Protection of Stratospheric Ozone: The 2010 Critical Use Exemption From the Phaseout of Methyl Bromide, 61078-61096 [E9-27822]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 74, Number 224 (Monday, November 23, 2009)]
[Proposed Rules]
[Pages 61078-61096]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-27822]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2009-0351; FRL-8982-7]
RIN 2060-AP62


Protection of Stratospheric Ozone: The 2010 Critical Use 
Exemption From the Phaseout of Methyl Bromide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing uses that qualify for the 2010 critical use 
exemption and the amount of methyl bromide that may be produced, 
imported, or supplied from existing pre-phaseout inventory for those 
uses in 2010. EPA is taking action under the authority of the Clean Air 
Act to reflect a recent consensus decision taken by the Parties to the 
Montreal Protocol on Substances that Deplete the Ozone Layer at the 
Twentieth Meeting of the Parties. EPA is seeking comment on the list of 
critical uses and on EPA's determination of the amounts of methyl 
bromide needed to satisfy those uses.

DATES: Comments must be submitted by December 23, 2009. Any party 
requesting a public hearing must notify the contact person listed below 
by 5 p.m. Eastern Standard Time on November 30, 2009. If a hearing is 
requested it will be held on December 8, 2009 and comments will be due 
to the Agency January 7, 2010. EPA will post information regarding a 
hearing, if one is requested, on the Ozone Protection Web site https://www.epa.gov/ozone/strathome.html. Persons interested in attending a 
public hearing should consult with the contact person below regarding 
the location and time of the hearing.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2009-0351, by one of the following methods:
     https://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: a-and-r-Docket@epa.gov.
     Fax: 202-566-1741.
     Mail: Docket EPA-HQ-OAR-2009-0351, Air and Radiation 
Docket and Information Center, U.S. Environmental Protection Agency, 
Mail code: 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: Docket EPA-HQ-OAR-2009-0351, Air and 
Radiation Docket at EPA West, 1301 Constitution Avenue NW., Room B108, 
Mail Code 6102T, Washington, DC 20460. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2009-0351. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
https://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through www.regulations.gov 
or e-mail. The https://www.regulations.gov Web site is an ``anonymous 
access'' system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through 
www.regulations.gov your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. For additional information about EPA's public docket visit the 
EPA Docket Center homepage at https://www.epa.gov/epahome/dockets.htm.

FOR FURTHER INFORMATION CONTACT: For further information about this 
proposed rule, 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 proposed rule concerns Clean Air Act (CAA) restrictions on the 
consumption, production, and use of methyl bromide (a Class I, Group VI 
ozone-depleting substance) for critical uses during calendar year 2010. 
Under the Clean Air Act, methyl bromide consumption (consumption is 
defined under the CAA as production plus imports minus exports) and 
production was phased out on January 1, 2005, apart from allowable 
exemptions, such as the critical use exemption and the quarantine and 
preshipment exemption. With this action, EPA is proposing and seeking 
comment on the uses that will qualify for the 2010 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 2010.

Table of Contents

I. General Information
    Regulated Entities
    What Should I Consider When Preparing My Comments?
II. What Is Methyl Bromide?
III. What Is the Background to the Phaseout Regulations for Ozone-
Depleting Substances?
IV. What Is the Legal Authority for Exempting the Production and 
Import of Methyl Bromide for Critical Uses

[[Page 61079]]

Authorized by the Parties to the Montreal Protocol?
V. What Is the Critical Use Exemption Process?
    A. Background of the Process
    B. How Does This Proposed Rule Relate to Previous Critical Use 
Exemption Rules?
    C. Proposed Critical Uses
    D. Proposed Critical Use Amounts
    1. Background of Proposed Critical Use Amounts
    2. Calculation of Available Pre-Phaseout Inventory
    3. Approach for Determining Critical Use Amounts
    4. Treatment of Carryover Material
    5. Methyl Bromide Alternatives
    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

I. General Information

Regulated Entities

    Entities potentially regulated by this proposed action are those 
associated with the production, import, export, sale, application, and 
use of methyl bromide covered by an approved critical use exemption. 
Potentially regulated categories and entities include producers, 
importers, and exporters of methyl bromide; applicators and 
distributors of methyl bromide; users of methyl bromide, e.g., farmers 
of vegetable crops, fruits and nursery stock; and owners of stored food 
commodities and structures such as grain mills and processors.
    This list is not intended to be exhaustive, but rather to provide a 
guide for readers regarding entities likely to be regulated by this 
proposed action. To determine whether your facility, company, business, 
or organization could be regulated by this proposed action, you should 
carefully examine the regulations promulgated at 40 CFR part 82, 
subpart A. If you have questions regarding the applicability of this 
action to a particular entity, consult the person listed in the 
preceding section.

What Should I Consider When Preparing My Comments?

    1. Confidential Business Information. Do not submit confidential 
business information (CBI) to EPA through www.regulations.gov or e-
mail. Clearly mark the part or all of the information that you claim to 
be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, 
mark the outside of the disk or CD-ROM as CBI and then identify 
electronically within the disk or CD-ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date, and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. What Is Methyl Bromide?

    Methyl bromide is an odorless, colorless, toxic gas which is used 
as a broad-spectrum pesticide and is controlled under the CAA as a 
Class I ozone-depleting substance (ODS). Methyl bromide 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 proposed rule implementing the Clean Air Act is intended to 
derogate from provisions in any other Federal, State, or local laws or 
regulations governing actions including, but not limited to, the sale, 
distribution, transfer, and use of methyl bromide. Entities affected by 
provisions of this proposal must continue to comply with FIFRA and 
other pertinent statutory and regulatory requirements for pesticides 
(including, but not limited to, requirements pertaining to restricted 
use pesticides) when importing, exporting, acquiring, selling, 
distributing, transferring, or using methyl bromide for critical uses. 
The regulations in this proposed action are intended only to implement 
the CAA restrictions on the production, consumption, and use of methyl 
bromide for critical uses exempted from the phaseout of methyl bromide.

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

    The regulatory requirements of the stratospheric ozone protection 
program that limit production and consumption of ozone-depleting 
substances are in 40 CFR part 82, subpart A. The regulatory program was 
originally published in the Federal Register on August 12, 1988 (53 FR 
30566), in response to the 1987 signing and subsequent ratification of 
the Montreal Protocol on Substances that Deplete the Ozone Layer 
(Montreal Protocol). The Montreal Protocol is the international 
agreement aimed at reducing and eliminating the production and 
consumption of stratospheric ozone-depleting substances. The 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

[[Page 61080]]

satisfy its obligations under the Protocol. EPA issued regulations to 
implement this legislation and has since amended the regulations as 
needed.
    Methyl bromide was added to the Protocol as an ozone-depleting 
substance in 1992 through the Copenhagen Amendment to the Protocol. The 
Parties to the Montreal Protocol (Parties) agreed that each 
industrialized country's level of methyl bromide production and 
consumption in 1991 should be the baseline for establishing a freeze in 
the level of methyl bromide production and consumption for 
industrialized countries. EPA published a final rule in the Federal 
Register on December 10, 1993 (58 FR 65018), listing methyl bromide as 
a Class I, Group VI controlled substance, freezing U.S. production and 
consumption at this 1991 baseline level of 25,528,270 kilograms, and 
setting forth the percentage of baseline allowances for methyl bromide 
granted to companies in each control period (each calendar year) until 
2001, when the complete phaseout would occur. This phaseout date was 
established in response to a petition filed in 1991 under Sections 
602(c)(3) and 606(b) of the CAAA of 1990, requesting that EPA list 
methyl bromide as a Class I substance and phase out its production and 
consumption. This date was consistent with Section 602(d) of the CAAA 
of 1990, which for newly listed Class I ozone-depleting substances 
provides that ``no extension [of the phaseout schedule in section 604] 
under this subsection may extend the date for termination of production 
of any class I substance to a date more than 7 years after January 1 of 
the year after the year in which the substance is added to the list of 
class I substances.''
    At the Seventh Meeting of the Parties (MOP) in 1995, the Parties 
made adjustments to the methyl bromide control measures and agreed to 
reduction steps and a 2010 phaseout date for industrialized countries 
with exemptions permitted for critical uses. At that time, the U.S. 
continued to have a 2001 phaseout date in accordance with Section 
602(d) of the CAAA of 1990. At the Ninth MOP in 1997, the Parties 
agreed to further adjustments to the phaseout schedule for methyl 
bromide in industrialized countries, with reduction steps leading to a 
2005 phaseout.

IV. What Is the Legal Authority for Exempting the Production and Import 
of Methyl Bromide for Critical Uses Authorized by the Parties to the 
Montreal Protocol?

    In October 1998, the U.S. Congress amended the CAA to prohibit the 
termination of production of methyl bromide prior to January 1, 2005, 
to require EPA to bring the U.S. phaseout of methyl bromide in line 
with the schedule specified under the Protocol, and to authorize EPA to 
provide certain exemptions. These amendments were contained in Section 
764 of the 1999 Omnibus Consolidated and Emergency Supplemental 
Appropriations Act (Pub. L. 105-277, October 21, 1998) and were 
codified in Section 604 of the CAA, 42 U.S.C. 7671c. The amendment that 
specifically addresses the critical use exemption appears at Section 
604(d)(6), 42 U.S.C. 7671c(d)(6). EPA revised the phaseout schedule for 
methyl bromide production and consumption in a direct final rulemaking 
on November 28, 2000 (65 FR 70795), which allowed for the phased 
reduction in methyl bromide consumption specified under the Protocol 
and extended the phaseout to 2005. EPA again amended the regulations to 
allow for an exemption for quarantine and preshipment (QPS) purposes on 
July 19, 2001 (66 FR 37751), with an interim final rule and with a 
final rule on January 2, 2003 (68 FR 238).
    On December 23, 2004 (69 FR 76982), EPA published a final rule (the 
``Framework Rule'') that established the framework for the critical use 
exemption; set forth a list of approved critical uses for 2005; and 
specified the amount of methyl bromide that could be supplied in 2005 
from stocks and new production or import to meet the needs of approved 
critical uses. EPA subsequently published rules applying the critical 
use exemption framework to the 2006, 2007, 2008, and 2009 control 
periods. Under authority of section 604(d)(6) of the CAA, this action 
proposes the uses that will qualify as approved critical uses in 2010 
and the amount of methyl bromide that may be produced, imported, or 
supplied from inventory to satisfy those uses.
    This proposed action reflects Decision XX/5, taken at the Twentieth 
Meeting of the Parties in November 2008. In accordance with Article 
2H(5), the Parties have issued several Decisions pertaining to the 
critical use exemption. These include Decisions IX/6 and Ex. I/4, which 
set forth criteria for review of proposed critical uses. The status of 
Decisions is addressed in NRDC v. EPA, (464 F.3d 1, D.C. Cir. 2006) and 
in EPA's ``Supplemental Brief for the Respondent,'' filed in NRDC v. 
EPA and available in the docket for this action. In this proposed rule, 
EPA is honoring commitments made by the United States in the Montreal 
Protocol context.

V. What Is the Critical Use Exemption Process?

A. Background of the Process

    The critical use exemption is designed to permit the production and 
import of methyl bromide for uses that do not have technically and 
economically feasible alternatives and for which the lack of methyl 
bromide would result in significant market disruption (40 CFR 82.3). 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. Applicants were informed 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, research programs into the use of alternatives to methyl 
bromide, and 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

[[Page 61081]]

bromide, and whether there would be a significant market disruption if 
no exemption were available. In addition, EPA reviews other parameters 
of the exemption applications such as dosage and emissions minimization 
techniques and applicants' research or transition plans. This 
assessment process culminates in the development of a document referred 
to as 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, review the CUNs of the Parties and make 
recommendations to the Parties on the nominations. The Parties then 
take Decisions to authorize critical use exemptions for particular 
Parties, including how much methyl bromide may be supplied for the 
exempted critical uses. As required in Section 604(d)(6) of the CAA, 
for each exemption period, EPA consults with the United States 
Department of Agriculture 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 is proposing as necessary for 
critical uses and the uses that the Agency is proposing to approve as 
critical uses.
    On January 24, 2008, the U.S. Government (USG) submitted the sixth 
Nomination for a Critical Use Exemption for Methyl Bromide for the 
United States of America to the Ozone Secretariat of the UNEP. This 
nomination contained the request for 2010 critical uses. In February 
2008, MBTOC sent questions to the USG concerning technical and economic 
issues in the 2010 nomination. The USG transmitted responses to MBTOC 
on April 10, 2008. The USG provided additional written responses on 
April 16, 2009, to questions asked at MBTOC's meeting in Tel Aviv. 
These documents, together with reports by the advisory bodies noted 
above, are in the public docket for this rulemaking. The proposed 
critical uses and amounts reflect the analysis contained in those 
documents.

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

    The December 23, 2004, Framework Rule (69 FR 76982) established the 
framework for the critical use exemption program in the U.S., including 
definitions, prohibitions, trading provisions, and recordkeeping and 
reporting obligations. The preamble to the Framework Rule included 
EPA's determinations on key issues for the critical use exemption 
program.
    Since publishing the Framework Rule, EPA has annually promulgated 
regulations to exempt from the phaseout of methyl bromide specific 
quantities of production and import for each control period (each 
calendar year) and to indicate which uses meet the criteria for the 
exemption program for that year. See 71 FR 5985 (calendar year 2006), 
71 FR 75386 (calendar year 2007), 72 FR 74118 (calendar year 2008), and 
74 FR 19878 (calendar year 2009).
    Today's action proposes critical uses for 2010 and the amounts of 
Critical Use Allowances (CUAs) and Critical Stock Allowances (CSAs) to 
be allocated for those uses. The uses that EPA is proposing to qualify 
as 2010 critical uses are the uses which the USG included in the sixth 
CUN, and which were approved by the Parties in Decision XX/5.
    EPA is utilizing the existing regulatory framework for critical 
uses, and is therefore not reopening for comment either the provisions 
in the 2004 Framework Rule or the approach to determining the level of 
available stocks finalized in the 2008 CUE rule (published December 28, 
2007), with two exceptions. EPA is proposing to ensure that upon 
applying the existing framework, the level of new production and import 
does not increase from one year to the next, barring an unforeseeable 
change in circumstances (e.g., withdrawal or significant change in 
registration status of an alternative). EPA is accepting comment on 
this addition to the existing framework as well as on the specific 
means of assessing the drawdown of pre-2005 methyl bromide.

C. Proposed Critical Uses

    In Decision XX/5, taken in November 2008, the Parties to the 
Protocol agreed ``to permit, for the agreed critical use categories for 
2010 set forth in table C of the annex to the present decision for each 
Party, subject to the conditions set forth in the present decision and 
decision Ex.I/4 to the extent that those conditions are applicable, the 
levels of production and consumption for 2010 set forth in table D of 
the annex to the present decision which are necessary to satisfy 
critical uses * * *.''
    The following uses are those set forth in table C of the annex to 
Decision XX/5 for the United States:
     Commodities
     NPMA food processing structures (cocoa beans removed) \1\
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    \1\ NPMA, National Pest Management Association, includes both 
food processing structures and processed foods.
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     Mills and processors
     Dried cured pork
     Cucurbits
     Eggplant--field
     Forest nursery seedlings
     Nursery stock--fruit, nut, flower
     Orchard replant
     Ornamentals
     Peppers--field
     Strawberries--field
     Strawberry runners
     Tomatoes--field
     Sweet potato slips
    The Decision XX/5 critical use level for U.S. critical uses in 2010 
is 3,233,456 kilograms (kg) overall. This is equivalent to 12.7% of the 
U.S. 1991 methyl bromide consumption baseline of 25,528,270 kg. The 
maximum amount of allowable new production and import for U.S. critical 
uses in Table D of Decision XX/5 is 2,763,456 kg (10.8% of baseline), 
minus available stocks.
    EPA is proposing a total critical use allowance in 2010 of 
2,966,179 kg (11.6% of baseline) with new production or import of 
methyl bromide for critical uses up to 2,275,715 kg (8.9% of baseline), 
and with 690,464 kg (2.7% of baseline) coming from pre-phaseout 
inventory (i.e., stocks).
    EPA is also proposing to modify 40 CFR part 82, subpart A, appendix 
L to reflect the agreed critical use categories identified in Decision 
XX/5. Additionally, the Agency is amending the table of critical uses 
based on the technical analysis contained in the 2010 U.S. nomination.
    EPA is seeking comment on the technical analysis contained in the 
U.S. nomination (available for public review in the docket to this 
rulemaking), and seeks information regarding changes to the 
registration or use of alternatives that have transpired after the 2010 
U.S. nomination was written. EPA recognizes that as the market for 
alternatives evolves, the thresholds for what constitutes ``significant 
market disruption'' or ``technical and economic feasibility'' change. 
For example, the adoption of methyl iodide in the southeast U.S could 
transform the circumstances under which these analyses occur.
    Comments on the technical data contained in the nomination or new 
information could potentially alter the Agency's analysis on the uses 
and amounts of methyl bromide qualifying for the critical use 
exemption. The

[[Page 61082]]

Agency may, in response to new information, reduce the proposed 
quantities of critical use methyl bromide, or decide not to approve 
uses authorized by the Parties. However, the Agency will not increase 
the quantities or add new uses in the final rule beyond those 
authorized by the Parties. Therefore, if there has been a change in 
registration of an alternative that results in that alternative no 
longer being available for a use, the user should notify EPA that it 
requests that the U.S. nominate its use for a critical use exemption in 
2011.
    EPA is proposing to amend Table I: Approved Critical Uses in 40 CFR 
part 82, subpart A, appendix L, as follows:

                     Table I--Approved Critical Uses
------------------------------------------------------------------------
          Column A                  Column B              Column C
------------------------------------------------------------------------
                                                      Limiting critical
                                                       conditions that
                                                     exist, or that the
                                Approved critical     approved critical
   Approved critical uses     user and location of     user reasonably
                                       use           expects could arise
                                                       without methyl
                                                     bromide fumigation
------------------------------------------------------------------------
                             PRE-PLANT USES
------------------------------------------------------------------------
Cucurbits...................  (a) Growers in        Moderate to severe
                               Delaware, Maryland,   soilborne disease
                               and Michigan.         infestation.
                              (b) Growers in        Moderate to severe
                               Georgia and           yellow or purple
                               Southeastern U.S.     nutsedge
                               limited to growing    infestation.
                               locations in         Moderate to severe
                               Alabama, Arkansas,    soilborne disease
                               Kentucky,             infestation.
                               Louisiana, North     Moderate to severe
                               Carolina, South       root knot nematode
                               Carolina,             infestation.
                               Tennessee, and
                               Virginia.
Eggplant....................  (a) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                              (b) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Moderate to severe
                                                     pythium collar,
                                                     crown and root rot.
                                                    Moderate to severe
                                                     southern blight
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features.
                              (c) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
Forest Nursery Seedlings....  (a) Growers in        Moderate to severe
                               Alabama, Arkansas,    yellow or purple
                               Georgia, Louisiana,   nutsedge
                               Mississippi, North    infestation
                               Carolina, Oklahoma,  Moderate to severe
                               South Carolina,       soilborne disease
                               Tennessee, Texas,     infestation.
                               and Virginia.        Moderate to severe
                                                     nematode
                                                     infestation.
                              (b) International     Moderate to severe
                               Paper and its         yellow or purple
                               subsidiaries          nutsedge
                               limited to growing    infestation.
                               locations in         Moderate to severe
                               Alabama, Arkansas,    soilborne disease
                               Georgia, South        infestation.
                               Carolina, and Texas.
                              (c) Government-owned  Moderate to severe
                               seedling nurseries    weed infestation
                               in Illinois,          including purple
                               Indiana, Kentucky,    and yellow nutsedge
                               Maryland, Missouri,   infestation.
                               New Jersey, Ohio,    Moderate to severe
                               Pennsylvania, West    Canada thistle
                               Virginia, and         infestation.
                               Wisconsin.           Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                              (d) Weyerhaeuser      Moderate to severe
                               Company and its       yellow or purple
                               subsidiaries          nutsedge
                               limited to growing    infestation.
                               locations in         Moderate to severe
                               Alabama, Arkansas,    soilborne disease
                               North Carolina, and   infestation.
                               South Carolina.      Moderate to severe
                                                     nematode or worm
                                                     infestation.
                              (e) Weyerhaeuser      Moderate to severe
                               Company and its       yellow nutsedge
                               subsidiaries          infestation.
                               limited to growing   Moderate to severe
                               locations in Oregon   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    Moderate to severe
                               Western Raspberry     nematode
                               Nursery Consortium    infestation.
                               limited to growing   Medium to heavy clay
                               locations in          soils.
                               Washington, and      Local township
                               members of the        limits prohibiting
                               California            1,3-
                               Association of        dichloropropene.
                               Nursery and Garden
                               Centers
                               representing
                               Deciduous Tree
                               Fruit Growers.
                              (b) California rose   Moderate to severe
                               nurseries.            nematode
                                                     infestation.
                                                    Local township
                                                     limits prohibiting
                                                     1,3-
                                                     dichloropropene.
Orchard Replant.............  (a) California stone  Moderate to severe
                               fruit, table and      nematode
                               raisin grape, wine    infestation.
                               grape, walnut, and   Moderate to severe
                               almond growers.       soilborne disease
                                                     infestation.
                                                    Replanted orchard
                                                     soils to prevent
                                                     orchard replant
                                                     disease.
                                                    Medium to heavy
                                                     soils.
                                                    Local township
                                                     limits prohibiting
                                                     1,3-
                                                     dichloropropene.

[[Page 61083]]

 
Ornamentals.................  (a) California        Moderate to severe
                               growers.              soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Local township
                                                     limits prohibiting
                                                     1,3-
                                                     dichloropropene.
                              (b) Florida growers.  Moderate to severe
                                                     weed infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                              (c) Michigan          Moderate to severe
                               herbaceous            nematode
                               perennial growers.    infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     yellow nutsedge and
                                                     other weed
                                                     infestation.
                              (d) New York growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
Peppers.....................  (a) Alabama,          Moderate to severe
                               Arkansas, Kentucky,   yellow or purple
                               Louisiana, North      nutsedge
                               Carolina, South       infestation.
                               Carolina,            Moderate to severe
                               Tennessee, and        nematode
                               Virginia growers.     infestation.
                                                    Moderate to severe
                                                     pythium root,
                                                     collar, crown and
                                                     root rots.
                              (b) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                              (c) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation, or
                                                     moderate to severe
                                                     pythium root and
                                                     collar rots.
                                                    Moderate to severe
                                                     southern blight
                                                     infestation, crown
                                                     or root rot.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features.
                              (d) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
Strawberry Fruit............  (a) California        Moderate to severe
                               growers.              black root rot or
                                                     crown rot.
                                                    Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Local township
                                                     limits prohibiting
                                                     1,3-
                                                     dichloropropene.
                                                    Time to transition
                                                     to an alternative.
                              (b) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Carolina geranium or
                                                     cut-leaf evening
                                                     primrose
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                              (c) Alabama,          Moderate to severe
                               Arkansas, Georgia,    yellow or purple
                               Illinois, Kentucky,   nutsedge
                               Louisiana,            infestation.
                               Maryland,            Moderate to severe
                               Mississippi,          nematode
                               Missouri, New         infestation.
                               Jersey, North        Moderate to severe
                               Carolina, Ohio,       black root and
                               South Carolina,       crown rot.
                               Tennessee, and
                               Virginia growers.
Strawberry Nurseries........  (a) California        Moderate to severe
                               growers.              soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
Sweet Potato Slips..........  (a) California        Local township
                               growers.              limits prohibiting
                                                     1,3-
                                                     dichloropropene.
Tomatoes....................  (a) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     fungal pathogen
                                                     infestation.

[[Page 61084]]

 
                              (b) Alabama,          Moderate to severe
                               Arkansas, Florida,    yellow or purple
                               Georgia, Kentucky,    nutsedge
                               Louisiana,            infestation.
                               Mississippi, North   Moderate to severe
                               Carolina, South       soilborne disease
                               Carolina,             infestation.
                               Tennessee, and       Moderate to severe
                               Virginia growers.     nematode
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and, in
                                                     Florida, soils not
                                                     supporting seepage
                                                     irrigation.
                              (c) Maryland growers  Moderate to severe
                                                     fungal pathogen
                                                     infestation.
------------------------------------------------------------------------
                            POST-HARVEST USES
------------------------------------------------------------------------
Food Processing.............  (a) Rice millers in   Moderate to severe
                               the U.S. who are      beetle, weevil, or
                               members of the USA    moth infestation.
                               Rice Millers         Presence of
                               Association.          sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.
                              (b) Pet food          Moderate to severe
                               manufacturing         beetle, moth, or
                               facilities in the     cockroach
                               U.S. who are          infestation.
                               members of the Pet   Presence of
                               Food Institute.       sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.
                              (c) Members of the    Moderate to severe
                               North American        beetle infestation.
                               Millers'             Presence of
                               Association in the    sensitive
                               U.S.                  electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.
                              (d) Members of the    Moderate to severe
                               National Pest         beetle or moth
                               Management            infestation.
                               Association          Presence of
                               treating processed    sensitive
                               food, cheese, herbs   electronic
                               and spices, and       equipment subject
                               spaces and            to corrosion.
                               equipment in         Time to transition
                               associated            to an alternative.
                               processing and
                               storage facilities.
Commodities.................  (a) California        Rapid fumigation
                               entities storing      required to meet a
                               walnuts, beans,       critical market
                               dried plums, figs,    window, such as
                               raisins, and dates    during the holiday
                               (in Riverside         season.
                               county only) in
                               California.
Dry Cured Pork Products.....  (a) Members of the    Red legged ham
                               National Country      beetle infestation.
                               Ham Association and  Cheese/ham skipper
                               the Association of    infestation.
                               Meat Processors,     Dermested beetle
                               Nahunta Pork Center   infestation.
                               (North Carolina),    Ham mite
                               and Gwaltney and      infestation.
                               Smithfield Inc.
------------------------------------------------------------------------

    The critical uses and limiting critical conditions in Table I are 
proposed to be modified from the 2009 CUE as follows. First, EPA is 
proposing to add ornamental growers in New York that are subject to 
moderate to severe soilborne disease or nematode infestations. This 
reflects a new application submitted for the production of Anemone 
coronaria in greenhouses and approved as part of the U.S. nomination of 
ornamentals. Greenhouse-grown anemones in New York are facing a similar 
situation to other crops in this sector. EPA anticipates the usage of 
methyl bromide will be very limited, and has nominated only 272 kg for 
this use. Second, EPA is proposing to remove North Carolina and 
Tennessee strawberry nursery growers because although the U.S. 
nominated this use it was not authorized by the Parties in Decision XX/
5. MBTOC did not recommend this use when it recommended the other 
critical uses for 2010. Iodomethane is registered for use on strawberry 
nurseries in these states and the MBTOC concluded that this substitute 
is a technologically and economically feasible methyl bromide 
alternative suitable to these crops and circumstances. In September 
2010, MBTOC accepted the USG's supplemental request and agreed that 
time is required to conduct commercial scale up of iodomethane in this 
sector. MBTOC has recommended 2,018 kg for this use in 2010. The 
Parties have not yet authorized this crop as a critical use but will 
address the issue at the 21st MOP in November 2009. EPA will consider 
the decision taken by the Parties on this issue in the final rule. 
Third, EPA is proposing to remove curcurbit growers and pepper growers 
in Mississippi. These two uses were not part of the CUN and therefore 
the Parties have not authorized them as critical uses for 2010. Fourth, 
EPA is proposing to remove bakeries, as they have also transitioned to 
methyl bromide alternatives and thus did not submit an application for 
the 2010 control period. Fifth, EPA is proposing to remove ``export to 
countries which do not allow the use of sulfuryl fluoride'' as a 
limiting critical condition for commodities. This limiting critical 
condition was established for the first time in the 2009 CUE rule as a 
few countries that import commodities treated with sulfuryl fluoride 
were still in the process of establishing maximum residue levels (MRLs) 
for sulfuryl fluoride. All countries to which the U.S. exports such 
commodities have now established MRLs. Therefore, EPA no longer 
believes this to be a limiting critical condition. EPA seeks comment on 
these proposed changes to the critical uses and their limiting critical 
conditions.
    EPA is not proposing other changes to the table but is repeating 
the following clarifications made in previous years for ease of 
reference. The ``local township limits prohibiting 1,3-
dichloropropene''

[[Page 61085]]

are prohibitions on the use of 1,3-dichloropropene products in cases 
where local township limits on use of this alternative have been 
reached. In addition, ``pet food'' under subsection B of Food 
Processing refers to food for domesticated dogs and cats. Finally, 
``rapid fumigation'' for commodities is when a buyer provides short 
(two working days or fewer) notification for a purchase or there is a 
short period after harvest in which to fumigate and there is limited 
silo availability for using alternatives.
    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, 
pistachios, and now bakeries.

D. Proposed Critical Use Amounts

    Section V.C. of this preamble explains that Table C of the annex to 
Decision XX/5 lists critical uses and amounts agreed to by the Parties 
to the Montreal Protocol. When added together, the authorized critical 
use amounts for 2010 total 3,233,456 kilograms (kg), which is 
equivalent to 12.7% 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 XX/5 is 2,763,456 kg (10.8% of 
baseline).
    EPA is proposing to exempt limited amounts of new production and 
import of methyl bromide for critical uses for 2010 in the amount of 
2,275,715 kg (8.9% of baseline) as shown in Table III. EPA is also 
proposing to allow sale of 690,464 kg (2.7% of baseline) of existing 
pre-phaseout inventory for critical uses in 2010. EPA is seeking 
comment on the proposed total levels of exempted new production and 
import for critical uses and the amount of material that may be sold 
from pre-phaseout inventory for critical uses. The sub-sections below 
explain EPA's reasons for proposing the above critical use amounts for 
2010.
1. Background of Proposed Critical Use Amounts
    The 2004 Framework Rule established the provisions governing the 
sale of pre-phaseout inventories for critical uses, including the 
concept of Critical Stock Allowances (CSAs) and a prohibition on the 
sale of pre-phaseout inventories for critical uses in excess of the 
amount of CSAs held by the seller. In addition, EPA noted that pre-
phaseout inventories were further taken into account through the 
trading provisions that allow CUAs to be converted into CSAs. EPA is 
not proposing changes to these CSA provisions for calendar year 2010.
    Paragraph 5 of Decision XX/5 further addresses pre-phaseout 
inventory of methyl bromide. The Decision states ``that a Party with a 
critical use exemption level in excess of permitted levels of 
production and consumption for critical uses is to make up any such 
differences between those levels by using quantities of methyl bromide 
from stocks that the Party has recognized to be available.'' In the 
Framework Rule (69 FR 52366), EPA issued CSAs in an amount equal to the 
difference between the total authorized CUE amount and the amount of 
new production or import authorized by the Parties.
    In the 2006, 2007, 2008, and 2009 CUE Rules, EPA allocated CSAs in 
amounts that represented not only the difference between the total 
authorized CUE amount and the amount of authorized new production and 
import but also an additional amount to reflect available stocks. In 
the 2006 CUE Rule, EPA issued a total of 1,136,008 CSAs, equivalent to 
4.4% of baseline. For 2006, the difference in the Parties' decision 
between the total CUE amount and the amount of new production and 
import was 3.6% of baseline. In the 2007 rule, EPA added to the minimum 
amount (6.3% of baseline) an additional amount (1.2% of baseline) for a 
total of 1,914,600 CSAs (7.5% of baseline). In the 2008 rule, EPA added 
to the minimum amount (3.0% of baseline) an additional amount (3.8% of 
baseline) for a total of 1,729,689 CSAs (6.8% of baseline). In the 2009 
rule, EPA added to the minimum amount (1.2% of baseline) an additional 
amount (6.3% of baseline) for a total of 1,919,193 CSAs (7.5% of 
baseline). After determining the CSA amount, EPA reduced the portion of 
CUE methyl bromide to come from new production and import in each of 
the 2006-2009 control periods such that the total amount of methyl 
bromide exempted for critical uses did not exceed the total amount 
authorized by the Parties for that year.
    As established in the earlier rulemakings, EPA views the inclusion 
of these additional amounts in the calculation of the year's overall 
CSA level as an appropriate exercise of discretion. The Agency is not 
required to allocate the full amount of authorized new production and 
consumption. The Parties only agree to ``permit'' a particular level of 
production and consumption; they do not--and cannot--mandate that the 
U.S. authorize this level of production and consumption domestically. 
Nor does the CAA require EPA to allow the full amount permitted by the 
Parties. Section 604(d)(6) of the CAA does not require EPA to exempt 
any amount of production and consumption from the phaseout, but instead 
specifies that the Agency ``may'' create an exemption for critical 
uses, providing EPA with substantial discretion.
    When determining the CSA amount for a year, EPA considers what 
portion of existing stocks is ``available'' for critical uses. As 
discussed in prior CUE rulemakings, the Parties to the Protocol 
recognized in their Decisions that the level of existing stocks may 
differ from the level of available stocks. For example, Decision IX/6 
states that ``production and consumption, if any, of methyl bromide for 
critical uses should be permitted only if * * * methyl bromide is not 
available in sufficient quantity and quality from existing stocks.'' 
Decision XX/5, as well as earlier decisions, refers to use of 
``quantities of methyl bromide from stocks that the Party has 
recognized to be available.'' Thus, it is clea