Protection of Stratospheric Ozone: The 2009 Critical Use Exemption From the Phaseout of Methyl Bromide, 19878-19900 [E9-9966]
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19878
Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations
FOR FURTHER INFORMATION CONTACT:
Melanie R. Berson, Center for Veterinary
Medicine (HFV–110), Food and Drug
Administration, 7500 Standish Pl.,
Rockville, MD 20855, 240–276–8337,
e-mail: melanie.berson@fda.hhs.gov.
Pfizer,
Inc., 235 East 42d St., New York, NY
10017–5755, filed a supplement to
NADA 141–152 that provides for topical
veterinary prescription use of
REVOLUTION (selamectin) in dogs and
cats. The supplemental NADA revises
the minimum age of treatment from 6
weeks to 8 weeks for kittens. The
supplemental NADA is approved as of
April 6, 2009, and the regulations are
amended in 21 CFR 524.2098 to reflect
the approval.
Approval of these supplemental
NADAs did not require review of
additional safety or effectiveness data or
information. Therefore, a freedom of
information summary is not required.
The agency has determined under 21
CFR 25.33(a)(1) that this action is of a
type that does not individually or
cumulatively have a significant effect on
the human environment. Therefore,
neither an environmental assessment
nor an environmental impact statement
is required.
This rule does not meet the definition
of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because
it is a rule of ‘‘particular applicability.’’
Therefore, it is not subject to the
congressional review requirements in 5
U.S.C. 801–808.
Dated: April 23, 2009.
Steven D. Vaughn,
Director, Office of New Animal Drug
Evaluation, Center for Veterinary Medicine.
[FR Doc. E9–9901 Filed 4–29–09; 8:45 am]
BILLING CODE 4160–01–S
SUPPLEMENTARY INFORMATION:
List of Subjects in 21 CFR Part 524
Animal drugs.
Therefore, under the Federal Food,
Drug, and Cosmetic Act and under
authority delegated to the Commissioner
of Food and Drugs and redelegated to
the Center for Veterinary Medicine, 21
CFR part 524 is amended as follows:
■
PART 524—OPHTHALMIC AND
TOPICAL DOSAGE FORM NEW
ANIMAL DRUGS
1. The authority citation for 21 CFR
part 524 continues to read as follows:
■
Authority: 21 U.S.C. 360b.
§ 524.2098
[Amended]
2. In § 524.2098, in the last sentence
in paragraph (d)(2), remove ‘‘For dogs
and cats 6 weeks of age and older’’ and
in its place add ‘‘For dogs 6 weeks of
age and older, and cats 8 weeks of age
and older’’.
■
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DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
This notice is issued under authority
of 33 CFR 165.1312 and 5 U.S.C. 552(a).
In addition to this notice in the Federal
Register, the Coast Guard will provide
the maritime community with
notification of this enforcement period
via Local Notice to Mariners and marine
information broadcasts.
Dated: April 16, 2009.
F.G. Myer,
Captain, U.S. Coast Guard, Captain of the
Port Portland.
[FR Doc. E9–9992 Filed 4–29–09; 8:45 am]
BILLING CODE 4910–15–P
[Docket No. USCG–2009–0296]
Security Zone; Portland Rose Festival
on Willamette River
ENVIRONMENTAL PROTECTION
AGENCY
Coast Guard, DHS.
Notice of enforcement of
regulation.
40 CFR Part 82
AGENCY:
ACTION:
SUMMARY: The Coast Guard will enforce
the Portland Rose Festival Security
Zone on the Willamette River from 1
p.m. on June 3, 2009, until 10 a.m. June
8, 2009. This action is necessary to
ensure the safety and security of
maritime traffic, including the public
vessels present, on the Willamette River
during the Portland Rose Festival.
During the enforcement period, entry
into the security zone detailed in 33
CFR 165.1312 is prohibited unless
authorized by the Captain of the Port
Portland or his designated
representative.
DATES: The regulations in 33 CFR
165.1312 will be enforced from 1 p.m.
on June 3, 2009, through 10 a.m. on June
8, 2009.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this notice, call
or e-mail MST1 Jaime Sayers,
Waterways Management, U.S. Coast
Guard Sector Portland; telephone 503–
240–9319, e-mail
Jaime.A.Sayers@uscg.mil.
SUPPLEMENTARY INFORMATION: The Coast
Guard will enforce the security zone for
the Portland Rose Festival detailed in 33
CFR 165.1312 from 1 p.m. on June 3,
2009, until 10 a.m. on June 8, 2009.
Under the provisions of 33 CFR
165.1312, entry into the zone
established by that section is prohibited
unless authorized by the Captain of the
Port Portland or his designated
representative. Spectator vessels may
transit outside the security zone but
may not anchor, block, loiter in, or
impede the transit of ship parade
participants or official patrol vessels.
The Coast Guard may be assisted by
other Federal, State or local law
enforcement agencies in enforcing this
regulation.
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[EPA–HQ–OAR–2008–0009; FRL–8899–5]
RIN 2060–AO78
Protection of Stratospheric Ozone: The
2009 Critical Use Exemption From the
Phaseout of Methyl Bromide
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: This final rule authorizes uses
of methyl bromide that qualify for the
2009 critical use exemption and the
amount of methyl bromide that may be
produced, imported, or supplied from
existing pre-phaseout inventory for
those uses in 2009. EPA is taking action
under the authority of the Clean Air Act
to reflect a consensus decision taken at
the Nineteenth Meeting of by the Parties
to the Montreal Protocol on Substances
that Deplete the Ozone Layer.
DATES: This rule is effective on April 30,
2009.
ADDRESSES: EPA has established a
docket for this action identified under
EPA–HQ–OAR–2008–0009. All
documents in the docket are listed on
the https://www.regulations.gov site.
Although listed in the index, some
information is not publicly available,
e.g., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available only through https://
www.regulations.gov or in hard copy. To
obtain copies of materials in hard copy,
please call the EPA Docket Center at
(202) 564–1744 between the hours of
8:30 a.m.–4:30 p.m. E.S.T., Monday–
Friday, excluding legal holidays, to
schedule an appointment. The EPA
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Docket Center’s Public Reading Room
address is EPA/DC, EPA West, Room
3334, 1301 Constitution Ave., NW.,
Washington, DC.
FOR FURTHER INFORMATION CONTACT:
Jeremy Arling by telephone at (202)
343–9055, or by e-mail at
arling.jeremy@epa.gov or by mail at U.S.
Environmental Protection Agency,
Stratospheric Protection Division,
Stratospheric Program Implementation
Branch (6205J), 1200 Pennsylvania
Avenue, NW., Washington, DC 20460.
You may also visit the Ozone Depletion
Web site of EPA’s Stratospheric
Protection Division at https://
www.epa.gov/ozone/strathome.html for
further information about EPA’s
Stratospheric Ozone Protection
regulations, the science of ozone layer
depletion, and related topics.
SUPPLEMENTARY INFORMATION: This final
rule concerns Clean Air Act (CAA)
restrictions on the consumption,
production, and use of methyl bromide
(a Class I, Group VI controlled
substance) for critical uses during
calendar year 2009. Under the Clean Air
Act, methyl bromide consumption
(consumption is defined under the CAA
as production plus imports minus
exports) and production was phased out
on January 1, 2005, apart from allowable
exemptions, such as the critical use
exemption and the quarantine and
preshipment exemption. With this
action, EPA is authorizing the uses that
will qualify for the 2009 critical use
exemption as well as specific amounts
of methyl bromide that may be
produced, imported, or sold from prephaseout inventory for proposed critical
uses in 2009.
Section 553(d) of the Administrative
Procedure Act (APA), 5 U.S.C. Chapter
5, generally provides that rules may not
take effect earlier than 30 days after they
are published in the Federal Register.
EPA is issuing this final rule under
section 307(d)(1) of the Clean Air Act,
which states: ‘‘The provisions of section
553 through 557 * * * of Title 5 shall
not, except as expressly provided in this
section, apply to actions to which this
subsection applies.’’ Thus, section
553(d) of the APA does not apply to this
rule. EPA is nevertheless acting
consistently with the policies
underlying APA section 553(d) in
making this rule effective on April 30,
2009. APA section 553(d) provides an
exception for any action that grants or
recognizes an exemption or relieves a
restriction. This final rule grants an
exemption from the phaseout of methyl
bromide.
Table of Contents
I. General Information
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Regulated Entities
II. What Is Methyl Bromide?
III. What Is the Background to the Phaseout
Regulations for Ozone Depleting
Substances?
IV. What Is the Legal Authority for
Exempting the Production and Import of
Methyl Bromide for Critical Uses
Authorized by the Parties to the
Montreal Protocol?
V. What Is the Critical Use Exemption
Process?
A. Background of the Process
B. How Does This Final Rule Relate to
Previous CUE Rules?
C. Critical Uses
D. Critical Use Amounts
1. Background of Critical Use Amounts
2. Calculation of Available Pre-Phaseout
Inventory
a. Estimated Drawdown
b. Supply Chain Factor
3. Approach for Determining Critical Use
Amounts
4. Treatment of Carryover Material
5. Amounts for Research Purposes
6. Methyl Bromide Alternatives
7. Summary of Calculations
E. The Criteria in Decisions IX/6 and Ex.
I/4
F. Emissions Minimization
G. Critical Use Allowance Allocations
H. Critical Stock Allowance Allocations
I. Stocks of Methyl Bromide
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
I. National Technology Transfer and
Advancement Act
J. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
K. Congressional Review Act
I. General Information
Regulated Entities
Entities potentially regulated by this
action are those associated with the
production, import, export, sale,
application, and use of methyl bromide
covered by an approved critical use
exemption. Potentially regulated
categories and entities include
producers, importers, and exporters of
methyl bromide; applicators and
distributors of methyl bromide; users of
methyl bromide, e.g., farmers of
vegetable crops, fruits and nursery
stock; owners of stored food
commodities and structures such as
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grain mills and processors; and
agricultural researchers.
This list is not intended to be
exhaustive, but rather to provide a guide
for readers regarding entities likely to be
regulated by this action. To determine
whether your facility, company,
business, or organization could be
regulated by this action, you should
carefully examine the regulations
promulgated at 40 CFR part 82, subpart
A. If you have questions regarding the
applicability of this action to a
particular entity, consult the person
listed in the preceding section.
II. What Is Methyl Bromide?
Methyl bromide is an odorless,
colorless, toxic gas which is used as a
broad-spectrum pesticide and is
controlled under the CAA as a Class I
ozone-depleting substance (ODS).
Methyl bromide is used in the U.S. and
throughout the world as a fumigant to
control a variety of pests such as insects,
weeds, rodents, pathogens, and
nematodes. Information on methyl
bromide can be found at https://
www.epa.gov/ozone/mbr and https://
www.unep.org/ozone.
Methyl bromide is also regulated by
EPA under the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA)
and other statutes and regulatory
authority, as well as by States under
their own statutes and regulatory
authority. Under FIFRA, methyl
bromide is a restricted use pesticide.
Restricted use pesticides are subject to
Federal and State requirements
governing their sale, distribution, and
use. Nothing in this final rule
implementing the Clean Air Act is
intended to derogate from provisions in
any other Federal, State, or local laws or
regulations governing actions including,
but not limited to, the sale, distribution,
transfer, and use of methyl bromide.
Entities affected by this action must
continue to comply with FIFRA and
other pertinent statutory and regulatory
requirements for pesticides when
importing, exporting, acquiring, selling,
distributing, transferring, or using
methyl bromide for critical uses. The
regulations in this final rule only
implement the CAA restrictions on the
production, consumption, and use of
methyl bromide for critical uses
exempted from the phaseout of methyl
bromide.
III. What Is the Background to the
Phaseout Regulations for Ozone
Depleting Substances?
The regulatory requirements that limit
production and consumption of ozonedepleting substances are in 40 CFR part
82, subpart A. The Montreal Protocol on
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Substances that Deplete the Ozone
Layer (Montreal Protocol) is the
international agreement aimed at
reducing and eliminating the
production and consumption of
stratospheric ozone-depleting
substances. The U.S. was one of the
original signatories to the 1987 Montreal
Protocol and the U.S. ratified the
Protocol on April 12, 1988. Congress
then enacted, and President George
H.W. Bush signed into law, the Clean
Air Act Amendments of 1990 (CAAA of
1990) which included Title VI on
Stratospheric Ozone Protection, codified
as 42 U.S.C. Chapter 85, Subchapter VI,
to ensure that the United States could
satisfy its obligations under the
Protocol. EPA issued regulations to
implement this legislation and has
amended them as needed.
Methyl bromide was added to the
Protocol as an ODS in 1992 through the
Copenhagen Amendment to the
Protocol. The Parties to the Montreal
Protocol agreed that each industrialized
country’s level of methyl bromide
production and consumption in 1991
should be the baseline for establishing
a freeze in the level of methyl bromide
production and consumption for
industrialized countries. EPA published
a final rule in the Federal Register on
December 10, 1993 (58 FR 65018),
listing methyl bromide as a Class I,
Group VI controlled substance, freezing
U.S. production and consumption at
this 1991 baseline level of 25,528,270
kilograms, and setting the percentage of
baseline allowances for methyl bromide
granted to companies in each control
period (each calendar year) until 2001,
when the complete phaseout would
occur. This phaseout date was
established in response to a petition
filed in 1991 under Sections 602(c)(3)
and 606(b) of the CAAA of 1990,
requesting that EPA list methyl bromide
as a Class I substance and phase out its
production and consumption. This date
was consistent with Section 602(d) of
the CAAA of 1990, which for newly
listed Class I ozone depleting substances
provides that ‘‘no extension [of the
phaseout schedule in section 604] under
this subsection may extend the date for
termination of production of any class I
substance to a date more than 7 years
after January 1 of the year after the year
in which the substance is added to the
list of class I substances.’’
At the Seventh Meeting of the Parties
(MOP) in 1995, the Parties made
adjustments to the methyl bromide
control measures and agreed to
reduction steps and a 2010 phaseout
date for industrialized countries with
exemptions permitted for critical uses.
At that time, the U.S. continued to have
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a 2001 phaseout date in accordance
with Section 602(d) of the CAAA of
1990. At the Ninth MOP in 1997, the
Parties agreed to further adjustments to
the phaseout schedule for methyl
bromide in industrialized countries,
with reduction steps leading to a 2005
phaseout.
Decisions is addressed in NRDC v. EPA,
(464 F.3d 1, DC Cir. 2006) and in EPA’s
‘‘Supplemental Brief for the
Respondent,’’ filed in NRDC v. EPA and
available in the docket for this action. In
this final rule, EPA is honoring
commitments made by the United States
in the Montreal Protocol context.
IV. What Is the Legal Authority for
Exempting the Production and Import
of Methyl Bromide for Critical Uses
Authorized by the Parties to the
Montreal Protocol?
In October 1998, the U.S. Congress
amended the CAA to prohibit the
termination of production of methyl
bromide prior to January 1, 2005, to
require EPA to bring the U.S. phaseout
of methyl bromide in line with the
schedule specified under the Protocol,
and to authorize EPA to provide certain
exemptions. These amendments were
codified in Section 604 of the CAA, 42
U.S.C. 7671c. The amendment that
specifically addresses the critical use
exemption appears at Section 604(d)(6),
42 U.S.C. 7671c(d)(6). EPA revised the
phaseout schedule for methyl bromide
production and consumption in a direct
final rulemaking on November 28, 2000
(65 FR 70795), which allowed for the
phased reduction in methyl bromide
consumption specified under the
Protocol and extended the phaseout to
2005. EPA again amended the
regulations to allow for an exemption
for quarantine and preshipment (QPS)
purposes on July 19, 2001 (66 FR
37751), with an interim final rule and
with a final rule on January 2, 2003 (68
FR 238).
On December 23, 2004 (69 FR 76982),
EPA published a final rule that
established the framework for the
critical use exemption, listed approved
critical uses for 2005, and specified the
amount of methyl bromide that could be
supplied in 2005 from stocks and new
production or import to meet the needs
of approved critical uses. Since then,
EPA has published rules applying the
critical use exemption (CUE) framework
to subsequent control periods. Under
authority of section 604(d)(6) of the
CAA, this action lists the uses that will
qualify as approved critical uses in 2009
and the amount of methyl bromide that
may be produced, imported, or supplied
from inventory to satisfy those uses.
This action reflects Decision XIX/9,
taken at the Nineteenth Meeting of the
Parties in September 2007. In
accordance with Article 2H(5), the
Parties have issued several Decisions
pertaining to the critical use exemption.
These include Decisions IX/6 and Ex.
I/4, which set forth criteria for review of
proposed critical uses. The status of
V. What Is the Critical Use Exemption
Process?
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A. Background of the Process
The critical use exemption permits
the production and import of methyl
bromide for uses that do not have
technically and economically feasible
alternatives. On May 8, 2003, the
Agency published its first notice in the
Federal Register (68 FR 24737)
announcing the availability of the
application for a critical use exemption
and the deadline for submission of the
requisite data. EPA informed applicants
that they may apply as individuals or as
part of a group of users (a ‘‘consortium’’)
who face the same limiting critical
conditions (i.e., specific conditions that
establish a critical need for methyl
bromide). EPA has repeated this process
annually since then.
The criteria for the exemption
initially appeared in Decision IX/6. In
that Decision, the Parties agreed that ‘‘a
use of methyl bromide should qualify as
‘critical’ only if the nominating Party
determines that: (i) The specific use is
critical because the lack of availability
of methyl bromide for that use would
result in a significant market disruption;
and (ii) there are no technically and
economically feasible alternatives or
substitutes available to the user that are
acceptable from the standpoint of
environment and public health and are
suitable to the crops and circumstances
of the nomination.’’ These criteria are
reflected in EPA’s definition of ‘‘critical
use’’ at 40 CFR 82.3.
In response to the annual requests for
critical use exemption applications
published in the Federal Register,
applicants provide data on the technical
and economic feasibility of using
alternatives to methyl bromide.
Applicants also submit data on their use
of methyl bromide, on research
programs into the use of alternatives to
methyl bromide, and on efforts to
minimize use and emissions of methyl
bromide.
EPA’s Office of Pesticide Programs
reviews the data submitted by
applicants, as well as data from
governmental and academic sources, to
establish whether there are technically
and economically feasible alternatives
available for a particular use of methyl
bromide and whether there would be a
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significant market disruption if no
exemption were available. In addition,
EPA reviews other parameters of the
exemption applications such as dosage
and emissions minimization techniques
and applicants’ research or transition
plans. This assessment process
culminates in the development of the
critical use nomination (CUN). The U.S.
Department of State submits the CUN
annually to the United Nations
Environment Programme (UNEP) Ozone
Secretariat. The Methyl Bromide
Technical Options Committee (MBTOC)
and the Technology and Economic
Assessment Panel (TEAP), which are
independent advisory bodies to Parties
to the Montreal Protocol, subsequently
review the CUNs of the various
countries and make recommendations to
the Parties on the nominations. The
Parties then take a Decision to authorize
a critical use exemption for a particular
country. The Decision also identifies
how much methyl bromide may be
supplied for the exempted critical uses.
As required in Section 604(d)(6) of the
Clean Air Act, for each exemption
period, EPA consults with the United
States Department of Agriculture and
other departments and institutions of
the Federal government that have
regulatory authority related to methyl
bromide, and provides an opportunity
for public comment on the amounts of
methyl bromide that the Agency has
determined to be necessary for critical
uses and the uses that the Agency has
determined meet the criteria of the
critical use exemption.
More on the domestic review process
and methodology employed by the
Office of Pesticide Programs is available
in a detailed memorandum titled
‘‘Development of 2003 Nomination for a
Critical Use Exemption for Methyl
Bromide for the United States of
America,’’ contained in the docket for
this rulemaking. While the particulars of
the data continue to evolve and
administrative matters are further
streamlined, the technical review itself
remains rigorous with careful
consideration of new technical and
economic conditions.
On December 22, 2006, the U.S.
Government (USG) submitted the fifth
CUN to the Ozone Secretariat. This fifth
nomination contained the request for
2009 critical uses. In February 2007,
MBTOC sent questions to the USG
concerning technical and economic
issues in the 2009 nomination. The USG
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transmitted preliminary responses to
MBTOC on March 13, 2007. The USG
received a second round of questions
from MBTOC and submitted responses
to those questions in May, 2007. These
documents, together with reports by the
advisory bodies noted above, are in the
public docket for this rulemaking. The
determination in this final rule reflects
the analysis contained in those
documents.
B. How Does This Final Rule Relate to
Previous CUE Rules?
The December 23, 2004, Framework
Rule (69 FR 76982) established the
operational framework for the CUE
program in the U.S., including
definitions, prohibitions, trading
provisions, and recordkeeping and
reporting obligations. The preamble to
the Framework Rule included EPA’s
determinations on key issues for the
CUE program.
Since then, EPA has annually
promulgated regulations to exempt from
the phaseout of methyl bromide specific
quantities of production and import for
each control period and to indicate
which uses meet the criteria for the
exemption program for that year. See 71
FR 5985 (2006 control period), 71 FR
75386 (2007 control period), and 72 FR
74118 (2008 control period).
Today’s action authorizes specific
critical uses for 2009 and the amounts
of critical use allowances (CUAs) and
critical stock allowances (CSAs)
allocated for those uses. These are the
uses included in the USG’s fifth CUN
and authorized by the Parties in
Decision XIX/9. EPA is not modifying
the Framework Rule or the approach to
determining the level of available stocks
finalized in the 2008 CUE rule
published on December 28, 2007.
C. Critical Uses
In Decision XIX/9, taken in September
2007, the Parties to the Protocol agreed
‘‘to permit, for the agreed critical use
categories for 2009, set forth in table C
of the annex to the present decision for
each Party, subject to the conditions set
forth in the present decision and
decision Ex.I/4 to the extent that those
conditions are applicable, the levels of
production and consumption for 2009
set forth in table D of the annex to the
present decision which are necessary to
satisfy critical uses. * * *’’
Table C of the annex to Decision XIX/
9 lists the following uses: Commodities,
NPMA food processing structures (cocoa
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beans removed),1 Mills and processors,
Dried cured pork, Cucurbits, Eggplant—
field, Forest nursery seedlings, Nursery
stock—fruit, nut, flower, Orchard
replant, Ornamentals, Peppers—field,
Strawberry—field, Strawberry runners,
Tomatoes—field, Sweet potato slips.
The agreed critical use levels for 2009
total 4,261,974 kilograms (kg), which is
equivalent to 16.7% of the U.S. 1991
methyl bromide consumption baseline
of 25,528,270 kg. However, the
maximum amount of allowable new
production and import as set forth in
Table D of Decision XIX/9 is 3,961,974
kg (15.5% of baseline), minus available
stocks. For the reasons described in
Section V.D of this preamble, EPA is
allowing limited amounts of new
production or import of methyl bromide
for critical uses for 2009 up to the
amount of 2,275,715 kg (8.9% of
baseline), with 1,919,193 kg (7.5% of
baseline) coming from pre-phaseout
inventory (i.e., stocks).
This final rule modifies 40 CFR part
82, subpart A, Appendix L to reflect the
agreed critical use categories identified
in Decision XIX/9 for the 2009 control
period. The Agency is amending the
table of critical uses based, in part, on
the technical analysis contained in the
2009 U.S. nomination that assesses data
submitted by applicants to the CUE
program as well as public and
proprietary data on the use of methyl
bromide and its alternatives. EPA
sought comment on the technical
analysis (which is provided in the
docket) and as well as information
regarding changes to the registration or
use of alternatives that may have
transpired after the 2009 U.S.
nomination was written. The Agency
stated that such information has the
potential to alter the technical or
economic feasibility of an alternative
and could thus cause EPA to modify the
analysis that underpins EPA’s
determination as to which uses and
what amounts of methyl bromide
qualify for the critical use exemption.
Based on the information described
above, EPA is determining that the uses
in Table I: Approved Critical Uses, with
the limiting critical conditions
specified, qualify to obtain and use
critical use methyl bromide in 2009.
1 NPMA, National Pest Management Association,
includes both food processing structures and
processed foods. This year’s exemption does not
include cocoa beans.
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TABLE I—APPROVED CRITICAL USES
Approved critical uses
Approved critical user and location of use
Limiting critical conditions that exist, or that the approved critical user
reasonably expects could arise without methyl bromide fumigation:
Column A
Column B
Column C
PRE-PLANT USES
Cucurbits .......................
Eggplant ........................
(a) Growers in Delaware, Maryland, and
Michigan.
(b) Growers in Georgia and Southeastern
U.S. limited to growing locations in Alabama, Arkansas, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina,
Tennessee, and Virginia.
(a) Florida growers ...........................................
(b) Georgia growers .........................................
(c) Michigan growers .......................................
Forest Nursery Seedlings.
(a) Growers in Alabama, Arkansas, Georgia,
Louisiana, Mississippi, North Carolina,
Oklahoma, South Carolina, Tennessee,
Texas, and Virginia.
(b) International Paper and its subsidiaries
limited to growing locations in Alabama, Arkansas, Georgia, South Carolina, and
Texas.
(c) Government-owned seedling nurseries in
Illinois, Indiana, Kentucky, Maryland, Missouri, New Jersey, Ohio, Pennsylvania,
West Virginia, and Wisconsin.
(d) Weyerhaeuser Company and its subsidiaries limited to growing locations in Alabama, Arkansas, North Carolina, and South
Carolina.
(e) Weyerhaeuser Company and its subsidiaries limited to growing locations in Oregon
and Washington.
(f) Michigan growers ........................................
Orchard Nursery Seedlings.
(a) Members of the Western Raspberry Nursery Consortium limited to growing locations
in Washington, and members of the California Association of Nursery and Garden
Centers representing Deciduous Tree Fruit
Growers.
(b) California rose nurseries ............................
Orchard Replant ............
(a) California stone fruit, table and raisin
grape, wine grape, walnut, and almond
growers.
Ornamentals ..................
(a) California growers ......................................
(b) Florida growers ...........................................
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Moderate to severe soilborne disease infestation.
A need for methyl bromide for research purposes.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe root knot nematode infestation.
A need for methyl bromide for research purposes.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe soilborne disease infestation.
Restrictions on alternatives due to karst topographical features and
soils not supporting seepage irrigation.
A need for methyl bromide for research purposes.
Moderate to severe yellow or purple nutsedge infestation Moderate
to severe nematode infestation.
Moderate to severe pythium collar, crown and root rot.
Moderate to severe southern blight infestation.
Restrictions on alternatives due to karst topographical features.
A need for methyl bromide for research purposes.
Moderate to severe soilborne disease infestation.
A need for methyl bromide for research purposes.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe nematode infestation.
Moderate to severe yellow or purple nutsedge infestation Moderate
to severe soilborne disease infestation.
Moderate to severe weed infestation including purple and yellow
nutsedge infestation.
Moderate to severe Canada thistle infestation.
Moderate to severe nematode infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe nematode or worm infestation.
Moderate to severe yellow nutsedge infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe Canada thistle infestation.
Moderate to severe nutsedge infestation.
Moderate to severe nematode infestation.
Moderate to severe nematode infestation.
Medium to heavy clay soils.
Local township limits prohibiting 1,3-dichloropropene.
A need for methyl bromide for research purposes.
Moderate to severe nematode infestation.
Local township limits prohibiting 1,3-dichloropropene.
A need for methyl bromide for research purposes.
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.
Moderate to severe soilborne disease infestation.
Moderate to severe nematode infestation.
Local township limits prohibiting 1,3-dichloropropene.
A need for methyl bromide for research purposes.
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.
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19883
TABLE I—APPROVED CRITICAL USES—Continued
Approved critical uses
Approved critical user and location of use
Limiting critical conditions that exist, or that the approved critical user
reasonably expects could arise without methyl bromide fumigation:
Column A
Column B
Column C
(c) Michigan herbaceous perennial growers ...
Peppers .........................
(a) Alabama, Arkansas, Kentucky, Louisiana,
Mississippi, North Carolina, South Carolina,
Tennessee, and Virginia growers.
(b) Florida growers ...........................................
(c) Georgia growers .........................................
(d) Michigan growers .......................................
Strawberry Fruit .............
(a) California growers ......................................
(b) Florida growers ...........................................
Strawberry Nurseries ....
(c) Alabama, Arkansas, Georgia, Illinois, Kentucky, Louisiana, Maryland, Mississippi,
Missouri, New Jersey, North Carolina, Ohio,
South Carolina, Tennessee, and Virginia
growers.
(a) California growers ......................................
(b) North Carolina and Tennessee growers ....
Sweet Potato Slips ........
Tomatoes ......................
(a) California growers ......................................
(a) Michigan growers .......................................
(b) Alabama, Arkansas, Florida, Georgia,
Kentucky, Louisiana, Mississippi, North
Carolina, South Carolina, Tennessee, and
Virginia growers.
(c) Maryland growers .......................................
A need for methyl bromide for research purposes.
Moderate to severe nematode infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe yellow nutsedge and other weed infestation.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe nematode infestation.
Moderate to severe pythium root, collar, crown and root rots.
A need for methyl bromide for research purposes.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe nematode infestation.
Restrictions on alternatives due to karst topographical features and
soils not supporting seepage irrigation.
A need for methyl bromide for research purposes.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe nematode infestation, or moderate to severe
pythium root and collar rots.
Moderate to severe southern blight infestation, crown or root rot.
Restrictions on alternatives due to karst topographical features.
A need for methyl bromide for research purposes
Moderate to severe soilborne disease infestation.
A need for methyl bromide for research purposes.
Moderate to severe black root rot or crown rot.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe nematode infestation.
Local township limits prohibiting 1,3-dichloropropene.
Time to transition to an alternative.
A need for methyl bromide for research purposes.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe nematode infestation.
Moderate to severe soilborne disease infestation.
Carolina geranium or cut-leaf evening primrose infestation.
Restrictions on alternatives due to karst topographical features and
soils not supporting seepage irrigation.
A need for methyl bromide for research purposes.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe nematode infestation.
Moderate to severe black root and crown rot.
A need for methyl bromide for research purposes
Moderate to severe soilborne disease infestation.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe nematode infestation.
A need for methyl bromide for research purposes.
Moderate to severe black root rot.
Moderate to severe root-knot nematode infestation.
Moderate to severe yellow and purple nutsedge infestation.
A need for methyl bromide for research purposes.
Local township limits prohibiting 1,3-dichloropropene.
Moderate to severe soilborne disease infestation.
Moderate to severe fungal pathogen infestation.
A need for methyl bromide for research purposes.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe nematode infestation.
Restrictions on alternatives due to karst topographical features and,
in Florida, soils not supporting seepage irrigation.
A need for methyl bromide for research purposes.
Moderate to severe fungal pathogen infestation.
POST-HARVEST USES
Food Processing ...........
(a) Rice millers in the U.S. who are members
of the USA Rice Millers Association.
(b) Pet food manufacturing facilities in the
U.S. who are members of the Pet Food Institute.
(c) Bakeries in the U.S ....................................
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Moderate to severe beetle, weevil, or moth infestation.
Presence of sensitive electronic equipment subject to corrosion.
Time to transition to an alternative.
Moderate to severe beetle, moth, or cockroach infestation.
Presence of sensitive electronic equipment subject to corrosion.
Time to transition to an alternative.
Presence of sensitive electronic equipment subject to corrosion.
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TABLE I—APPROVED CRITICAL USES—Continued
Approved critical uses
Approved critical user and location of use
Limiting critical conditions that exist, or that the approved critical user
reasonably expects could arise without methyl bromide fumigation:
Column A
Column B
Column C
(d) Members of the North American Millers’
Association in the U.S.
Commodities .................
Dry Cured Pork Products.
(e) Members of the National Pest Management Association treating processed food,
cheese, herbs and spices, and spaces and
equipment in associated processing and
storage facilities.
(a) California entities storing walnuts, beans,
dried plums, figs, raisins, and dates (in Riverside county only) in California.
(a) Members of the National Country Ham Association and the Association of Meat Processors, Nahunta Pork Center (North Carolina), and Gwaltney and Smithfield Inc.
EPA proposed revising the
description of the National Pest
Management Association (NPMA) to
remove the term cocoa beans in storage
and associated spaces. NPMA has
transitioned to sulfuryl fluoride for
cocoa bean fumigation and such
fumigations were not included in the
CUN or approved by the Parties. NPMA
requested that instead of the proposed
description, EPA describe their
members as ‘‘Members of the National
Pest Management Association treating
processed food, cheese, dried milk,
herbs and spices, and spaces and
equipment in associated processing and
storage facilities.’’ The use of methyl
bromide for dried milk was not
included in the CUN or approved by the
Parties. Therefore, EPA agrees with
NPMA’s revised description except for
the inclusion of dried milk.
EPA proposed adding ‘‘restrictions on
alternatives due to karst topographical
features and soils not supporting
seepage irrigation’’ as a limiting critical
condition for Georgia grown peppers
and eggplants. Dow AgroSciences
commented that there are no soil
restrictions on the uses of 1,3-D in
Georgia and asked that that limiting
critical condition be revised. Dow
AgroSciences is correct that ‘‘soils not
supporting seepage irrigation’’ is not a
limiting critical condition for Georgia
and the final rule reflects this change.
EPA intended this limiting critical
condition to only reflect restrictions due
to karst topographical features. This
change does not affect the amount of
critical use methyl bromide EPA is
allocating because EPA’s analysis only
assumed limitations due to karst
topographical features.
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Time to transition to an alternative.
Moderate to severe beetle infestation.
Presence of sensitive electronic equipment subject to corrosion.
Time to transition to an alternative.
Moderate to severe beetle or moth infestation.
Presence of sensitive electronic equipment subject to corrosion.
Time to transition to an alternative.
Rapid fumigation required to meet a critical market window, such as
during the holiday season.
Export to countries which do not allow the use of sulfuryl fluoride.
A need for methyl bromide for research purposes.
Red legged ham beetle infestation.
Cheese/ham skipper infestation.
Dermested beetle infestation.
Ham mite infestation.
EPA proposal inadvertently included
‘‘Local township limits prohibiting 1,3dichloropropene’’ as a limiting critical
condition for tomato growers in the
Southeast. There are no such township
limits in the Southeast. Instead, this
critical condition should have been
‘‘Restrictions on alternatives due to
karst topographical features and, in
Florida, soils not supporting seepage
irrigation,’’ as was the language in the
2008 CUE Rule. The final rule has
added back the appropriate limiting
critical condition for those growers in
the Southeast.
EPA proposed adding tomatoes grown
in Maryland as a critical use when
limited by ‘‘high water tables and
proximity to environmentally sensitive
estuaries which limit use of 1,3-D.’’ Dow
AgroSciences commented that there are
no restrictions on the uses of 1,3-D
products in Maryland associated with
high water tables or environmentally
sensitive estuaries and asked that that
Maryland tomatoes thus not be
approved as a critical use. EPA has
ascertained that there is no labeling
restriction concerning high water tables
or environmentally sensitive estuaries
for 1,3-D and thus the final rule does not
include this as a limiting critical
condition. Moderate to severe fungal
pathogen infestation still remains a
limiting critical condition for Maryland
tomatoes, as authorized by the Parties to
the Protocol. Therefore, EPA is
approving Maryland tomatoes as an
authorized critical use. Removing the
language concerning high water tables
and proximity to environmentally
sensitive estuaries does not affect the
amount of critical use methyl bromide
EPA is allocating because EPA’s
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analysis did not include use or acreage
estimates where this limiting critical
condition would apply. Therefore, EPA
is not reducing the estimated amount of
demand or the amount of new
production based on this change.
EPA also proposed adding ‘‘export to
countries which do not allow the use of
sulfuryl fluoride’’ as a limiting critical
condition for commodities. Dow
AgroSciences commented that import
Maximum Residue Levels (MRLs) exist
in countries that import commodities
treated with sulfuryl fluoride and asked
that this limiting critical condition be
removed. EPA disagrees with that this
limiting critical condition be removed.
EPA has accounted for the Codex MRLs
in the 2007 nomination for use in 2009.
However, many countries that the U.S.
exports to set their own MRLs and many
have not yet done so for sulfuryl
fluoride. Therefore EPA is retaining the
limiting critical condition for the use of
methyl bromide in the commodities
sector.
Dow AgroSciences also had other
comments on limiting critical
conditions that have existed in prior
CUE Rules. EPA has addressed those
comments in the Response to Comments
document contained in the docket for
this rule.
EPA is finalizing most of the proposed
changes to the table in Appendix L,
with the exception of the three issues
discussed above. The remaining changes
reflect the recommendations made by
MBTOC and the critical uses authorized
by the Parties to the Protocol.
Specifically, the changes between this
year’s critical uses and those in 2008
are: adding cucurbits grown in
Maryland and Delaware as a critical use
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under the limiting critical conditions
listed in the table; moving herbaceous
perennials grown in Michigan from
forest nursery seedlings to ornamentals;
adding ‘‘restrictions on alternatives due
to karst topographical features’’ as a
limiting critical condition for Georgia
grown peppers; adding tomatoes grown
in Maryland as a critical use under the
limiting critical conditions of ‘‘moderate
to severe fungal pathogen infestation’’;
adding ‘‘export to countries which do
not allow the use of sulfuryl fluoride’’
as a limiting critical condition for
commodities; and revising the
description of NPMA to remove cocoa
beans as was done in the CUN, but in
a manner consistent with the CUN.
In addition, EPA is making the
following editorial changes to Table I to
remove redundancy and ensure that the
limiting critical conditions are
described uniformly throughout. First,
EPA has consolidated, into the same
row, all critical users with the same
limiting critical condition within a
critical use. Second, EPA moved
clarifying information from the table to
the preamble to improve readability.
Thus, EPA clarifies here that the ‘‘local
township limits prohibiting 1,3dichloropropene’’ are prohibitions on
the use of 1,3-dichloropropene products
because local township limits on use of
this alternative have been reached. In
addition, ‘‘pet food’’ under subsection B
of Food Processing refers to food for
domesticated dogs and cats. Finally,
‘‘rapid fumigation’’ for commodities is
when a buyer provides short (two
working days or fewer) notification for
a purchase or there is a short period
after harvest in which to fumigate and
there is limited silo availability for
using alternatives. EPA does not intend
for these edits to change the effect of
any of the limiting critical conditions,
the approved critical user, location of
use, or any other aspect of the table.
Since the critical use exemption was
first established, many critical users
have transitioned to alternatives and a
variety of sectors that were once critical
uses no longer are. These uses include
ginger, golf courses and turf production,
tobacco, cocoa beans, and pistachios.
The categories listed in Table I were
designated as critical uses for 2009 in
Decision XIX/9 of the Parties. The
amount of methyl bromide approved for
research purposes is included in the
amount of methyl bromide approved by
the Parties for the commodities for
which ‘‘research purposes’’ is indicated
as a limiting critical condition in Table
I. As explained in Section V.D.5., EPA
is issuing CSAs to allow the sale of
22,171 kg of methyl bromide from
existing stocks for research purposes,
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and adjusting new production
accordingly.
In accordance with the
recommendations in Tables 4 and 8 of
the TEAP’s August 2007 Final Report
titled ‘‘Evaluations of 2007 Critical Use
Nominations for Methyl Bromide and
Related Matters,’’ available on the
docket for this rulemaking, EPA is
allowing the following to use critical
use methyl bromide for research
purposes: commodities, cucurbits,
eggplant (field), nursery stock (fruit, nut,
flower), orchard replant, ornamentals,
peppers (field), strawberry (field),
strawberry runners, sweet potato slips,
and tomatoes (field). As discussed
below, EPA allows the use of newlyproduced methyl bromide for research
purposes but encourages researchers to
use pre-phaseout inventory by reducing
the amount of new production by the
amount the Parties authorize for
research. In their applications to EPA,
these sectors identified research
programs that require the use of methyl
bromide.
D. Critical Use Amounts
Section V.C. of this preamble explains
that Table C of the annex to Decision
XIX/9 lists critical uses and amounts
agreed to by the Parties to the Montreal
Protocol. When added together, the
authorized critical use amounts for 2009
total 4,261,974 kilograms (kg), which is
equivalent to 16.7% of the U.S. 1991
methyl bromide consumption baseline
of 25,528,270 kg as defined at 40 CFR
82.3. However, the maximum amount of
authorized new production or import as
set forth in Table D of the annex to
Decision XIX/9 is 3,961,974 kg (15.5%
of baseline), ‘‘minus available stocks.’’
EPA’s allocation of critical use
allowances and critical stock allowances
for 2009 applies the existing regulatory
framework to the amounts authorized by
the Parties to reflect the following
factors:
(a) The amount of available stocks;
(b) The amount of unused critical use
methyl bromide at the end of 2007 (the
carryover amount); and
(c) The amount of methyl bromide
authorized for research purposes.
Using the existing framework, EPA
also proposed a reduction to
accommodate a certain amount of
transition to the recently registered
fumigant iodomethane for some preplant uses. Given recent information
concerning the reduced production of
another alternative, Telone, EPA is not
making a reduction for the uptake of
alternatives in this final rule.
Commenters’ concerns about each of
these reductions are described in the
sections below.
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19885
EPA proposed to issue 1,617,921 kg
(6.3% of baseline) of critical use
allowances (CUAs) and 2,576,987 kg
(10.1% of baseline) of critical stock
allowances (CSAs). Generally,
commenters were opposed to the
proposed level of new production,
stating it would be insufficient to meet
the needs of critical users and would
result in shortages in some areas. Based
on comments received on the proposed
rule, as well as additional data, EPA is
issuing 2,275,715 kg (8.9% of baseline)
of critical use allowances, which allow
limited amounts of new production and
import of methyl bromide for 2009
critical uses up to the amount of
2,275,715 kg as shown in Table III. EPA
is also issuing 1,919,193 kg (7.5% of
baseline) of critical stock allowances,
which allow sales of 1,919,193 kg from
existing pre-phaseout inventories for
critical uses in 2009. The sub-sections
below explain EPA’s reasons for issuing
these critical use amounts for 2009.
1. Background of Critical Use Amounts
The December 23, 2004, Framework
Rule and subsequent CUE rules each
took note of language regarding stocks of
methyl bromide in relevant decisions of
the Parties. In developing this action,
the Agency noted that paragraph seven
of Decision XIX/9 contains the
following language: ‘‘that each Party
which has an agreed critical use renews
its commitment to ensure that the
criteria in paragraph 1 of decision IX/6
are applied when licensing, permitting
or authorizing critical use of methyl
bromide and, in particular, the criterion
laid down in paragraph 1(b)(ii) of
decision IX/6.’’ Language calling on
Parties to address pre-phaseout
inventory also appears in prior
Decisions related to the critical use
exemption.
In the Framework Rule, which
established the architecture of the CUE
program and set out the exempted levels
of critical use for 2005, EPA interpreted
paragraph 5 of Decision Ex. I/3, which
is similar to Decision XIX/9(7), ‘‘as
meaning that the U.S. should not
authorize critical use exemptions
without including provisions addressing
drawdown from stocks for critical uses’’
(69 FR 76987). Consistent with that
interpretation, the Framework Rule
established provisions governing the
sale of pre-phaseout inventories for
critical uses, including the concept of
CSAs and a prohibition on the sale of
pre-phaseout inventories for critical
uses in excess of the amount of CSAs
held by the seller. In addition, EPA
noted that pre-phaseout inventories
were further taken into account through
the trading provisions that allow CUAs
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to be converted into CSAs. In
developing this final rule, EPA did not
propose changes to these basic CSA
provisions.
Paragraph 5 of Decision XIX/9 further
addresses pre-phaseout inventory of
methyl bromide. The Decision states
‘‘that a Party with a critical use
exemption level in excess of permitted
levels of production and consumption
for critical uses is to make up any such
differences between those levels by
using quantities of methyl bromide from
stocks that the Party has recognized to
be available.’’ In the August 25, 2004,
proposed Framework Rule (69 FR
52366), EPA proposed to adjust the
authorized level of new production and
consumption for critical uses by the
amount of ‘‘available stocks.’’ The
methodology for determining the
amount of available stocks considered
exports, methyl bromide for feedstock
uses, and the need for a buffer in case
of catastrophic events. However, the
final Framework Rule did not adopt the
proposed methodology for determining
available stocks. Instead, for the 2005
control period EPA issued CSAs in an
amount equal to the difference between
the total authorized CUE amount and
the amount of new production or import
authorized by the Parties (Total
Authorized CUE Amount—Authorized
New Production and Import).
EPA issued CSAs for the 2006, 2007,
and 2008 control periods that
represented not only the difference
between the total authorized CUE
amount and the amount of authorized
new production and import but also an
additional amount. In the 2006 CUE
Rule, EPA issued a total of 1,136,008
CSAs, equivalent to 4.4% of baseline.
For that control period, the difference in
the Parties’ decision between the total
CUE amount and the amount of new
production and import was 3.6% of
baseline. In the 2007 rule, EPA added to
the minimum amount (6.3% of baseline)
an additional amount (1.2% of baseline)
for a total of 1,914,600 CSAs (7.5% of
baseline). In the 2008 rule, EPA added
to the minimum amount (3.0% of
baseline) an additional amount (3.8% of
baseline) for a total of 1,729,689 CSAs
(6.8% of baseline). EPA reduced the
portion of CUE methyl bromide to come
from new production and import in
each of the 2006–2008 control periods
accordingly in order to ensure that the
total critical use allocation did not
exceed the total amount authorized by
the Parties for that year.
As established in these earlier
rulemakings, EPA views the allocation
of additional CSA amounts as an
appropriate exercise of its discretion.
The Agency is not required to allocate
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the full amount of authorized new
production and consumption. The
Parties agreed to ‘‘permit’’ a particular
level of production and consumption;
they did not—and could not—mandate
that the U.S. authorize this level of
production and consumption
domestically. Nor does the CAA require
EPA to exempt the full amount
permitted by the Parties. Section
604(d)(6) of the Clean Air Act (CAA)
does not require EPA to exempt any
amount of production and consumption
for critical uses, but instead specifies
that the Agency ‘‘may’’ exempt amounts
for production, import, and
consumption, thus providing EPA with
substantial discretion in creating critical
use exemptions.
The Methyl Bromide Industry Panel
commented that EPA abused its
discretion by proposing to allocate a
much greater number of CSAs than
required by the Parties to the Protocol.
EPA believes that it has the discretion
to allocate beyond the minimum stock
drawdown set forth in the Parties’
decision, as described above. EPA’s
basis for setting the specific CSA
amount is detailed in the remainder of
this notice.
Prior to determining the CSA amount
for a particular year, EPA considers
what portion of ‘‘existing’’ stocks is
‘‘available’’ for critical uses. As
discussed in the 2008 rulemaking, the
Parties to the Protocol recognized in
their Decisions that the level of existing
stocks may differ from the level of
available stocks. For example, Decision
IX/6 states that ‘‘production and
consumption, if any, of methyl bromide
for critical uses should be permitted
only if * * * methyl bromide is not
available in sufficient quantity and
quality from existing stocks.’’ In
addition, Decision XIX/9, as well as
earlier decisions, refers to use of
‘‘quantities of methyl bromide from
stocks that the Party has recognized to
be available.’’ Thus, it is clear that
individual Parties have the ability to
determine their level of available stocks.
Decision XIX/9 further reinforces this
concept by including the phrase ‘‘minus
available stocks’’ as a footnote to the
United States’ authorized level of
production and consumption in Table
D. Section 604(d)(6) of the Clean Air Act
does not require that EPA adjust the
amount of new production and import
to reflect the availability of stocks;
however, as explained in previous
rulemakings, making such an
adjustment is a reasonable exercise of
EPA’s discretion under this provision.
In this action, EPA did not propose to
change its practice of adjusting the level
of new production and import
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authorized by the Parties to reflect the
availability of stocks.
EPA introduced in the 2008 CUE rule
a refined approach for determining the
amount of existing methyl bromide
stocks that is available for critical uses
(72 FR 74118). That approach involves
the concept of a ‘‘Supply Chain Factor’’
(SCF). The SCF represents EPA’s
technical estimate of the amount of
methyl bromide inventory that would be
adequate to meet a need for critical use
methyl bromide after an unforeseen
domestic production failure. The SCF is
used in the formula finalized in the
2008 CUE rule for calculating the
available stocks. That formula is
expressed as AS = ES¥D¥SCF, where
AS = available stocks; ES = existing prephaseout stocks of methyl bromide held
in the United States by producers,
importers, and distributors; and D =
estimated drawdown of existing stocks.
In the 2008 CUE rule, EPA stated that
it would use this refined approach in
2008 and each year thereafter as
appropriate and feasible (72 FR 14134).
EPA is not changing the SCF concept or
the formula finalized in the 2008 CUE
rule for calculating the available stocks,
with the exception that for 2009 EPA
will not estimate the drawdown of
existing stocks during 2008 but rather,
as was encouraged by commenters, use
the actual drawdown based on end-ofyear reported data. The SCF approach
continues to be appropriate and feasible,
as it is the most reasonable, efficient,
and transparent way for the Agency to
continue to facilitate responsible
management of the pre-phaseout
inventory.
2. Calculation of Available Pre-Phaseout
Inventory
In this action, EPA is adjusting the
authorized level of new production and
consumption for critical uses to account
for the amount of existing pre-phaseout
inventory that is ‘‘available’’ for critical
uses. EPA is calculating the amount of
existing stocks that is available for
critical uses in 2009 based on the SCF
and formula introduced in the 2008
CUE final rule (72 FR 74118). EPA is
allowing sales of the amount of existing
pre-phaseout inventory that the Agency
has determined to be available for
critical uses by issuing an equivalent
number of CSAs on a one-CSA-per-onekilogram-of-methyl-bromide basis.
As described in the 2008 CUE Rule,
EPA calculates the amount of available
stocks as follows: AS2009 =
ES2008¥D2008¥SCF2009, where AS2009 is
the available stocks on January 1, 2009;
ES2008 is the existing pre-phaseout
stocks of methyl bromide held in the
United States by producers, importers,
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and distributors on January 1, 2008;
D2008 is the estimated drawdown of
existing stocks during calendar year
2008; and SCF2009 is the supply chain
factor for 2009.
EPA received comment from MBIP
that the Agency has not adequately
explained why using a formulaic
approach is preferable to utilizing an
amount of stocks that is more consistent
with past control periods. In response,
EPA notes that the formula for
calculating available stocks is not a new
approach: It was finalized in the 2008
CUE Rule. Information on the
development of that formula can be
found in the proposed and final 2008
CUE Rules, as well as in the Technical
Support Document for the 2008 control
period, which is included in the docket
for today’s action. In addition, the CSA
amount allocated in today’s final rule is
within the same range as past
allocations. In previous control periods,
EPA has authorized CSAs ranging from
4.4% to 7.5% of baseline. As discussed
below, EPA is finalizing a CSA amount
of 7.5% of baseline.
As established in the 2008 CUE Rule,
‘‘ES2008’’ refers to pre-phaseout
inventory—i.e., existing stocks of
methyl bromide that was produced
before January 1, 2005, and that is still
held by domestic producers,
distributors, and third-party applicators.
January 1, 2005, was the phaseout date
for production and import of methyl
bromide in the United States. ES2008
does not include critical use methyl
bromide that was produced after
January 1, 2005, and carried over into
subsequent years. EPA addresses the
carryover amount in section V.D.4 of
this preamble. ‘‘ES2008’’ also does not
include methyl bromide produced (1)
under the quarantine and preshipment
(QPS) exemption, (2) with Article 5
allowances to meet the basic domestic
needs of Article 5 countries, or (3) for
feedstock or transformation purposes.
Methyl bromide produced for QPS uses
or for export to Article 5 countries may
not be sold to domestic entities for
critical uses and, therefore, is separate
from the CUE program. Thus, such
amounts have been removed from the
calculation of the amount of ‘‘available
stocks’’ for critical uses.
In the proposed rule, EPA stated that
unless the Agency received evidence to
the contrary, it would assume that all
pre-phaseout inventory is suitable for
both pre-plant and post-harvest uses.
EPA is making this assumption because
the Agency has received no data that
show that pre-phaseout inventory is
mixed with chloropicrin and is
unsuitable for post-harvest uses. One
commenter requested that EPA require
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inventory holders to report information
regarding the purity of their stocks. EPA
does not believe that such a step is
necessary. EPA has not received any
data through comments or other means
indicating that some pre-phaseout
inventory is unsuitable for particular
critical uses due to its formulation.
Therefore, this final rule assumes that
all pre-phaseout inventory is suitable for
all uses.
The Agency also sought comment on
its presumption that geographic location
is not a factor in the availability of prephaseout inventory. EPA based this
conclusion on the geographic
distribution of the companies that are
granted CSAs (See Table IV) as well as
end of year reporting data submitted by
CSA holders regarding the size of their
inventory. EPA continues to believe that
geography is not a factor in inventory
methyl bromide. However, commenters
did cite regional shortages of
inventoried methyl bromide and
questioned the actual availability of prephaseout inventory. First, commenters
said that pre-phaseout inventory is held
by only a small number of distributors.
EPA’s end-of-year reporting data
support this comment and this has been
the case since methyl bromide was
phased out in 2005. These distributors,
however, serve the major markets for
methyl bromide. Thus, even though
there may be a small number of
distributors, this does not necessarily
limit the ability to supply customers in
different regions.
Second, EPA has received comment
that these distributors will likely
continue to supply their existing client
base, which consist mainly of non-CUE
users. These commenters also state that
EPA has no authority to require
distributors to sell their material to
critical users. As a result, the
commenters state that critical users who
are unable to purchase newly produced
material will not have access to any
methyl bromide and that the Agency
should assume all inventoried material
to be unavailable and increase the
amount of new production to the level
authorized by the Parties.
EPA disagrees that it should allocate
increased production of new methyl
bromide in response to distributors’
decisions not to sell their pre-phaseout
inventory to critical users. Issues
concerning supply of pre-phaseout
inventory are addressed in the Response
to Comment Document for the 2008
CUE Rule. Briefly, EPA regards this
material as ‘‘available’’ because it is
owned by someone other than the end
user. While a distributor might prefer to
sell methyl bromide to non-critical users
to satisfy prior contracts or internal
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business decisions, this is not the result
of any EPA regulatory constraint. EPA
does not currently require the sale of
inventory to critical users. However,
beginning in 2010, distributors will be
unable to sell to non-critical users due
to labeling changes to methyl bromide.
Under the Reregistration Eligibility
Determination (RED) for methyl
bromide soil fumigation uses issued in
July 2008, uses already considered
critical by the Parties have been
considered eligible for reregistration,
along with QPS uses. More information
is available in the methyl bromide RED,
available on the Web at: https://
www.epa.gov/oppsrrd1/REDs/
methylbromide-red.pdf.
a. Estimated Drawdown
In the 2008 CUE rule, EPA estimated
the drawdown of existing stocks (D2008)
by using a simple linear fit estimation
of inventory data from all available
years. For the 2009 CUE rule, EPA
proposed to estimate drawdown using
an exponential projection. Using that
method, EPA projected that the prephaseout methyl bromide inventory,
which was 6,457,806 kg on January 1,
2008, would be drawn down by
1,528,806 kg during 2008 resulting in a
pre-phaseout inventory of 4,929,000 kg
on January 1, 2009. Under the
exponential model, 2,576,987 kg (10.1%
of baseline) of existing pre-phaseout
stocks of methyl bromide would have
been deemed ‘‘available’’ for critical
uses on January 1, 2009. EPA also
provided the results of the linear model
for comment. Under the linear model,
EPA estimated a much greater
drawdown leading to a lower amount of
available stocks, 777 MT (3% of
baseline), in 2009. EPA invited
comment on those two different
analyses or any alternative method of
estimating drawdown. Comments were
unanimous that EPA should use actual
end-of-year data on inventory levels
instead of a statistical estimate of
drawdown. EPA agrees that it would be
less accurate to use an estimate when
the Agency has actual reported data at
the time it is preparing the final rule.
Therefore, for 2009, EPA is using actual
end-of-year data submitted to the
Agency under the reporting
requirements of 40 CFR 82.13. EPA
responds to additional comments about
various statistical methods in the
response to comments document. EPA
is not deciding in this action how to
calculate the drawdown for future years.
Such calculations may use an estimate
or actual reported data depending on
the timing of those future rules.
The Methyl Bromide Industry Panel,
in its comment to the Agency, provided
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EPA with preliminary data regarding the
size of the pre-phaseout inventory.
MBIP collected this data through an
outside accounting firm who contacted
most of the CSA holders in midDecember. The data showed that in midDecember, the inventory was 4,252,931
kilograms. EPA welcomed this initial
estimate because it provided crucial
early information in formulating a final
rule before the end of year data was
reported February 15. The Agency may
find such information to be useful in
drafting future CUE allocation rules as
well. In this final rule, EPA is using the
actual end-of-year data as it is more
complete than the information MBIP
submitted.
The reported inventory on December
31, 2008, was 4,271,226 kg. This is less
than the 4,929,000 kilograms that EPA
estimated under the exponential model
(although more than the 3,129,000 kg
estimated by the linear model). This
means that the drawdown for 2008 was
2,186,600 kg. The effect of this value on
the levels for new production and CSAs
is discussed in more detail below.
EPA also asked for comment on its
discussion of the market conditions that
could be affecting the decline in
inventory use, including whether
inventory during 2008 is being depleted
at rates similar to 2007 or whether it is
being depleted faster than that. For
2008, the drawdown did not appear to
have adhered precisely to either an
exponential or linear curve. EPA still
believes that the market conditions in
2008 are substantively different from
those in 2004, as described in the
proposed rule. First, the Critical Use
Exemption process did not exist in
2004, as that was the last year of the
methyl bromide phaseout. EPA believes
that the economics and use patterns
since the 2005 phaseout differ from
those pre-phaseout. Second, at the
beginning of 2004, the inventory was
16,422,000 kg MT, a substantially higher
amount than an inventory of 4,271,226
kg at the end of 2008. Third, the price
of methyl bromide has increased
roughly 30–50% since 2004. Therefore,
today growers face stronger economic
incentive to use alternatives and reduce
application rates than they did in 2004.
Fourth, more alternatives are available,
including sulfuryl fluoride and
iodomethane, reducing the total demand
for methyl bromide. However, the
comments suggest that the rate of
drawdown at this point is based mostly
on the business decisions of the
companies that hold pre-phaseout
inventory. In the proposed rule, EPA
stated that less of the inventory was
used for non-critical uses in 2007 than
2006. In 2006, 1,519 MT of pre-phaseout
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14:59 Apr 29, 2009
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inventory was for non-critical uses,
whereas in 2007, this dropped to 291
MT. This pattern does not appear to
continue through 2008. Preliminary
review of the data submitted for 2008
show an increase in sales of inventory
for non-critical uses. The exact amounts
will be contained in the 2008
Accounting Framework submitted to
UNEP in late spring 2009.
The goal of EPA’s methodology for the
CSA allocation is to allocate CSAs equal
to ‘‘available stocks’’ such that the
private sector has the flexibility to retain
in inventory the amount needed in case
of a catastrophic supply chain failure
(the Supply Chain Factor). As the
Agency stated in the 2008 CUE Rule and
in Section V.D.3 below, once the
inventory declines below the SCF level,
the Agency will not require any
additional drawdown of stocks beyond
what is required in the authorization by
the Parties to the Protocol for that
control period.
b. Supply Chain Factor
The supply chain factor (SCF)
represents EPA’s technical estimate of
the amount of pre-phaseout inventory
that would be adequate to meet a need
for critical use methyl bromide after an
unforeseen domestic production failure.
As described in the 2008 CUE rule, EPA
estimated that in the event of a major
supply disruption, it would take 15
weeks for significant imports of methyl
bromide to reach the U.S. Using
updated numbers on average production
during each quarter of the year, EPA
estimated in the proposed 2009 CUE
rule that critical use production in the
first 15 weeks of each year (the peak
supply period) accounts for 55% of
annual critical use methyl bromide
production. In the proposed rule, EPA
estimated that the peak 15-week
shortfall in 2009 could be 2,352,013 kg
(55.186% × 4,261,974 kg). EPA received
two comments regarding the SCF. The
MBIP generally supported the inclusion
of the SCF but commented that it should
be equivalent to one year’s supply of
material rather than 55%, which they
asserted would not be sufficient to meet
the needs of critical users were a
catastrophic disruption to occur. EPA
disagrees with this comment, as it
relates to decisions made in the 2008
CUE Rule rather than any new decisions
made for 2009. MBIP made the same
comment in the 2008 proposed rule and
EPA responded to their comments in the
2008 Response to Comments document
contained in the docket to this rule. As
EPA states in that document, the SCF is
based on conservative assumptions
about the effect of a disruption.
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MBIP also commented that the rate of
inventory drawdown that would result
from the new production levels in the
proposed rule would lead to too little
stockpiled methyl bromide for a Supply
Chain Factor in 2010 and beyond. EPA
disagrees that this will occur. First, as
discussed elsewhere, this final rule
allocates more for new production and
authorizes less to be taken from stocks
than the proposed rule. Second, EPA
has calculated a preliminary estimate of
the SCF for 2010 based on the amounts
authorized by the Parties, and believes
that there will be sufficient inventory to
meet the SCF.
Ultimately, MBIP’s comment appears
to be based on the assumption that the
Agency seeks through this rule to
deplete the inventory to zero. EPA
reiterates that the Agency’s purpose in
utilizing the SCF is to give the private
sector the flexibility to retain in
inventory the amount needed in case of
a catastrophic supply chain failure. EPA
does believe that the amount of
drawdown should exceed the minimum
amount required by the Parties to the
Protocol as long as the inventory
remains above the SCF level. While
MBIP’s comment suggested that EPA
simply maintain the same level of CSAs
as was finalized last year, the Agency
believes that using the available stocks
formula adopted in the 2008 CUE Rule
provides a more rigorous approach.
While MBIP states that under the
proposed rule, the level of existing
stocks would be ‘‘dangerously close to
EPA’s 55% SCF target,’’ EPA believes
that this is appropriate, as it is the
Agency’s goal to draw down inventory
levels to the SCF target.
EPA also received comments from
Dow AgroSciences, which argued that
the SCF is unnecessarily conservative,
given the remoteness of an event such
as an unforeseen domestic production
failure occurring. As EPA stated in the
2008 CUE Rule, the Agency did not
conduct a statistical or probability
analysis of the likelihood of this
scenario. EPA recognizes that a
catastrophic loss is unlikely, but this
does not obviate the need to plan for
such a scenario. Methyl bromide, unlike
most commercial chemicals, is
produced at only one facility. Therefore,
a scenario in which this facility
completely ceases production is of
special concern. While EPA expects
private entities to take prudent steps to
protect themselves, EPA does not wish
to render them incapable of maintaining
a reasonable supply buffer.
EPA explained in the 2008 CUE rule
that the SCF is affected by the uptake of
alternatives, because the SCF is based
on the peak demand and the uptake of
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alternatives affects the peak demand for
methyl bromide. The proposed rule did
not adjust for the uptake of iodomethane
because the analysis had not yet been
completed. Since then, EPA has
developed projections for uptake of
iodomethane in 2009. Nevertheless, the
allocation in the final rule does not
explicitly reflect uptake of iodomethane
because, due to the Telone shortage
discussed below, the Agency is not
making any reductions to account for
the uptake of alternatives. Therefore,
EPA will finalize the proposed value of
2,352,013 kg for the SCF. Consistent
with the 2008 CUE rule, this is a
conservative estimate of the amount of
methyl bromide needed to cover a
supply disruption during the estimated
peak 15-week period of critical use
supply.
As stated in the 2008 CUE Rule, EPA
reiterates that the SCF is not a ‘‘reserve’’
or ‘‘strategic inventory’’ of methyl
bromide. Rather, it is merely an
analytical tool used to provide greater
transparency regarding how the Agency
determines CSA amounts, in cases
where CSA amounts are greater than the
amounts stipulated by the Parties. For
further general discussion of the SCF,
see the final 2008 CUE rule (72 FR
74118). Further detail about the analysis
used to derive the value for the 2009
SCF is provided in the Technical
Support Document available on the
public docket for this rulemaking.
3. Approach for Determining Critical
Use Amounts
In the proposed rule, EPA applied the
SCF to estimate that 2,576,987 of prephaseout inventory would be ‘‘available
stocks’’. Following its CSA allocation
framework, EPA proposed to allow the
sale of 2,576,987 kg from existing stocks
for critical uses in 2008 by allocating an
equivalent number of CSAs. As in past
years, EPA proposed to adjust the
critical use allowance (CUA) amounts
accordingly, so that the total number of
CUAs and CSAs is not greater than the
total critical use amount authorized by
the Parties. The proposed rule noted
that under EPA’s framework, the
Agency may allocate a total number of
CUAs and CSAs that is less than the
total critical use amount authorized by
the Parties for 2009 to account for
carryover amounts of methyl bromide,
amounts for research purposes or other
appropriate reasons, including updated
information on alternatives.
EPA received one comment that the
total number of CUAs and CSAs should
not be less than the amount authorized
by the Parties to the Protocol because
the full amount is needed for critical
uses. In making reductions for research
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Jkt 217001
purposes and to account for carryover
material, EPA is following its existing
framework. The reductions for these
purposes are both necessary and
appropriate, as discussed below.
Furthermore, these reductions are
minor. While the Parties approved
4,261,974 kg (or 16.7% of baseline) for
use in 2009, this final rule allocates
4,194,908 kg (or 16.4% of baseline). EPA
believes that this total CUE amount in
the final rule meets the needs of critical
users while still responding to decisions
taken by the Parties regarding carryover
and research amounts.
More commenters were concerned
about the level of CSAs than the total
amounts of CUAs and CSAs being
allocated. Commenters stated that the
ratio of CUAs to CSAs was
inappropriate and would also not allow
for production or import of enough new
material to meet the needs of critical
users. As discussed elsewhere in this
preamble, EPA is finalizing CUAs and
CSAs based on new inventory data
which will allow for greater levels of
new production. The CUAs and CSAs in
this final rule were calculated using the
approach adopted in the 2008 CUE
Rule, but have changed from the
proposal because of new data showing
the actual inventory levels at the end of
2008. Some commenters may still
contend that inventory is declining too
rapidly and that new production should
thus be increased. As stated elsewhere
in this preamble, EPA believes that it
has appropriately applied its discretion
regarding the rate of drawdown of prephaseout inventory. Consistent with the
2008 CUE Rule, the allocations for 2009
continue to allow private entities to
maintain an amount equal to the
‘‘supply chain factor’’—i.e., an amount
that would allow continued availability
of pre-phaseout inventory in the event
of a catastrophic disruption to supply.
As discussed above, this approach is
consistent with the relevant Decisions of
the Parties, especially Table D of the
Annex to Decision XIX/9, which for
2009 explicitly authorizes for the United
States a certain amount of new
production and import ‘‘minus available
stocks.’’ After considering all of the
comments received, EPA believes that
this is the most reasonable, efficient,
and transparent way for the Agency to
continue to facilitate responsible
management of pre-phaseout inventory.
EPA calculates that, as of January 1,
2009, 1,919,193 kg of pre-phaseout
inventory meets the definition of
‘‘available stocks’’ as calculated using
the approach described in Section
V.D.2. of this preamble. Therefore, with
this action the Agency is allowing
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19889
1,919,193 kg of methyl bromide to be
supplied from pre-phaseout inventory
for critical uses in 2009 by issuing an
equivalent number of CSAs, and
adjusting the amount of CUAs
accordingly. EPA also calculates that
there will be sufficient pre-phaseout
inventory at the beginning of the 2010
control period to satisfy the amount of
2010 inventory drawdown (470,000 kg)
for critical uses identified by the Parties
in Decision XX/5.
To summarize, the critical use
amounts authorized by the Parties in
Decision XIX/9 for 2009 total 4,261,974
kg. The maximum amount of authorized
new production or import as set forth in
Table D of the Annex to Decision XIX/
9 is 3,961,974 kg, ‘‘minus available
stocks.’’ Applying the ‘‘available stocks’’
approach finalized in the 2008 CUE
Rule, EPA is expecting 1,919,193 kg of
2009 critical use needs to be met from
pre-phaseout inventory and thus is
issuing CSAs in that amount. As in past
years, EPA is adjusting the amount of
CUAs accordingly, so that the sum of
CUAs and CSAs is not greater than the
total amount authorized by the Parties.
After accounting for the additional
reductions for unsold critical use
methyl bromide at the end of 2007 and
reductions to encourage research
amounts to be supplied from prephaseout inventory, EPA is allowing
2,275,715 kg of new production and
import for critical uses in 2009.
4. Treatment of Carryover Material
As described in the December 23,
2004, Framework Rule (69 FR 76997),
EPA is not permitting entities to build
stocks of methyl bromide produced or
imported after January 1, 2005, under
the critical use exemption. Under the
current regulations, quantities of methyl
bromide produced, imported, exported,
or sold to end-users under the critical
use exemption in a calendar year must
be reported to EPA the following year.
These reporting requirements appear at
40 CFR 82.13(f)(3), 82.13(g)(4),
82.13(h)(1), 82.13(bb)(2), and
82.13(cc)(2). EPA uses the reported
information to calculate the amount of
critical use methyl bromide that has
been produced or imported in that
control period but not exported or sold
to end-users in that year. An amount
equivalent to this ‘‘carryover,’’ whether
pre-plant or post-harvest, is then
deducted from the total level of
allowable new production and import in
the year following the year of the data
report. For example, EPA deducted the
amount of carryover from 2006
(reported in 2007) from the allowable
amount of production or import for
critical uses in 2008. As discussed in
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Section V.D.2., carryover material is not
included in EPA’s definition of existing
stocks (ES) as it applies to the formula
for determining the amount of available
stocks (AS). EPA is not including
carryover amounts as part of ES,
because doing so could lead to a doublecounting of carryover amounts, with
proportionate effects on the calculation
of critical use allowances (CUAs).
EPA stated in the proposed rule that
it calculates the amount of carryover
CUE material each year based on data
reported to EPA by distributors and
applicators regarding sales to end-users.
In 2008, 57 entities reported information
to EPA under the reporting
requirements at 40 CFR 82.13 about
critical use methyl bromide production,
imports, exports, sales, and/or inventory
holdings in 2007. In 2007, 4,314,150 kg
of critical use methyl bromide was
acquired through production or import.
The information reported to EPA
indicates that 4,269,255 kg of critical
use methyl bromide was exported or
sold to end-users in 2007. The carryover
amount at the end of 2007 was thus
44,895 kg, which is the difference
between the reported amount of critical
use methyl bromide acquired in 2007
and the reported amount of exports or
sales of that material to end users in
2007 (4,314,150 kg¥4,269,255 kg =
44,895 kg). EPA’s calculation of the
amount of carryover at the end of 2007
is consistent with the method used in
the final 2008 CUE Rule, and with the
method agreed to by the Parties in
Decision XVI/6, which established the
Accounting Framework for critical use
methyl bromide, for calculating column
L of the U.S. the Accounting
Framework. The 2007 U.S. Accounting
Framework is available in the public
docket for this rulemaking.
As a result of stakeholder concerns
regarding the completeness of reporting
and in response to public comment,
EPA stated in the 2008 CUE Rule that
it would collect the names of all
distributors and third-party applicators
with critical use exemption reporting
requirements under 40 CFR 82.13 using
its information gathering authority
under section 114 of the Clean Air Act.
On January 31, 2008, EPA sent letters to
all producers, distributors, and thirdparty applicators of critical use methyl
bromide that it was aware of asking for
‘‘the name and address of each non-end
user entity (i.e. distributors of methyl
bromide and third-party applicators of
methyl bromide) to which your
company sold critical use methyl
bromide during calendar year 2007.’’ As
a result, EPA received contact
information for distributors and thirdparty applicators that had never
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reported sales data to EPA as well as
actual sales reports from some of those
new entities. On March 11, 2008, the
Agency sent a follow-up letter to the
previously unknown entities that had
not reported sales data for 2007 and
reminded them of their reporting
obligations under 40 CFR 82.13. The
Agency received 18 responses from
previously unknown entities satisfying
the required annual reporting
requirements.
MBIP suggested that EPA calculate
the carryover as the sum of all critical
use methyl bromide that companies
report as being held in inventory. MBIP
raised this issue in the 2008 CUE Rule
and EPA continues to maintain that the
established methodology is a simple and
accurate way to calculate the carryover
amount each year and that adjusting the
established method could create
international confusion about U.S.
reporting. More details of MBIP’s
proposals to modify how the carryover
amount is calculated, as well as EPA’s
response, are found in the 2008 CUE
Rule Preamble and Response to
Comments document.
In previous CUE rules, EPA has used
the approach described in the
Framework Rule for implementing
carryover reductions. Consistent with
that approach, EPA is reducing the total
level of new production and import for
critical uses by 44,895 kg to reflect the
total level of carryover material in
existence at the end of 2007.
5. Amounts for Research Purposes
There continues to be a need for
methyl bromide for research purposes.
A common example is an outdoor field
experiment that requires methyl
bromide as a standard control treatment
with which to compare the trial
alternatives’ results. EPA notes that the
use of methyl bromide under the critical
use exemption for research is distinct
from the use of methyl bromide under
the laboratory and analytical use
exemption. Research uses under the
critical use exemption refer to field
trials of alternative fumigants where
methyl bromide is used as a control.
Research uses under the laboratory and
analytical use exemption refer to methyl
bromide used as a reference or standard;
in laboratory toxicology studies; to
compare the efficacy of methyl bromide
and its alternatives inside a laboratory;
and as a laboratory agent which is
destroyed in a chemical reaction in the
manner of feedstock. Decision XVIII/
15(1). The critical use sectors that were
approved by the Parties to use methyl
bromide for research purposes in 2009
are listed in Section V.C. and have
‘‘research purposes’’ as a limiting
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critical condition in Table I of this
preamble. While use of methyl bromide
for the research purposes listed in that
section is a critical use, EPA has
consistently encouraged research needs
be met through the sale of inventory by
deducting the amount needed for
research from the overall critical use
production level and issuing additional
CSAs in that amount.
MBIP commented that because the
inventory is so low, EPA should
increase the level of new production by
22,171 kg instead of issuing CSAs for
that amount. EPA disagrees, and a
detailed analysis of the amount of
available stocks, explained further in
Section V.D.2 of this preamble, finds
that more than 1,900,000 kg of prephaseout inventory is available for
critical uses. EPA is therefore allowing
the sale of 22,171 kg of pre-phaseout
inventory for research purposes in 2009
to account for the amount authorized for
those purposes. EPA is allowing methyl
bromide sale from stocks for exempted
research purposes by expending CSAs.
The Agency continues to encourage
methyl bromide suppliers to sell
inventory to researchers and to
encourage researchers to purchase
inventory for research purposes.
6. Methyl Bromide Alternatives
In this rule, as in previous CUE rules,
EPA has considered new data regarding
alternatives that was not available at the
time the U.S. Government submitted its
Critical Use Nomination (CUN) to the
Parties. EPA has used this new
information in deciding whether to
adjust the amount of new production.
For example, in the 2006 CUE Rule (71
FR 5985), EPA adjusted the allocation
for new production in order to account
for the recent registration of sulfuryl
fluoride. That allocation reflected
transition rates that were included for
the first time in the 2007 U.S. Critical
Use Nomination (CUN). In the 2007
CUE Rule (72 FR 74139), EPA explained
that the transition rates had already
been applied as part of the international
review process for that year and did not
apply them as part of the Agency’s
domestic rulemaking. EPA did,
however, reduce the total volume of
critical use methyl bromide in the final
CUE rule for 2008 by 27,769 kg because
the transition rates did not account for
the uptake of iodomethane in various
pre-plant sectors or sulfuryl fluoride in
cocoa fumigation.
For 2009, EPA is taking into
consideration new information about
iodomethane and Telone. Absent other
factors, new data on the uptake of
iodomethane in 2009 would lead the
Agency to adjust the CUA allocation to
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account for the uptake of this
alternative. Through the public
comments, EPA also received
information regarding a shortage in
Telone production, the magnitude of
which is uncertain but expected to be
significant. EPA therefore believes that
it would be imprudent to make a
reduction for iodomethane in the face of
this substantial but currently
unquantifiable reduction in Telone. EPA
also received comments regarding the
uptake of sulfuryl fluoride. As described
below, the Agency does not believe that
this information is new or sufficient to
adjust new production levels for 2009.
Therefore, EPA is not making any
adjustment to the authorized amount of
new production to account for new data
regarding alternatives.
EPA proposed to reduce critical use
allowances to account for new
information about the uptake of
iodomethane. The TEAP report of
August 2007 included reductions based
on the transition rates for alternatives
considered in the 2009 CUN. These
alternatives included sulfuryl fluoride,
but not iodomethane, which was not yet
registered for use. The TEAP’s
recommendations were then considered
in the Parties’ 2009 authorization
amounts, as listed in Decision XIX/9.
Therefore, with the exception of
iodomethane, transition rates
accounting for the uptake of alternatives
like sulfuryl fluoride have already been
applied for authorized 2009 critical use
amounts. Furthermore, the 2010 CUN,
which is the U.S. Government’s last
opportunity to adjust the 2009
authorization, did not conclude that
transition rates should be increased for
2009. As the 2010 CUN reflected, the
United States Government had not
found new information that supports
changing the 2009 transition rates
included in the 2009 CUN and applied
by MBTOC.
After considering new information
about iodomethane, EPA expects that in
2009 iodomethane will be a technically
and economically feasible alternative for
many pre-plant applications. Beginning
in Fall 2008, iodomethane obtained a
full pesticide registration for use as a
soil fumigant by EPA for a limited
number of crops. Iodomethane also
received state registrations by all states
except California, New York, and
Washington.
Iodomethane is currently registered
on food crops (peppers, tomatoes,
strawberries) and non-food nursery
crops (ornamentals, forest seedlings,
and strawberry nurseries). EPA has
assumed uptake on only the food crops
at this time. Although it is registered on
non-food nursery crops, the Agency has
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not assumed any uptake for 2009. This
is in keeping with the Agency’s policy
of being protective of nursery crops
until there is certainty that use of the
newly registered alternative is
efficacious on nematodes, diseases, and
fungi and can meet any certification
requirement. There are two major CUE
food crops that do not have an
iodomethane registration: Curcurbits
and eggplants. EPA did not estimate any
uptake on those crops. For the crops and
states where iodomethane is registered,
EPA has estimated that an additional 15
percent of the critical use methyl
bromide authorized by the Parties for
2009 can transition to iodomethane use.
The Agency’s analysis, described in a
memo on the docket for this action,
estimates that iodomethane can feasibly
replace 262,035 kg of methyl bromide in
2009.
MBIP commented that EPA may not
reduce new production to account for
the uptake of iodomethane because EPA
did not provide a meaningful
opportunity to comment. MBIP states
that EPA did not explain the factors it
would consider in assessing the uptake
of iodomethane or include a memo in
the docket setting forth the Agency’s
methodology, and that accounting for
anything other than a de minimis uptake
of iodomethane would be contrary to
administrative law. EPA disagrees that it
could not account for the uptake of
iodomethane in the final rule. EPA
provided for reference the estimated
market uptake for iodomethane in the
2008 CUE Rule along with the number
of states in which iodomethane was
registered at that time compared to the
date of the proposed rule. While EPA
did not place the analysis conducted for
the 2008 CUE Rule in the 2009 Rule
docket prior to proposal, EPA’s
methodology for estimating uptake can
be found in the docket to the 2008 Final
CUE Rule and has been reviewed and
commented upon by MBIP in the past.
EPA believes that it has the discretion
to make a reduction to account for
iodomethane uptake based on the
information provided in the proposal
and the methodology used in 2008.
However, as discussed further below,
EPA is not making such a reduction in
this rule.
EPA also received comments that it
should make reductions for increased
use of sulfuryl fluoride. As described
above, data about the uptake of sulfuryl
fluoride was included in the 2009 CUN
and thus was included in the TEAP’s
August 2007 recommendations. Dow
AgroSciences commented that sulfuryl
fluoride can currently replace 100% of
current post-harvest methyl bromide
uses and that EPA should therefore
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reduce the allocation of methyl bromide
to account for market advances of
sulfuryl fluoride. EPA does not believe
that the data Dow AgroSciences
submitted was applicable to the 2009
control period. Additionally, Dow
AgroSciences did not submit economic
data regarding the transition to sulfuryl
fluoride. While many post-harvest users
submitted comment expressing support
for sulfuryl fluoride as an efficacious
fumigant, the Agency does not yet have
the economic data to support a faster
transition rate in 2009 than was
contained in the CUN. Therefore, EPA is
not reducing new production of methyl
bromide to account for the adoption of
sulfuryl fluoride in the post-harvest
sector.
EPA also received information that
Dow AgroSciences has reduced its
production of 1,3-D (marketed as
Telone) for the first half of 2009. The
comment states, and the Agency has
confirmed, that 1,3-D is a co-product of
a chemical used in the plastics industry.
The recent downturn in the economy
has resulted in less demand of that
chemical. Dow AgroSciences has
produced less of that chemical and as a
result the production of 1,3-D has
similarly declined. Commenters believe
that this shortage will place greater
pressure on stockpiled methyl bromide
as growers facing a shortage of Telone
will be forced to rely on the prephaseout inventory.
EPA agrees that a shortage of Telone
in 2009 will result in a greater reliance
on methyl bromide, whether newly
produced or pre-phaseout inventory.
Some growers who had planned to
transition to Telone this year will likely
not do so and others who had already
transitioned to Telone may instead have
to revert to methyl bromide for this
season. Other crops that use Telone,
such a potatoes and tobacco, will not be
able to switch to critical use methyl
bromide in 2009 as they are not critical
use crops.
The Agency believes that it should
treat the new information on Telone
shortages in the same way as other new
data on alternatives. In previous CUE
rules, EPA has reduced the amount of
new production to account for the
expected uptake of alternatives such as
sulfuryl fluoride and iodomethane. In
this instance, EPA believes that it
should not ignore the new information
about the reduced production and
therefore opportunity for use of an
alternative. This reduction in supply
directly affects the economic feasibility
of Telone in a way not contemplated in
the CUN.
EPA is currently unable to quantify
the effect that a reduction in Telone
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production may have on critical users of
methyl bromide. EPA does not know
how long the reduction will last because
it is due to a downturn in the economy,
and the demand for the chemical with
which 1,3-D is co-produced. While Dow
AgroSciences has only announced this
decision for the first half of 2009,
neither Dow AgroSciences nor EPA can
estimate the length of the economic
downturn. EPA is thus unable to
estimate the extent of the shortage.
EPA does have some data, however, to
suggest that there will be an effect and
that action is warranted. EPA
anticipates this effect will be greater in
California, which has not registered
iodomethane, than in the Southeast
where that alternative is available. In
2007, Telone was the fifth-most-used
pesticide in California by pounds of
active ingredient, according to the
California Department of Pesticide
Regulation. According to that data,
strawberries are the largest user of
Telone, with over 860,000 kg applied in
2007. Another 356,000 kg were used for
‘‘soil fumigation/preplant.’’ Using this
data, EPA estimates that at least
1,450,000 kg of Telone were applied in
California in 2007 on CUE crops. This
compares to the 4,269,255 kg of methyl
bromide used throughout the U.S. in
2007, as reported to UNEP in the 2007
Accounting Framework. Any reduction
in Telone production will therefore
likely result in an increase in the use of
methyl bromide, assuming the limiting
critical conditions are met. EPA notes,
however, that Telone usage on CUE
crops is only a small fraction of the total
amount of Telone used. EPA estimates
that about 13,000,000 kg of Telone is
used on a variety of crops, with potatoes
and tobacco constituting about half of
that use. The effect on methyl bromide
will depend in large part on how Telone
is distributed, and whether some
growers will have greater access to what
is produced than others.
Given these uncertainties, EPA is
unable to model the effects of the
shortage with the same precision used
to model the uptake of iodomethane.
The Agency does anticipate pressure on
newly produced methyl bromide as well
as pre-phaseout inventory as a result of
this shortage. EPA believes that it would
be imprudent to make a reduction for
iodomethane in the face of this
substantial but unquantifiable reduction
in Telone production. Therefore, for the
2009 control period, EPA is not
adjusting the amount of new production
either upward or downward to account
for new information regarding
alternatives. For the same reasons, EPA
is also not making a reduction for the
uptake of alternatives when calculating
the supply chain factor. EPA will
consider any appropriate adjustments
for iodomethane and Telone in the 2010
CUE Rule based on information
available at the time that rule is
developed.
7. Summary of Calculations
The calculations described above for
determining the level of new production
and critical stock allowances are
summarized in Table II below:
TABLE II—SUMMARY OF CALCULATIONS
Kilograms
Step 1: Calculate supply chain factor
U.S. authorization for 2009 ............................................................................................................................................................
¥ Further reduction for uptake of alternatives ......................................................................................................................
= One year’s CUE need .........................................................................................................................................................
× Percentage of year’s production to recover from production failure ..................................................................................
= Supply Chain Factor ...........................................................................................................................................................
4,261,974
0
4,261,974
55.186%
2,352,013
Step 2: Calculate available stocks
Existing pre-phaseout inventory on January 1, 2008 (‘‘ES2008’’) ................................................................................................
¥ Drawdown of inventory during 2008 (‘‘D2008’’) ................................................................................................................
¥ Supply Chain Factor ..........................................................................................................................................................
= Available stocks (‘‘AS2009’’) = Critical Stock Allowance ....................................................................................................
6,457,806
2,186,600
2,352,013
1,919,193
Step 3: Calculate carryover
Reported as produced/imported in 2007 .......................................................................................................................................
¥ Reported as sold in 2007 ..................................................................................................................................................
= Carryover .............................................................................................................................................................................
4,314,150
4,269,255
44,895
Step 4: Calculate new production
U.S. authorization for 2009 ............................................................................................................................................................
¥ Critical Stock Allowance (Step 2) ......................................................................................................................................
¥ Carryover (Step 3) .............................................................................................................................................................
¥ Amounts Used for Research .............................................................................................................................................
¥ Uptake of alternatives ........................................................................................................................................................
= New production = Critical Use Allowance ...........................................................................................................................
E. The Criteria in Decisions IX/6 and Ex.
I/4
Paragraphs 2 and 7 of Decision XIX/
9 request Parties to ensure that the
conditions or criteria listed in Decisions
Ex. I/4 and IX/6, paragraph 1, are
applied to exempted critical uses for the
2009 control period. A discussion of the
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Agency’s application of the criteria in
paragraph 1 of Decision IX/6 appears in
sections V.A., V.C., V.D., and V.H. of
this preamble. The CUNs detail how
each critical use meets the criteria listed
in paragraph 1 of Decision IX/6, apart
from the criterion located at (b)(ii), as
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4,261,974
1,919,193
44,895
22,171
0
2,275,715
well as the criteria in paragraphs 5 and
6 of Decision Ex. I/4.
The criterion in Decision IX/
6(1)(b)(ii), which refers to the use of
available stocks of methyl bromide, is
addressed in sections V.D., V.G., and
V.H. of this preamble. The Agency has
previously provided its interpretation of
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the criterion in Decision IX/6(1)(a)(i)
regarding the presence of significant
market disruption in the absence of an
exemption, and EPA refers readers to
the 2006 CUE final rule (71 FR 5989) as
well as to the memo on the docket titled
‘‘Development of 2003 Nomination for a
Critical Use Exemption for Methyl
Bromide for the United States of
America’’ for further elaboration.
The remaining considerations,
including the lack of available
technically and economically feasible
alternatives under the circumstance of
the nomination; efforts to minimize use
and emissions of methyl bromide where
technically and economically feasible;
the development of research and
transition plans; and the requests in
Decision Ex. I/4(5) and (6) that Parties
consider and implement MBTOC
recommendations, where feasible, on
reductions in the critical use of methyl
bromide and include information on the
methodology they use to determine
economic feasibility, are all addressed
in the nomination documents.
Some of these criteria were evaluated
in other documents as well. For
example, the U.S. has further
considered matters regarding the
adoption of alternatives and research
into methyl bromide alternatives,
criterion (1)(b)(iii) in Decision IX/6, in
the development of the National
Management Strategy submitted to the
Ozone Secretariat in December 2005 and
in ongoing consultations with industry.
The National Management Strategy
addresses all of the aims specified in
Decision Ex. I/4(3) to the extent feasible
and is available in the docket for this
rulemaking.
F. Emissions Minimization
Decision XIX/9, paragraph 11 states
that Parties shall request critical users to
employ ‘‘emission minimization
techniques such as virtually
impermeable films, barrier film
technologies, deep shank injection and/
or other techniques that promote
environmental protection, whenever
technically and economically feasible.’’
In the proposed rule, EPA encouraged
growers to use such techniques but did
not propose to require them. At the
public hearing for this action the
California Strawberry Commission
expressed its opinion that EPA should
create a regulatory incentive for
emissions reduction. Similarly, Dow
AgroSciences commented that
emissions minimization measures,
potentially including application rate
reductions, soil sealing requirements,
minimum application depths, and
maximum soil temperatures be
mandated and not merely
recommended.
In the judgment of USG scientists, use
of virtually impermeable film (VIF)
tarps allows pest control with lower
application rates while minimizing
emissions. EPA encourages the use of
tarps by reflecting the lower application
rates that are necessary when using
tarps in its 2009 nomination. EPA
believes that reducing supply through
the phaseout provides incentives for use
minimization and therefore limits
emissions. EPA disagrees, however, that
the 2009 CUE rule should require the
use of emissions minimization
techniques, as the Agency did not
propose to do so. The Agency continues
to investigate the emissions reductions
benefits of using various types of tarps,
recognizing the lack of data in field
situations, variability in efficacy in
reducing emissions by application type
(broadcast vs. raised bed), as well as
regulatory prohibitions on less
permeable tarps in California. EPA has
placed a memo detailing some of this
analysis into the docket for this rule.
Users of methyl bromide should make
every effort to minimize overall
emissions of methyl bromide by
implementing measures such as the
ones listed above, to the extent
consistent with State and local laws and
regulations. The Agency also continues
to encourage researchers and users who
are successfully utilizing such
techniques to provide such information
with their critical use applications.
19893
G. Critical Use Allowance Allocations
A critical use allowance (CUA) is a
privilege granted by EPA, using its
authority under Section 604(d)(6) of the
Clean Air Act, that enables the holder to
produce or import one kilogram of
methyl bromide for an approved critical
use during the specified control period.
These allowances expire at the end of
the control period and, as explained in
the Framework Rule, are not bankable
from one year to the next. The allocation
of 2009 pre-plant and post-harvest
CUAs to the entities listed below is
subject to the trading provisions at 40
CFR 82.12, which are discussed in
section V.G. of the preamble to the
Framework Rule (69 FR 76982).
EPA proposed to allocate 2009 critical
use allowances for new production or
import of methyl bromide up to the
amount of 1,617.921 kg (6.3% of
baseline). EPA sought comment on the
total levels of exempted new production
or import for pre-plant and post-harvest
critical uses in 2009. For the reasons
discussed in Section V.D. of this
preamble, EPA is adjusting the proposed
CUA amounts to account for (1) new
data regarding the drawdown of prephaseout inventory, (2) carryover of
unsold methyl bromide in 2007, and (3)
amounts authorized by the Parties for
research.
Therefore, the total critical use
exemption amount for 2009 is 4,194,908
kg (16.4% of baseline), with 2,275,715
kg (8.9% of baseline) of critical use
allowances allowing new production or
import, and the remaining amount,
1,919,193 kg (7.5% of baseline),
available through critical stock
allowances (CSAs) that allow critical
users to access pre-phaseout methyl
bromide. EPA is continuing to apportion
company-specific CUA allocations on
the basis of the 1991 baseline
consumption share of the companies
listed in Table III. The updated
calculation spreadsheet is available in
the docket. The CUAs are allocated as
follows:
TABLE III—PROPOSED ALLOCATION OF CRITICAL USE ALLOWANCES
2009 critical use
allowances for
pre-plant uses*
(kilograms)
Company
2009 critical use
allowances for
post-harvest uses*
(kilograms)
Great Lakes Chemical Corp. A Chemtura Company ......................................................................
Albemarle Corp ................................................................................................................................
ICL–IP America ................................................................................................................................
TriCal, Inc ........................................................................................................................................
1,249,703
513,906
283,995
8,843
133,249
54,795
30,281
943
Total 2 ........................................................................................................................................
2,056,448
219,267
* For production or import of Class I, Group VI controlled substance exclusively for the Pre-Plant or Post-Harvest uses specified in appendix L to 40 CFR part 82.
2 Due to rounding, numbers do not add exactly.
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EPA received comment that
Ameribrom changed its name to ICL–IP
America. This new name is reflected in
Table III and in the final rule.
Paragraph 6 of Decision XIX/9 states
‘‘that Parties shall endeavor to license,
permit, authorize or allocate quantities
of critical-use methyl bromide as listed
in tables A and C of the annex to the
present decision.’’ This is similar to
language in Decisions Ex. I/3(4), Ex. II/
1(4), XVII/9(4), and XVIII/13(5)
regarding 2005, 2006, 2007, and 2008
critical uses, respectively. The language
from these Decisions calls on Parties to
endeavor to allocate critical use methyl
bromide on a sector basis.
As it did in the final Framework Rule
(69 FR 76989) and each critical use
allocation rulemaking since, EPA is
allocating critical use allowances on a
lump-sum, or universal basis, modified
to include distinct caps for pre-plant
and post-harvest uses. The Agency
continues to believe that this is the most
efficient and least burdensome approach
that would achieve the desired
environmental results, and that a sectorspecific approach would pose
significant administrative and practical
difficulties. Although the approach
adopted in the Framework Rule does
not directly allocate allowances to each
category of use, the Agency anticipates
that reliance on market mechanisms
will achieve similar results indirectly.
The Agency believes that under a
system of universal allocations, divided
into pre-plant and post-harvest sectors,
the actual critical use will closely follow
the sector breakout listed by the TEAP.
These issues were addressed in previous
rules and EPA is not aware of any
factors that would alter the analysis
performed during the development of
the Framework Rule.
In developing this action, EPA did not
propose to change the approach adopted
in the Framework Rule for the allocation
of CUAs but, in an endeavor to address
Decision XIX/9(6), sought additional
comment on the Agency’s allocation of
CUAs in the two groupings (pre-plant
and post-harvest) that the Agency has
employed in the past. MBIP’s comment
supported the continued use of the
universal allocation approach
characterizing it as a simple and
understandable system that has proven
to work well. Dow AgroSciences
commented that CSAs and CUAs should
be allocated specifically to each of the
15 critical use categories authorized by
the Parties. The comment states that this
method would ensure that all critical
users have access to methyl bromide,
rather than just those with the greatest
ability to pay.
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EPA agrees with the comments that
supported the existing allocation
system. EPA considered sector-specific
and other allocation approaches in the
proposed Framework Rule, and decided
that the existing universal allocation
system with pre-plant and post-harvest
allowances was the most effective and
least burdensome system.
H. Critical Stock Allowance Allocations
Each critical stock allowance (CSA) is
equivalent to one kilogram of critical
use methyl bromide. CSAs expire at the
end of the control period and, as
explained in the Framework Rule, are
not bankable from one year to the next
(69 FR 76990). CSAs are not used to
produce or import methyl bromide but
are privileges that enable the holder to
sell a specified amount of pre-phaseout
inventory for approved critical uses. A
CSA is expended when the entity
selling methyl bromide sells the
material, or fumigation services with the
material, to an approved critical user
who certifies that the material is for an
approved critical use. Thus the
movement of pre-phaseout inventories
or methyl bromide along the supply
chain does not require expenditure of a
CSA.
EPA proposed to allocate CSAs to the
entities listed below in Table IV for the
2009 control period in the amount of
2,576,987 kg (10.1% of baseline). EPA
followed its approach to determining
available stocks introduced in the 2008
CUE rule and described in Section
V.D.4. For the reasons discussed in
Section V.D., in this action EPA is
allocating 1,919,193 kg of CSAs to the
entities listed in Table IV.
In 2006, the United States District
Court for the District of Columbia
upheld EPA’s treatment of companyspecific methyl bromide inventory
information as confidential. NRDC v.
Leavitt, 2006 WL 667327 (D.D.C. March
14, 2006). EPA’s allocation of CSAs is
based on each company’s proportionate
share of the aggregate inventory.
Therefore, the documentation regarding
company-specific allocation of CSAs is
in the confidential portion of the
rulemaking docket and the individual
CSA allocations are not listed in Table
IV. Following past practice, EPA will
inform the listed companies of their
CSA allocations in a letter following
publication of the final rule.
TABLE IV—PROPOSED ALLOCATION OF
CRITICAL STOCK ALLOWANCES
Company
Albemarle.
Bill Clark Pest Control, Inc.
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TABLE IV—PROPOSED ALLOCATION OF
CRITICAL STOCK ALLOWANCES—
Continued
Company
Burnside Services, Inc.
Cardinal Professional Products.
Chemtura Corp.
Degesch America, Inc.
Helena Chemical Co.
Hendrix & Dail.
Hy Yield Bromine.
ICL–IP America.
Industrial Fumigation Company.
Pacific Ag.
Pest Fog Sales Corp.
Prosource One.
Reddick Fumigants.
Royster-Clark, Inc.
Trical Inc.
Trident Agricultural Products.
UAP Southeast (NC).
UAP Southeast (SC).
Univar.
Western Fumigation.
Total—1,919,193 kilograms.
Several companies that receive very
small amounts of CSAs from EPA have
contacted the Agency and requested that
they be permitted to permanently retire
their allowances. Some companies
receive as few as 6 kg of CSAs. Due to
the small allocation and because they
typically do not sell critical use methyl
bromide, some companies find the
allocation of CSAs, and associated
record-keeping and reporting
requirements, to be unduly burdensome.
For the last two rounds of CUE
allocation rulemakings EPA has allowed
CSA holders, on a voluntary basis, to
permanently relinquish their allowances
through written notification to the
Agency. Such companies would not
receive CSA allocations and would be
excluded from future allocations.
During the comment period for the 2008
CUE Rule, seven companies voluntarily
agreed to permanently relinquish their
allowances. In the final 2008 CUE Rule,
the Agency reallocated the allowances
forfeited by these companies to the
remaining companies on a pro-rata
basis. Though no companies voluntarily
relinquished their allowances this year,
EPA continues to strongly encourage
CSA holders to take advantage of this
voluntary opportunity to retire their
CSA allocations.
I. Stocks of Methyl Bromide
As discussed above and in the
December 23, 2004, Framework Rule, an
approved critical user may purchase
methyl bromide produced or imported
with CUAs as well as limited
inventories of pre-phaseout methyl
bromide, the combination of which
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constitute the supply of ‘‘critical use
methyl bromide’’ intended to meet the
needs of agreed critical uses. The
Framework Rule established provisions
governing the sale of pre-phaseout
inventories for critical uses, including
the concept of CSAs and a prohibition
on the sale of pre-phaseout inventories
for critical uses in excess of the amount
of CSAs held by the seller. It also
established trading provisions that
allow CUAs to be converted into CSAs.
EPA has retained these provisions for
the 2009 control period.
EPA believes that the refined
approach for calculating available stocks
that was finalized in the 2008 CUE Rule
reduces the risks of methyl bromide
shortages for critical uses. However, as
in prior years, the Agency will continue
to closely monitor CUA and CSA data.
Further, as stated in the final 2006 CUE
rule, safety valves continue to exist. If
an inventory shortage occurs, EPA may
consider various options including
authorizing the conversion of a limited
number of CSAs to CUAs through a
rulemaking, bearing in mind the upper
limit on U.S. production/import for
critical uses.
The aggregate amount of pre-phaseout
methyl bromide reported as being in
inventory on December 31, 2007, was
6,457, 806 kg. Based on reported end-ofyear data submitted by inventory
owners, the aggregate inventory on
December 31, 2008, was 4,271,226 kg.
As explained in detail in the 2008 CUE
final rule, the Agency intends to
continue releasing the aggregate of
methyl bromide stockpile information
reported to the Agency under the
reporting requirements at 40 CFR 82.13
for the end of each control period. EPA
notes that if the number of competitors
in the industry were to decline
appreciably, EPA would revisit the
question of whether the aggregate is
entitled to treatment as confidential
information and whether to release the
aggregate without notice. EPA is not
proposing to change the treatment of
submitted information but welcomes
information concerning the composition
of the industry in this regard. The
aggregate information for 2003 through
2007 is available in the docket for this
rulemaking.
EPA is also correcting its assessment
of the amount pre-phaseout inventory
that was available on December 31,
2006, which EPA originally stated was
7,671,091 kg. EPA received late data in
2007 that it did not incorporate into the
total inventory level for the year. The
corrected value for the amount of prephaseout inventory as of December 31,
2006, is 7,941,009 kg. This change does
not affect the CUA or CSA allocations in
this rule, which are based on reported
data rather than estimates.
VI. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
Under Executive Order (EO) 12866
(58 FR 51735, October 4, 1993), this
action is a ‘‘significant regulatory
action.’’ This action is likely to result in
a rule that may raise novel legal or
policy issues. Accordingly, EPA
submitted this action to the Office of
Management and Budget (OMB) for
review under EO 12866 and any
changes made in response to OMB
recommendations have been
documented in the docket for this
action.
B. Paperwork Reduction Act
This action does not impose any new
information collection burden. The
application, recordkeeping, and
reporting requirements have already
been established under previous Critical
Use Exemption rulemakings and this
action does not propose to change any
of those existing requirements.
However, the Office of Management and
Budget (OMB) has previously approved
the information collection requirements
contained in the existing regulations at
40 CFR part 82 under the provisions of
the Paperwork Reduction Act, 44 U.S.C.
3501 et seq. and has assigned OMB
control number 2060–0482. The OMB
control numbers for EPA’s regulations
in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The RFA generally requires an agency
to prepare a regulatory flexibility
analysis of any rule subject to noticeand-comment rulemaking requirements
under the Administrative Procedure Act
or any other statute unless the agency
certifies that the rule will not have a
significant economic impact on a
substantial number of small entities.
Small entities include small businesses,
small organizations, and small
governmental jurisdictions. For
purposes of assessing the impacts of this
rule on small entities, small entity is
defined as: (1) A small business that is
identified by the North American
Industry Classification System (NAICS)
Code in the Table below; (2) a small
governmental jurisdiction that is a
government of a city, county, town,
school district or special district with a
population of less than 50,000; and (3)
a small organization that is any not-forprofit enterprise which is independently
owned and operated and is not
dominant in its field.
NAICS small business
size standard
(in number of employees or
millions of dollars)
Category
NAICS code
SIC code
Agricultural production ....................
1112—Vegetable and Melon farming.
1113—Fruit and Nut Tree Farming
1114—Greenhouse, Nursery, and
Floriculture Production.
0171—Berry Crops .........................
Storage Uses ..................................
115114—Postharvest Crop activities (except Cotton Ginning).
311211—Flour Milling .....................
311212—Rice Milling ......................
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$0.75 million.
0172—Grapes.
0173—Tree Nuts.
0175—Deciduous Tree Fruits (except apple orchards and farms).
0179—Fruit and Tree Nuts, NEC.
0181—Ornamental Floriculture and
Nursery Products.
0831—Forest Nurseries and Gathering of Forest Products.
.........................................................
2041—Flour and Other Grain Mill
Products.
2044—Rice Milling ..........................
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$7 million.
500 employees.
500 employees.
19896
Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations
NAICS small business
size standard
(in number of employees or
millions of dollars)
Category
NAICS code
SIC code
Distributors and Applicators ............
493110—General
Warehousing
and Storage.
493130—Farm
Product
Warehousing and Storage.
115112—Soil Preparation, Planting
and Cultivating.
325320—Pesticide and Other Agricultural Chemical Manufacturing.
4225—General Warehousing and
Storage.
4221—Farm Product Warehousing
and Storage.
0721—Crop Planting, Cultivation,
and Protection.
2879—Pesticides and Agricultural
Chemicals, NEC.
Producers and Importers ................
Agricultural producers of minor crops
and entities that store agricultural
commodities are categories of affected
entities that contain small entities. This
rule will only affect entities that applied
to EPA for a de-regulatory exemption. In
most cases, EPA received aggregated
requests for exemptions from industry
consortia. EPA asked consortia applying
for critical use exemptions to describe
the number and size distribution of
entities their applications covered. EPA
estimated that 3,218 entities petitioned
EPA for critical use exemptions for the
2005 control period. EPA now estimates
there to be 2,000 end users of critical
use methyl bromide. Since many
applicants did not provide information
on the distribution of sizes of entities
covered in their applications, EPA
estimated that, based on the above
definition, between one-fourth and onethird of the entities may be small
businesses. In addition, other categories
of affected entities do not contain small
businesses based on the above
description.
After considering the economic
impacts of this rule on small entities,
EPA certifies that this action will not
have a significant economic impact on
a substantial number of small entities.
In determining whether a rule has a
significant economic impact on a
substantial number of small entities, the
impact of concern is any significant
adverse economic impact on small
entities, since the primary purpose of
the regulatory flexibility analyses is to
identify and address regulatory
alternatives ‘‘which minimize any
significant economic impact of the
proposed rule on small entities.’’ (5
U.S.C. 603–604). Thus, an Agency may
certify that a rule will not have a
significant economic impact on a
substantial number of small entities if
the rule relieves a regulatory burden, or
otherwise has a positive economic effect
on all of the small entities subject to the
rule. Since this rule exempts methyl
bromide for approved critical uses after
the phaseout date of January 1, 2005,
this is a de-regulatory action which will
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confer a benefit to users of methyl
bromide. EPA believes the estimated deregulatory value for users of methyl
bromide is between $20 million and $30
million annually. We have therefore
concluded that this rule will relieve
regulatory burden for all small entities.
D. Unfunded Mandates Reform Act
This action contains no Federal
mandates under the provisions of Title
II of the Unfunded Mandates Reform
Act of 1995 (UMRA), 2 U.S.C. 1531–
1538 for State, local, or tribal
governments or the private sector. The
action imposes no enforceable duty on
any State, local or tribal governments or
the private sector. Instead, this action is
deregulatory and does not impose any
new requirements on any entities.
Therefore, this action is not subject to
the requirements of sections 202 or 205
of the UMRA. This action is also not
subject to the requirements of section
203 of UMRA because it contains no
regulatory requirements that might
significantly or uniquely affect small
governments.
E. Executive Order 13132: Federalism
Executive Order 13132, titled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires EPA to develop an
accountable process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications.’’ The phrase ‘‘policies that
have federalism implications’’ is
defined in the Executive Order to
include regulations that have
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’
This final rule does not have
federalism implications. It will not have
substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
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$25.5 million.
$25.5 million.
$7 million.
500 employees.
Executive Order 13132. This rule is
expected to primarily affect producers,
suppliers, importers and exporters and
users of methyl bromide. Thus,
Executive Order 13132 does not apply
to this rule.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications, as specified in Executive
Order 13175 (65 FR 67249, November 9,
2000). This rule does not significantly or
uniquely affect the communities of
Indian tribal governments nor does it
impose any enforceable duties on
communities of Indian tribal
governments. Thus, Executive Order
13175 does not apply to this action.
G. Executive Order No. 13045:
Protection of Children From
Environmental Health and Safety Risks
EPA interprets EO 13045 (62 FR
19885, April 23, 1997) as applying only
to those regulatory actions that concern
health or safety risks, such that the
analysis required under section 5–501 of
the EO has the potential to influence the
regulation. This action is not subject to
EO 13045 because it does not establish
an environmental standard intended to
mitigate health or safety risks.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not a ‘‘significant
energy action’’ as defined in Executive
Order 13211 (66 FR 28355 (May 22,
2001)), because it is not likely to have
a significant adverse effect on the
supply, distribution, or use of energy.
This rule does not have any effect on
energy as it only relates to the
production, import, and uses of critical
use the agricultural fumigant methyl
bromide.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law No.
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Federal Register / Vol. 74, No. 82 / Thursday, April 30, 2009 / Rules and Regulations
104–113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standards
bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations
when the Agency decides not to use
available and applicable voluntary
consensus standards.
This action does not involve technical
standards. Therefore, EPA did not
consider the use of any voluntary
consensus standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this rule will
not have disproportionately high and
adverse human health or environmental
effects on minority or low-income
populations, because it affects the level
of environmental protection equally for
all affected populations without having
any disproportionately high and adverse
human health or environmental effects
on any population, including any
minority or low-income population.
Any ozone depletion that results from
this rule will impact all affected
populations equally because ozone
depletion is a global environmental
problem with environmental and
human effects that are, in general,
equally distributed across geographical
regions.
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A Major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2). This rule
will be effective April 30, 2009.
List of Subjects in 40 CFR Part 82
Environmental protection, Ozone
depletion, Chemicals, Exports, Imports.
Dated: April 24, 2009.
Lisa P. Jackson,
Administrator.
For the reasons stated in the preamble,
40 CFR Part 82 is amended as follows:
■
PART 82—PROTECTION OF
STRATOSPHERIC OZONE
1. The authority citation for part 82
continues to read as follows:
■
K. Congressional Review Act
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,
19897
The Congressional Review Act, 5
U.S.C. 801 et seq. as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
Authority: 42 U.S.C. 7414, 7601, 7671–
7671q.
2. Section 82.8 is amended by revising
the table in paragraph (c)(1) and
paragraph (c)(2) to read as follows:
■
§ 82.8 Grant of essential use allowances
and critical use allowances.
*
*
*
(c) * * *
(1) * * *
*
2009 critical use
allowances for
pre-plant uses*
(kilograms)
Company
*
2009 critical use
allowances for
post-harvest uses*
(kilograms)
Great Lakes Chemical Corp. A Chemtura Company ..............................................................
Albemarle Corp ........................................................................................................................
ICL–IP America ........................................................................................................................
TriCal, Inc ................................................................................................................................
1,249,703
513,906
283,995
8,843
133,249
54,795
30,281
943
Total** ...............................................................................................................................
2,056,448
219,267
* For production or import of Class I, Group VI controlled substance exclusively for the Pre-Plant or Post-Harvest uses specified in appendix L
to this subpart.
** Due to rounding, numbers do not add exactly.
(2) Allocated critical stock allowances
granted for specified control period. The
following companies are allocated
critical stock allowances for 2009 on a
pro-rata basis in relation to the
inventory held by each.
Company
Albemarle.
Bill Clark Pest Control, Inc.
Burnside Services, Inc.
Cardinal Professional Products.
Chemtura Corp.
Degesch America, Inc.
Helena Chemical Co.
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Company
Hendrix & Dail.
Hy Yield Bromine.
ICL–IP America.
Industrial Fumigation Company.
Pacific Ag.
Pest Fog Sales Corp.
Prosource One.
Reddick Fumigants.
Royster-Clark, Inc.
Trical Inc.
Trident Agricultural Products.
UAP Southeast (NC).
UAP Southeast (SC).
Univar.
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Company
Western Fumigation.
Total—1,919,193 kilograms.
3. Appendix L to Subpart A is revised
to read as follows:
■
APPENDIX L TO PART 82 SUBPART
A—APPROVED CRITICAL USES AND
LIMITING CRITICAL CONDITIONS
FOR THOSE USES FOR THE 2009
CONTROL PERIOD
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Approved critical uses
Approved critical user and location of use
Limiting critical conditions that exist, or that the approved critical user
reasonably expects could arise without methyl bromide fumigation:
Column A
Column B
Column C
PRE-PLANT USES
Cucurbits .......................
Eggplant ........................
(a) Growers in Delaware, Maryland, and
Michigan.
(b) Growers in Georgia and Southeastern
U.S. limited to growing locations in Alabama, Arkansas, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina,
Tennessee, and Virginia.
(a) Florida growers ...........................................
(b) Georgia growers .........................................
(c) Michigan growers .......................................
Forest Nursery Seedlings.
(a) Growers in Alabama, Arkansas, Georgia,
Louisiana, Mississippi, North Carolina,
Oklahoma, South Carolina, Tennessee,
Texas, and Virginia.
(b) International Paper and its subsidiaries
limited to growing locations in Alabama, Arkansas, Georgia, South Carolina, and
Texas.
(c) Government-owned seedling nurseries in
Illinois, Indiana, Kentucky, Maryland, Missouri, New Jersey, Ohio, Pennsylvania,
West Virginia, and Wisconsin.
(d) Weyerhaeuser Company and its subsidiaries limited to growing locations in Alabama, Arkansas, North Carolina, and South
Carolina.
(e) Weyerhaeuser Company and its subsidiaries limited to growing locations in Oregon
and Washington.
(f) Michigan growers ........................................
Orchard Nursery Seedlings.
Orchard Replant ............
Ornamentals ..................
(a) Members of the Western Raspberry Nursery Consortium limited to growing locations
in Washington, and members of the California Association of Nursery and Garden
Centers representing Deciduous Tree Fruit
Growers.
(b) California rose nurseries ............................
(a) California stone fruit, table and raisin
grape, wine grape, walnut, and almond
growers.
(a) California growers ......................................
(b) Florida growers ...........................................
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Moderate to severe soilborne disease infestation.
A need for methyl bromide for research purposes.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe root knot nematode infestation.
A need for methyl bromide for research purposes.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe soilborne disease infestation.
Restrictions on alternatives due to karst topographical features and
soils not supporting seepage irrigation.
A need for methyl bromide for research purposes.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe nematode infestation.
Moderate to severe pythium collar, crown and root rot.
Moderate to severe southern blight infestation.
Restrictions on alternatives due to karst topographical features.
A need for methyl bromide for research purposes.
Moderate to severe soilborne disease infestation.
A need for methyl bromide for research purposes.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe nematode infestation.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe weed infestation including purple and yellow
nutsedge infestation.
Moderate to severe Canada thistle infestation.
Moderate to severe nematode infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe nematode or worm infestation.
Moderate to severe yellow nutsedge infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe Canada thistle infestation.
Moderate to severe nutsedge infestation.
Moderate to severe nematode infestation
Moderate to severe nematode infestation.
Medium to heavy clay soils.
Local township limits prohibiting 1,3-dichloropropene.
A need for methyl bromide for research purposes.
Moderate to severe nematode infestation.
Local township limits prohibiting 1,3-dichloropropene.
A need for methyl bromide for research purposes.
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.
Moderate to severe soilborne disease infestation.
Moderate to severe nematode infestation.
Local township limits prohibiting 1,3-dichloropropene.
A need for methyl bromide for research purposes.
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.
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19899
Approved critical uses
Approved critical user and location of use
Limiting critical conditions that exist, or that the approved critical user
reasonably expects could arise without methyl bromide fumigation:
Column A
Column B
Column C
(c) Michigan herbaceous perennial growers ...
Peppers .........................
(a) Alabama, Arkansas, Kentucky, Louisiana,
Mississippi, North Carolina, South Carolina,
Tennessee, and Virginia growers.
(b) Florida growers ...........................................
(c) Georgia growers .........................................
(d) Michigan growers .......................................
Strawberry Fruit .............
(a) California growers ......................................
(b) Florida growers ...........................................
Strawberry Nurseries ....
(c) Alabama, Arkansas, Georgia, Illinois, Kentucky, Louisiana, Maryland, Mississippi,
Missouri, New Jersey, North Carolina, Ohio,
South Carolina, Tennessee, and Virginia
growers.
(a) California growers ......................................
(b) North Carolina and Tennessee growers ....
Sweet Potato Slips ........
Tomatoes ......................
(a) California growers ......................................
(a) Michigan growers .......................................
(b) Alabama, Arkansas, Florida, Georgia,
Kentucky, Louisiana, Mississippi, North
Carolina, South Carolina, Tennessee, and
Virginia growers.
(c) Maryland growers .......................................
A need for methyl bromide for research purposes.
Moderate to severe nematode infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe yellow nutsedge and other weed infestation.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe nematode infestation.
Moderate to severe pythium root, collar, crown and root rots.
A need for methyl bromide for research purposes.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe nematode infestation.
Restrictions on alternatives due to karst topographical features and
soils not supporting seepage irrigation.
A need for methyl bromide for research purposes.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe nematode infestation, or moderate to severe
pythium root and collar rots.
Moderate to severe southern blight infestation, crown or root rot.
Restrictions on alternatives due to karst topographical features.
A need for methyl bromide for research purposes.
Moderate to severe soilborne disease infestation.
A need for methyl bromide for research purposes.
Moderate to severe black root rot or crown rot.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe nematode infestation.
Local township limits prohibiting 1,3-dichloropropene.
Time to transition to an alternative.
A need for methyl bromide for research purposes.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe nematode infestation.
Moderate to severe soilborne disease infestation.
Carolina geranium or cut-leaf evening primrose infestation.
Restrictions on alternatives due to karst topographical features and
soils not supporting seepage irrigation.
A need for methyl bromide for research purposes.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe nematode infestation.
Moderate to severe black root and crown rot.
A need for methyl bromide for research purposes.
Moderate to severe soilborne disease infestation.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe nematode infestation.
A need for methyl bromide for research purposes.
Moderate to severe black root rot.
Moderate to severe root-knot nematode infestation.
Moderate to severe yellow and purple nutsedge infestation.
A need for methyl bromide for research purposes.
Local township limits prohibiting 1,3-dichloropropene.
Moderate to severe soilborne disease infestation.
Moderate to severe fungal pathogen infestation.
A need for methyl bromide for research purposes.
Moderate to severe yellow or purple nutsedge infestation.
Moderate to severe soilborne disease infestation.
Moderate to severe nematode infestation.
Restrictions on alternatives due to karst topographical features and,
in Florida, soils not supporting seepage irrigation.
A need for methyl bromide for research purposes.
Moderate to severe fungal pathogen infestation.
POST-HARVEST USES
Food Processing ...........
(a) Rice millers in the U.S. who are members
of the USA Rice Millers Association.
(b) Pet food manufacturing facilities in the
U.S. who are members of the Pet Food Institute.
(c) Bakeries in the U.S ....................................
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Moderate to severe beetle, weevil, or moth infestation.
Presence of sensitive electronic equipment subject to corrosion.
Time to transition to an alternative.
Moderate to severe beetle, moth, or cockroach infestation.
Presence of sensitive electronic equipment subject to corrosion.
Time to transition to an alternative.
Presence of sensitive electronic equipment subject to corrosion.
Time to transition to an alternative.
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Approved critical uses
Approved critical user and location of use
Limiting critical conditions that exist, or that the approved critical user
reasonably expects could arise without methyl bromide fumigation:
Column A
Column B
Column C
(d) Members of the North American Millers’
Association in the U.S.
Commodities .................
Dry Cured Pork Products.
(e) Members of the National Pest Management Association treating processed food,
cheese, herbs and spices, and spaces and
equipment in associated processing and
storage facilities.
(a) California entities storing walnuts, beans,
dried plums, figs, raisins, and dates (in Riverside county only) in California.
(a) Members of the National Country Ham Association and the Association of Meat Processors, Nahunta Pork Center (North Carolina), and Gwaltney and Smithfield Inc.
[FR Doc. E9–9966 Filed 4–29–09; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[DA 09–853; MB Docket No. 08–244; RM–
11507]
Television Broadcasting Services;
Scranton, PA
AGENCY: Federal Communications
Commission.
ACTION: Final rule.
SUMMARY: The Commission grants a
petition for rulemaking filed by MPS
MEDIA of Scranton License, LLC (‘‘MPS
Media’’), the licensee of pre-transition
station WSBS–DT, DTV channel 31,
Scranton, Pennsylvania. MPS Media has
been assigned DTV channel 38 for posttransition use and now requests the
substitution of its pre-transition DTV
channel 31 for post-transition DTV
channel 38 at Scranton.
DATES: This rule is effective April 30,
2009.
FOR FURTHER INFORMATION CONTACT:
David J. Brown, Media Bureau, (202)
418–1600.
SUPPLEMENTARY INFORMATION: This is a
synopsis of the Commission’s Report
and Order, MB Docket No. 08–244,
adopted April 16, 2009, and released
April 17, 2009. The full text of this
document is available for public
inspection and copying during normal
business hours in the FCC’s Reference
Information Center at Portals II, CY–
A257, 445 12th Street, SW.,
Washington, DC 20554. This document
will also be available via ECFS (https://
VerDate Nov<24>2008
14:59 Apr 29, 2009
Jkt 217001
Moderate to severe beetle infestation.
Presence of sensitive electronic equipment subject to corrosion.
Time to transition to an alternative.
Moderate to severe beetle or moth infestation.
Presence of sensitive electronic equipment subject to corrosion.
Time to transition to an alternative.
Rapid fumigation required to meet a critical market window, such as
during the holiday season.
Export to countries which do not allow the use of sulfuryl fluoride.
A need for methyl bromide for research purposes.
Red legged ham beetle infestation.
Cheese/ham skipper infestation.
Dermested beetle infestation.
Ham mite infestation.
www.fcc.gov/cgb/ecfs/). (Documents
will be available electronically in ASCII,
Word 97, and/or Adobe Acrobat.) This
document may be purchased from the
Commission’s duplicating contractor,
Best Copy and Printing, Inc., 445 12th
Street, SW., Room CY–B402,
Washington, DC 20554, telephone 1–
800–478–3160 or via e-mail
www.BCPIWEB.com. To request this
document in accessible formats
(computer diskettes, large print, audio
recording, and Braille), send an e-mail
to fcc504@fcc.gov or call the
Commission’s Consumer and
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY). This document does not contain
information collection requirements
subject to the Paperwork Reduction Act
of 1995, Public Law 104–13. In addition,
therefore, it does not contain any
information collection burden ‘‘for
small business concerns with fewer than
25 employees,’’ pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, see 44 U.S.C.
3506(c)(4). Provisions of the Regulatory
Flexibility Act of 1980 do not apply to
this proceeding.
The Commission will send a copy of
this Report and Order in a report to be
sent to Congress and the Government
Accountability Office pursuant to the
Congressional Review Act, see 5 U.S.C.
801(a)(1)(A).
List of Subjects in 47 CFR Part 73
Television, Television broadcasting.
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR Part 73 as
follows:
■
PO 00000
Frm 00028
Fmt 4700
Sfmt 4700
PART 73—RADIO BROADCAST
SERVICES
1. The authority citation for part 73
continues to read as follows:
■
Authority: 47 U.S.C. 154, 303, 334, 336.
§ 73.622
[Amended]
2. Section 73.622(i), the PostTransition Table of DTV Allotments
under Pennsylvania, is amended by
adding DTV channel 31 and removing
DTV channel 38 at Scranton.
■
Federal Communications Commission.
Clay C. Pendarvis,
Associate Chief, Video Division, Media
Bureau.
[FR Doc. E9–9827 Filed 4–29–09; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[DA 09–872; MB Docket No. 08–252; RM–
11509]
Television Broadcasting Services;
Cadillac, MI
AGENCY: Federal Communications
Commission.
ACTION: Final rule.
SUMMARY: The Commission grants a
petition for rulemaking filed by Cadillac
Telecasting Co. (‘‘CTC’’), the licensee of
WFQX–TV, analog channel 33, and
WFQX–DT, DTV channel 47, Cadillac,
Michigan, requesting the substitution of
DTV channel 32 for post-transition DTV
channel 47 at Cadillac.
DATES: This rule is effective April 30,
2009.
E:\FR\FM\30APR1.SGM
30APR1
Agencies
[Federal Register Volume 74, Number 82 (Thursday, April 30, 2009)]
[Rules and Regulations]
[Pages 19878-19900]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-9966]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[EPA-HQ-OAR-2008-0009; FRL-8899-5]
RIN 2060-AO78
Protection of Stratospheric Ozone: The 2009 Critical Use
Exemption From the Phaseout of Methyl Bromide
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule authorizes uses of methyl bromide that qualify
for the 2009 critical use exemption and the amount of methyl bromide
that may be produced, imported, or supplied from existing pre-phaseout
inventory for those uses in 2009. EPA is taking action under the
authority of the Clean Air Act to reflect a consensus decision taken at
the Nineteenth Meeting of by the Parties to the Montreal Protocol on
Substances that Deplete the Ozone Layer.
DATES: This rule is effective on April 30, 2009.
ADDRESSES: EPA has established a docket for this action identified
under EPA-HQ-OAR-2008-0009. All documents in the docket are listed on
the https://www.regulations.gov site. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available only through https://www.regulations.gov or in
hard copy. To obtain copies of materials in hard copy, please call the
EPA Docket Center at (202) 564-1744 between the hours of 8:30 a.m.-4:30
p.m. E.S.T., Monday-Friday, excluding legal holidays, to schedule an
appointment. The EPA
[[Page 19879]]
Docket Center's Public Reading Room address is EPA/DC, EPA West, Room
3334, 1301 Constitution Ave., NW., Washington, DC.
FOR FURTHER INFORMATION CONTACT: Jeremy Arling by telephone at (202)
343-9055, or by e-mail at arling.jeremy@epa.gov or by mail at U.S.
Environmental Protection Agency, Stratospheric Protection Division,
Stratospheric Program Implementation Branch (6205J), 1200 Pennsylvania
Avenue, NW., Washington, DC 20460. You may also visit the Ozone
Depletion Web site of EPA's Stratospheric Protection Division at https://www.epa.gov/ozone/strathome.html for further information about EPA's
Stratospheric Ozone Protection regulations, the science of ozone layer
depletion, and related topics.
SUPPLEMENTARY INFORMATION: This final rule concerns Clean Air Act (CAA)
restrictions on the consumption, production, and use of methyl bromide
(a Class I, Group VI controlled substance) for critical uses during
calendar year 2009. Under the Clean Air Act, methyl bromide consumption
(consumption is defined under the CAA as production plus imports minus
exports) and production was phased out on January 1, 2005, apart from
allowable exemptions, such as the critical use exemption and the
quarantine and preshipment exemption. With this action, EPA is
authorizing the uses that will qualify for the 2009 critical use
exemption as well as specific amounts of methyl bromide that may be
produced, imported, or sold from pre-phaseout inventory for proposed
critical uses in 2009.
Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C.
Chapter 5, generally provides that rules may not take effect earlier
than 30 days after they are published in the Federal Register. EPA is
issuing this final rule under section 307(d)(1) of the Clean Air Act,
which states: ``The provisions of section 553 through 557 * * * of
Title 5 shall not, except as expressly provided in this section, apply
to actions to which this subsection applies.'' Thus, section 553(d) of
the APA does not apply to this rule. EPA is nevertheless acting
consistently with the policies underlying APA section 553(d) in making
this rule effective on April 30, 2009. APA section 553(d) provides an
exception for any action that grants or recognizes an exemption or
relieves a restriction. This final rule grants an exemption from the
phaseout of methyl bromide.
Table of Contents
I. General Information
Regulated Entities
II. What Is Methyl Bromide?
III. What Is the Background to the Phaseout Regulations for Ozone
Depleting Substances?
IV. What Is the Legal Authority for Exempting the Production and
Import of Methyl Bromide for Critical Uses Authorized by the Parties
to the Montreal Protocol?
V. What Is the Critical Use Exemption Process?
A. Background of the Process
B. How Does This Final Rule Relate to Previous CUE Rules?
C. Critical Uses
D. Critical Use Amounts
1. Background of Critical Use Amounts
2. Calculation of Available Pre-Phaseout Inventory
a. Estimated Drawdown
b. Supply Chain Factor
3. Approach for Determining Critical Use Amounts
4. Treatment of Carryover Material
5. Amounts for Research Purposes
6. Methyl Bromide Alternatives
7. Summary of Calculations
E. The Criteria in Decisions IX/6 and Ex. I/4
F. Emissions Minimization
G. Critical Use Allowance Allocations
H. Critical Stock Allowance Allocations
I. Stocks of Methyl Bromide
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
I. General Information
Regulated Entities
Entities potentially regulated by this action are those associated
with the production, import, export, sale, application, and use of
methyl bromide covered by an approved critical use exemption.
Potentially regulated categories and entities include producers,
importers, and exporters of methyl bromide; applicators and
distributors of methyl bromide; users of methyl bromide, e.g., farmers
of vegetable crops, fruits and nursery stock; owners of stored food
commodities and structures such as grain mills and processors; and
agricultural researchers.
This list is not intended to be exhaustive, but rather to provide a
guide for readers regarding entities likely to be regulated by this
action. To determine whether your facility, company, business, or
organization could be regulated by this action, you should carefully
examine the regulations promulgated at 40 CFR part 82, subpart A. If
you have questions regarding the applicability of this action to a
particular entity, consult the person listed in the preceding section.
II. What Is Methyl Bromide?
Methyl bromide is an odorless, colorless, toxic gas which is used
as a broad-spectrum pesticide and is controlled under the CAA as a
Class I ozone-depleting substance (ODS). Methyl bromide is used in the
U.S. and throughout the world as a fumigant to control a variety of
pests such as insects, weeds, rodents, pathogens, and nematodes.
Information on methyl bromide can be found at https://www.epa.gov/ozone/mbr and https://www.unep.org/ozone.
Methyl bromide is also regulated by EPA under the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA) and other statutes
and regulatory authority, as well as by States under their own statutes
and regulatory authority. Under FIFRA, methyl bromide is a restricted
use pesticide. Restricted use pesticides are subject to Federal and
State requirements governing their sale, distribution, and use. Nothing
in this final rule implementing the Clean Air Act is intended to
derogate from provisions in any other Federal, State, or local laws or
regulations governing actions including, but not limited to, the sale,
distribution, transfer, and use of methyl bromide. Entities affected by
this action must continue to comply with FIFRA and other pertinent
statutory and regulatory requirements for pesticides when importing,
exporting, acquiring, selling, distributing, transferring, or using
methyl bromide for critical uses. The regulations in this final rule
only implement the CAA restrictions on the production, consumption, and
use of methyl bromide for critical uses exempted from the phaseout of
methyl bromide.
III. What Is the Background to the Phaseout Regulations for Ozone
Depleting Substances?
The regulatory requirements that limit production and consumption
of ozone-depleting substances are in 40 CFR part 82, subpart A. The
Montreal Protocol on
[[Page 19880]]
Substances that Deplete the Ozone Layer (Montreal Protocol) is the
international agreement aimed at reducing and eliminating the
production and consumption of stratospheric ozone-depleting substances.
The U.S. was one of the original signatories to the 1987 Montreal
Protocol and the U.S. ratified the Protocol on April 12, 1988. Congress
then enacted, and President George H.W. Bush signed into law, the Clean
Air Act Amendments of 1990 (CAAA of 1990) which included Title VI on
Stratospheric Ozone Protection, codified as 42 U.S.C. Chapter 85,
Subchapter VI, to ensure that the United States could satisfy its
obligations under the Protocol. EPA issued regulations to implement
this legislation and has amended them as needed.
Methyl bromide was added to the Protocol as an ODS in 1992 through
the Copenhagen Amendment to the Protocol. The Parties to the Montreal
Protocol agreed that each industrialized country's level of methyl
bromide production and consumption in 1991 should be the baseline for
establishing a freeze in the level of methyl bromide production and
consumption for industrialized countries. EPA published a final rule in
the Federal Register on December 10, 1993 (58 FR 65018), listing methyl
bromide as a Class I, Group VI controlled substance, freezing U.S.
production and consumption at this 1991 baseline level of 25,528,270
kilograms, and setting the percentage of baseline allowances for methyl
bromide granted to companies in each control period (each calendar
year) until 2001, when the complete phaseout would occur. This phaseout
date was established in response to a petition filed in 1991 under
Sections 602(c)(3) and 606(b) of the CAAA of 1990, requesting that EPA
list methyl bromide as a Class I substance and phase out its production
and consumption. This date was consistent with Section 602(d) of the
CAAA of 1990, which for newly listed Class I ozone depleting substances
provides that ``no extension [of the phaseout schedule in section 604]
under this subsection may extend the date for termination of production
of any class I substance to a date more than 7 years after January 1 of
the year after the year in which the substance is added to the list of
class I substances.''
At the Seventh Meeting of the Parties (MOP) in 1995, the Parties
made adjustments to the methyl bromide control measures and agreed to
reduction steps and a 2010 phaseout date for industrialized countries
with exemptions permitted for critical uses. At that time, the U.S.
continued to have a 2001 phaseout date in accordance with Section
602(d) of the CAAA of 1990. At the Ninth MOP in 1997, the Parties
agreed to further adjustments to the phaseout schedule for methyl
bromide in industrialized countries, with reduction steps leading to a
2005 phaseout.
IV. What Is the Legal Authority for Exempting the Production and Import
of Methyl Bromide for Critical Uses Authorized by the Parties to the
Montreal Protocol?
In October 1998, the U.S. Congress amended the CAA to prohibit the
termination of production of methyl bromide prior to January 1, 2005,
to require EPA to bring the U.S. phaseout of methyl bromide in line
with the schedule specified under the Protocol, and to authorize EPA to
provide certain exemptions. These amendments were codified in Section
604 of the CAA, 42 U.S.C. 7671c. The amendment that specifically
addresses the critical use exemption appears at Section 604(d)(6), 42
U.S.C. 7671c(d)(6). EPA revised the phaseout schedule for methyl
bromide production and consumption in a direct final rulemaking on
November 28, 2000 (65 FR 70795), which allowed for the phased reduction
in methyl bromide consumption specified under the Protocol and extended
the phaseout to 2005. EPA again amended the regulations to allow for an
exemption for quarantine and preshipment (QPS) purposes on July 19,
2001 (66 FR 37751), with an interim final rule and with a final rule on
January 2, 2003 (68 FR 238).
On December 23, 2004 (69 FR 76982), EPA published a final rule that
established the framework for the critical use exemption, listed
approved critical uses for 2005, and specified the amount of methyl
bromide that could be supplied in 2005 from stocks and new production
or import to meet the needs of approved critical uses. Since then, EPA
has published rules applying the critical use exemption (CUE) framework
to subsequent control periods. Under authority of section 604(d)(6) of
the CAA, this action lists the uses that will qualify as approved
critical uses in 2009 and the amount of methyl bromide that may be
produced, imported, or supplied from inventory to satisfy those uses.
This action reflects Decision XIX/9, taken at the Nineteenth
Meeting of the Parties in September 2007. In accordance with Article
2H(5), the Parties have issued several Decisions pertaining to the
critical use exemption. These include Decisions IX/6 and Ex. I/4, which
set forth criteria for review of proposed critical uses. The status of
Decisions is addressed in NRDC v. EPA, (464 F.3d 1, DC Cir. 2006) and
in EPA's ``Supplemental Brief for the Respondent,'' filed in NRDC v.
EPA and available in the docket for this action. In this final rule,
EPA is honoring commitments made by the United States in the Montreal
Protocol context.
V. What Is the Critical Use Exemption Process?
A. Background of the Process
The critical use exemption permits the production and import of
methyl bromide for uses that do not have technically and economically
feasible alternatives. On May 8, 2003, the Agency published its first
notice in the Federal Register (68 FR 24737) announcing the
availability of the application for a critical use exemption and the
deadline for submission of the requisite data. EPA informed applicants
that they may apply as individuals or as part of a group of users (a
``consortium'') who face the same limiting critical conditions (i.e.,
specific conditions that establish a critical need for methyl bromide).
EPA has repeated this process annually since then.
The criteria for the exemption initially appeared in Decision IX/6.
In that Decision, the Parties agreed that ``a use of methyl bromide
should qualify as `critical' only if the nominating Party determines
that: (i) The specific use is critical because the lack of availability
of methyl bromide for that use would result in a significant market
disruption; and (ii) there are no technically and economically feasible
alternatives or substitutes available to the user that are acceptable
from the standpoint of environment and public health and are suitable
to the crops and circumstances of the nomination.'' These criteria are
reflected in EPA's definition of ``critical use'' at 40 CFR 82.3.
In response to the annual requests for critical use exemption
applications published in the Federal Register, applicants provide data
on the technical and economic feasibility of using alternatives to
methyl bromide. Applicants also submit data on their use of methyl
bromide, on research programs into the use of alternatives to methyl
bromide, and on efforts to minimize use and emissions of methyl
bromide.
EPA's Office of Pesticide Programs reviews the data submitted by
applicants, as well as data from governmental and academic sources, to
establish whether there are technically and economically feasible
alternatives available for a particular use of methyl bromide and
whether there would be a
[[Page 19881]]
significant market disruption if no exemption were available. In
addition, EPA reviews other parameters of the exemption applications
such as dosage and emissions minimization techniques and applicants'
research or transition plans. This assessment process culminates in the
development of the critical use nomination (CUN). The U.S. Department
of State submits the CUN annually to the United Nations Environment
Programme (UNEP) Ozone Secretariat. The Methyl Bromide Technical
Options Committee (MBTOC) and the Technology and Economic Assessment
Panel (TEAP), which are independent advisory bodies to Parties to the
Montreal Protocol, subsequently review the CUNs of the various
countries and make recommendations to the Parties on the nominations.
The Parties then take a Decision to authorize a critical use exemption
for a particular country. The Decision also identifies how much methyl
bromide may be supplied for the exempted critical uses. As required in
Section 604(d)(6) of the Clean Air Act, for each exemption period, EPA
consults with the United States Department of Agriculture and other
departments and institutions of the Federal government that have
regulatory authority related to methyl bromide, and provides an
opportunity for public comment on the amounts of methyl bromide that
the Agency has determined to be necessary for critical uses and the
uses that the Agency has determined meet the criteria of the critical
use exemption.
More on the domestic review process and methodology employed by the
Office of Pesticide Programs is available in a detailed memorandum
titled ``Development of 2003 Nomination for a Critical Use Exemption
for Methyl Bromide for the United States of America,'' contained in the
docket for this rulemaking. While the particulars of the data continue
to evolve and administrative matters are further streamlined, the
technical review itself remains rigorous with careful consideration of
new technical and economic conditions.
On December 22, 2006, the U.S. Government (USG) submitted the fifth
CUN to the Ozone Secretariat. This fifth nomination contained the
request for 2009 critical uses. In February 2007, MBTOC sent questions
to the USG concerning technical and economic issues in the 2009
nomination. The USG transmitted preliminary responses to MBTOC on March
13, 2007. The USG received a second round of questions from MBTOC and
submitted responses to those questions in May, 2007. These documents,
together with reports by the advisory bodies noted above, are in the
public docket for this rulemaking. The determination in this final rule
reflects the analysis contained in those documents.
B. How Does This Final Rule Relate to Previous CUE Rules?
The December 23, 2004, Framework Rule (69 FR 76982) established the
operational framework for the CUE program in the U.S., including
definitions, prohibitions, trading provisions, and recordkeeping and
reporting obligations. The preamble to the Framework Rule included
EPA's determinations on key issues for the CUE program.
Since then, EPA has annually promulgated regulations to exempt from
the phaseout of methyl bromide specific quantities of production and
import for each control period and to indicate which uses meet the
criteria for the exemption program for that year. See 71 FR 5985 (2006
control period), 71 FR 75386 (2007 control period), and 72 FR 74118
(2008 control period).
Today's action authorizes specific critical uses for 2009 and the
amounts of critical use allowances (CUAs) and critical stock allowances
(CSAs) allocated for those uses. These are the uses included in the
USG's fifth CUN and authorized by the Parties in Decision XIX/9. EPA is
not modifying the Framework Rule or the approach to determining the
level of available stocks finalized in the 2008 CUE rule published on
December 28, 2007.
C. Critical Uses
In Decision XIX/9, taken in September 2007, the Parties to the
Protocol agreed ``to permit, for the agreed critical use categories for
2009, set forth in table C of the annex to the present decision for
each Party, subject to the conditions set forth in the present decision
and decision Ex.I/4 to the extent that those conditions are applicable,
the levels of production and consumption for 2009 set forth in table D
of the annex to the present decision which are necessary to satisfy
critical uses. * * *''
Table C of the annex to Decision XIX/9 lists the following uses:
Commodities, NPMA food processing structures (cocoa beans removed),\1\
Mills and processors, Dried cured pork, Cucurbits, Eggplant--field,
Forest nursery seedlings, Nursery stock--fruit, nut, flower, Orchard
replant, Ornamentals, Peppers--field, Strawberry--field, Strawberry
runners, Tomatoes--field, Sweet potato slips. The agreed critical use
levels for 2009 total 4,261,974 kilograms (kg), which is equivalent to
16.7% of the U.S. 1991 methyl bromide consumption baseline of
25,528,270 kg. However, the maximum amount of allowable new production
and import as set forth in Table D of Decision XIX/9 is 3,961,974 kg
(15.5% of baseline), minus available stocks. For the reasons described
in Section V.D of this preamble, EPA is allowing limited amounts of new
production or import of methyl bromide for critical uses for 2009 up to
the amount of 2,275,715 kg (8.9% of baseline), with 1,919,193 kg (7.5%
of baseline) coming from pre-phaseout inventory (i.e., stocks).
---------------------------------------------------------------------------
\1\ NPMA, National Pest Management Association, includes both
food processing structures and processed foods. This year's
exemption does not include cocoa beans.
---------------------------------------------------------------------------
This final rule modifies 40 CFR part 82, subpart A, Appendix L to
reflect the agreed critical use categories identified in Decision XIX/9
for the 2009 control period. The Agency is amending the table of
critical uses based, in part, on the technical analysis contained in
the 2009 U.S. nomination that assesses data submitted by applicants to
the CUE program as well as public and proprietary data on the use of
methyl bromide and its alternatives. EPA sought comment on the
technical analysis (which is provided in the docket) and as well as
information regarding changes to the registration or use of
alternatives that may have transpired after the 2009 U.S. nomination
was written. The Agency stated that such information has the potential
to alter the technical or economic feasibility of an alternative and
could thus cause EPA to modify the analysis that underpins EPA's
determination as to which uses and what amounts of methyl bromide
qualify for the critical use exemption. Based on the information
described above, EPA is determining that the uses in Table I: Approved
Critical Uses, with the limiting critical conditions specified, qualify
to obtain and use critical use methyl bromide in 2009.
[[Page 19882]]
Table I--Approved Critical Uses
----------------------------------------------------------------------------------------------------------------
Limiting critical conditions that exist,
Approved critical user and or that the approved critical user
Approved critical uses location of use reasonably expects could arise without
methyl bromide fumigation:
Column A Column B...................... Column C
----------------------------------------------------------------------------------------------------------------
PRE-PLANT USES
----------------------------------------------------------------------------------------------------------------
Cucurbits............................. (a) Growers in Delaware, Moderate to severe soilborne disease
Maryland, and Michigan. infestation.
A need for methyl bromide for research
purposes.
(b) Growers in Georgia and Moderate to severe yellow or purple
Southeastern U.S. limited to nutsedge infestation.
growing locations in Alabama, Moderate to severe soilborne disease
Arkansas, Kentucky, infestation.
Louisiana, Mississippi, North Moderate to severe root knot nematode
Carolina, South Carolina, infestation.
Tennessee, and Virginia. A need for methyl bromide for research
purposes.
Eggplant.............................. (a) Florida growers........... Moderate to severe yellow or purple
nutsedge infestation.
Moderate to severe soilborne disease
infestation.
Restrictions on alternatives due to
karst topographical features and soils
not supporting seepage irrigation.
A need for methyl bromide for research
purposes.
(b) Georgia growers........... Moderate to severe yellow or purple
nutsedge infestation Moderate to severe
nematode infestation.
Moderate to severe pythium collar, crown
and root rot.
Moderate to severe southern blight
infestation.
Restrictions on alternatives due to
karst topographical features.
A need for methyl bromide for research
purposes.
(c) Michigan growers.......... Moderate to severe soilborne disease
infestation.
A need for methyl bromide for research
purposes.
Forest Nursery Seedlings.............. (a) Growers in Alabama, Moderate to severe yellow or purple
Arkansas, Georgia, Louisiana, nutsedge infestation.
Mississippi, North Carolina, Moderate to severe soilborne disease
Oklahoma, South Carolina, infestation.
Tennessee, Texas, and Moderate to severe nematode infestation.
Virginia.
(b) International Paper and Moderate to severe yellow or purple
its subsidiaries limited to nutsedge infestation Moderate to severe
growing locations in Alabama, soilborne disease infestation.
Arkansas, Georgia, South
Carolina, and Texas.
(c) Government-owned seedling Moderate to severe weed infestation
nurseries in Illinois, including purple and yellow nutsedge
Indiana, Kentucky, Maryland, infestation.
Missouri, New Jersey, Ohio, Moderate to severe Canada thistle
Pennsylvania, West Virginia, infestation.
and Wisconsin. Moderate to severe nematode infestation.
Moderate to severe soilborne disease
infestation.
(d) Weyerhaeuser Company and Moderate to severe yellow or purple
its subsidiaries limited to nutsedge infestation.
growing locations in Alabama, Moderate to severe soilborne disease
Arkansas, North Carolina, and infestation.
South Carolina. Moderate to severe nematode or worm
infestation.
(e) Weyerhaeuser Company and Moderate to severe yellow nutsedge
its subsidiaries limited to infestation.
growing locations in Oregon Moderate to severe soilborne disease
and Washington. infestation.
(f) Michigan growers.......... Moderate to severe soilborne disease
infestation.
Moderate to severe Canada thistle
infestation.
Moderate to severe nutsedge infestation.
Moderate to severe nematode infestation.
Orchard Nursery Seedlings............. (a) Members of the Western Moderate to severe nematode infestation.
Raspberry Nursery Consortium Medium to heavy clay soils.
limited to growing locations Local township limits prohibiting 1,3-
in Washington, and members of dichloropropene.
the California Association of A need for methyl bromide for research
Nursery and Garden Centers purposes.
representing Deciduous Tree
Fruit Growers.
(b) California rose nurseries. Moderate to severe nematode infestation.
Local township limits prohibiting 1,3-
dichloropropene.
A need for methyl bromide for research
purposes.
Orchard Replant....................... (a) California stone fruit, Moderate to severe nematode infestation.
table and raisin grape, wine Moderate to severe soilborne disease
grape, walnut, and almond infestation.
growers. Replanted orchard soils to prevent
orchard replant disease.
Medium to heavy soils.
Local township limits prohibiting 1,3-
dichloropropene.
Ornamentals........................... (a) California growers........ Moderate to severe soilborne disease
infestation.
Moderate to severe nematode infestation.
Local township limits prohibiting 1,3-
dichloropropene.
A need for methyl bromide for research
purposes.
(b) Florida growers........... Moderate to severe weed infestation.
Moderate to severe soilborne disease
infestation.
Moderate to severe nematode infestation.
Restrictions on alternatives due to
karst topographical features and soils
not supporting seepage irrigation.
[[Page 19883]]
A need for methyl bromide for research
purposes.
(c) Michigan herbaceous Moderate to severe nematode infestation.
perennial growers. Moderate to severe soilborne disease
infestation.
Moderate to severe yellow nutsedge and
other weed infestation.
Peppers............................... (a) Alabama, Arkansas, Moderate to severe yellow or purple
Kentucky, Louisiana, nutsedge infestation.
Mississippi, North Carolina, Moderate to severe nematode infestation.
South Carolina, Tennessee, Moderate to severe pythium root, collar,
and Virginia growers. crown and root rots.
A need for methyl bromide for research
purposes.
(b) Florida growers........... Moderate to severe yellow or purple
nutsedge infestation.
Moderate to severe soilborne disease
infestation.
Moderate to severe nematode infestation.
Restrictions on alternatives due to
karst topographical features and soils
not supporting seepage irrigation.
A need for methyl bromide for research
purposes.
(c) Georgia growers........... Moderate to severe yellow or purple
nutsedge infestation.
Moderate to severe nematode infestation,
or moderate to severe pythium root and
collar rots.
Moderate to severe southern blight
infestation, crown or root rot.
Restrictions on alternatives due to
karst topographical features.
A need for methyl bromide for research
purposes
(d) Michigan growers.......... Moderate to severe soilborne disease
infestation.
A need for methyl bromide for research
purposes.
Strawberry Fruit...................... (a) California growers........ Moderate to severe black root rot or
crown rot.
Moderate to severe yellow or purple
nutsedge infestation.
Moderate to severe nematode infestation.
Local township limits prohibiting 1,3-
dichloropropene.
Time to transition to an alternative.
A need for methyl bromide for research
purposes.
(b) Florida growers........... Moderate to severe yellow or purple
nutsedge infestation.
Moderate to severe nematode infestation.
Moderate to severe soilborne disease
infestation.
Carolina geranium or cut-leaf evening
primrose infestation.
Restrictions on alternatives due to
karst topographical features and soils
not supporting seepage irrigation.
A need for methyl bromide for research
purposes.
(c) Alabama, Arkansas, Moderate to severe yellow or purple
Georgia, Illinois, Kentucky, nutsedge infestation.
Louisiana, Maryland, Moderate to severe nematode infestation.
Mississippi, Missouri, New Moderate to severe black root and crown
Jersey, North Carolina, Ohio, rot.
South Carolina, Tennessee, A need for methyl bromide for research
and Virginia growers. purposes
Strawberry Nurseries.................. (a) California growers........ Moderate to severe soilborne disease
infestation.
Moderate to severe yellow or purple
nutsedge infestation.
Moderate to severe nematode infestation.
A need for methyl bromide for research
purposes.
(b) North Carolina and Moderate to severe black root rot.
Tennessee growers. Moderate to severe root-knot nematode
infestation.
Moderate to severe yellow and purple
nutsedge infestation.
A need for methyl bromide for research
purposes.
Sweet Potato Slips.................... (a) California growers........ Local township limits prohibiting 1,3-
dichloropropene.
Tomatoes.............................. (a) Michigan growers.......... Moderate to severe soilborne disease
infestation.
Moderate to severe fungal pathogen
infestation.
A need for methyl bromide for research
purposes.
(b) Alabama, Arkansas, Moderate to severe yellow or purple
Florida, Georgia, Kentucky, nutsedge infestation.
Louisiana, Mississippi, North Moderate to severe soilborne disease
Carolina, South Carolina, infestation.
Tennessee, and Virginia Moderate to severe nematode infestation.
growers. Restrictions on alternatives due to
karst topographical features and, in
Florida, soils not supporting seepage
irrigation.
A need for methyl bromide for research
purposes.
(c) Maryland growers.......... Moderate to severe fungal pathogen
infestation.
----------------------------------------------------------------------------------------------------------------
POST-HARVEST USES
----------------------------------------------------------------------------------------------------------------
Food Processing....................... (a) Rice millers in the U.S. Moderate to severe beetle, weevil, or
who are members of the USA moth infestation.
Rice Millers Association. Presence of sensitive electronic
equipment subject to corrosion.
Time to transition to an alternative.
(b) Pet food manufacturing Moderate to severe beetle, moth, or
facilities in the U.S. who cockroach infestation.
are members of the Pet Food Presence of sensitive electronic
Institute. equipment subject to corrosion.
Time to transition to an alternative.
(c) Bakeries in the U.S....... Presence of sensitive electronic
equipment subject to corrosion.
[[Page 19884]]
Time to transition to an alternative.
(d) Members of the North Moderate to severe beetle infestation.
American Millers' Association Presence of sensitive electronic
in the U.S. equipment subject to corrosion.
Time to transition to an alternative.
(e) Members of the National Moderate to severe beetle or moth
Pest Management Association infestation.
treating processed food, Presence of sensitive electronic
cheese, herbs and spices, and equipment subject to corrosion.
spaces and equipment in Time to transition to an alternative.
associated processing and
storage facilities.
Commodities........................... (a) California entities Rapid fumigation required to meet a
storing walnuts, beans, dried critical market window, such as during
plums, figs, raisins, and the holiday season.
dates (in Riverside county Export to countries which do not allow
only) in California. the use of sulfuryl fluoride.
A need for methyl bromide for research
purposes.
Dry Cured Pork Products............... (a) Members of the National Red legged ham beetle infestation.
Country Ham Association and Cheese/ham skipper infestation.
the Association of Meat Dermested beetle infestation.
Processors, Nahunta Pork Ham mite infestation.
Center (North Carolina), and
Gwaltney and Smithfield Inc.
----------------------------------------------------------------------------------------------------------------
EPA proposed revising the description of the National Pest
Management Association (NPMA) to remove the term cocoa beans in storage
and associated spaces. NPMA has transitioned to sulfuryl fluoride for
cocoa bean fumigation and such fumigations were not included in the CUN
or approved by the Parties. NPMA requested that instead of the proposed
description, EPA describe their members as ``Members of the National
Pest Management Association treating processed food, cheese, dried
milk, herbs and spices, and spaces and equipment in associated
processing and storage facilities.'' The use of methyl bromide for
dried milk was not included in the CUN or approved by the Parties.
Therefore, EPA agrees with NPMA's revised description except for the
inclusion of dried milk.
EPA proposed adding ``restrictions on alternatives due to karst
topographical features and soils not supporting seepage irrigation'' as
a limiting critical condition for Georgia grown peppers and eggplants.
Dow AgroSciences commented that there are no soil restrictions on the
uses of 1,3-D in Georgia and asked that that limiting critical
condition be revised. Dow AgroSciences is correct that ``soils not
supporting seepage irrigation'' is not a limiting critical condition
for Georgia and the final rule reflects this change. EPA intended this
limiting critical condition to only reflect restrictions due to karst
topographical features. This change does not affect the amount of
critical use methyl bromide EPA is allocating because EPA's analysis
only assumed limitations due to karst topographical features.
EPA proposal inadvertently included ``Local township limits
prohibiting 1,3-dichloropropene'' as a limiting critical condition for
tomato growers in the Southeast. There are no such township limits in
the Southeast. Instead, this critical condition should have been
``Restrictions on alternatives due to karst topographical features and,
in Florida, soils not supporting seepage irrigation,'' as was the
language in the 2008 CUE Rule. The final rule has added back the
appropriate limiting critical condition for those growers in the
Southeast.
EPA proposed adding tomatoes grown in Maryland as a critical use
when limited by ``high water tables and proximity to environmentally
sensitive estuaries which limit use of 1,3-D.'' Dow AgroSciences
commented that there are no restrictions on the uses of 1,3-D products
in Maryland associated with high water tables or environmentally
sensitive estuaries and asked that that Maryland tomatoes thus not be
approved as a critical use. EPA has ascertained that there is no
labeling restriction concerning high water tables or environmentally
sensitive estuaries for 1,3-D and thus the final rule does not include
this as a limiting critical condition. Moderate to severe fungal
pathogen infestation still remains a limiting critical condition for
Maryland tomatoes, as authorized by the Parties to the Protocol.
Therefore, EPA is approving Maryland tomatoes as an authorized critical
use. Removing the language concerning high water tables and proximity
to environmentally sensitive estuaries does not affect the amount of
critical use methyl bromide EPA is allocating because EPA's analysis
did not include use or acreage estimates where this limiting critical
condition would apply. Therefore, EPA is not reducing the estimated
amount of demand or the amount of new production based on this change.
EPA also proposed adding ``export to countries which do not allow
the use of sulfuryl fluoride'' as a limiting critical condition for
commodities. Dow AgroSciences commented that import Maximum Residue
Levels (MRLs) exist in countries that import commodities treated with
sulfuryl fluoride and asked that this limiting critical condition be
removed. EPA disagrees with that this limiting critical condition be
removed. EPA has accounted for the Codex MRLs in the 2007 nomination
for use in 2009. However, many countries that the U.S. exports to set
their own MRLs and many have not yet done so for sulfuryl fluoride.
Therefore EPA is retaining the limiting critical condition for the use
of methyl bromide in the commodities sector.
Dow AgroSciences also had other comments on limiting critical
conditions that have existed in prior CUE Rules. EPA has addressed
those comments in the Response to Comments document contained in the
docket for this rule.
EPA is finalizing most of the proposed changes to the table in
Appendix L, with the exception of the three issues discussed above. The
remaining changes reflect the recommendations made by MBTOC and the
critical uses authorized by the Parties to the Protocol. Specifically,
the changes between this year's critical uses and those in 2008 are:
adding cucurbits grown in Maryland and Delaware as a critical use
[[Page 19885]]
under the limiting critical conditions listed in the table; moving
herbaceous perennials grown in Michigan from forest nursery seedlings
to ornamentals; adding ``restrictions on alternatives due to karst
topographical features'' as a limiting critical condition for Georgia
grown peppers; adding tomatoes grown in Maryland as a critical use
under the limiting critical conditions of ``moderate to severe fungal
pathogen infestation''; adding ``export to countries which do not allow
the use of sulfuryl fluoride'' as a limiting critical condition for
commodities; and revising the description of NPMA to remove cocoa beans
as was done in the CUN, but in a manner consistent with the CUN.
In addition, EPA is making the following editorial changes to Table
I to remove redundancy and ensure that the limiting critical conditions
are described uniformly throughout. First, EPA has consolidated, into
the same row, all critical users with the same limiting critical
condition within a critical use. Second, EPA moved clarifying
information from the table to the preamble to improve readability.
Thus, EPA clarifies here that the ``local township limits prohibiting
1,3-dichloropropene'' are prohibitions on the use of 1,3-
dichloropropene products because local township limits on use of this
alternative have been reached. In addition, ``pet food'' under
subsection B of Food Processing refers to food for domesticated dogs
and cats. Finally, ``rapid fumigation'' for commodities is when a buyer
provides short (two working days or fewer) notification for a purchase
or there is a short period after harvest in which to fumigate and there
is limited silo availability for using alternatives. EPA does not
intend for these edits to change the effect of any of the limiting
critical conditions, the approved critical user, location of use, or
any other aspect of the table.
Since the critical use exemption was first established, many
critical users have transitioned to alternatives and a variety of
sectors that were once critical uses no longer are. These uses include
ginger, golf courses and turf production, tobacco, cocoa beans, and
pistachios.
The categories listed in Table I were designated as critical uses
for 2009 in Decision XIX/9 of the Parties. The amount of methyl bromide
approved for research purposes is included in the amount of methyl
bromide approved by the Parties for the commodities for which
``research purposes'' is indicated as a limiting critical condition in
Table I. As explained in Section V.D.5., EPA is issuing CSAs to allow
the sale of 22,171 kg of methyl bromide from existing stocks for
research purposes, and adjusting new production accordingly.
In accordance with the recommendations in Tables 4 and 8 of the
TEAP's August 2007 Final Report titled ``Evaluations of 2007 Critical
Use Nominations for Methyl Bromide and Related Matters,'' available on
the docket for this rulemaking, EPA is allowing the following to use
critical use methyl bromide for research purposes: commodities,
cucurbits, eggplant (field), nursery stock (fruit, nut, flower),
orchard replant, ornamentals, peppers (field), strawberry (field),
strawberry runners, sweet potato slips, and tomatoes (field). As
discussed below, EPA allows the use of newly-produced methyl bromide
for research purposes but encourages researchers to use pre-phaseout
inventory by reducing the amount of new production by the amount the
Parties authorize for research. In their applications to EPA, these
sectors identified research programs that require the use of methyl
bromide.
D. Critical Use Amounts
Section V.C. of this preamble explains that Table C of the annex to
Decision XIX/9 lists critical uses and amounts agreed to by the Parties
to the Montreal Protocol. When added together, the authorized critical
use amounts for 2009 total 4,261,974 kilograms (kg), which is
equivalent to 16.7% of the U.S. 1991 methyl bromide consumption
baseline of 25,528,270 kg as defined at 40 CFR 82.3. However, the
maximum amount of authorized new production or import as set forth in
Table D of the annex to Decision XIX/9 is 3,961,974 kg (15.5% of
baseline), ``minus available stocks.''
EPA's allocation of critical use allowances and critical stock
allowances for 2009 applies the existing regulatory framework to the
amounts authorized by the Parties to reflect the following factors:
(a) The amount of available stocks;
(b) The amount of unused critical use methyl bromide at the end of
2007 (the carryover amount); and
(c) The amount of methyl bromide authorized for research purposes.
Using the existing framework, EPA also proposed a reduction to
accommodate a certain amount of transition to the recently registered
fumigant iodomethane for some pre-plant uses. Given recent information
concerning the reduced production of another alternative, Telone, EPA
is not making a reduction for the uptake of alternatives in this final
rule. Commenters' concerns about each of these reductions are described
in the sections below.
EPA proposed to issue 1,617,921 kg (6.3% of baseline) of critical
use allowances (CUAs) and 2,576,987 kg (10.1% of baseline) of critical
stock allowances (CSAs). Generally, commenters were opposed to the
proposed level of new production, stating it would be insufficient to
meet the needs of critical users and would result in shortages in some
areas. Based on comments received on the proposed rule, as well as
additional data, EPA is issuing 2,275,715 kg (8.9% of baseline) of
critical use allowances, which allow limited amounts of new production
and import of methyl bromide for 2009 critical uses up to the amount of
2,275,715 kg as shown in Table III. EPA is also issuing 1,919,193 kg
(7.5% of baseline) of critical stock allowances, which allow sales of
1,919,193 kg from existing pre-phaseout inventories for critical uses
in 2009. The sub-sections below explain EPA's reasons for issuing these
critical use amounts for 2009.
1. Background of Critical Use Amounts
The December 23, 2004, Framework Rule and subsequent CUE rules each
took note of language regarding stocks of methyl bromide in relevant
decisions of the Parties. In developing this action, the Agency noted
that paragraph seven of Decision XIX/9 contains the following language:
``that each Party which has an agreed critical use renews its
commitment to ensure that the criteria in paragraph 1 of decision IX/6
are applied when licensing, permitting or authorizing critical use of
methyl bromide and, in particular, the criterion laid down in paragraph
1(b)(ii) of decision IX/6.'' Language calling on Parties to address
pre-phaseout inventory also appears in prior Decisions related to the
critical use exemption.
In the Framework Rule, which established the architecture of the
CUE program and set out the exempted levels of critical use for 2005,
EPA interpreted paragraph 5 of Decision Ex. I/3, which is similar to
Decision XIX/9(7), ``as meaning that the U.S. should not authorize
critical use exemptions without including provisions addressing
drawdown from stocks for critical uses'' (69 FR 76987). Consistent with
that interpretation, the Framework Rule established provisions
governing the sale of pre-phaseout inventories for critical uses,
including the concept of CSAs and a prohibition on the sale of pre-
phaseout inventories for critical uses in excess of the amount of CSAs
held by the seller. In addition, EPA noted that pre-phaseout
inventories were further taken into account through the trading
provisions that allow CUAs
[[Page 19886]]
to be converted into CSAs. In developing this final rule, EPA did not
propose changes to these basic CSA provisions.
Paragraph 5 of Decision XIX/9 further addresses pre-phaseout
inventory of methyl bromide. The Decision states ``that a Party with a
critical use exemption level in excess of permitted levels of
production and consumption for critical uses is to make up any such
differences between those levels by using quantities of methyl bromide
from stocks that the Party has recognized to be available.'' In the
August 25, 2004, proposed Framework Rule (69 FR 52366), EPA proposed to
adjust the authorized level of new production and consumption for
critical uses by the amount of ``available stocks.'' The methodology
for determining the amount of available stocks considered exports,
methyl bromide for feedstock uses, and the need for a buffer in case of
catastrophic events. However, the final Framework Rule did not adopt
the proposed methodology for determining available stocks. Instead, for
the 2005 control period EPA issued CSAs in an amount equal to the
difference between the total authorized CUE amount and the amount of
new production or import authorized by the Parties (Total Authorized
CUE Amount--Authorized New Production and Import).
EPA issued CSAs for the 2006, 2007, and 2008 control periods that
represented not only the difference between the total authorized CUE
amount and the amount of authorized new production and import but also
an additional amount. In the 2006 CUE Rule, EPA issued a total of
1,136,008 CSAs, equivalent to 4.4% of baseline. For that control
period, the difference in the Parties' decision between the total CUE
amount and the amount of new production and import was 3.6% of
baseline. In the 2007 rule, EPA added to the minimum amount (6.3% of
baseline) an additional amount (1.2% of baseline) for a total of
1,914,600 CSAs (7.5% of baseline). In the 2008 rule, EPA added to the
minimum amount (3.0% of baseline) an additional amount (3.8% of
baseline) for a total of 1,729,689 CSAs (6.8% of baseline). EPA reduced
the portion of CUE methyl bromide to come from new production and
import in each of the 2006-2008 control periods accordingly in order to
ensure that the total critical use allocation did not exceed the total
amount authorized by the Parties for that year.
As established in these earlier rulemakings, EPA views the
allocation of additional CSA amounts as an appropriate exercise of its
discretion. The Agency is not required to allocate the full amount of
au