Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 74435 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 82 

[EPA–HQ–OAR–2010–0280; FRL–9714–4] 

RIN 2060–AR41 

Protection of Stratospheric Ozone: The 

2013 Critical Use Exemption From the 

Phaseout of Methyl Bromide 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing uses that 

qualify for the 2013 critical use 

exemption. EPA is also proposing to 

amend the regulatory framework to 

determine the amount of methyl 

bromide that may be produced, 

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

2013. EPA is taking action under the 

authority of the Clean Air Act to reflect 

a recent consensus decision taken by the 

Parties to the Montreal Protocol on 

Substances that Deplete the Ozone 

Layer at the Twenty-Third Meeting of 

the Parties. EPA is seeking comment on 

the list of critical uses and on EPA’s 

determination of the specific amounts of 

methyl bromide that may be produced 

and imported, or sold from pre-phaseout 

inventory for those uses. 

DATES: Comments must be submitted by 

January 28, 2013. Any party requesting 

a public hearing must notify the contact 

person listed below by 5 p.m. Eastern 

Standard Time on December 19, 2012. If 

a hearing is requested it will be held on 

December 31, 2012. EPA will post 

information regarding a hearing, if one 

is requested, on the Ozone Protection 

Web site www.epa.gov/ozone/ 

strathome.html. Persons interested in 

attending a public hearing should 

consult with the contact person below 

regarding the location and time of the 

hearing. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2010–0280, by one of the 

following methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• Email: a-and-r-Docket@epa.gov. 

• Fax: (202) 566–9744. 

• Phone: (202) 566–1742. 

• U.S. Mail: Docket EPA–HQ–OAR– 

2010–0280, U.S. Environmental 

Protection Agency, EPA Docket Center, 

Air and Radiation Docket, Mail Code 

28221T, 1200 Pennsylvania Avenue 

NW., Washington, DC 20460. 

• Hand Delivery or Courier: Docket 

EPA–HQ–OAR–2010–0280, EPA Docket 

Center—Public Reading Room, EPA 

West Building, Room 3334, 1301 

Constitution Avenue NW., Washington, 

DC 20004. Such deliveries are only 

accepted during the Docket’s normal 

hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2010– 

0280. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to EPA without going 

through www.regulations.gov your email 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. 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, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket, EPA/DC, 

EPA West, Room 3334, 1301 

Constitution Ave. NW., Washington, 

DC. The Public Reading Room is open 

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

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Air 

and Radiation Docket is (202) 566– 

1742). 

FOR FURTHER INFORMATION CONTACT: For 

further information about this proposed 

rule, contact Jeremy Arling by telephone 

at (202) 343–9055, or by email at 

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

Environmental Protection Agency, 

Stratospheric Protection Division, 

Stratospheric Program Implementation 

Branch (6205J), 1200 Pennsylvania 

Avenue NW., Washington, DC 20460. 

You may also visit the methyl bromide 

section of the Ozone Depletion Web site 

of EPA’s Stratospheric Protection 

Division at www.epa.gov/ozone/mbr for 

further information about the methyl 

bromide critical use exemption, other 

Stratospheric Ozone Protection 

regulations, the science of ozone layer 

depletion, and related topics. 

SUPPLEMENTARY INFORMATION: This 

proposed rule concerns Clean Air Act 

(CAA) restrictions on the consumption, 

production, and use of methyl bromide 

(a Class I, Group VI controlled 

substance) for critical uses during 

calendar year 2013. Under the Clean Air 

Act, methyl bromide consumption 

(consumption is defined under section 

601 of the CAA as production plus 

imports minus exports) and production 

were phased out on January 1, 2005, 

apart from allowable exemptions, such 

as the critical use and the quarantine 

and preshipment (QPS) exemptions. 

With this action, EPA is proposing and 

seeking comment on the uses that will 

qualify for the 2013 critical use 

exemption as well as specific amounts 

of methyl bromide that may be 

produced and imported, or sold from 

pre-phaseout inventory (also referred to 

as ‘‘stocks’’ or ‘‘inventory’’) for proposed 

critical uses in 2013. 

Table of Contents 

I. General Information 

A. Regulated Entities 

B. What should I consider when preparing 

my comments? 

II. What is methyl bromide? 

III. What is the background to the phaseout 

regulations for ozone-depleting 

substances? 

IV. What is the legal authority for exempting 

the production and import of methyl 

bromide for critical uses authorized by 

the parties to the Montreal Protocol? 

V. What is the critical use exemption 

process? 

A. Background of the Process 

B. How does this proposed rule relate to 

previous critical use exemption rules? 

C. Stocks of Methyl Bromide 

D. Proposed Critical Uses 

E. Proposed Critical Use Amounts 

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74436 Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 

1. Approach for Determining Critical Stock 

Allowances 

2. Approach for Determining New 

Production and Import Allowances 

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

I/4 

G. Emissions Minimization 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. General Information 

A. Regulated Entities 

Entities potentially regulated by this 

proposed action are those associated 

with the production, import, export, 

sale, application, and use of methyl 

bromide covered by an approved critical 

use exemption. Potentially regulated 

categories and entities include 

producers, importers, and exporters of 

methyl bromide; applicators and 

distributors of methyl bromide; and 

users of methyl bromide that applied for 

the 2013 critical use exemption 

including growers of vegetable crops, 

fruits and nursery stock, and owners of 

stored food commodities and structures 

such as grain mills and processors. This 

list is not intended to be exhaustive, but 

rather to provide a guide for readers 

regarding entities likely to be regulated 

by this proposed action. To determine 

whether your facility, company, 

business, or organization could be 

regulated by this proposed action, you 

should carefully examine the 

regulations promulgated at 40 CFR part 

82, subpart A. If you have questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed in the preceding section. 

B. What should I consider when 

preparing my comments? 

1. Confidential Business Information. 

Do not submit confidential business 

information (CBI) to EPA through 

www.regulations.gov or email. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. Information so 

marked will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date, and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

II. What is methyl bromide? 

Methyl bromide is an odorless, 

colorless, toxic gas which is used as a 

broad-spectrum pesticide and is 

controlled under the CAA as a Class I 

ozone-depleting substance (ODS). 

Methyl bromide was once widely used 

as a fumigant to control a variety of 

pests such as insects, weeds, rodents, 

pathogens, and nematodes. Information 

on methyl bromide can be found at 

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

Methyl bromide is also regulated by 

EPA under the Federal Insecticide, 

Fungicide, and Rodenticide Act (FIFRA) 

and other statutes and regulatory 

authority, as well as by States under 

their own statutes and regulatory 

authority. Under FIFRA, methyl 

bromide is a restricted use pesticide. 

Restricted use pesticides are subject to 

Federal and State requirements 

governing their sale, distribution, and 

use. Nothing in this proposed 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 proposal must 

continue to comply with FIFRA and 

other pertinent statutory and regulatory 

requirements for pesticides (including, 

but not limited to, requirements 

pertaining to restricted use pesticides) 

when importing, exporting, acquiring, 

selling, distributing, transferring, or 

using methyl bromide for critical uses. 

The provisions in this proposed action 

are intended only to implement the 

CAA restrictions on the production, 

consumption, and use of methyl 

bromide for critical uses exempted from 

the phaseout of methyl bromide. 

III. What is the background to the 

phaseout regulations for ozonedepleting substances? 

The regulatory requirements of the 

stratospheric ozone protection program 

that limit production and consumption 

of ozone-depleting substances are in 40 

CFR part 82, subpart A. The regulatory 

program was originally published in the 

Federal Register on August 12, 1988 (53 

FR 30566), in response to the 1987 

signing and subsequent ratification of 

the Montreal Protocol on Substances 

that Deplete the Ozone Layer (Montreal 

Protocol). The Montreal Protocol is the 

international agreement aimed at 

reducing and eliminating the 

production and consumption of 

stratospheric ozone-depleting 

substances. The United States was one 

of the original signatories to the 1987 

Montreal Protocol and the United States 

ratified the Protocol on April 12, 1988. 

Congress then enacted, and President 

George H.W. Bush signed into law, the 

Clean Air Act Amendments of 1990 

(CAAA of 1990) which included Title VI 

on Stratospheric Ozone Protection, 

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

Subchapter VI, to ensure that the United 

States could satisfy its obligations under 

the Protocol. EPA issued regulations to 

implement this legislation and has since 

amended the regulations as needed. 

Methyl bromide was added to the 

Protocol as an ozone-depleting 

substance in 1992 through the 

Copenhagen Amendment to the 

Protocol. The Parties to the Montreal 

Protocol (Parties) agreed that each 

developed country’s level of methyl 

bromide production and consumption 

in 1991 should be the baseline for 

establishing a freeze on the level of 

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Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 74437 

methyl bromide production and 

consumption for developed 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. 

This rule froze U.S. production and 

consumption at the 1991 baseline level 

of 25,528,270 kilograms, and set forth 

the percentage of baseline allowances 

for methyl bromide granted to 

companies in each control period (each 

calendar year) until 2001, when the 

complete phaseout would occur. This 

phaseout date was established in 

response to a petition filed in 1991 

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

the CAAA of 1990, requesting that EPA 

list methyl bromide as a Class I 

substance and phase out its production 

and consumption. This date was 

consistent with section 602(d) of the 

CAAA of 1990, which, for newly listed 

Class I ozone-depleting substances 

provides that ‘‘no extension [of the 

phaseout schedule in section 604] under 

this subsection may extend the date for 

termination of production of any class I 

substance to a date more than 7 years 

after January 1 of the year after the year 

in which the substance is added to the 

list of class I substances.’’ 

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 developed countries with 

exemptions permitted for critical uses. 

At that time, the United States 

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 developed 

countries, with reduction steps leading 

to a 2005 phaseout. The Parties also 

established a phaseout date of 2015 for 

Article 5 countries. 

IV. What is the legal authority for 

exempting the production and import of 

methyl bromide for critical uses 

authorized by the parties to the 

Montreal Protocol? 

In October 1998, the U.S. Congress 

amended the Clean Air Act (CAA) to 

prohibit the termination of production 

of methyl bromide prior to January 1, 

2005, to require EPA to bring the U.S. 

phaseout of methyl bromide in line with 

the schedule specified under the 

Protocol, and to authorize EPA to 

provide certain exemptions. These 

amendments were contained in Section 

764 of the 1999 Omnibus Consolidated 

and Emergency Supplemental 

Appropriations Act (Pub. L. 105–277, 

October 21, 1998) and were codified in 

section 604 of the CAA, 42 U.S.C. 

7671c. The amendment that specifically 

addresses the critical use exemption 

appears at section 604(d)(6), 42 U.S.C. 

7671c(d)(6). EPA revised the phaseout 

schedule for methyl bromide production 

and consumption in a direct final 

rulemaking on November 28, 2000 (65 

FR 70795), which allowed for the 

reduction in methyl bromide 

consumption specified under the 

Protocol and extended the phaseout to 

2005 while creating a placeholder for 

critical use exemptions. EPA again 

amended the regulations to allow for an 

exemption for quarantine and 

preshipment (QPS) purposes through an 

interim final rule on July 19, 2001 (66 

FR 37751), and a final rule on January 

2, 2003 (68 FR 238). 

On December 23, 2004 (69 FR 76982), 

EPA published a final rule (the 

‘‘Framework Rule’’) that established the 

framework for the critical use 

exemption, set forth a list of approved 

critical uses for 2005, and specified the 

amount of methyl bromide that could be 

supplied in 2005 from stocks and new 

production or import to meet the needs 

of approved critical uses. EPA 

subsequently published rules applying 

the critical use exemption framework 

for each of the annual control periods 

from 2006 to 2012. Under authority of 

section 604(d)(6) of the CAA, today’s 

action proposes the uses that will 

qualify as approved critical uses in 2013 

and the amount of methyl bromide that 

may be produced, imported, or supplied 

from inventory to satisfy those uses. 

This proposed action on critical uses 

for 2013 reflects Decision XXIII/4, taken 

at the Twenty-Third Meeting of the 

Parties in November 2011. 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 reviewing 

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 proposed rule on critical uses for 

2013, EPA is honoring commitments 

made by the United States in the 

Montreal Protocol context. 

V. What is the critical use exemption 

process? 

A. Background of the Process 

The critical use exemption is 

designed to permit the production and 

import of methyl bromide for uses that 

do not have technically and 

economically feasible alternatives that 

are acceptable from the standpoint of 

environment and health and for which 

the lack of methyl bromide would result 

in significant market disruption (40 CFR 

82.3). Article 2H of the Montreal 

Protocol established the critical use 

exemption provision. At the Ninth 

Meeting of the Parties (1997), the Parties 

established the criteria for an exemption 

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 addition, the 

Parties decided that production and 

consumption, if any, of methyl bromide 

for critical uses should be permitted 

only if a variety of conditions have been 

met, including that all technically and 

economically feasible steps have been 

taken to minimize the critical use and 

any associated emission of methyl 

bromide, that research programs are in 

place to develop and deploy alternatives 

and substitutes, and that methyl 

bromide is not available in sufficient 

quantity and quality from existing 

stocks of banked or recycled methyl 

bromide. 

In response to EPA’s request for 

critical use exemption applications 

published in the Federal Register on 

July 15, 2010 (75 FR 41177), applicants 

provided data on the technical and 

economic feasibility of using 

alternatives to methyl bromide. 

Applicants also submitted data on their 

use of methyl bromide, ongoing research 

programs into the use of alternatives to 

methyl bromide in their sector, and 

efforts to minimize use and emissions of 

methyl bromide. 

EPA reviews the data submitted by 

applicants, as well as data from 

governmental and academic sources, to 

establish whether there are technically 

and economically feasible alternatives 

available for a particular use of methyl 

bromide, and whether there would be a 

significant market disruption if no 

exemption were available. In addition, 

an interagency workgroup reviews other 

parameters of the exemption 

applications such as dosage and 

emissions minimization techniques and 

applicants’ research or transition plans. 

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74438 Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 

This assessment process culminates in 

the development of a document referred 

to as the U.S. critical use nomination 

(CUN). Since 2003, the U.S. Department 

of State has submitted a CUN annually 

to the United Nations Environment 

Programme (UNEP) Ozone Secretariat. 

The Methyl Bromide Technical Options 

Committee (MBTOC) and the 

Technology and Economic Assessment 

Panel (TEAP), which are advisory 

bodies to Parties to the Montreal 

Protocol, review each Party’s CUN and 

make recommendations to the Parties on 

the nominations. The Parties then take 

Decisions to authorize critical use 

exemptions for particular Parties, 

including how much methyl bromide 

may be supplied for the exempted 

critical uses. As required in section 

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

exemption period, EPA consults with 

the United States Department of 

Agriculture (USDA) and other 

departments and institutions of the 

Federal government that have regulatory 

authority related to methyl bromide, 

and provides an opportunity for public 

comment on the amounts and specific 

uses of methyl bromide that the agency 

is proposing to exempt. 

On February 4, 2011, the U.S. 

Government (USG) submitted the ninth 

Nomination for a Critical Use 

Exemption for Methyl Bromide for the 

United States of America to the Ozone 

Secretariat of UNEP. This nomination 

contained the request for 2013 critical 

uses. In February 2011, MBTOC sent 

questions to the USG concerning 

technical and economic issues in the 

2013 nomination. The USG transmitted 

responses to MBTOC in February, 2011. 

These documents, together with reports 

by the advisory bodies noted above, are 

in the public docket for this rulemaking. 

The proposed critical uses and amounts 

reflect the analysis contained in those 

documents. 

B. How does this proposed rule relate to 

previous critical use exemption rules? 

The December 23, 2004, Framework 

Rule (69 FR 76982) established the 

framework for the critical use 

exemption program in the United States, 

including definitions, prohibitions, 

trading provisions, and recordkeeping 

and reporting obligations. The preamble 

to the Framework Rule included EPA’s 

determinations on key issues for the 

critical use exemption program. 

Since publishing the Framework Rule, 

EPA has annually promulgated 

regulations to exempt specific quantities 

of production and import of methyl 

bromide, to determine the amounts that 

may be supplied from pre-phaseout 

inventory, and to indicate which uses 

meet the criteria for the exemption 

program for that year. See 71 FR 5985 

(February 6, 2006), 71 FR 75386 

(December 14, 2006), 72 FR 74118 

(December 28, 2007), 74 FR 19878 

(April 30, 2009), 75 FR 23167 (May 3, 

2010), 76 FR 60737 (September 30, 

2011), and 77 FR 29218 (May 17, 2012). 

Today’s action proposes to amend the 

regulatory framework to determine the 

amounts of Critical Use Allowances 

(CUAs) and Critical Stock Allowances 

(CSAs) to be allocated for critical uses 

in 2013. A CUA is the privilege granted 

through 40 CFR part 82 to produce or 

import 1 kg of methyl bromide for an 

approved critical use during the 

specified control period. These 

allowances expire at the end of the 

control period and, as explained in the 

Framework Rule, are not bankable from 

one year to the next. The proposed CUA 

allocation is subject to the trading 

provisions at 40 CFR 82.12, which are 

discussed in section V.G. of the 

preamble to the Framework Rule (69 FR 

76982). 

A CSA is the right granted through 40 

CFR part 82 to sell 1 kg of methyl 

bromide from inventory produced or 

imported prior to the January 1, 2005, 

phaseout date for an approved critical 

use during the specified control period. 

The Framework Rule established 

provisions governing the sale of prephaseout inventories for critical uses, 

including the concept of CSAs and a 

prohibition on the sale of pre-phaseout 

inventories for critical uses in excess of 

the amount of CSAs held by the seller. 

It also established trading provisions 

that allow CUAs to be converted into 

CSAs. 

C. Stocks of Methyl Bromide 

An approved critical user may 

purchase methyl bromide produced or 

imported with CUAs, as well as limited 

inventories of pre-phaseout methyl 

bromide, the combination of which 

constitute the supply of ‘‘critical use 

methyl bromide’’ intended to meet the 

needs of approved critical uses. EPA 

considers all pre-phaseout inventory to 

be suitable for both pre-plant and post 

harvest uses. The aggregate amount of 

pre-phaseout methyl bromide reported 

as being in inventory at the beginning of 

2012 is 1,248,876 kg. This amount does 

not include critical use methyl bromide 

that was produced after January 1, 2005, 

and carried over into subsequent years. 

Nor does it include methyl bromide 

produced (1) Under the 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. As in prior years, the Agency 

will continue to closely monitor CUA 

and CSA data. As stated in the final 

2006 CUE Rule, if an inventory shortage 

occurs, EPA may consider various 

options including authorizing the 

conversion of a limited number of CSAs 

to CUAs through a rulemaking, bearing 

in mind the upper limit on U.S. 

production/import for critical uses. In 

sections V.D. and V.G. of this preamble, 

EPA seeks comment on the amount of 

critical use methyl bromide to come 

from inventory compared to new 

production and import. 

As explained in the 2008 CUE Rule, 

the agency intends to continue releasing 

aggregate methyl bromide inventory 

information reported to the agency 

under the reporting requirements at 40 

CFR 82.13 at 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 

2012 is available in the docket for this 

rulemaking. 

D. Proposed Critical Uses 

In Decision XXIII/4, taken in 

November 2011, the Parties to the 

Protocol agreed ‘‘to permit, for the 

agreed critical-use categories for 2013 

set forth in table A of the annex to the 

present decision for each party, subject 

to the conditions set forth in the present 

decision and in decision Ex.I/4 to the 

extent that those conditions are 

applicable, the levels of production and 

consumption for 2013 set forth in table 

B of the annex to the present decision 

which are necessary to satisfy critical 

uses * * * ’’ 

The following uses are those set forth 

in table A of the annex to Decision 

XXIII/4 for the United States: 

• Commodities 

• Mills and food processing structures 

• Dried cured pork 

• Cucurbits 

• Eggplant—field 

• Nursery stock—fruit, nuts, flowers 

• Orchard replants 

• Ornamentals 

• Peppers—field 

• Strawberry—field 

• Strawberry runners 

• Tomatoes—field 

EPA is seeking comment on the 

technical analysis contained in the U.S. 

nomination (available for public review 

in the docket to this rulemaking), and 

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Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 74439 

seeks information regarding any changes 

to the registration (including 

cancellation or new registrations), use, 

or efficacy of alternatives that have 

transpired after the 2013 U.S. CUN was 

forwarded. EPA recognizes that as the 

market for alternatives evolves, the 

thresholds for what constitutes 

‘‘significant market disruption’’ or 

‘‘technical and economic feasibility’’ 

may change. Comments on technical 

data contained in the CUN, or new 

information, could potentially alter the 

agency’s analysis on the uses and 

amounts of methyl bromide qualifying 

for the critical use exemption. The 

agency may, in response to new 

information, reduce the proposed 

quantities of critical use methyl 

bromide, or decide not to approve uses 

authorized by the Parties. However, the 

agency will not increase the quantities 

or add new uses in the final rule beyond 

those authorized by the Parties. 

EPA is also proposing to modify the 

table in 40 CFR part 82, subpart A, 

appendix L to reflect the agreed critical 

use categories identified in Decision 

XXIII/4. The agency is amending the 

table of critical uses and critical users 

based in part on the technical analysis 

contained in the 2013 U.S. nomination 

that assesses data submitted by 

applicants to the CUE program. First, 

EPA is proposing to remove two users 

who did not submit applications and 

therefore were not included in the U.S. 

nomination. These users are California 

rose nursery growers and Maryland 

tomato growers. 

Second, EPA is proposing to remove 

the National Pest Management 

Association (NPMA) food processing 

use from the list for 2013. The NPMA 

did not initially apply to be a critical 

user in 2013 and the Parties have not 

authorized a critical use for this purpose 

for 2013. Members of the NPMA have 

worked to transition from methyl 

bromide to alternative practices and 

alternative fumigants like sulfuryl 

fluoride. In January 2004, EPA 

registered the first food uses of sulfuryl 

fluoride for control of insect pests in 

grain processing facilities and in 

harvested and processed food 

commodities such as cereal grains, dried 

fruits, and tree nuts. In July 2005, EPA 

approved sulfuryl fluoride for treatment 

of additional harvested and processed 

food commodities such as coffee and 

cocoa beans, and for fumigation of food 

handling and processing facilities. 

On January 19, 2011, EPA proposed to 

revoke the residue limits on food, 

known as tolerances, for fluoride on the 

food commodities approved for 

treatment with sulfuryl fluoride (76 FR 

3422). In response to this proposal, the 

NPMA submitted a supplemental 

request for 2013 during the open period 

for 2014 applications. The USG did not 

include NPMA’s supplemental request 

in the 2014 nomination submitted to 

UNEP on January 31, 2012, because EPA 

has only proposed to revoke the 

tolerances for sulfuryl fluoride and has 

not taken action in any final rule. U.S. 

critical use nominations have been 

based on final decisions about 

alternatives. Additionally, the proposed 

tolerance revocation rule includes a 

staggered implementation scheme, 

making it unlikely that any specific 

revocation will be effective in 2013. 

Therefore, EPA is not proposing NPMA 

as a critical use in 2013. 

Third, EPA is proposing to remove 

sectors or users that applied for a 

critical use in 2013 but that the United 

States did not nominate for 2013. EPA 

conducted a thorough technical 

assessment of each application and 

considered the effects that the loss of 

methyl bromide would have for each 

agricultural sector, and whether 

significant market disruption would 

occur as a result. As a result of this 

technical review, the U.S. Government 

did not find that certain sectors or users 

met the critical use criteria in Decision 

IX/6 and they were therefore not 

included in the 2013 Critical Use 

Nomination. EPA notified these sectors 

of their status in July 2011. These 

sectors are: members of the 

Southeastern Cucurbit Consortium and 

cucurbit growers in Maryland and 

Delaware; growers in the forest nursery 

sector (Southern Forest Nursery 

Management Cooperative, Northeastern 

Forest and Conservation Nursery 

Association, and Michigan seedling 

growers); members of the Southeastern 

Pepper Consortium; members of the 

Southeastern Strawberry Consortium 

and Florida strawberry growers; 

California sweet potato slip growers; 

members of the Southeastern Tomato 

Consortium and Virginia tomato 

growers. For each of these uses, EPA 

found that there are technically and 

economically feasible alternatives to 

methyl bromide. 

Finally, EPA is proposing to limit the 

CUE for cucurbit, eggplant, pepper, and 

tomato sectors in Georgia to small 

growers. The EPA review of the 

available information for Georgia 

indicates that farmers growing fewer 

than 10 acres of these crops need an 

additional year to successfully 

transition to the alternatives. These 

small growers do not have as much 

experience with the alternatives and 

need to convert their equipment to the 

University of Georgia (UGA) ‘‘3-Way’’ 

mixture (a combination of 1,3- 

dichloropropene, chloropicrin, and 

metam). The EPA conducted an 

economic assessment of small growers’ 

ability to convert their equipment (see 

revised nomination, dated July 15, in 

the docket). The assessment 

demonstrates that despite the UGA 3- 

Way mixture being more affordable than 

methyl bromide plus chloropicrin on a 

per acre basis, retrofitting farm 

equipment to use the UGA 3-Way 

mixture at a cost of $3,450 is not 

affordable for growers under four acres, 

amortized over 10 years at 7% interest 

(7% is a home equity loan rate for this 

region at the time the nomination was 

submitted; interest on agricultural loans 

could be lower). However, due to 

variations in impacts for individual 

growers and uncertainties in the 

assumptions used in the economic 

analysis, farms smaller than 10 acres are 

reasonably expected to incur negative 

impacts from having to covert to the 

UGA 3-Way mixture. Therefore, EPA is 

proposing to limit the Georgia cucurbit, 

eggplant, pepper, and tomato critical 

uses to small growers, which EPA is 

proposing to define as growers growing 

fewer than 10 acres. EPA seeks 

comment on these proposed changes to 

Appendix L. 

EPA is not proposing other changes to 

the table but is repeating the following 

clarifications made in previous years for 

ease of reference. The ‘‘local township 

limits prohibiting 1,3-dichloropropene’’ 

are prohibitions on the use of 1,3- 

dichloropropene products in cases 

where local township limits on use of 

this alternative have been reached. In 

addition, ‘‘pet food’’ under subsection B 

of Food Processing refers to food for 

domesticated dogs and cats. Finally, 

‘‘rapid fumigation’’ for commodities is 

when a buyer provides short (two 

working days or fewer) notification for 

a purchase or there is a short period 

after harvest in which to fumigate and 

there is limited silo availability for 

using alternatives. 

E. Proposed Critical Use Amounts 

Table A of the annex to Decision 

XXIII/4 lists critical uses and amounts 

agreed to by the Parties to the Montreal 

Protocol. When added together, the total 

authorized critical use for 2013 for the 

United States is 562,326 kilograms (kg), 

which is equivalent to 2.2% of the U.S. 

1991 methyl bromide consumption 

baseline of 25,528,270 kg. The 

maximum amount of new production 

and import for U.S. critical uses, 

specified in Table B of Decision XXIII/ 

4, is 562,326 kg, minus available stocks. 

In previous years, the maximum amount 

of new production has been less than 

the total authorization, with the 

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difference representing the minimum 

amount that the Parties expect to be 

used from pre-phaseout inventory. For 

2013 the Parties indicated that the 

United States should use ‘‘available 

stocks,’’ but unlike previous years, 

Decision XXIII/4 did not indicate a 

minimum amount expected to be taken 

from stocks. Consistent with EPA’s past 

practice, and our commitments to the 

Parties, EPA is considering the level of 

‘‘available stocks’’ that may be allocated 

in this rulemaking. However, EPA is 

seeking comment on changing the 

approach for determining the 

availability of stocks in this rule. 

As established in earlier rulemakings, 

EPA views the determination of the total 

allocation, up to the amount authorized 

by the Parties, as an appropriate 

exercise of discretion. The Agency may 

decide to allocate less than the full 

amount authorized by the Parties, and 

in past CUE rules EPA has made 

reductions to the total allocation after 

considering several factors, including 

new data on alternatives, such as the 

registration of a new alternative not 

considered when the CUN was 

submitted to UNEP, and carryover from 

prior years. For 2013, EPA does not 

have new data regarding the uptake of 

new alternatives. However, 

iodomethane, an alternative that was 

available when the CUN was submitted, 

is no longer available. EPA believes this 

is an important factor that should be 

considered in determining the total 

amount of the allocation; however, 

because of the schedule for 

consideration under the Montreal 

Protocol, the timing of withdrawal 

complicates any recognition by the 

Parties of this development for 2013. In 

addition, as detailed below, carryover 

for 2012 is zero and EPA is not 

proposing reductions on that basis. EPA 

is therefore proposing to allocate 

562,326 kg, the full amount authorized 

by the Parties, in particular due to the 

loss of iodomethane. EPA welcomes 

comment on the proposed levels of 

exempted new production and import 

for critical uses and the amount of 

material that may be sold from prephaseout inventory for critical uses. 

1. Approach for Determining Critical 

Stock Allowances 

EPA is proposing a new approach for 

determining the amount of CSAs and 

CUAs to allocate. EPA is proposing to 

calculate ‘‘available stocks’’ as a 

percentage of the existing inventory, as 

was reported to EPA on January 1, 2012. 

Under this approach, EPA is soliciting 

comment on two different amounts of 

‘‘available stocks’’, and thus two 

different possible allocations of CSAs. 

EPA is also soliciting comment on a 

separate approach that would continue 

to use the framework methodology to 

calculate the amount of ‘‘available 

stocks’’ by estimating drawdown during 

2012 and providing for a supply chain 

factor for 2013. As noted above, EPA is 

proposing to not reduce the critical use 

authorization of the Parties, and thus is 

proposing that any authorized amount 

not allocated as CSAs be allocated as 

new production and import allowances. 

In past CUE allocation rules, EPA 

allocated CSAs in amounts that 

represented not only the difference 

between the total authorized CUE 

amount and the amount of authorized 

new production and import but also an 

additional amount to reflect available 

stocks. After determining the CSA 

amount, EPA determined the portion of 

CUE methyl bromide to come from new 

production and import such that the 

total amount of methyl bromide 

exempted for critical uses did not 

exceed the total amount authorized by 

the Parties for that year. 

EPA views the decision whether to 

include these additional amounts in the 

calculation of the year’s overall CSA 

level as an appropriate exercise of 

discretion. The Agency is not required 

to allocate the full amount of authorized 

new production and consumption. The 

Parties only agree to ‘‘permit’’ a 

particular level of production and 

consumption; they do not—and 

cannot—mandate that the United States 

authorize this level of production and 

consumption domestically. Nor does the 

CAA require EPA to allow the full 

amount permitted by the Parties. 

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

require EPA to exempt any amount of 

production and consumption from the 

phaseout, but instead specifies that the 

Agency ‘‘may’’ create an exemption for 

critical uses, providing EPA with 

substantial discretion. 

When determining the CSA amounts, 

EPA considers what portion of existing 

stocks would be ‘‘available’’ for critical 

uses during that control period. The 

Parties to the Protocol recognized in 

their Decisions that the level of existing 

stocks may differ from the level of 

available stocks. Decision XXIII/4 states 

that ‘‘production and consumption of 

methyl bromide for critical uses should 

be permitted only if methyl bromide is 

not available in sufficient quantity and 

quality from existing stocks * * *.’’ In 

addition, earlier Decisions refer to the 

use of ‘‘quantities of methyl bromide 

from stocks that the Party has 

recognized to be available.’’ Thus, it is 

clear that individual Parties have the 

ability to determine their level of 

available stocks. Decision XXIII/4 

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 B. Section 

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

EPA to adjust the amount of new 

production and import to reflect the 

availability of stocks; however, as 

explained in previous rulemakings, 

making such an adjustment is a 

reasonable exercise of EPA’s discretion 

under this provision. 

In recent CUE rules, EPA has 

calculated the amount of ‘‘available 

stocks’’ using a formula adopted in the 

2008 CUE rule: ASCP = 

ESPP¥DPP¥SCFCP, where ASCP would 

be the available stocks on the first day 

of the control period; ESPP would be the 

existing pre-phaseout stocks of methyl 

bromide held in the United States by 

producers, importers, and distributors 

on the first day of the prior control 

period; DPP would be the estimated 

drawdown of existing stocks during the 

prior control period; and SCFCP would 

be the supply chain factor for the 

control period. In the section below, 

EPA is taking comment on using this 

approach, and is alternatively proposing 

a new approach, for determining the 

amount of available stocks. 

Option 1: Percentage of Existing 

Inventory 

For 2013, EPA is proposing a new 

approach that would allocate critical 

stock allowances in an amount equal to 

a percentage of the existing inventory. 

Under this approach, EPA proposes to 

calculate ‘‘available stocks’’ as a 

percentage of the existing inventory, as 

was reported to EPA on January 1, 2012. 

EPA is considering alternate approaches 

for allocating critical stock allowances 

because the old approach, discussed as 

option 2 below, may be increasingly 

inaccurate as the amount of inventory 

declines, overly complex, and 

contributing to delay in issuing the final 

critical use exemption. Furthermore, 

EPA believes that efforts to in estimate 

available inventory may be further 

complicated for 2013 by the recent 

withdrawal of iodomethane from the 

market. 

In the 2012 Final Rule, EPA 

recognized ‘‘that its estimates [of 

available stocks] have become 

increasingly inexact in characterizing 

actual drawdown of pre-phaseout 

inventory, as the amounts in inventory 

have declined over time. EPA intends to 

consider the adequacy of using this 

formula to assess ‘available stocks’ in a 

future action.’’ Initially, the drawdown 

estimate was a simple linear model 

based on past years’ rates. EPA modified 

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1EPA treats company-specific methyl bromide 

inventory information as confidential and believes 

that disaggregating the inventory data by geographic 

area could potentially reveal CBI. EPA solicits 

comment on this issue but is not proposing at this 

time to release data showing how much inventory 

is located in or near California. However, even in 

the absence of specific inventory data broken down 

by region, EPA believes that the fact that over 90% 

of critical use is in California is relevant to judging 

the availability of existing stocks. 

2The purpose, and calculation, of the supply 

chain factor is discussed in greater detail below, 

and in prior CUE notices. 

the approach when it became apparent 

that the inventory drawdown was 

decreasing exponentially rather than 

linearly. EPA noted in the 2009 CUE 

Rule that the rate of drawdown was 

based mostly on the business decisions 

of the companies that hold pre-phaseout 

inventory, and included aspects that are 

difficult for EPA to know or quantify, 

such as honoring long-term 

relationships with non-CUE customers 

or holding inventory in response to 

price fluctuations. To refine the analysis 

in subsequent rules EPA separately 

analyzed the use of inventory on critical 

uses, for which there are a set number 

of allowances, and non-critical uses, for 

which there are not. This approach is 

discussed in more detail below. 

Despite increased specificity, precise 

estimates still proved elusive. In 

successive years, EPA substantially 

overestimated inventory drawdown. 

Most recently, in the 2012 Rule, EPA 

estimated a drawdown of 1,110,633 kg, 

when the actual drawdown was half 

that amount, or 556,794 kg. The results 

of the methodology using the updated 

data were sufficiently different that EPA 

considered providing additional notice 

and the opportunity to comment to 

incorporate them into the final 

allocation rule. EPA is concerned that as 

the total amount of both the U.S. 

authorization and the pre-phaseout 

stocks become smaller, efforts to perfect 

EPA estimates in this area will delay 

needed rulemaking. 

Moreover, EPA believes that the fact 

that its projections consistently overestimate the amount of inventory that 

will be drawn down is evidence that 

EPA has been substantially overestimating the availability of prephaseout stocks. EPA has received 

comments in past rulemakings that 

existing inventory was not actually 

available to users because of reductions 

in the number of distributors, and 

decisions by distributors not to sell 

inventory. While EPA believes it is 

appropriate to rely on market flexibility 

and efficiency to distribute existing 

stocks of inventory, EPA recognizes that 

the data appear to show that inventory 

is less ‘‘available’’ than was estimated 

under EPA’s prior approach. 

EPA believes problems with the 

existing formula may also become worse 

due to a recent change in the geographic 

distribution of critical users. In the past, 

EPA has considered all pre-phaseout 

inventory to be available to all users, 

regardless of location. This assumption, 

as discussed in the 2009 CUE rule (74 

FR 19887, April 30, 2009), was based on 

the fact that inventory is held in 

California and the Southeast, as well as 

other locations around the country. 

While the geographic distribution of 

inventory generally remains the same, 

the authorized critical uses have shifted 

to California over the last two years. In 

the 2011 control period, 49% of the total 

authorization was for pre-plant uses in 

California and 38% was for pre-plant 

uses in the Southeast. In 2013, this ratio 

will be 91% and 4% respectively.1

EPA believes that inventory held in 

the Southeast may not be equally 

available to critical users in California. 

Stakeholders have told EPA that 

distributors do not ship pre-phaseout 

inventory to buyers across the country. 

Unlike newly produced or imported 

material which enters nationwide 

distribution networks, inventory is 

mostly held by regional distributors. In 

addition, those distributors typically 

sell both the gas and the application 

services together. Distributors would 

therefore incur additional expense to 

ship material without being able to 

charge for performing the application. 

EPA specifically encourages comment 

on the question of whether inventory 

held in one part of the country has been, 

or can be, transported to critical uses in 

another part of the country. 

Another reason EPA is proposing to 

allocate critical stock allowances equal 

to a percentage of the existing inventory 

is that EPA believes this method will be 

easier to calculate and will help 

streamline the issuance of the CUE 

allocation rule. EPA has received 

comment in the past few CUE Rules that 

the agency should find ways to issue the 

allocation rulemakings before the start 

of the control period. In the 2012 CUE 

final rule, EPA stated that the agency 

‘‘will consider means of streamlining 

the Critical Use Exemption rulemaking 

in the future so that the rule can be 

issued prior to the start of the control 

period.’’ Absent that, EPA will seek to 

issue a final rule as soon into the control 

period as possible. EPA is concerned 

that efforts to correct estimates and 

incorporate the most recent data into the 

calculation of the supply chain factor 

and the rest of the formula will further 

delay future CUE rules. EPA recognized 

in the 2012 Rule that ‘‘the time-sensitive 

need for a CUE authorization for the 

current calendar year and concluded 

that re-opening the allocation for 

comment is not warranted.’’ EPA 

believes that its prior formula may have 

attempted to achieve greater precision 

than was possible or needed, especially 

in light of the continued reduction in 

both inventory and annual 

authorizations for critical uses. Thus, 

EPA is considering an alternate 

approach, which provides a greater 

likelihood of expediting the rulemaking 

process. EPA will continue to consider 

other possible means of streamlining the 

CUE rulemaking process in the future. 

As part of this approach, EPA would 

end its use of the supply chain factor 

(SCF).2 Because this approach does not 

use the available stocks calculation 

developed in the 2008 CUE Rule to 

determine the amount of available 

stocks for use by critical users in 2013, 

calculation of the SCF is unnecessary. 

EPA notes that the entire critical use 

exemption authorized by the Parties for 

2013 is 562 MT, which is substantially 

less than the existing inventory. EPA 

believes that, although portions of the 

existing inventory may not practically 

be available under usual circumstances 

(e.g., because it may be located in the 

Southeast and not California), users may 

be able to access greater amounts of 

inventory in the event of extraordinary 

circumstances such as a catastrophic 

domestic production failure. 

In addition to soliciting comment on 

this approach to calculating CSAs, EPA 

is also soliciting comment on the 

specific amount of inventory to be 

allocated. EPA is proposing to allocate 

CSAs equal to 5% of the January 1, 

2012, reported inventory. Alternatively, 

EPA is also taking comment on not 

allocating any CSAs for 2013 under this 

approach in light of the effect that the 

withdrawal of iodomethane may have 

on the demand for inventory. The two 

options are discussed below. 

EPA is proposing to allocate CSAs 

equal to 5% of the January 1, 2012, 

reported inventory. The inventory at 

that date was 1,248,876 kg. Therefore, 

under this approach, EPA would 

allocate 62,444 kg of critical stock 

allowances for 2013. Since 2006, the 

amount of prior year inventory used 

through the expenditure of CSAs has 

ranged from 8% to 26%. EPA believes 

that it would be appropriate to select a 

percentage that is below the historic 

range for several reasons. First, EPA 

wishes to ensure that the amount 

allocated for 2013 will be available to 

critical users in that year. As discussed 

above, the availability of existing 

inventory is becoming increasingly 

difficult to estimate as the amount 

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74442 Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 

declines. Although EPA is proposing to 

consider historic patterns of availability 

in considering how many CSAs to 

allocate, the fact that stocks in the 

Southeast may be unavailable as a 

practical matter for growers in 

California, while critical uses have 

recently become highly concentrated in 

California, suggests that, even under this 

approach, a conservative approach to 

estimating availability of inventory is 

warranted. As noted above, this issue is 

particularly important for 2013 because 

the unexpected withdrawal of 

iodomethane. 

EPA believes it is reasonable to 

assume that 5% of existing inventory on 

January 1, 2012, could be available for 

critical users in 2013. Historically, the 

drawdown of inventory for all uses has 

never exceeded 42% of the prior year’s 

inventory. Drawdown would have to be 

over twice that rate in 2012 for there to 

be less inventory in 2013 than the 

amount of the proposed CSA. Rather, 

EPA anticipates that the constraints on 

drawdown discussed in prior rules (e.g., 

critical uses capped by allocation 

amounts, revised labeling removing 

uses, increased value of the material as 

supply decreases) will continue to limit 

the drawdown in 2012. At the same 

time, expenditure of CSAs have never 

amounted to less than 8% of inventory, 

and even if inventory was purchased for 

critical uses at only half that rate, it 

would still amount to 4% of the existing 

inventory, so EPA anticipates that at 

least that much inventory could be 

available for critical uses during 2013. 

EPA is also seeking comment on using 

the above approach but allocating 0% 

from existing stocks for 2013 in light of 

the withdrawal of iodomethane from the 

market. In March 2012, Arysta 

LifeScience, the manufacturer of 

iodomethane, suspended the sale of 

iodomethane across the United States. 

This alternative was registered for use in 

48 states on strawberries, tomatoes, 

peppers, ornamentals, turf, orchard 

replant, forest nursery seedlings, and 

strawberry nurseries. Many users had 

been transitioning to this alternative 

since 2008, when the product was 

federally registered. 

EPA believes that the unanticipated 

loss of this alternative could have 

increased demand for methyl bromide 

in 2012 from critical users. In comments 

to EPA’s 2010 CUE Rule, Arysta 

provided data that 97,341 kg of 

iodomethane was used in 2008 and 

177,991 kg was used in 2009. They 

calculated this to be equivalent to 

approximately 5,000 and 10,000 acres 

respectively. They also anticipated sales 

of 250,000 kg in 2010, which would be 

equivalent to 650 MT of methyl bromide 

on 13,500 acres. 

In 2012, critical users may seek 

additional methyl bromide from prephaseout inventory than in previous 

years. The 2012 critical uses include all 

of the registered uses of iodomethane 

except for turf. Growers in Florida and 

the Southeastern United States were 

using iodomethane on tomatoes, 

peppers, strawberries, and ornamentals. 

While many of these sectors could use 

alternatives other than iodomethane, 

such as the UGA 3-way, the unexpected 

loss of iodomethane could lead to 

growers using inventory methyl 

bromide for this season. The historical 

trend described below, in which no 

more than 70% of the CSAs allocated in 

one year had ever been expended, may 

not hold true for 2012. However, under 

the framework, the use of inventory for 

critical uses cannot exceed the total 

CSA allocation of 263 MT in 2012. 

EPA also does not believe that the 

withdrawal of iodomethane will 

increase demand for pre-phaseout 

inventory from non-critical uses in 

2012. Under the reregistration decision 

for methyl bromide, seven non-critical 

uses remain on the pre-plant methyl 

bromide labels. These non-critical uses 

can continue to use methyl bromide but 

are restricted to pre-phaseout inventory. 

The uses are caneberries, fresh market 

tomatoes grown in California, fresh 

market peppers grown in California, 

Vidalia onions grown in Georgia, ginger 

grown in Hawaii, soils on golf courses 

and athletic/recreational fields for 

resurfacing/replanting of turf, and 

tobacco seedling trays. See 76 FR 7200 

(February 9, 2011). Collectively they are 

referred to as ‘‘Group II uses.’’ Of the 

Group II uses, iodomethane was only 

registered for use on fresh market 

tomatoes grown in California, fresh 

market peppers grown in California, and 

turf. Iodomethane was not used in 

California and EPA suspects it was not 

widely used on turf since that sector did 

not submit an application for a critical 

use exemption for 2015. EPA is seeking 

comment and additional data on 

whether the loss of iodomethane will 

limit the availability of inventory in 

2013. 

EPA understands that changes in the 

status of methyl bromide alternatives 

can occur, and that these changes may 

expand or contract the list of existing 

options. We also understand that the 

sudden change in the availability of 

iodomethane has created near-term 

difficulties for growers in transition. As 

noted above, EPA has taken this change 

in circumstance into account in 

proposing to allocate the full amount of 

CUE authorized by the Parties in 2013. 

EPA is also requesting comment on a 

range of potential amounts for the CSA 

allocation, recognizing that past CUE 

rules may have overestimated the 

amount of stocks that are available to 

critical users. Finally, EPA requests 

comment on and relevant data to 

support consideration of other potential 

mechanisms within the Clean Air Act or 

other statutory authorities that the EPA 

could use to respond to unforeseen or 

emergency situations. 

Therefore, under this proposed 

approach, the agency is proposing to 

allocate 5% of existing inventory, or 

62,444 kg of critical stock allowances for 

2013. EPA solicits comment on whether 

5% is the appropriate amount, or 

whether a higher or lower figure would 

be appropriate. EPA specifically seeks 

comment on allocating 0 kg from stocks 

under this approach. In considering the 

possibility of an allocation for CSAs set 

at 0 kg, EPA is particularly interested in 

comments from critical stock allowance 

holders who would be barred under the 

existing framework from selling 

inventory to critical users in 2013. EPA 

is interested in learning whether an 

allocation at or close to 0 kg would 

prevent the drawdown of stocks or 

prevent the fulfillment of contracts or 

commitments to sell pre-phaseout 

inventory in 2013. EPA is interested in 

learning whether critical users who in 

the past have accessed allocations of 

CSAs would still be able to access 

methyl bromide, either through the 

conversion of CUAs to CSAs, or from 

other sources. Finally, EPA is interested 

in comment on the restriction in the 

framework rule that limits the sale of 

inventory to critical uses through the 

CSA allocation, see 40 CFR 82.4(p), 

whether that restriction should be lifted, 

and to what extent reporting and 

recordkeeping requirements should be 

adjusted were the restriction lifted. 

Option 2: Framework Approach 

EPA also solicits comment on 

whether it should retain for 2013 its 

recent approach to calculating 

‘‘available stocks’’ using the formula 

ASCP = ESPP ¥ DPP ¥ SCFCP. EPA 

calculates through this formula that 

there will be 221,495 kg of ‘‘available 

stocks’’ on January 1, 2013. Under this 

approach, EPA would allocate 221,495 

kg of CSAs for 2013. 

The first step in the formula is to 

estimate the drawdown of stocks during 

2012. To do so, EPA adds the estimated 

amount of CSAs that will be expended 

in 2012 plus the estimated amount of 

methyl bromide that will be used in 

2012 for non-critical uses. EPA believes 

that this is a better practice than using 

a simple linear fit estimation, which 

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was the approach EPA used in the first 

few years it conducted this analysis. A 

linear estimate would have projected 

that no methyl bromide would remain 

in inventory at the beginning of 2013. 

Furthermore, this estimate does not 

consider that the use of inventory on 

critical uses is limited by the allocation 

of CSAs. 

The first element of the drawdown 

estimate is the amount of inventory 

used in 2012 on critical uses. This can 

be no more than the number of CSAs 

EPA allocated in the 2012 CUE Rule, 

which is 263,082 kg. As discussed in the 

Technical Support Document, on 

average only 59% of the CSAs allocated 

for a control period are reported as sold 

in that control period. To estimate the 

number of expended CSAs in 2012, EPA 

conservatively assumes that 70% of the 

CSAs allocated for 2012 will be sold. 

This amount is greater than any year’s 

use of CSA allocations, however EPA 

notes below that the loss of 

iodomethane may result in greater 

demand for inventory in 2012 than past 

years. Thus, EPA estimates that 184,157 

kg of inventory will be sold for critical 

uses in 2012. 

The second element of the drawdown 

estimate is the amount of inventory 

used in 2012 on Group II and noncritical uses. Group II uses are seven 

non-critical uses that remain on the preplant methyl bromide labels. Postharvest labels have not been revised yet 

to implement the terms of the 

reregistration decision concerning use of 

methyl bromide for commodity 

fumigation and thus the universe of 

labeled post-harvest uses remains 

broader. 

There is no clear trend in the pattern 

of usage for non-critical uses. EPA 

therefore is estimating the amount of 

sales for non-critical uses in 2012 by 

analyzing the percent of the total 

inventory used each year for this 

purpose. For example, in 2010, 36% of 

the total start of year inventory was sold 

for non-critical uses. On a weight basis, 

this was equal to 647 MT. In 2006, 

much more inventory (on a weight 

basis) was sold for non-critical uses, 

1,249 MT, but this comprised only 16% 

of the total start of year inventory that 

year. EPA does not believe that an 

average of the amounts sold (on a 

weight basis) in 2006–2011 for all noncritical uses is accurate because the 

inventory has declined. For example, 

the 1,249 MT of inventory was sold in 

2006 for non-critical uses is unlikely to 

provide an accurate description of the 

drawdown in 2012, even when averaged 

with other years’ data, because there 

was only 1,249 MT of inventory at the 

beginning of 2012. EPA therefore is 

analyzing the drawdown on a 

proportional basis rather than a strictly 

weight basis. While the average 

proportion is 17%, EPA is 

conservatively using the highest 

proportion. Therefore, EPA estimates 

that 36% of the total start of year 

inventory would be used for non-critical 

uses in 2012. Thus, EPA estimates that 

449,595 kg of inventory will be sold for 

Group II uses in 2012. EPA believes that 

this estimate is conservative because the 

analysis encompasses years where the 

use of inventory included all noncritical uses, and was not restricted to 

Group II uses. These data are contained 

in EPA’s annual Accounting 

Frameworks submitted to UNEP and 

summarized in the technical support 

document in the docket. 

In summary, EPA estimates the 

drawdown of inventory in 2012 as the 

sum of (1) the use of CSAs in 2012 and 

(2) the estimate for non-critical uses in 

2012. Using this method, EPA 

conservatively projects that the prephaseout methyl bromide inventory will 

be drawn down by 633,759 kg (184,157 

+ 449,595) during 2012. This would 

result in a pre-phaseout inventory 

declining from 1,248,876 kg on January 

1, 2012, to 615,124 kg on January 1, 

2013. EPA welcomes comment on this 

proposed method of calculating 

inventory drawdown. If EPA utilizes 

this approach in the final rule and 

receives actual end-of-year reported data 

on inventory levels before this rule is 

finalized, EPA may substitute that data 

for this estimate. 

The next element in the calculation of 

available stocks is the supply chain 

factor (SCF). The SCF represents EPA’s 

technical estimate of the amount of prephaseout inventory that would be 

adequate to meet a need for critical use 

methyl bromide after an unforeseen 

domestic production failure. As 

described in the 2008 CUE Rule, and the 

Technical Support Document contained 

in the docket to this rule, EPA estimates 

that it would take 15 weeks for 

significant imports of methyl bromide to 

reach the U.S in the event of a major 

supply disruption. Consistent with the 

regulatory framework used in previous 

CUE allocation rules, the SCF for 2013 

conservatively reflects the effect of a 

supply disruption occurring in the peak 

period of critical use methyl bromide 

production, which is the first quarter of 

the year. While this 15-week disruption 

is based on shipping capacity and does 

not change year to year, other inputs to 

EPA’s analysis do change each year 

including the total U.S. and global 

authorizations for methyl bromide and 

the average seasonal production of 

critical use methyl bromide in the 

United States. Using updated numbers, 

EPA estimates that critical use 

production in the first 15 weeks of each 

year (the peak supply period) currently 

accounts for approximately 70% of 

annual critical use methyl bromide 

demand. EPA, therefore, estimates that 

the peak 15-week shortfall in 2013 

could be 394 MT. 

As EPA stated in previous CUE Rules, 

the SCF is not a ‘‘reserve’’ of methyl 

bromide but is merely an analytical tool 

used to provide greater transparency 

regarding how the Agency determines 

CSA amounts. Further general 

discussion of the SCF is in the final 

2008 CUE rule (72 FR 74118, December 

28, 2007) and further detail about the 

analysis used to derive the value for the 

2013 supply chain factor is provided in 

the Technical Support Document 

available on the public docket for this 

rulemaking. 

Using the formula AS2013 = 

ES2012¥D2012¥SCF2013, EPA estimates 

under the framework approach that 

there will be 221,495 kg of pre-phaseout 

stocks of methyl bromide ‘‘available’’ to 

be allocated in 2013. (221,495 = 

1,248,876 ¥ 633,759 ¥ 393,628). EPA 

welcomes comment on this approach to 

determining the level of available stocks 

and the critical stock allowance 

allocation for 2013. 

In summary, EPA is proposing for 

2013 a new approach for allocating 

amounts authorized for critical uses 

between CSAs and CUAs, by allocating 

CSAs as a percentage of the existing 

inventory. In particular, EPA is 

proposing to allocate CSAs in an 

amount equal to 5% of the 2012 

reported inventory, or 62,444 kg. EPA 

seeks comment on a range of values for 

the allocation of CSAs, given the loss of 

iodomethane. EPA particularly solicits 

comment on allocating 0 kg of CSAs. 

EPA is also seeking comment on using 

the existing framework to calculate the 

amount of ‘‘available stocks’’ in 2013. 

EPA estimates the CSA allocation would 

be 221,495 kg under this approach. 

As in past years, EPA would allocate 

CSAs based on each company’s 

proportionate share of the aggregate 

inventory. In 2006, the United States 

District Court for the District of 

Columbia upheld EPA’s treatment of 

company-specific methyl bromide 

inventory information as confidential. 

NRDC v. Leavitt, 2006 WL 667327 

(D.D.C. March 14, 2006). Therefore, the 

documentation regarding companyspecific allocation of CSAs is in the 

confidential portion of the rulemaking 

docket and the individual CSA 

allocations are not listed in the table in 

40 CFR 82.8(c)(2). EPA will inform 

listed companies of their CSA 

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74444 Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 

allocations in a letter following 

publication of the final rule. 

2. Approach for Determining New 

Production and Import Allowances 

For 2013, EPA is proposing to 

generally apply the existing framework 

established in the Framework Rule. 

Under this approach, the amount of new 

production would equal the total 

amount authorized by the Parties to the 

Montreal Protocol in Decision XXIII/4, 

minus the CSA amount detailed above, 

minus any reductions for carryover and 

the uptake of alternatives. As explained 

above, EPA has considered a number of 

factors in determining the total 

allocation, including the loss of the 

alternative iodomethane, and is not 

proposing to reduce the total allocation 

below the amount approved in Decision 

XXIII/4. Applying this established 

approach, EPA is proposing to exempt 

limited amounts of new production and 

import of methyl bromide for critical 

uses in 2013 such that the total 

authorization equals 562,326 kg. 

Because EPA is taking comment on a 

range of values for the critical stock 

allocation, there would be a 

corresponding range of values for the 

new production/import amount from to 

340,831 kg to 562,326 kg. EPA is 

proposing an approach that would 

result in an allocation of 499,882 kg. 

EPA is taking comment on this 

approach. 

Carryover Material The Parties in 

paragraph 6 of Decision XXIII/4 ‘‘urge 

parties operating under critical-use 

exemptions to put in place effective 

systems to discourage the accumulation 

of methyl bromide produced under the 

exemption.’’ As discussed in the 

Framework Rule, EPA regulations 

prohibit methyl bromide produced or 

imported after January 1, 2005, under 

the critical use exemption being added 

to the existing pre-2005 inventory. 

Quantities of methyl bromide produced, 

imported, exported, or sold to end-users 

under the critical use exemption in a 

control period must be reported to EPA 

the following year. EPA uses these 

reports to calculate the amount of 

methyl bromide produced or imported 

under the critical use exemption, but 

not exported or sold to end-users in that 

year. EPA deducts an amount equivalent 

to this ‘‘carryover’’ from the total level 

of allowable new production and import 

in the year following the year of the data 

report. Carryover material (which is 

produced using critical use allowances) 

is not included in EPA’s definition of 

existing inventory (which applies to 

pre-2005 material) because this would 

lead to a double-counting of carryover 

amounts, and a double reduction of 

critical use allowances (CUAs). 

All critical use methyl bromide that 

companies reported to be produced or 

imported in 2011 was sold to end users. 

The information reported to EPA is that 

1,499 MT of critical use methyl bromide 

was produced or imported in 2011. 

Slightly more than the amount 

produced or imported was actually sold 

to end-users. This additional amount 

was from distributors selling material 

that was carried over from the prior 

control period. Using the existing 

framework, EPA is proposing to apply 

the carryover deduction of 0 kg to the 

new production amount. EPA’s 

calculation of the amount of carryover at 

the end of 2011 is consistent with the 

method used in previous CUE rules, and 

with the method agreed to by the Parties 

in Decision XVI/6 for calculating 

column L of the U.S. Accounting 

Framework. Past U.S. Accounting 

Frameworks, including the one for 2011, 

are available in the public docket for 

this rulemaking. 

Uptake of Alternatives Under the 

existing framework, EPA considers data 

on the availability of alternatives that it 

receives following submission of each 

nomination to UNEP. In previous rules 

EPA has reduced the total CUE amount 

when a new alternative has been 

registered. Because EPA determines the 

CSA allocation separately, any 

reduction in the total amount has been 

reflected in a corresponding reduction 

in the allocation for new production/ 

import. However, where an alternative 

is withdrawn, EPA cannot propose to 

increase the total CUE amount above the 

amount authorized by the Parties. 

A development since the USG 

submitted the 2013 CUN is that 

Dimethyl Disulfide (DMDS) has been 

registered in additional states. In July 

2010, EPA registered DMDS to control 

nematodes, weeds, and pathogens in 

tomatoes, peppers, eggplants, 

curcurbits, strawberries, ornamentals 

and forest nursery seedlings, and 

onions. The CUN considered only a 

limited uptake in 2013. At that time 

only a few states had registered DMDS 

and it was not registered in either 

California or Florida. Twenty-four states 

have now registered DMDS, including 

Georgia and Florida. 

EPA is proposing not to make a 

reduction to the new production/import 

allocation based on these additional 

state registrations. As discussed above, 

over 90% of the amount authorized is 

for critical uses in California, which has 

not yet registered DMDS. EPA 

anticipates that the uptake of DMDS in 

the Southeast will therefore not 

significantly affect total demand for 

critical use methyl bromide. 

EPA is not proposing to make any 

other modifications for alternatives. 

Transition rates for other alternatives 

have already been applied for 

authorized 2013 critical use amounts 

through the nomination and 

authorization process. EPA will 

consider new data received during the 

comment period and continues to gather 

information about methyl bromide 

alternatives through the CUE 

application process, and by other 

means. EPA also continues to support 

research and adoption of methyl 

bromide alternatives, and to request 

information about the economic and 

technical feasibility of all existing and 

potential alternatives. 

Allocation Amounts EPA is proposing 

to allocate 2013 critical use allowances 

for new production or import of methyl 

bromide equivalent to 499,882 kg. 

Because EPA is proposing a range of 

approaches for the critical stock 

allocation, EPA is taking comment on 

the corresponding range of values for 

the new production/import amount 

from to 340,831 kg to 562,326 kg. 

EPA is proposing to allocate 

allowances to the four companies that 

hold baseline allowances. The proposed 

allocation, as in previous years, is in 

proportion to those baseline amounts, as 

shown in the proposed changes to the 

table in 40 CFR 82.8(c)(1). Paragraph 3 

of Decision XXIII/4 states ‘‘that parties 

shall endeavor to license, permit, 

authorize or allocate quantities of 

methyl bromide for critical uses as 

listed in table A of the annex to the 

present decision.’’ This is similar to 

language in prior Decisions authorizing 

critical uses. These Decisions call on 

Parties to endeavor to allocate critical 

use methyl bromide on a sector basis. 

The Framework Rule proposed several 

options for allocating critical use 

allowances, including a sector-by-sector 

approach. The agency evaluated various 

options based on their economic, 

environmental, and practical effects. 

After receiving comments, EPA 

determined that a lump-sum, or 

universal, allocation, modified to 

include distinct caps for pre-plant and 

post-harvest uses, was the most efficient 

and least burdensome approach that 

would achieve the desired 

environmental results, and that a sectorby-sector approach would pose 

significant administrative and practical 

difficulties. For the reasons discussed in 

the preamble to the 2009 CUE rule (74 

FR 19894), the agency believes that 

under the approach adopted in the 

Framework Rule, the actual critical use 

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will closely follow the sector breakout 

listed in the Parties’ decisions. 

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

I/4 

Paragraphs 1 and 4 of Decision XXIII/ 

4 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 

2013 control period. A discussion of the 

agency’s application of the criteria in 

paragraph 1 of Decision IX/6 appears in 

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

preamble. In section V.D. the agency 

solicits comments on the technical and 

economic basis for determining that the 

uses listed in this proposed rule meet 

the criteria of the critical use exemption. 

The CUNs detail how each proposed 

critical use meets the criteria listed in 

paragraph 1 of Decision IX/6, apart from 

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

the criteria in paragraphs 5 and 6 of 

Decision Ex. I/4. 

The criterion in Decision IX/ 

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

available stocks of methyl bromide, is 

addressed in section V.E. of this 

preamble. The agency has previously 

provided its interpretation of the 

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

regarding the presence of significant 

market disruption in the absence of an 

exemption, and EPA refers readers to 

the 2006 CUE final rule (71 FR 5989, 

February 6, 2006) as well as to the 

memo on the docket ‘‘Development of 

2003 Nomination for a Critical Use 

Exemption for Methyl Bromide for the 

United States of America’’ for further 

elaboration. 

The remaining considerations, 

including the lack of available 

technically and economically feasible 

alternatives under the circumstance of 

the nomination; efforts to minimize use 

and emissions of methyl bromide where 

technically and economically feasible; 

the development of research and 

transition plans; and the requests in 

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

consider and implement MBTOC 

recommendations, where feasible, on 

reductions in the critical use of methyl 

bromide and include information on the 

methodology they use to determine 

economic feasibility, are addressed in 

the nomination documents. 

Some of these criteria are evaluated in 

other documents as well. For example, 

the United States 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, updated in October 

2009, as well as in ongoing 

consultations with industry. The 

National Management Strategy 

addresses all of the aims specified in 

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

and is available in the docket for this 

rulemaking. 

There continues to be a need for 

methyl bromide in order to conduct the 

research required by Decision IX/6. 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. As discussed in the 

preamble to the 2010 CUE rule (75 FR 

23179, May 3, 2010), research is a key 

element of the critical use process. 

Research on the crops shown in the 

table in Appendix L to subpart A 

remains a critical use of methyl 

bromide. While researchers may 

continue to use newly produced 

material for field, post-harvest, and 

emission minimization studies requiring 

the use of methyl bromide, EPA 

encourages researchers to use prephaseout inventory purchased through 

the expenditure of CSAs. EPA also 

encourages distributors to make 

inventory available to researchers, to 

promote the continuing effort to assist 

growers to transition critical use crops 

to alternatives. 

G. Emissions Minimization 

Previous decisions have stated that 

critical users shall 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. 

EPA developed a comprehensive 

strategy for risk mitigation through the 

2006 Reregistration Eligibility Decision 

(RED) for methyl bromide, which is 

implemented through restrictions on 

how methyl bromide products can be 

used. This approach requires that 

methyl bromide labels include 

directions that treated sites be tarped 

except for California orchard replant 

where EPA instead requires deep (18 

inches or greater) shank applications. 

The RED also incorporated incentives 

for applicators to use high-barrier tarps, 

such as virtually impermeable film 

(VIF), by allowing smaller buffer zones 

around those sites. In addition to 

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

pest control at lower application rates. 

The amount of methyl bromide 

nominated by the United States reflects 

the lower application rates necessary 

when using high-barrier tarps, where 

such tarps are allowed. 

EPA will continue to work with the 

U.S. Department of Agriculture— 

Agricultural Research Service (USDA– 

ARS) and the National Institute for Food 

and Agriculture (USDA–NIFA) to 

promote emission reduction techniques. 

The federal government has invested 

substantial resources into best practices 

for methyl bromide use, including 

emission reduction practices. The 

Cooperative Extension System, which 

receives some support from USDA– 

NIFA provides locally appropriate and 

project focused outreach education 

regarding methyl bromide transition 

best practices. Additional information 

on USDA research on alternatives and 

emissions reduction can be found at: 

http://www.ars.usda.gov/research/

programs/programs.htm?NP_CODE=308 

and http://www.csrees.usda.gov/fo/ 

methylbromideicgp.cfm. 

Users of methyl bromide should 

continue to make every effort to 

minimize overall emissions of methyl 

bromide to the extent consistent with 

State and local laws and regulations. 

EPA also encourages researchers and 

users who are using such techniques to 

inform EPA of their experiences and to 

provide such information with their 

critical use applications. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order (EO) 12866 

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

proposal is a ‘‘significant regulatory 

action.’’ This action is likely to result in 

a rule that may raise novel legal or 

policy issues. Accordingly, EPA 

submitted this action to the Office of 

Management and Budget (OMB) for 

review under Executive Orders 12866 

and 13563 (76 FR 3821, January 21, 

2011) and any changes made in 

response to interagency 

recommendations have been 

documented in the docket for this 

action. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. The 

application, recordkeeping, and 

reporting requirements have already 

been established under previous critical 

use exemption rulemakings and this 

action does not propose to change any 

of those existing requirements. The 

Office of Management and Budget 

(OMB) has previously approved the 

information collection requirements 

contained in the existing regulations at 

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74446 Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 

40 CFR part 82 under the provisions of 

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

3501 et seq. and has assigned OMB 

control number 2060–0482. The OMB 

control numbers for EPA’s regulations 

in 40 CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The RFA generally requires an agency 

to prepare a regulatory flexibility 

analysis of any rule subject to noticeand-comment rulemaking requirements 

under the Administrative Procedure Act 

or any other statute unless the agency 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. For 

purposes of assessing the impacts of this 

rule on small entities, small entity is 

defined as: (1) A small business as 

defined by the Small Business 

Administration’s regulations at 13 CFR 

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

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

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

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

owned and operated and is not 

dominant in its field. 

Category NAICS code SIC code 

NAICS Small business size 

standard (in number of 

employees or millions of 

dollars) 

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

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

1114—Greenhouse, Nursery, and Floriculture Production.0173—Tree Nuts.

0175—Deciduous Tree Fruits (except apple 

orchards and farms).

0179—Fruit and Tree Nuts, NEC.

0181—Ornamental Floriculture and Nursery 

Products.

0831—Forest Nurseries and Gathering of 

Forest Products.

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

311211—Flour Milling ................................. 2041—Flour and Other Grain Mill Products 500 employees. 

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

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

493130—Farm Product Warehousing and 

Storage.

4221—Farm Product Warehousing and 

Storage.

$25.5 million. 

Distributors and Applicators.115112—Soil Preparation, Planting and 

Cultivating.

0721—Crop Planting, Cultivation, and Protection.$7 million. 

Producers and Importers.325320—Pesticide and Other Agricultural 

Chemical Manufacturing.

2879—Pesticides and Agricultural Chemicals, NEC.500 employees. 

Agricultural producers of minor crops 

and entities that store agricultural 

commodities are categories of affected 

entities that contain small entities. This 

proposed rule would only affect entities 

that applied to EPA for an exemption to 

the phaseout of methyl bromide. In most 

cases, EPA received aggregated requests 

for exemptions from industry consortia. 

On the exemption application, EPA 

asked consortia to describe the number 

and size distribution of entities their 

application covered. EPA estimated that 

3,218 entities petitioned EPA for an 

exemption for the 2005 control period. 

EPA revised this estimate in 2011 down 

to 1,800 end users of critical use methyl 

bromide. EPA believes that the number 

continues to decline as growers cease 

applying for critical uses. Since many 

applicants did not provide information 

on the distribution of sizes of entities 

covered in their applications, EPA 

estimated that, based on the above 

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

businesses. In addition, other categories 

of affected entities do not contain small 

businesses based on the above 

description. 

After considering the economic 

impacts of this proposed rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

In determining whether a rule has a 

significant economic impact on a 

substantial number of small entities, the 

impact of concern is any significant 

adverse economic impact on small 

entities, since the primary purpose of 

the regulatory flexibility analyses is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the 

proposed rule on small entities.’’ (5 

U.S.C. 603–604). Thus, an agency may 

certify that a rule will not have a 

significant economic impact on a 

substantial number of small entities if 

the rule relieves a regulatory burden, or 

otherwise has a positive economic effect 

on all of the small entities subject to the 

rule. Since this rule would allow the use 

of methyl bromide for approved critical 

uses after the phaseout date of January 

1, 2005, this action would confer a 

benefit to users of methyl bromide. EPA 

estimates in the Regulatory Impact 

Assessment found in the docket to this 

rule that the reduced costs resulting 

from the de-regulatory creation of the 

exemption are approximately $22 

million to $31 million on an annual 

basis (using a 3% or 7% discount rate 

respectively). We have therefore 

concluded that this proposed rule 

would relieve regulatory burden for all 

small entities. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for State, local, or tribal 

governments or the private sector. The 

action imposes no enforceable duty on 

any State, local or tribal governments or 

the private sector. Instead, this action 

would provide an exemption for the 

manufacture and use of a phased out 

compound and would not impose any 

new requirements on any entities. 

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Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 74447 

Therefore, this action is not subject to 

the requirements of sections 202 or 205 

of the UMRA. This action is also not 

subject to the requirements of section 

203 of UMRA because it contains no 

regulatory requirements that might 

significantly or uniquely affect small 

governments. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This proposed 

rule is expected to primarily affect 

producers, suppliers, importers, and 

exporters and users of methyl bromide. 

Thus, Executive Order 13132 does not 

apply to this proposed rule. In the spirit 

of Executive Order 13132, and 

consistent with EPA policy to promote 

communications between EPA and State 

and local governments, EPA specifically 

solicits comment on this proposed 

action from State and local officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This rule does not significantly or 

uniquely affect the communities of 

Indian tribal governments nor does it 

impose any enforceable duties on 

communities of Indian tribal 

governments. Thus, Executive Order 

13175 does not apply to this action. EPA 

specifically solicits additional comment 

on this proposed action from tribal 

officials. 

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 proposed rule is not a 

‘‘significant energy action’’ as defined in 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355 (May 

22, 2001)) because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

This proposed rule does not pertain to 

any segment of the energy production 

economy nor does it regulate any 

manner of energy use. Therefore, we 

have concluded that this proposed rule 

is not likely to have any adverse energy 

effects. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

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 proposed 

rulemaking does not involve technical 

standards. Therefore, EPA is not 

considering the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

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 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations, 

because it affects the level of 

environmental protection equally for all 

affected populations without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. 

Any ozone depletion that results from 

this proposed rule will impact all 

affected populations equally because 

ozone depletion is a global 

environmental problem with 

environmental and human effects that 

are, in general, equally distributed 

across geographical regions in the 

United States. 

List of Subjects in 40 CFR Part 82 

Environmental protection, Chemicals, 

Exports, Imports, Ozone depletion. 

Dated: December 7, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the 

preamble, 40 CFR Part 82 is proposed to 

be amended as follows: 

PART 82—PROTECTION OF 

STRATOSPHERIC OZONE 

1. The authority citation for part 82 

continues to read as follows: 

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

7671q. 

2. Amend § 82.8 by revising the table 

in paragraph (c)(1) and by revising 

paragraph (c)(2). 

§ 82.8 Grant of essential use allowances 

and critical use allowances. 

* * * * * 

(c) * * * 

(1) * * * 

Company 

2013 Critical use 

allowances for 

pre-plant uses* 

(kilograms) 

2013 Critical use 

allowances for 

post-harvest uses* 

(kilograms) 

Great Lakes Chemical Corp. A Chemtura Company .................................................................................. 287,633 16,145 

Albemarle Corp. ........................................................................................................................................... 118,281 6,639 

ICL–IP America ............................................................................................................................................ 65,365 3,669 

TriCal, Inc. ................................................................................................................................................... 2,035 114 

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74448 Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 

Company 

2013 Critical use 

allowances for 

pre-plant uses* 

(kilograms) 

2013 Critical use 

allowances for 

post-harvest uses* 

(kilograms) 

Total** ................................................................................................................................................... 473,315 26,567 

* 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 2013 on a 

pro-rata basis in relation to the 

inventory held by each. 

Company 

Albemarle Degesch America, Inc. Prosource One 

Bill Clark Pest Control, Inc. Helena Chemical Co. Trical Inc. 

Burnside Services, Inc. ICL–IP America Trident Agricultural Products 

Cardinal Professional Products Industrial Fumigant Company TriEst Ag Group, Inc. 

Chemtura Corp. Pacific Ag Supplies Inc. Univar 

Crop Production Services Pest Fog Sales Corp. Western Fumigation 

TOTAL¥62,444 kilograms 

3. Appendix L to Subpart A is revised 

to read as follows: 

Appendix L to Subpart A of Part 82— 

Approved Critical Uses and Limiting 

Critical Conditions for Those Uses for 

the 2013 Control Period 

Column A Column B Column C 

Approved critical uses Approved critical user and location of use 

Limiting critical conditions that exist, or that the approved critical 

user reasonably expects could rise without methyl bromide 

fumigation: 

PRE-PLANT USES 

Cucurbits ......................... Georgia growers on fewer than 10 acres ............... Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe root knot nematode infestation. 

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

Moderate to severe soilborne disease infestation. 

Restrictions on alternatives due to karst topographical. 

features and soils not supporting seepage irrigation. 

(b) Georgia growers on fewer than 10 acres ......... 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. 

Nursery Stock (Fruit, Nut, 

Flower).

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. 

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

grape, walnut, and almond growers.

Moderate to severe nematode infestation. 

Moderate to severe soilborne disease infestation. 

Replanted orchard soils to prevent orchard replant disease. 

Medium to heavy soils. 

Local township limits prohibiting 1,3-dichloropropene. 

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

Moderate to severe nematode infestation. 

Local township limits prohibiting 1,3-dichloropropene. 

(b) Florida growers .................................................. Moderate to severe weed infestation. 

Moderate to severe soilborne disease infestation. 

Moderate to severe nematode infestation. 

Restrictions on alternatives due to karst topographical. 

features and soils not supporting seepage irrigation. 

Peppers .......................... (a) 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. 

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Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Proposed Rules 74449 

Column A Column B Column C 

Approved critical uses Approved critical user and location of use 

Limiting critical conditions that exist, or that the approved critical 

user reasonably expects could rise without methyl bromide 

fumigation: 

(b) Georgia growers on fewer than 10 acres ......... Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation, or moderate to severe pythium root and collar rots. 

Moderate to severe southern blight infestation, crown or root 

rot. 

Restrictions on alternatives due to karst topographical features. 

Strawberry Fruit .............. 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. 

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

Moderate to severe yellow or purple nutsedge infestation. 

Moderate to severe nematode infestation. 

Tomatoes ........................ (a) 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. 

(b) Georgia growers on fewer than 10 acres ......... 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. 

POST-HARVEST USES 

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

the USA Rice Millers Association.

Moderate to severe beetle, weevil, or moth infestation. 

Presence of sensitive electronic equipment subject to corrosion. 

Time to transition to an alternative. 

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

who are members of the Pet Food Institute.

Moderate to severe beetle, moth, or cockroach infestation. 

Presence of sensitive electronic equipment subject to corrosion. 

Time to transition to an alternative. 

(c) Members of the North American Millers’ Association in the U.S..Moderate to severe beetle infestation. 

Presence of sensitive electronic equipment subject to corrosion. 

Time to transition to an alternative. 

Commodities ................... California entities storing walnuts, dried plums, 

figs, raisins, and dates (in Riverside county 

only) in California.

Rapid fumigation required to meet a critical market window, 

such as during the holiday season. 

Dry Cured Pork Products Members of the National Country Ham Association 

and the Association of Meat Processors, 

Nahunta Pork Center (North Carolina), and 

Gwaltney and Smithfield Inc.

Red legged ham beetle infestation. 

Cheese/ham skipper infestation. 

Dermested beetle infestation. 

Ham mite infestation. 

[FR Doc. 2012–30225 Filed 12–13–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131 

[EPA–HQ–OW–2009–0596; FRL–9759–1] 

RIN 2040–AF41 

Water Quality Standards for the State 

of Florida’s Lakes and Flowing Waters; 

Proposed Rule; Stay 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule; proposed stay. 

SUMMARY: The Environmental Protection 

Agency (EPA) proposes to temporarily 

stay our regulation the ‘‘Water Quality 

Standards for the State of Florida’s 

Lakes and Flowing Waters; Final Rule’’ 

(inland waters rule) to November 15, 

2013. EPA’s inland waters rule currently 

includes an effective date of January 6, 

2013, for the entire regulation except for 

the site-specific alternative criteria 

provision, which took effect on 

February 4, 2011. This proposed stay of 

its regulations is until November 15, 

2013, does not affect or change the 

February 4, 2011, effective date for the 

site-specific alternative criteria 

provision. 

DATES: Comments must be received on 

or before December 28, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OW–2009–0596, by one of the following 

methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. Email: ow-docket@epa.gov. 

3. Mail to: Water Docket, U.S. 

Environmental Protection Agency, Mail 

code: 28221T, 1200 Pennsylvania 

Avenue NW., Washington, DC 20460, 

Attention: Docket ID No. EPA–HQ–OW– 

2009–0596. 

4. Hand Delivery: EPA Docket Center, 

EPA West Room 3334, 1301 

Constitution Avenue NW., Washington, 

DC 20004, Attention Docket ID No. 

EPA–HQ–OW–2009–0596. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OW–2009– 

0596. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

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