 16.4% of baseline). EPA 

believes that this total CUE amount in 

the final rule meets the needs of critical 

users while still responding to decisions 

taken by the Parties regarding carryover 

and research amounts. 

More commenters were concerned 

about the level of CSAs than the total 

amounts of CUAs and CSAs being 

allocated. Commenters stated that the 

ratio of CUAs to CSAs was 

inappropriate and would also not allow 

for production or import of enough new 

material to meet the needs of critical 

users. As discussed elsewhere in this 

preamble, EPA is finalizing CUAs and 

CSAs based on new inventory data 

which will allow for greater levels of 

new production. The CUAs and CSAs in 

this final rule were calculated using the 

approach adopted in the 2008 CUE 

Rule, but have changed from the 

proposal because of new data showing 

the actual inventory levels at the end of 

2008. Some commenters may still 

contend that inventory is declining too 

rapidly and that new production should 

thus be increased. As stated elsewhere 

in this preamble, EPA believes that it 

has appropriately applied its discretion 

regarding the rate of drawdown of prephaseout inventory. Consistent with the 

2008 CUE Rule, the allocations for 2009 

continue to allow private entities to 

maintain an amount equal to the 

‘‘supply chain factor’’—i.e., an amount 

that would allow continued availability 

of pre-phaseout inventory in the event 

of a catastrophic disruption to supply. 

As discussed above, this approach is 

consistent with the relevant Decisions of 

the Parties, especially Table D of the 

Annex to Decision XIX/9, which for 

2009 explicitly authorizes for the United 

States a certain amount of new 

production and import ‘‘minus available 

stocks.’’ After considering all of the 

comments received, EPA believes that 

this is the most reasonable, efficient, 

and transparent way for the Agency to 

continue to facilitate responsible 

management of pre-phaseout inventory. 

EPA calculates that, as of January 1, 

2009, 1,919,193 kg of pre-phaseout 

inventory meets the definition of 

‘‘available stocks’’ as calculated using 

the approach described in Section 

V.D.2. of this preamble. Therefore, with 

this action the Agency is allowing 

1,919,193 kg of methyl bromide to be 

supplied from pre-phaseout inventory 

for critical uses in 2009 by issuing an 

equivalent number of CSAs, and 

adjusting the amount of CUAs 

accordingly. EPA also calculates that 

there will be sufficient pre-phaseout 

inventory at the beginning of the 2010 

control period to satisfy the amount of 

2010 inventory drawdown (470,000 kg) 

for critical uses identified by the Parties 

in Decision XX/5. 

To summarize, the critical use 

amounts authorized by the Parties in 

Decision XIX/9 for 2009 total 4,261,974 

kg. The maximum amount of authorized 

new production or import as set forth in 

Table D of the Annex to Decision XIX/ 

9 is 3,961,974 kg, ‘‘minus available 

stocks.’’ Applying the ‘‘available stocks’’ 

approach finalized in the 2008 CUE 

Rule, EPA is expecting 1,919,193 kg of 

2009 critical use needs to be met from 

pre-phaseout inventory and thus is 

issuing CSAs in that amount. As in past 

years, EPA is adjusting the amount of 

CUAs accordingly, so that the sum of 

CUAs and CSAs is not greater than the 

total amount authorized by the Parties. 

After accounting for the additional 

reductions for unsold critical use 

methyl bromide at the end of 2007 and 

reductions to encourage research 

amounts to be supplied from prephaseout inventory, EPA is allowing 

2,275,715 kg of new production and 

import for critical uses in 2009. 

4. Treatment of Carryover Material 

As described in the December 23, 

2004, Framework Rule (69 FR 76997), 

EPA is not permitting entities to build 

stocks of methyl bromide produced or 

imported after January 1, 2005, under 

the critical use exemption. Under the 

current regulations, quantities of methyl 

bromide produced, imported, exported, 

or sold to end-users under the critical 

use exemption in a calendar year must 

be reported to EPA the following year. 

These reporting requirements appear at 

40 CFR 82.13(f)(3), 82.13(g)(4), 

82.13(h)(1), 82.13(bb)(2), and 

82.13(cc)(2). EPA uses the reported 

information to calculate the amount of 

critical use methyl bromide that has 

been produced or imported in that 

control period but not exported or sold 

to end-users in that year. An amount 

equivalent to this ‘‘carryover,’’ whether 

pre-plant or post-harvest, is then 

deducted from the total level of 

allowable new production and import in 

the year following the year of the data 

report. For example, EPA deducted the 

amount of carryover from 2006 

(reported in 2007) from the allowable 

amount of production or import for 

critical uses in 2008. As discussed in 

19890 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 

Section V.D.2., carryover material is not 

included in EPA’s definition of existing 

stocks (ES) as it applies to the formula 

for determining the amount of available 

stocks (AS). EPA is not including 

carryover amounts as part of ES, 

because doing so could lead to a doublecounting of carryover amounts, with 

proportionate effects on the calculation 

of critical use allowances (CUAs). 

EPA stated in the proposed rule that 

it calculates the amount of carryover 

CUE material each year based on data 

reported to EPA by distributors and 

applicators regarding sales to end-users. 

In 2008, 57 entities reported information 

to EPA under the reporting 

requirements at 40 CFR 82.13 about 

critical use methyl bromide production, 

imports, exports, sales, and/or inventory 

holdings in 2007. In 2007, 4,314,150 kg 

of critical use methyl bromide was 

acquired through production or import. 

The information reported to EPA 

indicates that 4,269,255 kg of critical 

use methyl bromide was exported or 

sold to end-users in 2007. The carryover 

amount at the end of 2007 was thus 

44,895 kg, which is the difference 

between the reported amount of critical 

use methyl bromide acquired in 2007 

and the reported amount of exports or 

sales of that material to end users in 

2007 (4,314,150 kg¥4,269,255 kg = 

44,895 kg). EPA’s calculation of the 

amount of carryover at the end of 2007 

is consistent with the method used in 

the final 2008 CUE Rule, and with the 

method agreed to by the Parties in 

Decision XVI/6, which established the 

Accounting Framework for critical use 

methyl bromide, for calculating column 

L of the U.S. the Accounting 

Framework. The 2007 U.S. Accounting 

Framework is available in the public 

docket for this rulemaking. 

As a result of stakeholder concerns 

regarding the completeness of reporting 

and in response to public comment, 

EPA stated in the 2008 CUE Rule that 

it would collect the names of all 

distributors and third-party applicators 

with critical use exemption reporting 

requirements under 40 CFR 82.13 using 

its information gathering authority 

under section 114 of the Clean Air Act. 

On January 31, 2008, EPA sent letters to 

all producers, distributors, and thirdparty applicators of critical use methyl 

bromide that it was aware of asking for 

‘‘the name and address of each non-end 

user entity (i.e. distributors of methyl 

bromide and third-party applicators of 

methyl bromide) to which your 

company sold critical use methyl 

bromide during calendar year 2007.’’ As 

a result, EPA received contact 

information for distributors and thirdparty applicators that had never 

reported sales data to EPA as well as 

actual sales reports from some of those 

new entities. On March 11, 2008, the 

Agency sent a follow-up letter to the 

previously unknown entities that had 

not reported sales data for 2007 and 

reminded them of their reporting 

obligations under 40 CFR 82.13. The 

Agency received 18 responses from 

previously unknown entities satisfying 

the required annual reporting 

requirements. 

MBIP suggested that EPA calculate 

the carryover as the sum of all critical 

use methyl bromide that companies 

report as being held in inventory. MBIP 

raised this issue in the 2008 CUE Rule 

and EPA continues to maintain that the 

established methodology is a simple and 

accurate way to calculate the carryover 

amount each year and that adjusting the 

established method could create 

international confusion about U.S. 

reporting. More details of MBIP’s 

proposals to modify how the carryover 

amount is calculated, as well as EPA’s 

response, are found in the 2008 CUE 

Rule Preamble and Response to 

Comments document. 

In previous CUE rules, EPA has used 

the approach described in the 

Framework Rule for implementing 

carryover reductions. Consistent with 

that approach, EPA is reducing the total 

level of new production and import for 

critical uses by 44,895 kg to reflect the 

total level of carryover material in 

existence at the end of 2007. 

5. Amounts for Research Purposes 

There continues to be a need for 

methyl bromide for research purposes. 

A common example is an outdoor field 

experiment that requires methyl 

bromide as a standard control treatment 

with which to compare the trial 

alternatives’ results. EPA notes that the 

use of methyl bromide under the critical 

use exemption for research is distinct 

from the use of methyl bromide under 

the laboratory and analytical use 

exemption. Research uses under the 

critical use exemption refer to field 

trials of alternative fumigants where 

methyl bromide is used as a control. 

Research uses under the laboratory and 

analytical use exemption refer to methyl 

bromide used as a reference or standard; 

in laboratory toxicology studies; to 

compare the efficacy of methyl bromide 

and its alternatives inside a laboratory; 

and as a laboratory agent which is 

destroyed in a chemical reaction in the 

manner of feedstock. Decision XVIII/ 

15(1). The critical use sectors that were 

approved by the Parties to use methyl 

bromide for research purposes in 2009 

are listed in Section V.C. and have 

‘‘research purposes’’ as a limiting 

critical condition in Table I of this 

preamble. While use of methyl bromide 

for the research purposes listed in that 

section is a critical use, EPA has 

consistently encouraged research needs 

be met through the sale of inventory by 

deducting the amount needed for 

research from the overall critical use 

production level and issuing additional 

CSAs in that amount. 

MBIP commented that because the 

inventory is so low, EPA should 

increase the level of new production by 

22,171 kg instead of issuing CSAs for 

that amount. EPA disagrees, and a 

detailed analysis of the amount of 

available stocks, explained further in 

Section V.D.2 of this preamble, finds 

that more than 1,900,000 kg of prephaseout inventory is available for 

critical uses. EPA is therefore allowing 

the sale of 22,171 kg of pre-phaseout 

inventory for research purposes in 2009 

to account for the amount authorized for 

those purposes. EPA is allowing methyl 

bromide sale from stocks for exempted 

research purposes by expending CSAs. 

The Agency continues to encourage 

methyl bromide suppliers to sell 

inventory to researchers and to 

encourage researchers to purchase 

inventory for research purposes. 

6. Methyl Bromide Alternatives 

In this rule, as in previous CUE rules, 

EPA has considered new data regarding 

alternatives that was not available at the 

time the U.S. Government submitted its 

Critical Use Nomination (CUN) to the 

Parties. EPA has used this new 

information in deciding whether to 

adjust the amount of new production. 

For example, in the 2006 CUE Rule (71 

FR 5985), EPA adjusted the allocation 

for new production in order to account 

for the recent registration of sulfuryl 

fluoride. That allocation reflected 

transition rates that were included for 

the first time in the 2007 U.S. Critical 

Use Nomination (CUN). In the 2007 

CUE Rule (72 FR 74139), EPA explained 

that the transition rates had already 

been applied as part of the international 

review process for that year and did not 

apply them as part of the Agency’s 

domestic rulemaking. EPA did, 

however, reduce the total volume of 

critical use methyl bromide in the final 

CUE rule for 2008 by 27,769 kg because 

the transition rates did not account for 

the uptake of iodomethane in various 

pre-plant sectors or sulfuryl fluoride in 

cocoa fumigation. 

For 2009, EPA is taking into 

consideration new information about 

iodomethane and Telone. Absent other 

factors, new data on the uptake of 

iodomethane in 2009 would lead the 

Agency to adjust the CUA allocation to 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 19891 

account for the uptake of this 

alternative. Through the public 

comments, EPA also received 

information regarding a shortage in 

Telone production, the magnitude of 

which is uncertain but expected to be 

significant. EPA therefore believes that 

it would be imprudent to make a 

reduction for iodomethane in the face of 

this substantial but currently 

unquantifiable reduction in Telone. EPA 

also received comments regarding the 

uptake of sulfuryl fluoride. As described 

below, the Agency does not believe that 

this information is new or sufficient to 

adjust new production levels for 2009. 

Therefore, EPA is not making any 

adjustment to the authorized amount of 

new production to account for new data 

regarding alternatives. 

EPA proposed to reduce critical use 

allowances to account for new 

information about the uptake of 

iodomethane. The TEAP report of 

August 2007 included reductions based 

on the transition rates for alternatives 

considered in the 2009 CUN. These 

alternatives included sulfuryl fluoride, 

but not iodomethane, which was not yet 

registered for use. The TEAP’s 

recommendations were then considered 

in the Parties’ 2009 authorization 

amounts, as listed in Decision XIX/9. 

Therefore, with the exception of 

iodomethane, transition rates 

accounting for the uptake of alternatives 

like sulfuryl fluoride have already been 

applied for authorized 2009 critical use 

amounts. Furthermore, the 2010 CUN, 

which is the U.S. Government’s last 

opportunity to adjust the 2009 

authorization, did not conclude that 

transition rates should be increased for 

2009. As the 2010 CUN reflected, the 

United States Government had not 

found new information that supports 

changing the 2009 transition rates 

included in the 2009 CUN and applied 

by MBTOC. 

After considering new information 

about iodomethane, EPA expects that in 

2009 iodomethane will be a technically 

and economically feasible alternative for 

many pre-plant applications. Beginning 

in Fall 2008, iodomethane obtained a 

full pesticide registration for use as a 

soil fumigant by EPA for a limited 

number of crops. Iodomethane also 

received state registrations by all states 

except California, New York, and 

Washington. 

Iodomethane is currently registered 

on food crops (peppers, tomatoes, 

strawberries) and non-food nursery 

crops (ornamentals, forest seedlings, 

and strawberry nurseries). EPA has 

assumed uptake on only the food crops 

at this time. Although it is registered on 

non-food nursery crops, the Agency has 

not assumed any uptake for 2009. This 

is in keeping with the Agency’s policy 

of being protective of nursery crops 

until there is certainty that use of the 

newly registered alternative is 

efficacious on nematodes, diseases, and 

fungi and can meet any certification 

requirement. There are two major CUE 

food crops that do not have an 

iodomethane registration: Curcurbits 

and eggplants. EPA did not estimate any 

uptake on those crops. For the crops and 

states where iodomethane is registered, 

EPA has estimated that an additional 15 

percent of the critical use methyl 

bromide authorized by the Parties for 

2009 can transition to iodomethane use. 

The Agency’s analysis, described in a 

memo on the docket for this action, 

estimates that iodomethane can feasibly 

replace 262,035 kg of methyl bromide in 

2009. 

MBIP commented that EPA may not 

reduce new production to account for 

the uptake of iodomethane because EPA 

did not provide a meaningful 

opportunity to comment. MBIP states 

that EPA did not explain the factors it 

would consider in assessing the uptake 

of iodomethane or include a memo in 

the docket setting forth the Agency’s 

methodology, and that accounting for 

anything other than a de minimis uptake 

of iodomethane would be contrary to 

administrative law. EPA disagrees that it 

could not account for the uptake of 

iodomethane in the final rule. EPA 

provided for reference the estimated 

market uptake for iodomethane in the 

2008 CUE Rule along with the number 

of states in which iodomethane was 

registered at that time compared to the 

date of the proposed rule. While EPA 

did not place the analysis conducted for 

the 2008 CUE Rule in the 2009 Rule 

docket prior to proposal, EPA’s 

methodology for estimating uptake can 

be found in the docket to the 2008 Final 

CUE Rule and has been reviewed and 

commented upon by MBIP in the past. 

EPA believes that it has the discretion 

to make a reduction to account for 

iodomethane uptake based on the 

information provided in the proposal 

and the methodology used in 2008. 

However, as discussed further below, 

EPA is not making such a reduction in 

this rule. 

EPA also received comments that it 

should make reductions for increased 

use of sulfuryl fluoride. As described 

above, data about the uptake of sulfuryl 

fluoride was included in the 2009 CUN 

and thus was included in the TEAP’s 

August 2007 recommendations. Dow 

AgroSciences commented that sulfuryl 

fluoride can currently replace 100% of 

current post-harvest methyl bromide 

uses and that EPA should therefore 

reduce the allocation of methyl bromide 

to account for market advances of 

sulfuryl fluoride. EPA does not believe 

that the data Dow AgroSciences 

submitted was applicable to the 2009 

control period. Additionally, Dow 

AgroSciences did not submit economic 

data regarding the transition to sulfuryl 

fluoride. While many post-harvest users 

submitted comment expressing support 

for sulfuryl fluoride as an efficacious 

fumigant, the Agency does not yet have 

the economic data to support a faster 

transition rate in 2009 than was 

contained in the CUN. Therefore, EPA is 

not reducing new production of methyl 

bromide to account for the adoption of 

sulfuryl fluoride in the post-harvest 

sector. 

EPA also received information that 

Dow AgroSciences has reduced its 

production of 1,3-D (marketed as 

Telone) for the first half of 2009. The 

comment states, and the Agency has 

confirmed, that 1,3-D is a co-product of 

a chemical used in the plastics industry. 

The recent downturn in the economy 

has resulted in less demand of that 

chemical. Dow AgroSciences has 

produced less of that chemical and as a 

result the production of 1,3-D has 

similarly declined. Commenters believe 

that this shortage will place greater 

pressure on stockpiled methyl bromide 

as growers facing a shortage of Telone 

will be forced to rely on the prephaseout inventory. 

EPA agrees that a shortage of Telone 

in 2009 will result in a greater reliance 

on methyl bromide, whether newly 

produced or pre-phaseout inventory. 

Some growers who had planned to 

transition to Telone this year will likely 

not do so and others who had already 

transitioned to Telone may instead have 

to revert to methyl bromide for this 

season. Other crops that use Telone, 

such a potatoes and tobacco, will not be 

able to switch to critical use methyl 

bromide in 2009 as they are not critical 

use crops. 

The Agency believes that it should 

treat the new information on Telone 

shortages in the same way as other new 

data on alternatives. In previous CUE 

rules, EPA has reduced the amount of 

new production to account for the 

expected uptake of alternatives such as 

sulfuryl fluoride and iodomethane. In 

this instance, EPA believes that it 

should not ignore the new information 

about the reduced production and 

therefore opportunity for use of an 

alternative. This reduction in supply 

directly affects the economic feasibility 

of Telone in a way not contemplated in 

the CUN. 

EPA is currently unable to quantify 

the effect that a reduction in Telone 

19892 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 

production may have on critical users of 

methyl bromide. EPA does not know 

how long the reduction will last because 

it is due to a downturn in the economy, 

and the demand for the chemical with 

which 1,3-D is co-produced. While Dow 

AgroSciences has only announced this 

decision for the first half of 2009, 

neither Dow AgroSciences nor EPA can 

estimate the length of the economic 

downturn. EPA is thus unable to 

estimate the extent of the shortage. 

EPA does have some data, however, to 

suggest that there will be an effect and 

that action is warranted. EPA 

anticipates this effect will be greater in 

California, which has not registered 

iodomethane, than in the Southeast 

where that alternative is available. In 

2007, Telone was the fifth-most-used 

pesticide in California by pounds of 

active ingredient, according to the 

California Department of Pesticide 

Regulation. According to that data, 

strawberries are the largest user of 

Telone, with over 860,000 kg applied in 

2007. Another 356,000 kg were used for 

‘‘soil fumigation/preplant.’’ Using this 

data, EPA estimates that at least 

1,450,000 kg of Telone were applied in 

California in 2007 on CUE crops. This 

compares to the 4,269,255 kg of methyl 

bromide used throughout the U.S. in 

2007, as reported to UNEP in the 2007 

Accounting Framework. Any reduction 

in Telone production will therefore 

likely result in an increase in the use of 

methyl bromide, assuming the limiting 

critical conditions are met. EPA notes, 

however, that Telone usage on CUE 

crops is only a small fraction of the total 

amount of Telone used. EPA estimates 

that about 13,000,000 kg of Telone is 

used on a variety of crops, with potatoes 

and tobacco constituting about half of 

that use. The effect on methyl bromide 

will depend in large part on how Telone 

is distributed, and whether some 

growers will have greater access to what 

is produced than others. 

Given these uncertainties, EPA is 

unable to model the effects of the 

shortage with the same precision used 

to model the uptake of iodomethane. 

The Agency does anticipate pressure on 

newly produced methyl bromide as well 

as pre-phaseout inventory as a result of 

this shortage. EPA believes that it would 

be imprudent to make a reduction for 

iodomethane in the face of this 

substantial but unquantifiable reduction 

in Telone production. Therefore, for the 

2009 control period, EPA is not 

adjusting the amount of new production 

either upward or downward to account 

for new information regarding 

alternatives. For the same reasons, EPA 

is also not making a reduction for the 

uptake of alternatives when calculating 

the supply chain factor. EPA will 

consider any appropriate adjustments 

for iodomethane and Telone in the 2010 

CUE Rule based on information 

available at the time that rule is 

developed. 

7. Summary of Calculations 

The calculations described above for 

determining the level of new production 

and critical stock allowances are 

summarized in Table II below: 

TABLE II—SUMMARY OF CALCULATIONS

Kilograms 

Step 1: Calculate supply chain factor 

U.S. authorization for 2009 ............................................................................................................................................................ 4,261,974 

¥ Further reduction for uptake of alternatives ...................................................................................................................... 0 

= One year’s CUE need ......................................................................................................................................................... 4,261,974 

× Percentage of year’s production to recover from production failure .................................................................................. 55.186% 

= Supply Chain Factor ........................................................................................................................................................... 2,352,013 

Step 2: Calculate available stocks 

Existing pre-phaseout inventory on January 1, 2008 (‘‘ES2008’’) ................................................................................................ 6,457,806 

¥ Drawdown of inventory during 2008 (‘‘D2008’’) ................................................................................................................ 2,186,600 

¥ Supply Chain Factor .......................................................................................................................................................... 2,352,013 

= Available stocks (‘‘AS2009’’) = Critical Stock Allowance .................................................................................................... 1,919,193 

Step 3: Calculate carryover 

Reported as produced/imported in 2007 ....................................................................................................................................... 4,314,150 

¥ Reported as sold in 2007 .................................................................................................................................................. 4,269,255 

= Carryover ............................................................................................................................................................................. 44,895 

Step 4: Calculate new production 

U.S. authorization for 2009 ............................................................................................................................................................ 4,261,974 

¥ Critical Stock Allowance (Step 2) ...................................................................................................................................... 1,919,193 

¥ Carryover (Step 3) ............................................................................................................................................................. 44,895 

¥ Amounts Used for Research ............................................................................................................................................. 22,171 

¥ Uptake of alternatives ........................................................................................................................................................ 0 

= New production = Critical Use Allowance ........................................................................................................................... 2,275,715 

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

I/4 

Paragraphs 2 and 7 of Decision XIX/ 

9 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 

2009 control period. A discussion of the 

Agency’s application of the criteria in 

paragraph 1 of Decision IX/6 appears in 

sections V.A., V.C., V.D., and V.H. of 

this preamble. The CUNs detail how 

each critical use meets the criteria listed 

in paragraph 1 of Decision IX/6, apart 

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

well as the criteria in paragraphs 5 and 

6 of Decision Ex. I/4. 

The criterion in Decision IX/ 

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

available stocks of methyl bromide, is 

addressed in sections V.D., V.G., and 

V.H. of this preamble. The Agency has 

previously provided its interpretation of 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 19893 

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

regarding the presence of significant 

market disruption in the absence of an 

exemption, and EPA refers readers to 

the 2006 CUE final rule (71 FR 5989) as 

well as to the memo on the docket titled 

‘‘Development of 2003 Nomination for a 

Critical Use Exemption for Methyl 

Bromide for the United States of 

America’’ for further elaboration. 

The remaining considerations, 

including the lack of available 

technically and economically feasible 

alternatives under the circumstance of 

the nomination; efforts to minimize use 

and emissions of methyl bromide where 

technically and economically feasible; 

the development of research and 

transition plans; and the requests in 

Decision Ex. I/4(5) and (6) that Parties 

consider and implement MBTOC 

recommendations, where feasible, on 

reductions in the critical use of methyl 

bromide and include information on the 

methodology they use to determine 

economic feasibility, are all addressed 

in the nomination documents. 

Some of these criteria were evaluated 

in other documents as well. For 

example, the U.S. has further 

considered matters regarding the 

adoption of alternatives and research 

into methyl bromide alternatives, 

criterion (1)(b)(iii) in Decision IX/6, in 

the development of the National 

Management Strategy submitted to the 

Ozone Secretariat in December 2005 and 

in ongoing consultations with industry. 

The National Management Strategy 

addresses all of the aims specified in 

Decision Ex. I/4(3) to the extent feasible 

and is available in the docket for this 

rulemaking. 

F. Emissions Minimization 

Decision XIX/9, paragraph 11 states 

that Parties shall request critical users to 

employ ‘‘emission minimization 

techniques such as virtually 

impermeable films, barrier film 

technologies, deep shank injection and/ 

or other techniques that promote 

environmental protection, whenever 

technically and economically feasible.’’ 

In the proposed rule, EPA encouraged 

growers to use such techniques but did 

not propose to require them. At the 

public hearing for this action the 

California Strawberry Commission 

expressed its opinion that EPA should 

create a regulatory incentive for 

emissions reduction. Similarly, Dow 

AgroSciences commented that 

emissions minimization measures, 

potentially including application rate 

reductions, soil sealing requirements, 

minimum application depths, and 

maximum soil temperatures be 

mandated and not merely 

recommended. 

In the judgment of USG scientists, use 

of virtually impermeable film (VIF) 

tarps allows pest control with lower 

application rates while minimizing 

emissions. EPA encourages the use of 

tarps by reflecting the lower application 

rates that are necessary when using 

tarps in its 2009 nomination. EPA 

believes that reducing supply through 

the phaseout provides incentives for use 

minimization and therefore limits 

emissions. EPA disagrees, however, that 

the 2009 CUE rule should require the 

use of emissions minimization 

techniques, as the Agency did not 

propose to do so. The Agency continues 

to investigate the emissions reductions 

benefits of using various types of tarps, 

recognizing the lack of data in field 

situations, variability in efficacy in 

reducing emissions by application type 

(broadcast vs. raised bed), as well as 

regulatory prohibitions on less 

permeable tarps in California. EPA has 

placed a memo detailing some of this 

analysis into the docket for this rule. 

Users of methyl bromide should make 

every effort to minimize overall 

emissions of methyl bromide by 

implementing measures such as the 

ones listed above, to the extent 

consistent with State and local laws and 

regulations. The Agency also continues 

to encourage researchers and users who 

are successfully utilizing such 

techniques to provide such information 

with their critical use applications. 

G. Critical Use Allowance Allocations 

A critical use allowance (CUA) is a 

privilege granted by EPA, using its 

authority under Section 604(d)(6) of the 

Clean Air Act, that enables the holder to 

produce or import one kilogram 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. The allocation 

of 2009 pre-plant and post-harvest 

CUAs to the entities listed below is 

subject to the trading provisions at 40 

CFR 82.12, which are discussed in 

section V.G. of the preamble to the 

Framework Rule (69 FR 76982). 

EPA proposed to allocate 2009 critical 

use allowances for new production or 

import of methyl bromide up to the 

amount of 1,617.921 kg (6.3% of 

baseline). EPA sought comment on the 

total levels of exempted new production 

or import for pre-plant and post-harvest 

critical uses in 2009. For the reasons 

discussed in Section V.D. of this 

preamble, EPA is adjusting the proposed 

CUA amounts to account for (1) new 

data regarding the drawdown of prephaseout inventory, (2) carryover of 

unsold methyl bromide in 2007, and (3) 

amounts authorized by the Parties for 

research. 

Therefore, the total critical use 

exemption amount for 2009 is 4,194,908 

kg (16.4% of baseline), with 2,275,715 

kg (8.9% of baseline) of critical use 

allowances allowing new production or 

import, and the remaining amount, 

1,919,193 kg (7.5% of baseline), 

available through critical stock 

allowances (CSAs) that allow critical 

users to access pre-phaseout methyl 

bromide. EPA is continuing to apportion 

company-specific CUA allocations on 

the basis of the 1991 baseline 

consumption share of the companies 

listed in Table III. The updated 

calculation spreadsheet is available in 

the docket. The CUAs are allocated as 

follows: 

TABLE III—PROPOSED ALLOCATION OF CRITICAL USE ALLOWANCES

Company 

2009 critical use 

allowances for 

pre-plant uses* 

(kilograms) 

2009 critical use 

allowances for 

post-harvest uses* 

(kilograms) 

Great Lakes Chemical Corp. A Chemtura Company ...................................................................... 1,249,703 133,249 

Albemarle Corp ................................................................................................................................ 513,906 54,795 

ICL–IP America ................................................................................................................................ 283,995 30,281 

TriCal, Inc ........................................................................................................................................ 8,843 943 

Total 2 ........................................................................................................................................ 2,056,448 219,267 

* For production or import of Class I, Group VI controlled substance exclusively for the Pre-Plant or Post-Harvest uses specified in appendix L to 40 CFR part 82. 2 Due to rounding, numbers do not add exactly. 

19894 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 

EPA received comment that 

Ameribrom changed its name to ICL–IP 

America. This new name is reflected in 

Table III and in the final rule. 

Paragraph 6 of Decision XIX/9 states 

‘‘that Parties shall endeavor to license, 

permit, authorize or allocate quantities 

of critical-use methyl bromide as listed 

in tables A and C of the annex to the 

present decision.’’ This is similar to 

language in Decisions Ex. I/3(4), Ex. II/ 

1(4), XVII/9(4), and XVIII/13(5) 

regarding 2005, 2006, 2007, and 2008 

critical uses, respectively. The language 

from these Decisions calls on Parties to 

endeavor to allocate critical use methyl 

bromide on a sector basis. 

As it did in the final Framework Rule 

(69 FR 76989) and each critical use 

allocation rulemaking since, EPA is 

allocating critical use allowances on a 

lump-sum, or universal basis, modified 

to include distinct caps for pre-plant 

and post-harvest uses. The Agency 

continues to believe that this is the most 

efficient and least burdensome approach 

that would achieve the desired 

environmental results, and that a sectorspecific approach would pose 

significant administrative and practical 

difficulties. Although the approach 

adopted in the Framework Rule does 

not directly allocate allowances to each 

category of use, the Agency anticipates 

that reliance on market mechanisms 

will achieve similar results indirectly. 

The Agency believes that under a 

system of universal allocations, divided 

into pre-plant and post-harvest sectors, 

the actual critical use will closely follow 

the sector breakout listed by the TEAP. 

These issues were addressed in previous 

rules and EPA is not aware of any 

factors that would alter the analysis 

performed during the development of 

the Framework Rule. 

In developing this action, EPA did not 

propose to change the approach adopted 

in the Framework Rule for the allocation 

of CUAs but, in an endeavor to address 

Decision XIX/9(6), sought additional 

comment on the Agency’s allocation of 

CUAs in the two groupings (pre-plant 

and post-harvest) that the Agency has 

employed in the past. MBIP’s comment 

supported the continued use of the 

universal allocation approach 

characterizing it as a simple and 

understandable system that has proven 

to work well. Dow AgroSciences 

commented that CSAs and CUAs should 

be allocated specifically to each of the 

15 critical use categories authorized by 

the Parties. The comment states that this 

method would ensure that all critical 

users have access to methyl bromide, 

rather than just those with the greatest 

ability to pay. 

EPA agrees with the comments that 

supported the existing allocation 

system. EPA considered sector-specific 

and other allocation approaches in the 

proposed Framework Rule, and decided 

that the existing universal allocation 

system with pre-plant and post-harvest 

allowances was the most effective and 

least burdensome system. 

H. Critical Stock Allowance Allocations 

Each critical stock allowance (CSA) is 

equivalent to one kilogram of critical 

use methyl bromide. CSAs expire at the 

end of the control period and, as 

explained in the Framework Rule, are 

not bankable from one year to the next 

(69 FR 76990). CSAs are not used to 

produce or import methyl bromide but 

are privileges that enable the holder to 

sell a specified amount of pre-phaseout 

inventory for approved critical uses. A 

CSA is expended when the entity 

selling methyl bromide sells the 

material, or fumigation services with the 

material, to an approved critical user 

who certifies that the material is for an 

approved critical use. Thus the 

movement of pre-phaseout inventories 

or methyl bromide along the supply 

chain does not require expenditure of a 

CSA. 

EPA proposed to allocate CSAs to the 

entities listed below in Table IV for the 

2009 control period in the amount of 

2,576,987 kg (10.1% of baseline). EPA 

followed its approach to determining 

available stocks introduced in the 2008 

CUE rule and described in Section 

V.D.4. For the reasons discussed in 

Section V.D., in this action EPA is 

allocating 1,919,193 kg of CSAs to the 

entities listed in Table IV. 

In 2006, the United States District 

Court for the District of Columbia 

upheld EPA’s treatment of companyspecific methyl bromide inventory 

information as confidential. NRDC v. 

Leavitt, 2006 WL 667327 (D.D.C. March 

14, 2006). EPA’s allocation of CSAs is 

based on each company’s proportionate 

share of the aggregate inventory. 

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 Table 

IV. Following past practice, EPA will 

inform the listed companies of their 

CSA allocations in a letter following 

publication of the final rule. 

TABLE IV—PROPOSED ALLOCATION OF

CRITICAL STOCK ALLOWANCES

Company 

Albemarle. 

Bill Clark Pest Control, Inc. 

TABLE IV—PROPOSED ALLOCATION OF

CRITICAL STOCK ALLOWANCES— 

Continued 

Company 

Burnside Services, Inc. 

Cardinal Professional Products. 

Chemtura Corp. 

Degesch America, Inc. 

Helena Chemical Co. 

Hendrix & Dail. 

Hy Yield Bromine. 

ICL–IP America. 

Industrial Fumigation Company. 

Pacific Ag. 

Pest Fog Sales Corp. 

Prosource One. 

Reddick Fumigants. 

Royster-Clark, Inc. 

Trical Inc. 

Trident Agricultural Products. 

UAP Southeast (NC). 

UAP Southeast (SC). 

Univar. 

Western Fumigation. 

Total—1,919,193 kilograms. 

Several companies that receive very 

small amounts of CSAs from EPA have 

contacted the Agency and requested that 

they be permitted to permanently retire 

their allowances. Some companies 

receive as few as 6 kg of CSAs. Due to 

the small allocation and because they 

typically do not sell critical use methyl 

bromide, some companies find the 

allocation of CSAs, and associated 

record-keeping and reporting 

requirements, to be unduly burdensome. 

For the last two rounds of CUE 

allocation rulemakings EPA has allowed 

CSA holders, on a voluntary basis, to 

permanently relinquish their allowances 

through written notification to the 

Agency. Such companies would not 

receive CSA allocations and would be 

excluded from future allocations. 

During the comment period for the 2008 

CUE Rule, seven companies voluntarily 

agreed to permanently relinquish their 

allowances. In the final 2008 CUE Rule, 

the Agency reallocated the allowances 

forfeited by these companies to the 

remaining companies on a pro-rata 

basis. Though no companies voluntarily 

relinquished their allowances this year, 

EPA continues to strongly encourage 

CSA holders to take advantage of this 

voluntary opportunity to retire their 

CSA allocations. 

I. Stocks of Methyl Bromide 

As discussed above and in the 

December 23, 2004, Framework Rule, an 

approved critical user may purchase 

methyl bromide produced or imported 

with CUAs as well as limited 

inventories of pre-phaseout methyl 

bromide, the combination of which 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 19895 

constitute the supply of ‘‘critical use 

methyl bromide’’ intended to meet the 

needs of agreed critical uses. The 

Framework Rule established provisions 

governing the sale of pre-phaseout 

inventories for critical uses, including 

the concept of CSAs and a prohibition 

on the sale of pre-phaseout inventories 

for critical uses in excess of the amount 

of CSAs held by the seller. It also 

established trading provisions that 

allow CUAs to be converted into CSAs. 

EPA has retained these provisions for 

the 2009 control period. 

EPA believes that the refined 

approach for calculating available stocks 

that was finalized in the 2008 CUE Rule 

reduces the risks of methyl bromide 

shortages for critical uses. However, as 

in prior years, the Agency will continue 

to closely monitor CUA and CSA data. 

Further, as stated in the final 2006 CUE 

rule, safety valves continue to exist. If 

an inventory shortage occurs, EPA may 

consider various options including 

authorizing the conversion of a limited 

number of CSAs to CUAs through a 

rulemaking, bearing in mind the upper 

limit on U.S. production/import for 

critical uses. 

The aggregate amount of pre-phaseout 

methyl bromide reported as being in 

inventory on December 31, 2007, was 

6,457, 806 kg. Based on reported end-ofyear data submitted by inventory 

owners, the aggregate inventory on 

December 31, 2008, was 4,271,226 kg. 

As explained in detail in the 2008 CUE 

final rule, the Agency intends to 

continue releasing the aggregate of 

methyl bromide stockpile information 

reported to the Agency under the 

reporting requirements at 40 CFR 82.13 

for the end of each control period. EPA 

notes that if the number of competitors 

in the industry were to decline 

appreciably, EPA would revisit the 

question of whether the aggregate is 

entitled to treatment as confidential 

information and whether to release the 

aggregate without notice. EPA is not 

proposing to change the treatment of 

submitted information but welcomes 

information concerning the composition 

of the industry in this regard. The 

aggregate information for 2003 through 

2007 is available in the docket for this 

rulemaking. 

EPA is also correcting its assessment 

of the amount pre-phaseout inventory 

that was available on December 31, 

2006, which EPA originally stated was 

7,671,091 kg. EPA received late data in 

2007 that it did not incorporate into the 

total inventory level for the year. The 

corrected value for the amount of prephaseout inventory as of December 31, 

2006, is 7,941,009 kg. This change does 

not affect the CUA or CSA allocations in 

this rule, which are based on reported 

data rather than estimates. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order (EO) 12866 

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

action is a ‘‘significant regulatory 

action.’’ This action is likely to result in 

a rule that may raise novel legal or 

policy issues. Accordingly, EPA 

submitted this action to the Office of 

Management and Budget (OMB) for 

review under EO 12866 and any 

changes made in response to OMB 

recommendations have been 

documented in the docket for this 

action. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. The 

application, recordkeeping, and 

reporting requirements have already 

been established under previous Critical 

Use Exemption rulemakings and this 

action does not propose to change any 

of those existing requirements. 

However, the Office of Management and 

Budget (OMB) has previously approved 

the information collection requirements 

contained in the existing regulations at 

40 CFR part 82 under the provisions of 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. and has assigned OMB 

control number 2060–0482. The OMB 

control numbers for EPA’s regulations 

in 40 CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The RFA generally requires an agency 

to prepare a regulatory flexibility 

analysis of any rule subject to 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 that is 

identified by the North American 

Industry Classification System (NAICS) 

Code in the Table below; (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

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

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

owned and operated and is not 

dominant in its field. 

Category NAICS code SIC code 

NAICS small business 

size standard 

(in number of employees or 

millions of dollars) 

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

1113—Fruit and Nut Tree Farming 0172—Grapes.

1114—Greenhouse, Nursery, and 

Floriculture Production.

0173—Tree Nuts.

0175—Deciduous Tree Fruits (except apple orchards and farms).

0179—Fruit and Tree Nuts, NEC.

0181—Ornamental Floriculture and 

Nursery Products.

0831—Forest Nurseries and Gathering of Forest Products.

Storage Uses .................................. 115114—Postharvest Crop activities (except Cotton Ginning).......................................................... $7 million. 

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

Products.

500 employees. 

311212—Rice Milling ...................... 2044—Rice Milling .......................... 500 employees. 

19896 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 

Category NAICS code SIC code 

NAICS small business 

size standard 

(in number of employees or 

millions of dollars) 

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 will only affect entities that applied 

to EPA for a de-regulatory exemption. In 

most cases, EPA received aggregated 

requests for exemptions from industry 

consortia. EPA asked consortia applying 

for critical use exemptions to describe 

the number and size distribution of 

entities their applications covered. EPA 

estimated that 3,218 entities petitioned 

EPA for critical use exemptions for the 

2005 control period. EPA now estimates 

there to be 2,000 end users of critical 

use methyl bromide. 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 this rule on small entities, 

EPA certifies that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

In determining whether a rule has a 

significant economic impact on a 

substantial number of small entities, the 

impact of concern is any significant 

adverse economic impact on small 

entities, since the primary purpose of 

the regulatory flexibility analyses is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the 

proposed rule on small entities.’’ (5 

U.S.C. 603–604). Thus, an Agency may 

certify that a rule will not have a 

significant economic impact on a 

substantial number of small entities if 

the rule relieves a regulatory burden, or 

otherwise has a positive economic effect 

on all of the small entities subject to the 

rule. Since this rule exempts methyl 

bromide for approved critical uses after 

the phaseout date of January 1, 2005, 

this is a de-regulatory action which will 

confer a benefit to users of methyl 

bromide. EPA believes the estimated deregulatory value for users of methyl 

bromide is between $20 million and $30 

million annually. We have therefore 

concluded that this rule will relieve 

regulatory burden for all small entities. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for State, local, or tribal 

governments or the private sector. The 

action imposes no enforceable duty on 

any State, local or tribal governments or 

the private sector. Instead, this action is 

deregulatory and does 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 

Executive Order 13132, titled 

‘‘Federalism’’ (64 FR 43255, August 10, 

1999), requires EPA to develop an 

accountable process to ensure 

‘‘meaningful and timely input by State 

and local officials in the development of 

regulatory policies that have federalism 

implications.’’ The phrase ‘‘policies that 

have federalism implications’’ is 

defined in the Executive Order to 

include regulations that 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.’’ 

This final rule does not have 

federalism implications. It will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This rule is 

expected to primarily affect producers, 

suppliers, importers and exporters and 

users of methyl bromide. Thus, 

Executive Order 13132 does not apply 

to this rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This rule does not significantly or 

uniquely affect the communities of 

Indian tribal governments nor does it 

impose any enforceable duties on 

communities of Indian tribal 

governments. Thus, Executive Order 

13175 does not apply to this action. 

G. Executive Order No. 13045: 

Protection of Children From 

Environmental Health and Safety Risks 

EPA interprets EO 13045 (62 FR 

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 action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (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 have any effect on 

energy as it only relates to the 

production, import, and uses of critical 

use the agricultural fumigant methyl 

bromide. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law No. 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 19897 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this rule will 

not have disproportionately high and 

adverse human health or environmental 

effects on minority or low-income 

populations, because it affects the level 

of environmental protection equally for 

all affected populations without having 

any disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. 

Any ozone depletion that results from 

this rule will impact all affected 

populations equally because ozone 

depletion is a global environmental 

problem with environmental and 

human effects that are, in general, 

equally distributed across geographical 

regions. 

K. Congressional Review Act 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

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 April 30, 2009. 

List of Subjects in 40 CFR Part 82 

Environmental protection, Ozone 

depletion, Chemicals, Exports, Imports. 

Dated: April 24, 2009. 

Lisa P. Jackson, 

Administrator. 

■ For the reasons stated in the preamble, 

40 CFR Part 82 is amended as follows: 

PART 82—PROTECTION OF 

STRATOSPHERIC OZONE 

■ 1. The authority citation for part 82 

continues to read as follows: 

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

7671q. 

■ 2. Section 82.8 is amended by revising 

the table in paragraph (c)(1) and 

paragraph (c)(2) to read as follows: 

§ 82.8 Grant of essential use allowances 

and critical use allowances. 

* * * * * 

(c) * * * 

(1) * * * 

Company 

2009 critical use 

allowances for 

pre-plant uses* 

(kilograms) 

2009 critical use 

allowances for 

post-harvest uses* 

(kilograms) 

Great Lakes Chemical Corp. A Chemtura Company .............................................................. 1,249,703 133,249 

Albemarle Corp ........................................................................................................................ 513,906 54,795 

ICL–IP America ........................................................................................................................ 283,995 30,281 

TriCal, Inc ................................................................................................................................ 8,843 943 

Total** ............................................................................................................................... 2,056,448 219,267 

* 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 2009 on a 

pro-rata basis in relation to the 

inventory held by each. 

Company 

Albemarle. 

Bill Clark Pest Control, Inc. 

Burnside Services, Inc. 

Cardinal Professional Products. 

Chemtura Corp. 

Degesch America, Inc. 

Helena Chemical Co. 

Company 

Hendrix & Dail. 

Hy Yield Bromine. 

ICL–IP America. 

Industrial Fumigation Company. 

Pacific Ag. 

Pest Fog Sales Corp. 

Prosource One. 

Reddick Fumigants. 

Royster-Clark, Inc. 

Trical Inc. 

Trident Agricultural Products. 

UAP Southeast (NC). 

UAP Southeast (SC). 

Univar. 

Company 

Western Fumigation. 

Total—1,919,193 kilograms. 

■ 3. Appendix L to Subpart A is revised 

to read as follows: 

APPENDIX L TO PART 82 SUBPART 

A—APPROVED CRITICAL USES AND 

LIMITING CRITICAL CONDITIONS 

FOR THOSE USES FOR THE 2009 

CONTROL PERIOD 

19898 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 

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, Maryland, and 

Michigan.

Moderate to severe soilborne disease infestation. 

A need for methyl bromide for research purposes. 

(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. 

A need for methyl bromide for research purposes. 

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. 

A need for methyl bromide for research purposes. 

(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. 

A need for methyl bromide for research purposes. 

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

A need for methyl bromide for research purposes. 

Forest Nursery Seedlings.(a) Growers in Alabama, Arkansas, Georgia, 

Louisiana, Mississippi, North Carolina, 

Oklahoma, South Carolina, Tennessee, 

Texas, and Virginia.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

(b) International Paper and its subsidiaries 

limited to growing locations in Alabama, Arkansas, Georgia, South Carolina, and 

Texas.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

(c) Government-owned seedling nurseries in 

Illinois, Indiana, Kentucky, Maryland, Missouri, New Jersey, Ohio, Pennsylvania, 

West Virginia, and Wisconsin.

Moderate to severe weed infestation including purple and yellow 

nutsedge infestation. 

Moderate to severe Canada thistle infestation. 

Moderate to severe nematode infestation. 

Moderate to severe soilborne disease infestation. 

(d) Weyerhaeuser Company and its subsidiaries limited to growing locations in Alabama, Arkansas, North Carolina, and South 

Carolina.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode or worm infestation. 

(e) Weyerhaeuser Company and its subsidiaries limited to growing locations in Oregon 

and Washington.

Moderate to severe yellow nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

(f) Michigan growers ........................................ Moderate to severe soilborne disease infestation. 

Moderate to severe Canada thistle infestation. 

Moderate to severe nutsedge infestation. 

Moderate to severe nematode infestation 

Orchard Nursery Seedlings.(a) Members of the Western Raspberry Nursery Consortium limited to growing locations 

in Washington, and members of the California Association of Nursery and Garden 

Centers representing Deciduous Tree Fruit 

Growers.

Moderate to severe nematode infestation. 

Medium to heavy clay soils. 

Local township limits prohibiting 1,3-dichloropropene. 

A need for methyl bromide for research purposes. 

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

Local township limits prohibiting 1,3-dichloropropene. 

A need for methyl bromide for research purposes. 

Orchard Replant ............ (a) California stone fruit, table and raisin 

grape, wine grape, walnut, and almond 

growers.

Moderate to severe nematode infestation. 

Moderate to severe soilborne disease infestation. 

Replanted orchard soils to prevent orchard replant disease. 

Medium to heavy soils. 

Local township limits prohibiting 1,3-dichloropropene. 

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

Moderate to severe nematode infestation. 

Local township limits prohibiting 1,3-dichloropropene. 

A need for methyl bromide for research purposes. 

(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. 

Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 19899 

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 

A need for methyl bromide for research purposes. 

(c) Michigan herbaceous perennial growers ... Moderate to severe nematode infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe yellow nutsedge and other weed infestation. 

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. 

A need for methyl bromide for research purposes. 

(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. 

A need for methyl bromide for research purposes. 

(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. 

A need for methyl bromide for research purposes. 

(d) Michigan growers ....................................... Moderate to severe soilborne disease infestation. 

A need for methyl bromide for research purposes. 

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. 

A need for methyl bromide for research purposes. 

(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. 

A need for methyl bromide for research purposes. 

(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. 

A need for methyl bromide for research purposes. 

Strawberry Nurseries .... (a) California growers ...................................... Moderate to severe soilborne disease infestation. 

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

A need for methyl bromide for research purposes. 

(b) North Carolina and Tennessee growers .... Moderate to severe black root rot. 

Moderate to severe root-knot nematode infestation. 

Moderate to severe yellow and purple nutsedge infestation. 

A need for methyl bromide for research purposes. 

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

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

Moderate to severe fungal pathogen infestation. 

A need for methyl bromide for research purposes. 

(b) Alabama, Arkansas, Florida, Georgia, 

Kentucky, Louisiana, Mississippi, North 

Carolina, South Carolina, Tennessee, and 

Virginia growers.

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

Restrictions on alternatives due to karst topographical features and, 

in Florida, soils not supporting seepage irrigation. 

A need for methyl bromide for research purposes. 

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

POST-HARVEST USES 

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

of the USA Rice Millers Association.

Moderate to severe beetle, weevil, or moth infestation. 

Presence of sensitive electronic equipment subject to corrosion. 

Time to transition to an alternative. 

(b) Pet food manufacturing facilities in the 

U.S. who are members of the Pet Food Institute.

Moderate to severe beetle, moth, or cockroach infestation. 

Presence of sensitive electronic equipment subject to corrosion. 

Time to transition to an alternative. 

(c) Bakeries in the U.S .................................... Presence of sensitive electronic equipment subject to corrosion. 

Time to transition to an alternative. 

19900 Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations 

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 

(d) 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. 

(e) Members of the National Pest Management Association treating processed food, 

cheese, herbs and spices, and spaces and 

equipment in associated processing and 

storage facilities.

Moderate to severe beetle or moth infestation. 

Presence of sensitive electronic equipment subject to corrosion. 

Time to transition to an alternative. 

Commodities ................. (a) California entities storing walnuts, beans, 

dried plums, figs, raisins, and dates (in Riverside county only) in California.

Rapid fumigation required to meet a critical market window, such as 

during the holiday season. 

Export to countries which do not allow the use of sulfuryl fluoride. 

A need for methyl bromide for research purposes. 

Dry Cured Pork Products.(a) Members of the National Country Ham Association and the Association of Meat Processors, Nahunta Pork Center (North Carolina), and Gwaltney and Smithfield Inc.Red legged ham beetle infestation. 

Cheese/ham skipper infestation. 

Dermested beetle infestation. 

Ham mite infestation. 

[FR Doc. E9–9966 Filed 4–29–09; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[DA 09–853; MB Docket No. 08–244; RM– 

11507] 

Television Broadcasting Services; 

Scranton, PA 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: The Commission grants a 

petition for rulemaking filed by MPS 

MEDIA of Scranton License, LLC (‘‘MPS 

Media’’), the licensee of pre-transition 

station WSBS–DT, DTV channel 31, 

Scranton, Pennsylvania. MPS Media has 

been assigned DTV channel 38 for posttransition use and now requests the 

substitution of its pre-transition DTV 

channel 31 for post-transition DTV 

channel 38 at Scranton. 

DATES: This rule is effective April 30, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

David J. Brown, Media Bureau, (202) 

418–1600. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Report 

and Order, MB Docket No. 08–244, 

adopted April 16, 2009, and released 

April 17, 2009. The full text of this 

document is available for public 

inspection and copying during normal 

business hours in the FCC’s Reference 

Information Center at Portals II, CY– 

A257, 445 12th Street, SW., 

Washington, DC 20554. This document 

will also be available via ECFS (http:// 

www.fcc.gov/cgb/ecfs/). (Documents 

will be available electronically in ASCII, 

Word 97, and/or Adobe Acrobat.) This 

document may be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554, telephone 1– 

800–478–3160 or via e-mail 

www.BCPIWEB.com. To request this 

document in accessible formats 

(computer diskettes, large print, audio 

recording, and Braille), send an e-mail 

to fcc504@fcc.gov or call the 

Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). This document does not contain 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995, Public Law 104–13. In addition, 

therefore, it does not contain any 

information collection burden ‘‘for 

small business concerns with fewer than 

25 employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). Provisions of the Regulatory 

Flexibility Act of 1980 do not apply to 

this proceeding. 

The Commission will send a copy of 

this Report and Order in a report to be 

sent to Congress and the Government 

Accountability Office pursuant to the 

Congressional Review Act, see 5 U.S.C. 

801(a)(1)(A). 

List of Subjects in 47 CFR Part 73 

Television, Television broadcasting. 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR Part 73 as 

follows: 

PART 73—RADIO BROADCAST 

SERVICES 

■ 1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334, 336. 

§ 73.622 [Amended] 

■ 2. Section 73.622(i), the PostTransition Table of DTV Allotments 

under Pennsylvania, is amended by 

adding DTV channel 31 and removing 

DTV channel 38 at Scranton. 

Federal Communications Commission. 

Clay C. Pendarvis, 

Associate Chief, Video Division, Media 

Bureau. 

[FR Doc. E9–9827 Filed 4–29–09; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[DA 09–872; MB Docket No. 08–252; RM– 

11509] 

Television Broadcasting Services; 

Cadillac, MI 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: The Commission grants a 

petition for rulemaking filed by Cadillac 

Telecasting Co. (‘‘CTC’’), the licensee of 

WFQX–TV, analog channel 33, and 

WFQX–DT, DTV channel 47, Cadillac, 

Michigan, requesting the substitution of 

DTV channel 32 for post-transition DTV 

channel 47 at Cadillac. 

DATES: This rule is effective April 30, 

2009.