Protection of Stratospheric Ozone: The 2012 Critical Use Exemption From the Phaseout of Methyl Bromide, 29218-29231 [2012-11972]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 77, Number 96 (Thursday, May 17, 2012)]
[Rules and Regulations]
[Pages 29218-29231]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11972]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2009-0277; FRL-9668-3]
RIN 2060-AQ83


Protection of Stratospheric Ozone: The 2012 Critical Use 
Exemption From the Phaseout of Methyl Bromide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is authorizing uses that qualify for the 2012 critical use 
exemption and the amount of methyl bromide that may be produced, 
imported, or supplied from existing pre-phaseout inventory for those 
uses in 2012. EPA is taking this action under the authority of the 
Clean Air Act to reflect a recent consensus decision by the Parties to 
the Montreal Protocol on Substances that Deplete the Ozone Layer at the 
Twenty-Second Meeting of the Parties.

DATES: This rule is effective on May 17, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2009-0277. All documents in the docket are listed on the 
www.regulations.gov web site. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and is publicly 
available only in hard copy form. Publicly available docket materials 
are available either electronically through www.regulations.gov or in 
hard copy at the Air and Radiation Docket, EPA/DC, EPA West, Room 3334, 
1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the Air and Radiation 
Docket is (202) 566-1742).

FOR FURTHER INFORMATION CONTACT: For further information about this 
rule, contact Jeremy Arling by telephone at (202) 343-9055, or by email 
at arling.jeremy@epa.gov or by mail at U.S. Environmental Protection 
Agency, Stratospheric Protection Division, Stratospheric Program 
Implementation Branch (6205J), 1200 Pennsylvania Avenue NW., 
Washington, DC 20460. You may also visit the methyl bromide section of 
the ozone layer protection Web site at www.epa.gov/ozone/mbr for 
further information about the methyl bromide critical use exemption, 
other stratospheric ozone protection regulations, the science of ozone 
layer depletion, and related topics.

SUPPLEMENTARY INFORMATION: This rule concerns Clean Air Act (CAA) 
restrictions on the consumption, production, and use of methyl bromide 
(a Class I, Group VI controlled substance) for critical uses during 
calendar year 2012. Under the Clean Air Act, methyl bromide consumption 
and production were phased out on January 1, 2005, apart from allowable 
exemptions, such as the critical use exemption and the quarantine and 
preshipment (QPS) exemption. Consumption is defined under the CAA as 
production plus imports minus exports. With this action, EPA is 
authorizing the uses that qualify for the 2012 critical use exemption 
as well as specific amounts of methyl bromide that may be produced and 
imported, or sold from pre-phaseout inventory (also referred to as 
``stocks'') for critical uses in 2012.
    Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. 
Chapter 5, generally provides that rules may not take effect earlier 
than 30 days after they are published in the Federal Register. EPA is 
issuing this final rule under section 307(d)(1) of the Clean Air Act, 
which states: ``The provisions of section 553 through 557 * * * of 
Title 5 shall not, except as expressly provided in this section, apply 
to actions to which this subsection applies.'' Thus, section 553(d) of 
the APA does not apply to this rule. EPA is nevertheless acting 
consistently with the policies underlying APA section 553(d) in making 
this rule effective on May 17, 2012. APA section 553(d) allows an 
effective date less than 30 days after publication ``as otherwise 
provided by the agency for good cause found and published with the 
rule.'' Section 5 U.S.C. 553(d)(1) allows an effective date less than 
30 days after publication for a rule that ``that grants or recognizes 
an exemption or relieves a restriction.'' 5 U.S.C. 553(d)(1). Since 
today's action can be considered to either grant an exemption for 
limited critical uses during 2012 from the general

[[Page 29219]]

prohibition on production or import of methyl bromide after the 
phaseout date of January 1, 2005, or relieve a restriction that would 
otherwise prevent production or import of methyl bromide, EPA is making 
this action effective immediately upon publication.

Table of Contents

I. General Information
    A. Regulated entities
II. What is methyl bromide?
III. What is the background to the phaseout regulations for ozone-
depleting substances?
IV. What is the legal authority for exempting the production and 
import of methyl bromide for critical uses authorized by the parties 
to the Montreal Protocol?
V. What is the critical use exemption process?
    A. A. Background of the Process
    B. How does this rule relate to previous critical use exemption 
rules?
    C. Stocks of Methyl Bromide
    D. Critical Uses
    E. Critical Use Amounts
    F. Critical Use Allowance Allocations
    G. Critical Stock Allowance Allocations
    H. The Criteria in Decisions IX/6 and Ex. I/4
    I. Emissions Minimization
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. General Information

A. Regulated Entities

    Entities and categories of entities potentially regulated by this 
action include producers, importers, and exporters of methyl bromide; 
applicators and distributors of methyl bromide; and users of methyl 
bromide that applied for the 2012 critical use exemption including 
growers of vegetable crops, fruits, and nursery stock, and owners of 
stored food commodities and structures such as grain mills and 
processors. This rulemaking does not affect applicants for future 
control periods.
    This list is not intended to be exhaustive, but rather to provide a 
guide for readers regarding entities likely to be regulated by this 
action. To determine whether your facility, company, business, or 
organization could be regulated by this action, you should carefully 
examine the regulations promulgated at 40 CFR part 82, subpart A. If 
you have questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding section.

II. What is methyl bromide?

    Methyl bromide is an odorless, colorless, toxic gas which is used 
as a broad-spectrum pesticide and is controlled under the CAA as a 
Class I ozone-depleting substance (ODS). Methyl bromide was once widely 
used as a fumigant to control a variety of pests such as insects, 
weeds, rodents, pathogens, and nematodes. Information on methyl bromide 
can be found at https://www.epa.gov/ozone/mbr.
    Methyl bromide is also regulated by EPA under the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA) and other statutes 
and regulatory authority, as well as by States under their own statutes 
and regulatory authority. Under FIFRA, methyl bromide is a restricted 
use pesticide. Restricted use pesticides are subject to Federal and 
State requirements governing their sale, distribution, and use. Nothing 
in this rule implementing Title VI of the Clean Air Act is intended to 
derogate from provisions in any other Federal, State, or local laws or 
regulations governing actions including, but not limited to, the sale, 
distribution, transfer, and use of methyl bromide. Entities affected by 
this rule must comply with FIFRA and other pertinent statutory and 
regulatory requirements for pesticides (including, but not limited to, 
requirements pertaining to restricted use pesticides) when producing, 
importing, exporting, acquiring, selling, distributing, transferring, 
or using methyl bromide. The provisions in this action are intended 
only to implement the CAA restrictions on the production, consumption, 
and use of methyl bromide for critical uses exempted from the phaseout 
of methyl bromide.

III. What is the background to the phaseout regulations for 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 United 
States was one of the original signatories to the 1987 Montreal 
Protocol and the United States ratified the Protocol on April 12, 1988. 
Congress then enacted, and President George H.W. Bush signed into law, 
the Clean Air Act Amendments of 1990 (CAAA of 1990) which included 
Title VI on Stratospheric Ozone Protection, codified as 42 U.S.C. 
Chapter 85, Subchapter VI, to ensure that the U.S. could satisfy its 
obligations under the Montreal Protocol. EPA issued regulations to 
implement this legislation and has since amended the regulations as 
needed.
    Methyl bromide was added to the Montreal Protocol as an ozone-
depleting substance in 1992 through the Copenhagen Amendment. The 
Parties to the Montreal Protocol (Parties) agreed that each 
industrialized country's level of methyl bromide production and 
consumption in 1991 should be the baseline for establishing a freeze in 
the level of methyl bromide production and consumption for 
industrialized countries. EPA published a rule in the Federal Register 
on December 10, 1993 (58 FR 65018), listing methyl bromide as a Class 
I, Group VI controlled substance, freezing U.S. production and 
consumption at the 1991 baseline level of 25,528,270 kilograms, and 
setting forth the percentage of baseline allowances for methyl bromide 
granted to companies in each control period (each calendar year) until 
2001, when the complete phaseout would occur. This phaseout date was 
established in response to a petition filed in 1991 under sections 
602(c)(3) and 606(b) of the CAAA of 1990, requesting that EPA list 
methyl bromide as a Class I substance and phase out its production and 
consumption. This date was consistent with section 602(d) of the CAAA 
of 1990, which for newly listed Class I ozone-depleting substances 
provides that ``no extension [of the phaseout schedule in section 604] 
under this subsection may extend the date for termination of production 
of any class I substance to a date more than 7 years after January 1 of 
the year after the year in which the substance is added to the list of 
class I substances.''

[[Page 29220]]

    At the Seventh Meeting of the Parties (MOP) in 1995, the Parties 
agreed to adjustments to the methyl bromide control measures and agreed 
to reduction steps and a 2010 phaseout date for industrialized 
countries with exemptions for critical uses. At that time, the U.S. 
continued to have a 2001 phaseout date in accordance with section 
602(d) of the CAAA of 1990. At the Ninth MOP in 1997, the Parties 
agreed to further adjustments to the phaseout schedule for methyl 
bromide in industrialized countries, with reduction steps leading to a 
2005 phaseout. The Parties also established a phaseout date of 2015 for 
developing (Article 5) countries.

IV. What is the legal authority for exempting the production and import 
of methyl bromide for critical uses authorized by the parties to the 
Montreal Protocol?

    In October 1998, the U.S. Congress amended the Clean Air Act to 
prohibit the termination of production of methyl bromide prior to 
January 1, 2005, to require EPA to align the U.S. phaseout of methyl 
bromide with the schedule specified under the Protocol, and to 
authorize EPA to provide certain exemptions. These amendments were 
contained in Section 764 of the 1999 Omnibus Consolidated and Emergency 
Supplemental Appropriations Act (Pub. L. 105-277, October 21, 1998) and 
were codified in section 604 of the CAA, 42 U.S.C. 7671c. The amendment 
that specifically addresses the critical use exemption appears at 
section 604(d)(6), 42 U.S.C. 7671c(d)(6). EPA revised the phaseout 
schedule for methyl bromide production and consumption in a final 
rulemaking on November 28, 2000 (65 FR 70795), which allowed for the 
phased reduction in methyl bromide consumption specified under the 
Protocol and extended the phaseout to 2005 while creating a placeholder 
for critical use exemptions. EPA again amended the regulations to allow 
for an exemption for quarantine and preshipment (QPS) purposes on July 
19, 2001 (66 FR 37751), with an interim final rule and with a final 
rule on January 2, 2003 (68 FR 238).
    On December 23, 2004 (69 FR 76982), EPA published a rule (the 
``Framework Rule'') that established the framework for the critical use 
exemption; set forth a list of approved critical uses for 2005; and 
specified the amount of methyl bromide that could be supplied in 2005 
from stocks and new production or import to meet the needs of approved 
critical uses. EPA has subsequently published rules applying the 
critical use exemption framework for each of the control periods from 
2006 to 2011. Under the authority of section 604(d)(6) of the CAA, this 
action authorizes the uses that qualify as approved critical uses in 
2012 and the amount of methyl bromide that may be produced, imported, 
or supplied from inventory to satisfy those uses.
    This action reflects Decision XXII/6, taken at the Twenty-Second 
Meeting of the Parties in November 2010. In accordance with Article 
2H(5) of the Montreal Protocol, the Parties have issued several 
Decisions pertaining to the critical use exemption. These include 
Decisions IX/6 and Ex. I/4, which set forth criteria for review of 
critical uses. The status of Decisions is addressed in NRDC v. EPA, 
(464 F.3d 1, DC Cir. 2006) and in EPA's ``Supplemental Brief for the 
Respondent,'' filed in NRDC v. EPA and available in the docket for this 
action. In this rule on critical uses for 2012, EPA is honoring 
commitments made by the United States in the Montreal Protocol context.

V. What is the critical use exemption process?

A. Background of the Process

    Article 2H of the Montreal Protocol established the critical use 
exemption provision. At the Ninth Meeting of the Parties in 1997 the 
Parties agreed to criteria for the exemption, as contained in Decision 
IX/6. In that Decision, the Parties agreed that ``a use of methyl 
bromide should qualify as `critical' only if the nominating Party 
determines that: (i) The specific use is critical because the lack of 
availability of methyl bromide for that use would result in a 
significant market disruption; and (ii) there are no technically and 
economically feasible alternatives or substitutes available to the user 
that are acceptable from the standpoint of environment and public 
health and are suitable to the crops and circumstances of the 
nomination.'' EPA promulgated these criteria in the definition of 
``critical use'' at 40 CFR 82.3.
    In response to EPA's request for critical use exemption 
applications published in the Federal Register on May 20, 2009 (74 FR 
23705), applicants provided data on the technical and economic 
feasibility of using alternatives to methyl bromide. Applicants also 
submitted data on their use of methyl bromide, research programs into 
the use of alternatives, and efforts to minimize use and emissions.
    EPA's Office of Pesticide Programs reviews the data submitted by 
applicants, as well as data from governmental and academic sources, to 
establish whether there are technically and economically feasible 
alternatives available for a particular use of methyl bromide, and 
whether there would be a significant market disruption if no exemption 
were available. In addition, EPA reviews other parameters of the 
exemption applications such as dosage and emissions minimization 
techniques and applicants' research or transition plans. This 
assessment process culminates in the development of the U.S. 
Government's critical use nomination (CUN). The U.S. Department of 
State has submitted a CUN annually to the United Nations Environment 
Programme (UNEP) Ozone Secretariat. The Methyl Bromide Technical 
Options Committee (MBTOC) and the Technology and Economic Assessment 
Panel (TEAP), which are advisory bodies to Parties to the Montreal 
Protocol, review the CUNs of the Parties and make recommendations to 
the Parties on the nominations. The Parties then take Decisions to 
authorize critical use exemptions for particular Parties, including how 
much methyl bromide may be supplied for the exempted critical uses. As 
required in section 604(d)(6) of the CAA, for each exemption period, 
EPA consults with the United States Department of Agriculture (USDA) 
and other departments and institutions of the Federal government that 
have regulatory authority related to methyl bromide. EPA also provides 
an opportunity for public comment on the amounts of methyl bromide that 
the agency is proposing to exempt for critical uses and the uses that 
the agency is proposing as approved critical uses.
    Additional information on the domestic review process and 
methodology employed by the Office of Pesticide Programs is available 
in a detailed memorandum titled ``Development of 2003 Nomination for a 
Critical Use Exemption for Methyl Bromide for the United States of 
America,'' contained in the docket for this rulemaking. While the 
particulars of the data continue to evolve and administrative matters 
are further streamlined, the technical review itself remains rigorous 
with careful consideration of new technical and economic conditions.
    On January 22, 2010, the U.S. Government (USG) submitted the eighth 
CUN to the Ozone Secretariat of the UNEP. This nomination contained the 
request for 2012 critical uses. In February 2010, MBTOC sent questions 
to the USG concerning technical and economic issues in the 2012 
nomination. The USG transmitted

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responses to MBTOC in March, 2010. These documents, together with 
reports by the advisory bodies noted above, are in the public docket 
for this rulemaking. The critical uses and allocation amounts reflect 
the analysis contained in those documents.

B. How does this rule relate to previous critical use exemption rules?

    The December 23, 2004, Framework Rule (69 FR 76982) established the 
framework for the critical use exemption program in the U.S., including 
definitions, prohibitions, trading provisions, and recordkeeping and 
reporting obligations. The preamble to the Framework Rule included 
EPA's determinations on key issues for the critical use exemption 
program.
    An approved critical user may purchase methyl bromide produced or 
imported with critical use allowances (CUAs) as well as limited 
inventories of pre-phaseout methyl bromide, the combination of which 
constitute the supply of ``critical use methyl bromide'' intended to 
meet the needs of agreed critical uses. Since publishing the Framework 
Rule, EPA has annually promulgated regulations to exempt from the 
phaseout of methyl bromide specific quantities of production and import 
for each control period (each calendar year), to determine the amounts 
that may be supplied from pre-phaseout inventory, and to indicate which 
uses meet the criteria for the exemption program for that year. See 71 
FR 5985 (calendar year 2006), 71 FR 75386 (calendar year 2007), 72 FR 
74118 (calendar year 2008), 74 FR 19878 (calendar year 2009), 75 FR 
23167 (calendar year 2010), and 76 FR 60736 (calendar year 2011).
    Today's action uses the existing regulatory framework to determine 
critical uses for 2012 and the amounts of critical use allowances 
(CUAs) and critical stock allowances (CSAs) to be allocated for those 
uses. A CUA is the privilege granted through 40 CFR part 82 to produce 
or import 1 kilogram (kg) of methyl bromide for an approved critical 
use during the specified control period. These allowances expire at the 
end of the control period and, as explained in the Framework Rule, are 
not bankable from one year to the next. A CSA is the right granted 
through 40 CFR part 82 to sell 1 kg of methyl bromide from the 
remaining inventory of material produced or imported prior to the 
January 1, 2005, phaseout date for an approved critical use during the 
specified control period.

C. Stocks of Methyl Bromide

    The Framework Rule established provisions governing the sale of 
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.
    The aggregate amount of pre-phaseout methyl bromide reported as 
being in inventory at the beginning of 2011 was 1,802,715 kg. As in 
prior years, the Agency continues to closely monitor CUA and CSA data. 
As stated in the final 2006 CUE Rule, if an inventory shortage occurs, 
EPA may consider various options including authorizing the conversion 
of a limited number of CSAs to CUAs through a rulemaking, bearing in 
mind the upper limit on U.S. production/import for critical uses.
    As explained in the 2008 CUE Rule, EPA intends to continue 
releasing the aggregate methyl bromide stockpile data reported under 
the requirements at 40 CFR 82.13 for the end of each control period. If 
the number of competitors in the industry were to decline appreciably, 
EPA may revisit the question of whether the aggregate is entitled to 
treatment as confidential business information and whether to release 
the aggregate without notice. EPA did not propose to change the 
treatment of submitted information but welcomes relevant information 
concerning the composition of the industry. EPA did not receive any 
information suggesting that the number of companies has declined to the 
point that EPA should consider treating the aggregate as confidential 
information. The aggregate information for 2003 through 2011 is 
available in the docket for this rulemaking.

D. Critical Uses

    In Decision XXII/6, taken in November 2010, the Parties to the 
Protocol agreed ``to permit, for the agreed critical-use categories for 
2012 set forth in table C of the annex to the present decision for each 
party, subject to the conditions set forth in the present decision and 
in decision Ex.I/4 to the extent that those conditions are applicable, 
the levels of production and consumption for 2012 set forth in table D 
of the annex to the present decision which are necessary to satisfy 
critical uses * * *'' The following uses are those set forth in table C 
of the annex to Decision XXII/6 for the United States:

 Commodities
 National Pest Management Association food processing 
structures
 Mills and processors
 Dried cured pork
 Cucurbits
 Eggplant--field
 Forest nursery seedlings
 Nursery stock--fruits, nuts, flowers
 Orchard replants
 Ornamentals
 Peppers--field
 Strawberry--field
 Strawberry runners
 Tomatoes--field
 Sweet potato slips

    EPA sought comment on the technical analysis contained in the U.S. 
nomination (available for public review in the docket to this 
rulemaking), and information regarding any changes to the registration 
(including cancellation or new registrations), use, or efficacy of 
alternatives that have transpired after the 2012 U.S. nomination was 
written. Such information has the potential to alter the technical or 
economic feasibility of an alternative and could thus cause EPA to 
modify the analysis that underpins EPA's determination as to which uses 
and what amounts of methyl bromide qualify for the CUE.
    EPA recognizes that as the market for alternatives evolves, the 
thresholds for what constitutes ``significant market disruption'' or 
``technical and economic feasibility'' change. EPA received one comment 
urging the agency to consider greater use of 1,3-D and sulfuryl 
fluoride than contained in the technical analysis. This comment repeats 
a comment submitted by the same commenter on the 2010 CUE Rule but does 
not provide any new data. EPA has considered the commenter's concerns 
and believes that response contained in the 2010 CUE Rule response to 
comments, which is available in the docket to this rule, still 
appropriately addresses this comment.
    EPA proposed to modify the table in 40 CFR part 82, subpart A, 
appendix L to reflect the agreed critical use categories identified in 
Decision XXII/6. EPA is finalizing the lists of critical uses and 
critical users as proposed. First, EPA is removing from the list of 
approved critical users two users that did not submit applications for 
2012 and therefore were not included in the U.S. nomination. These 
users are International Paper and Weyerhaeuser Company in the forest 
nursery seedlings sector and beans in the commodities sector.
    Second, EPA is removing North Carolina and Tennessee strawberry 
nurseries from the list of approved

[[Page 29222]]

critical users. Southeast strawberry growers applied for a critical use 
in 2012. The U.S. did not submit a nomination to UNEP for this use in 
this geographical location because EPA's technical review found that 
there are alternatives to methyl bromide for Southeast strawberry 
nurseries.
    Third, EPA is limiting the scope of the approved critical use for 
the National Pest Management Association's (NPMA) post harvest 
fumigations. In past control periods, the scope of the NPMA food 
processing critical use included ``processed food, cheese, herbs and 
spices, and spaces and equipment in associated processing and storage 
facilities.'' MBTOC found that the nomination for food processing 
facilities was inadequately justified and recommended only cheese 
storage facilities for consideration by the Parties as a critical use. 
MBTOC's comments can be found in the May 2010 TEAP Progress Report in 
the docket to this rule. The Parties' Decision reflects the MBTOC 
recommendation. EPA is modifying the NPMA critical use to include only 
``Members of the National Pest Management Association treating cheese 
storage facilities.''
    EPA did not receive any comments objecting to the proposed 
modifications to the table in 40 CFR part 82, subpart A, appendix L. 
EPA received three comments agreeing that the proposed critical uses 
have a continuing need for access to methyl bromide under a 2012 CUE. 
One commenter stated that the strict application and review process 
properly limits the use of methyl bromide, given its effect on the 
stratospheric ozone layer. EPA also received comment that there should 
be no uses of methyl bromide given its toxicity and effect on the 
stratospheric ozone layer. EPA disagrees that all methyl bromide use 
should stop. The CUN addresses the need for methyl bromide for the 2012 
critical uses. In addition, the 2012 critical uses were reviewed by the 
technical bodies to the Ozone Secretariat and authorized by the Parties 
to the Montreal Protocol. Concerns about the toxicity of methyl bromide 
are addressed through the pesticide registration program under FIFRA, 
as well as other authorities, and are outside the scope of this 
rulemaking. EPA also received one comment questioning some of the 
limiting critical conditions. This commenter has raised the same points 
in past CUE rulemakings and EPA believes our responses from past 
rulemakings, which are included in the docket for this rule, remain 
appropriate.
    EPA is repeating the following clarifications made in previous 
years for ease of reference. The ``local township limits prohibiting 
1,3-dichloropropene'' are prohibitions on the use of 1,3-
dichloropropene products in cases where local township limits on use of 
this alternative have been reached. In addition, ``pet food'' under 
subsection B of Food Processing refers to food for domesticated dogs 
and cats. Finally, ``rapid fumigation'' for commodities is when a buyer 
provides short (two working days or fewer) notification for a purchase 
or there is a short period after harvest in which to fumigate and there 
is limited silo availability for using alternatives.

E. Critical Use Amounts

    Table C of the annex to Decision XXII/6 lists critical uses and 
amounts agreed to by the Parties to the Montreal Protocol. When added 
together, the total authorization for 2012 is 1,022,826 kg, which is 
equivalent to 4.0% of the U.S. 1991 methyl bromide consumption 
baseline. The maximum amount of new production or import authorized by 
the Parties is 922,826 kg (3.6% of baseline) as set forth in Table D of 
the annex to Decision XXII/6. The difference between the total 
authorization and the authorized amount of new production is 100,000 kg 
(0.4% of baseline), which is the minimum that the Parties expect the 
U.S. to use from pre-phaseout inventory on critical uses.
    EPA is finalizing the amount of new production and import discussed 
in the proposed rule. With this final rule, EPA is allocating 759,744 
kg (3.0% of baseline) of new production and import of methyl bromide 
for critical uses for 2012. EPA is also allocating 263,082 kg (1.0% of 
baseline) in the form of critical stock allowances for sale of pre-
phaseout inventory for critical uses in 2012.
    In the proposed rule, EPA used the methodology established in the 
2008 CUE Rule to determine the level of ``available stocks,'' from 
which the CSAs are calculated. At the time of the proposed rule, EPA 
estimated that 263,082 kg of pre-phaseout inventory would be 
``available'' for use in 2012. Therefore, EPA proposed allocating 
263,082 kg of critical stock allowances for 2012. Using the calculation 
described in the proposed rule, EPA then proposed a CUA amount of 
759,744 kg.
    Due to the timing of the 2012 CUE rulemaking, EPA issued a No 
Action Assurance letter December 21, 2011. This letter allowed critical 
use allowance holders to continue producing and importing methyl 
bromide beyond December 31, 2011, in the absence of allowances, subject 
to certain conditions. The No Action Assurance allows for the 
production and import of 379,872 kg and the sale of 131,541 kg from 
pre-phaseout inventory for critical uses. The No Action Assurance 
levels were half the amounts contained in the proposed rule to allow 
for changes to the final rule after new inventory data were received.
    At the end of February, distributors reported to EPA the amount of 
pre-phaseout inventory that was still under their ownership as of 
December 31, 2011. These data show that the pre-phaseout inventory was 
greater than the estimates that formed the basis of the CSA and CUA 
amounts in the proposed rule. In the proposed rule, EPA estimated that 
the inventory would decline to 692,082 kg at the end of 2011. The 
reported data show that the remaining inventory was actually 1,248,876 
kg.
    The amount of inventory drawdown was so low compared to EPA's 
estimates in the proposed rule that if EPA were to apply the framework 
calculation detailed in the proposed rule to the new data, the new 
production levels would be less than what is allowed under the No 
Action Assurance (these calculations are available in the docket for 
this rulemaking). The No Action Assurance allows for the production and 
import of 379,872 kg and the sale of 131,541 kg from pre-phaseout 
inventory for critical uses. Under the framework calculation based on 
new inventory data, the allocation would be 202,950 kg of new 
production/import and 819,876 kg of inventory.
    Hence, EPA is not finalizing a critical use allocation of 202,950 
kg for 2012. This amount would be below what is currently allowed for 
production/import in the No Action Assurance letter. Regulated entities 
have been acting on the amounts in the No Action Assurance letter in 
good faith, and may have already produced up to the allowed level. In 
addition, EPA never determined that the No Action Assurance levels for 
CUAs and CSAs would be sufficient for an entire year. When this 
situation occurred during the development of the 2011 CUE Rule, EPA 
finalized the new production amount allowed under the No Action 
Assurance and allocated CSAs up to the full level authorized by the 
Parties. Were EPA to follow this approach in this 2012 Rule, EPA would 
finalize 379,872 kg of new production and import and 819,876 kg of 
critical stock allowances. For the reasons discussed below, EPA is not 
following this approach but rather is finalizing the amounts discussed 
in the proposed rule.

[[Page 29223]]

    An allocation of 202,950 kg, or even 379,872 kg (i.e., an amount 
consistent with the No Action Assurance) for new production and import 
would be substantially less than the amount proposed, which was 759,744 
kg. These circumstances are substantially different from the 2011 rule, 
when EPA proposed to authorize 1,500,000 kg of new production, and 
issued a No Action Assurance for that same amount of new production. 
While EPA provided the public with an explanation of how it calculated 
its proposed authorization for CUE, and noted that it might adjust 
those calculations with new data, EPA believes the results of the 
methodology using the updated data now available are sufficiently 
different that additional notice and the opportunity to comment would 
be warranted before using that data as the basis for a final CUE 
authorization. At the same time, EPA recognizes that regulated 
entities, including manufacturers and critical users of methyl bromide, 
are in need of a final CUE rule for calendar year 2012. EPA did not 
propose, and is not considering, a total authorization of less than 
1,022,826 kg for critical uses in 2012. EPA has weighed the benefit of 
re-opening for comment the allocation of the total authorization 
between critical use allowances and critical stock allowances against 
the time-sensitive need for a CUE authorization for the current 
calendar year and concluded that re-opening the allocation for comment 
is not warranted. Accordingly, EPA is finalizing its proposed 
allocations of 759,744 kg of critical use allowances and 263,082 kg of 
critical stock allowances for 2012.
    EPA received a comment that the calculation mistakenly used the CSA 
allocation amount from the proposed 2011 CUE rule, not the final rule. 
When EPA was developing the proposed 2012 rule, the 2011 rule was still 
not finalized. EPA assumed that the final 2011 rule would allocate 
482,333 kg but it actually allocated 555,200 kg of CSAs. The commenter 
requests that the estimated drawdown calculation be updated. EPA agrees 
with the commenter that EPA would have used the value from the final 
2011 rule, had it been available when EPA was developing the proposed 
2012 rule. EPA has used the updated CSA value from the final 2011 rule, 
as well as updated inventory information, in calculating how the 
formula used in the proposal would allocate the CUE authorization. 
However, as noted above, EPA is not basing the allocation in this final 
rule on that formula.
    One commenter objected to EPA's proposal to allocate 759,744 kg for 
new production or import. The commenter stated that the Parties 
authorized 922,826 kg for new production and import and that it is 
arbitrary and capricious for the agency to allocate any amount less 
than that level of new production. EPA disagrees with the commenter's 
interpretation of Decision XXII/6. In Table D of Decision XXII/6, the 
Parties authorized 922,826 kg for new production and import ``minus 
available stocks.'' Thus, EPA does not believe it would be consistent 
with Decision XXII/6 to authorize 922,826 kg for new production and 
import without considering available stocks. Furthermore, EPA notes, 
consistent with our position in prior rulemakings, that the Agency is 
not required to allocate the full amount of authorized new production 
and consumption. The Parties only agree to ``permit'' a particular 
level of production and consumption; they do not--and cannot--mandate 
that the U.S. authorize this level of production and consumption 
domestically. Nor does the CAA require EPA to allow the full amount 
permitted by the Parties. Section 604(d)(6) of the CAA does not require 
EPA to exempt any amount of production and consumption from the 
phaseout, but instead specifies that the Agency ``may'' create an 
exemption for critical uses, providing EPA with substantial discretion.
    When determining the CSA amount for a year, EPA considers what 
portion of existing stocks is ``available'' for critical uses. As 
discussed in prior CUE rulemakings, the Parties to the Protocol 
recognized in their Decisions that the level of existing stocks may 
differ from the level of available stocks. Decision XXII/6 states that 
``production and consumption of methyl bromide for critical uses should 
be permitted only if methyl bromide is not available in sufficient 
quantity and quality from existing stocks.'' In addition, earlier 
decisions refer to the use of ``quantities of methyl bromide from 
stocks that the Party has recognized to be available.'' Thus, it is 
clear that individual Parties have the ability to determine their level 
of available stocks. Decision XXII/6 further reinforces this concept by 
including the phrase ``minus available stocks'' as a footnote to the 
United States' authorized level of production and consumption in Table 
D. Section 604(d)(6) of the CAA does not require EPA to adjust the 
amount of new production and import to reflect the availability of 
stocks; however, as explained in previous rulemakings, making such an 
adjustment is a reasonable exercise of EPA's discretion under this 
provision.
    One commenter objects to the use of a supply chain factor in 
determining an amount of ``available stocks'' that can be used by 
critical users and requests that EPA require that the inventory be 
exhausted before allowing any additional new production. The commenter 
also states that the calculation of the supply chain factor is overly 
conservative because it assumes a catastrophic loss when production is 
at the peak. EPA has addressed this comment in prior rulemakings; those 
responses are available in the docket for this rulemaking.
    Another commenter stated that the CSA allocation failed to consider 
the effect that drawing down the pre-phaseout inventory would have if 
there is a catastrophic failure in the domestic supply of methyl 
bromide in future years. EPA believes that the calculation of the 
supply chain factor (which reflects the level of authorized CUE use as 
it declines) was adequate consideration of the possibility of a future 
catastrophic interruption in the domestic supply of methyl bromide. 
Although EPA is not relying on calculation of a supply chain factor and 
the formula it proposed to use to allocate CSAs in this final rule, EPA 
notes that the CSA allocation is lower under this final rule than if 
EPA had relied on that formula, because more methyl bromide remains in 
pre-phaseout inventory than anticipated.
    Unlike past control periods, all critical use methyl bromide that 
companies reported to be produced or imported in 2010 was sold to end 
users. The information reported to EPA is that 1,954,610 kg of critical 
use methyl bromide was produced or imported. A slightly higher amount 
than the amount produced or imported was actually sold to end-users in 
2010. This additional amount was from distributors selling amounts that 
were carried over from the 2009 control period. Thus, EPA did not 
propose to apply any carryover deduction to the new production amount 
for 2012.
    One commenter suggested that the lack of a carryover demonstrates 
excess demand and that EPA should therefore increase the amount of 
newly produced or imported material. EPA responds that the agency 
expects material produced or imported for use in a particular control 
period to be used in that control period and that there typically 
should not be a carryover. EPA established the carryover reduction to 
account for an over allocation or underuse of allowances in a 
particular control period and avoid any stockpiling of critical use 
material.

[[Page 29224]]

The absence of a carryover does not mean that the agency should 
increase the allocation. EPA's carryover calculation is consistent with 
the method used in previous CUE rules, and with the method agreed to by 
the Parties in Decision XVI/6 for calculating column L of the U.S. 
Accounting Framework. All past U.S. Accounting Frameworks for the 
methyl bromide critical use exemption are available in the public 
docket for this rulemaking.
    EPA considers new data about alternatives that were not available 
at the time the U.S. Government submitted the CUN to the Parties and 
adjusts the allocation for new production and import accordingly. Two 
alternatives not considered in the 2012 CUN, which was submitted to 
UNEP in January 2010, may be used in limited quantities in 2012. EPA 
proposed to not adjust the allocation considering that the uptake of 
these two alternatives (iodomethane and DMDS) is expected to be minimal 
in 2012. One commenter agreed that the uptake will be practically 
nonexistent.
    In July 2010, EPA registered Dimethyl Disulfide (DMDS) to control 
nematodes, weeds, and pathogens in tomatoes, peppers, eggplants, 
curcurbits, strawberries, ornamentals, forest nursery seedlings, and 
onions. Twenty-four states have now registered DMDS and registrations 
are pending in four other states. Even though DMDS is registered in 
states that grow critical use crops, EPA believes that the uptake of 
this alternative will be minimal in 2012. Use in the 2011 growing 
season was small because the product was either not registered in the 
state or the distribution system was still under development. 
Furthermore, the manufacturer of DMDS, Arkema, has stated that they are 
limiting the roll-out of this alternative to ensure proper applicator 
training and use of odor mitigation practices. As stated in the 
proposed rule, EPA continues to anticipate that growers will use the 
2012 growing season to test the fumigant on limited acreage. Therefore, 
EPA is not reducing the allocation of allowances based on the uptake of 
DMDS in 2012.
    Second, California registered iodomethane in December of 2010. EPA 
is unable to estimate uptake of iodomethane in California during 2012 
due to uncertainties created by the California label. Specifically, the 
California label has larger buffer zones and lower use rates than the 
federal label. EPA does not have efficacy studies at the California 
label's lower use rates and is uncertain how widely it will be adopted 
without that data. In addition to the state registration, County 
Agricultural Commissioners must permit each iodomethane application 
that occurs within their jurisdiction.
    One commenter stated that EPA should not be allocating fewer CUEs 
than the amount authorized by the Parties given EPA's January 19, 2011, 
proposal to revoke the tolerances established for sulfuryl fluoride 
under section 408 of the Federal Food, Drug, and Cosmetic Act (76 FR 
3422). This rule is based on the current status of alternatives and is 
limited to 2012. The proposed tolerance revocation rule includes a 
staggered implementation scheme so that it is unlikely that any 
specific revocation will be effective as soon as 2012 (76 FR 3447). 
Therefore, EPA has not based the allocation amounts for 2012 on any 
anticipated impacts of that proposal on methyl bromide use.
    EPA did not propose to take any other reductions because the 2012 
CUN properly applied transition rates for all other alternatives. The 
TEAP report of October 2010 included reductions in its recommendations 
for critical use categories based on the transition rates in the 2012 
CUN. The TEAP's recommendations were then considered in the Parties' 
2012 authorization amounts, as listed in Decision XXII/6. Therefore, 
transition rates, which account for the uptake of alternatives, have 
already been applied for authorized 2012 critical use amounts. EPA 
continues to gather information about methyl bromide alternatives 
through the CUE application process, and by other means. EPA also 
continues to support research and adoption of methyl bromide 
alternatives, and to request information about the economic and 
technical feasibility of all existing and potential alternatives.
    EPA also took comment on an issue raised in the proposed 2011 CUE 
rule. In that rulemaking, EPA proposed a critical-use allowance 
allocation of 1,500,000 kg for 2011, given that regulated entities had 
been acting in good faith on statements made by the agency in a No 
Action Assurance letter that producers and importers could assume the 
final allocation would be at least that much. While the total 
allocation was not affected, the amount of new production was 128,382 
kg more than what EPA would have allocated for 2011 had the CSA and CUA 
amounts been based on the ``available stocks'' calculation using end of 
year inventory data. It also means that the critical stock allocation 
was 128,382 kg less than the amount of ``available stocks.'' EPA stated 
in the 2011 proposed rule that the Agency could reduce critical-use 
allowances for new production and import in the 2012 allocation rule to 
account for this difference.
    EPA took comment on an alternative approach in which EPA would 
allocate 631,362 kg (2.5% of baseline) of CUAs for 2012. This amount is 
128,382 kg less than the proposed CUA amount. The CSA amount could 
remain either at 263,082 kg or be increased to 391,464 kg to reflect 
the lower CSA allocation in 2011. The total allocation for 2012 would 
be 894,444 kg or 1,022,826 kg depending on how many CSAs are issued 
under this alternative. EPA did not propose this alternative as the 
lead approach because the number of CUAs in the 2011 rule did not 
exceed the Parties' production authorization for 2011 and the total CUE 
amount for 2011 was unaffected. EPA received one comment in opposition 
to this approach. The commenter states that the 2011 CUA allocation was 
proper because it maintained consistency with the No Action Assurance 
letter and that any ``over allocation'' in 2011 will self-correct in 
future rules. First, any additional new production would reduce the 
need to use CSAs, which will result in more ``available stocks'' in 
next year's CUE calculation and therefore a higher CSA allocation. 
Second, any unused allocation will be captured in EPA's calculation of 
carryover. After considering this issue, EPA is not finalizing the 
alternative allocation approach in the final rule.
    EPA received one comment that the rulemaking process typically is 
not completed in a timely manner. Methyl bromide producers, importers, 
and distributers need advance notice of their allowances to ensure 
material can be manufactured or imported and ultimately distributed to 
growers to meet spring fumigation schedules. The commenter requests 
that EPA develop a more efficient process to promulgate the critical 
use rule so that it is in effect before the control period begins. EPA 
notes that the Parties to the Montreal Protocol take their decision to 
authorize critical uses typically a year before the control period at 
issue. This schedule, coupled with the Clean Air Act section 604(d)(6) 
requirement to provide notice and the opportunity for public comment, 
makes it difficult for EPA to complete the rule in advance of the 
control period, since the Decisions of the Parties are central to the 
development of the rule. However, EPA acknowledges that promulgating 
the rule after the start of the control period is not ideal. EPA will 
consider means of streamlining the Critical Use Exemption rulemaking in 
the future so that the rule can be issued prior to the start of the 
control period.

[[Page 29225]]

F. Critical Use Allowance Allocations

    EPA is allocating critical use allowances for new production or 
import of methyl bromide up to the amount of 759,744 kg (3.0% of 
baseline) as shown in the table in 40 CFR 82.8(c)(1). These allowances 
expire at the end of the control period and, as explained in the 
Framework Rule, are not bankable from one year to the next. The CUA 
allocation is subject to the trading provisions at 40 CFR 82.12, which 
are discussed in section V.G. of the preamble to the Framework Rule (69 
FR 76982).
    Paragraph 3 of Decision XXII/6 states ``that Parties shall endeavor 
to license, permit, authorize or allocate quantities of critical-use 
methyl bromide as listed in tables A and C of the annex to the present 
decision.'' This is similar to language in prior Decisions authorizing 
critical uses. The language from these Decisions calls on Parties to 
endeavor to allocate critical use methyl bromide on a sector basis. 
EPA's Framework Rule proposed several options for allocating critical 
use allowances, including a sector-by-sector approach. The agency 
evaluated the various options based on their economic, environmental, 
and practical effects. After receiving comments, EPA determined that a 
lump-sum, or universal, allocation, modified to include distinct caps 
for pre-plant and post-harvest uses, was the most efficient and least 
burdensome approach that would achieve the desired environmental 
results, and that a sector-by-sector approach would pose significant 
administrative and practical difficulties.
    One commenter states that EPA should allocate specifically to each 
of the Critical Use Categories as authorized by the Parties. The EPA's 
``lump sum'' approach, the commenter asserts, does not guarantee that 
critical users have access to methyl bromide and it instead allows 
those with the greatest ability to pay to garner methyl bromide away 
from other users with approved critical needs. Furthermore, developers 
of methyl bromide alternatives need assurance that methyl bromide will 
eventually exit a particular use segment. Allowing an open market for 
methyl bromide allocation is an economic disincentive for anyone 
developing alternatives. At a minimum, this commenter supports 
distinguishing between pre-plant and post-harvest sectors as EPA 
currently does. EPA received a separate comment favoring the universal 
allocation approach over a sector-specific allocation. The commenter 
states that by allocating up to 14 types of allowances the sector 
specific approach would be overly complex to administer, would create 
problems for distributors, and would spread allowances among too many 
producer/importers and distributors. EPA has addressed these comments 
in prior rulemakings; those responses are available in the docket for 
this rulemaking.
    For the reasons discussed in the preamble to the 2009 CUE rule (74 
FR 19894), the agency believes that under the universal allocation 
approach adopted in the Framework Rule, the actual critical use will 
closely follow the sector breakout listed in the Parties' decisions.

G. Critical Stock Allowance Allocations

    The 2004 Framework Rule (69 FR 52366) established the provisions 
governing the sale of pre-phaseout inventories for critical uses, 
including the concept of CSAs and a prohibition on the sale of pre-
phaseout inventories for critical uses in excess of the amount of CSAs 
held by the seller. In addition, the Framework Rule further took pre-
phaseout inventories into account through the trading provisions that 
allow CUAs to be converted into CSAs.
    A preambular paragraph to Decision XXII/6 states ``that parties 
should reduce their stocks of methyl bromide retained for employment in 
critical-use exemptions to a minimum in as short a time period as 
possible.'' EPA notes that the U.S. Government does not retain pre-
phaseout inventory. Pre-phaseout inventory is held by private companies 
that may sell or distribute it for any use that meets the labeling 
under FIFRA, whether critical or not. EPA believes it is responsibly 
managing the stocks of pre-phaseout inventory through the CUE 
authorization process. Prior rulemakings have generally allocated 
higher amounts from stocks than the minimum set forth in the Parties' 
decisions. Through the careful management, aggregate amounts have been 
reduced by 93% since the end of 2003. In addition, EPA has undertaken a 
broader use of its regulatory authorities under FIFRA to progressively 
limit U.S. domestic use of stocks to critical uses. While it is not 
possible to predict the exact date by which all remaining pre-2005 
inventory will be exhausted, under the FIFRA process any small 
remaining quantities in 2015 will likely be entirely devoted to uses 
that have been identified as critical under the process developed since 
2005 to address critical needs of developed countries. EPA is 
allocating CSAs for the 2012 control period in the amount of 263,082 kg 
(1.0% of baseline). This is more than the difference between the total 
U.S. CUE amount approved by the Parties and the permitted level of U.S. 
production and consumption. For 2012, that difference is 100,000 kg 
(0.4% of baseline).
    One commenter stated that the Agency is incorrect to assume that 
263,082 kg of pre-phaseout inventory will be available for critical 
uses in 2012. Instead, the commenter stated that EPA should allocate 
only 100,000 kg from stocks. The commenter says that the distributors 
that own stocks are free to sell them for any purpose, including for 
non-CUE uses, and that EPA cannot control how or whether inventory is 
sold. EPA agrees that the allocation system allows distributors of 
inventory to respond to market conditions instead of requiring them to 
sell inventory to critical users. EPA issues CSAs as a mechanism to 
track the use of stocks for critical uses. Under section 82.4(p), 
stocks may not be sold for use on critical uses if the seller does not 
hold the corresponding amount of CSAs. Critical users may purchase 
either newly produced or imported critical use methyl bromide or stocks 
sold through the expenditure of CSAs. EPA chose this approach, at least 
in part, to promote market flexibility and efficiency. EPA's formula 
for calculating the amount of ``available stocks'' contains a variable 
representing the drawdown of pre-phaseout inventory prior to the 
beginning of the relevant control period. EPA has attempted to estimate 
the amounts of pre-phaseout inventory expected to be sold to critical 
and non-critical users. EPA recognizes that its estimates have become 
increasingly inexact in characterizing actual drawdown of pre-phaseout 
inventory, as the amounts in inventory have declined over time. EPA 
intends to consider the adequacy of using this formula to assess 
``available stocks'' in a future action. However, the fact that 
distributors can choose to sell to non-critical users does not 
necessarily mean that the inventory is largely unavailable to critical 
users. In fact, regulatory changes under the FIFRA labeling 
requirements discussed above will likely mean that remaining stocks are 
increasingly only available to U.S. critical uses. End of year reported 
data show that the inventory on December 31, 2011, was 1,248,876 kg. 
EPA expects that holders of pre-phaseout inventory will be able to 
expend the full amount of CSA allocations to satisfy the needs of 
critical users.
    One commenter also stated that inventory was disproportionately 
distributed among fewer distributors and thus is unavailable to 
critical users. EPA collects information annually on the number of 
companies that hold

[[Page 29226]]

inventory. These data support the comment that some companies no longer 
maintain any pre-phaseout inventory. Recent mergers have also resulted 
in fewer companies holding pre-phaseout inventory. However, there has 
not been a significant change in the overall geographic distribution of 
inventory. It is still held by companies in large amounts in both 
California and the Southeast, the two largest markets for critical use 
methyl bromide. EPA will continue to consider the question of 
availability of stocks in light of declining inventory and distributors 
in future actions. However, as noted above EPA believes that holders of 
pre-phaseout inventory will be able to expend the full amount of CSA 
allocations in 2012 to satisfy the needs of critical users.
    EPA's allocation of CSAs is based on each company's proportionate 
share of the aggregate inventory. In 2006, the United States District 
Court for the District of Columbia upheld EPA's treatment of company-
specific methyl bromide inventory information as confidential. NRDC v. 
Leavitt, 2006 WL 667327 (D.D.C. March 14, 2006). Therefore, the 
documentation regarding company-specific allocation of CSAs is in the 
confidential portion of the rulemaking docket and the individual CSA 
allocations are not listed in the table in 40 CFR 82.8(c)(2). EPA notes 
that it is modifying the table in 40 CFR 82.8(c)(2) to reflect the 
recent merger of three methyl bromide distributors who are also 
critical stock allowance holders. The revised table removes the 
individual entries for Hendrix & Dail, Hy-Yield Products, and Reddick 
Fumigants and adds an entry for TriEst Ag Group, Inc. EPA will inform 
the listed companies of their CSA allocations in a letter following 
publication of the rule.

H. The Criteria in Decisions IX/6 and Ex. I/4

    Paragraphs 2 and 5 of Decision XXII/6 request Parties to ensure 
that the conditions or criteria listed in Decisions Ex. I/4 and IX/6, 
paragraph 1, are applied to exempted critical uses for the 2012 control 
period. A discussion of the agency's application of the criteria in 
paragraph 1 of Decision IX/6 appears in sections V.A., V.D., V.E., and 
V.G. of this preamble. EPA has solicited comments on the technical and 
economic basis for determining that the uses listed in this rule meet 
the criteria of the critical use exemption. The CUNs detail how each 
proposed critical use meets the criteria listed in paragraph 1 of 
Decision IX/6, apart from the criterion located at (b)(ii), as well as 
the criteria in paragraphs 5 and 6 of Decision Ex. I/4.
    The criterion in Decision IX/6(1)(b)(ii), which refers to the use 
of available stocks of methyl bromide, is addressed in sections V.E., 
V.F., and V.G. of this preamble. The agency has previously provided its 
interpretation of the criterion in Decision IX/6(1)(a)(i) regarding the 
presence of significant market disruption in the absence of an 
exemption, and EPA refers readers to the 2006 CUE rule (71 FR 5989) as 
well as to the memo in the docket titled ``Development of 2003 
Nomination for a Critical Use Exemption for Methyl Bromide for the 
United States of America'' for further elaboration.
    The remaining considerations are addressed in the nomination 
documents including: the lack of available technically and economically 
feasible alternatives under the circumstance of the nomination; efforts 
to minimize use and emissions of methyl bromide where technically and 
economically feasible; the development of research and transition 
plans; and the requests in Decision Ex. I/4(5) and (6) that Parties 
consider and implement MBTOC recommendations, where feasible, on 
reductions in the critical use of methyl bromide and include 
information on the methodology they use to determine economic 
feasibility.
    Some of these criteria are evaluated in other documents as well. 
For example, the U.S. has considered the adoption of alternatives and 
research into methyl bromide alternatives, criterion (1)(b)(iii) in 
Decision IX/6, in the development of the National Management Strategy 
submitted to the Ozone Secretariat in December 2005, and updated in 
October 2009. The National Management Strategy addresses all of the 
aims specified in Decision Ex.I/4(3) to the extent feasible and is 
available in the docket for this rulemaking.
    EPA received one comment that the Agency should adjust production 
and import levels in the 2012 CUE Rule to account for research amounts. 
EPA received a similar comment on the 2011 CUE Rule. The commenter 
implied that EPA had a previous policy of adjusting the production and 
import level upward to provide an allocation for research. This is not 
an accurate characterization of EPA's policy. Prior to 2010, the U.S. 
Nomination did contain a separate amount for research. While the 
Parties approved research as a critical use, their decisions encouraged 
the use of inventory to meet critical research needs. In the 
corresponding CUE rules, EPA responded to the Parties' decisions by 
reducing the new production/import amounts by the research amount, 
leaving the research portion of the total critical use exemption to be 
met through the use of CSAs.
    In the proposed rule, EPA discussed a supplemental critical use 
nomination of 2,576 kg for research activities in 2012. This nomination 
was to have been discussed at the Meeting of the Parties in November 
2011. EPA proposed to increase the final CSA allocation by up to 2,576 
kg after consideration of the action taken by the Parties in November 
2011 and comments on research needs. However, prior to the Meeting of 
the Parties, the U.S. Government withdrew the supplemental nomination. 
Therefore, EPA is not increasing the final CSA allocation. Nonetheless, 
the 2012 nomination and the decision the Parties took in 2010 are broad 
enough to cover both research and non-research uses. As discussed in 
the preamble to the 2010 CUE rule (75 FR 23179), research is a key 
element of the critical use process. Research on the crops shown in the 
table in Appendix L to subpart A remains a critical use of methyl 
bromide. While researchers may continue to use newly produced material 
for field, post-harvest, and emission minimization studies requiring 
the use of methyl bromide, EPA encourages researchers to use pre-
phaseout inventory purchased through the expenditure of CSAs. EPA also 
encourages distributors to make inventory available to researchers, to 
promote the continuing effort to assist growers to transition critical 
use crops to alternatives.

I. Emissions Minimization

    Previous decisions have stated that Parties shall request critical 
users to employ emission minimization techniques such as virtually 
impermeable films, barrier film technologies, deep shank injection and/
or other techniques that promote environmental protection, whenever 
technically and economically feasible. One commenter asks EPA to 
require emissions minimization techniques rather than simply encourage 
them. EPA notes that, although EPA considers application rates in 
determining CUAs, requiring specific emissions minimization techniques 
would be outside the scope of the proposed rule. EPA developed a 
comprehensive strategy for risk mitigation through the 2006 
Reregistration Eligibility Decision (RED) for methyl bromide, which is 
implemented through restrictions on how methyl bromide products can be 
used. This approach does require that methyl bromide labels include 
directions that treated sites be tarped except for California orchard 
replant

[[Page 29227]]

where EPA instead requires deep (18 inches or greater) shank 
applications. The RED also incorporated incentives for applicators to 
use high-barrier tarps, such as virtually impermeable film (VIF), by 
allowing smaller buffer zones around those sites. In addition to 
minimizing emissions, use of high-barrier tarps has the benefit of 
providing pest control at lower application rates. The amount of methyl 
bromide nominated by the United States reflects the lower application 
rates necessary when using high-barrier tarps, where such tarps are 
allowed.
    EPA will continue to work with the U.S. Department of Agriculture--
Agricultural Research Service (USDA-ARS) to promote emission reduction 
techniques. The federal government has invested substantial resources 
into best practices for methyl bromide use, including emission 
reduction practices. USDA-ARS has a national outreach effort to 
publicize the best practices.
    Users of methyl bromide should continue to make every effort to 
minimize overall emissions of methyl bromide to the extent consistent 
with State and local laws and regulations. EPA also encourages 
researchers and users who are successfully utilizing such techniques to 
inform EPA of their experiences and to provide such information with 
their critical use applications.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this final rule is a ``significant regulatory action'' because it was 
deemed to raise novel legal or policy issues. Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 
2011) and any changes made in response to interagency recommendations 
have been documented in the docket for this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
The application, recordkeeping, and reporting requirements have already 
been established under previous critical use exemption rulemakings and 
this action does not change any of those existing requirements. The 
Office of Management and Budget (OMB) has previously approved the 
information collection requirements contained in the existing 
regulations at 40 CFR part 82 under the provisions of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control 
number 2060-0482. The OMB control numbers for EPA's regulations in 40 
CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice-and-comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions. For purposes of assessing the impacts of 
this rule on small entities, small entity is defined as: (1) A small 
business as defined by the Small Business Administration's regulations 
at 13 CFR 121.201 (see Table below); (2) a small governmental 
jurisdiction that is a government of a city, county, town, school 
district or special district with a population of less than 50,000; and 
(3) a small organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.

----------------------------------------------------------------------------------------------------------------
                                                                                     NAICS Small business size
                                                                                       standard (in number of
            Category                    NAICS code                SIC code            employees or millions of
                                                                                              dollars)
----------------------------------------------------------------------------------------------------------------
Agricultural production........  1112--Vegetable and      0171--Berry Crops......  $0.75 million.
                                  Melon farming.
                                 1113--Fruit and Nut      0172--Grapes...........
                                  Tree Farming.
                                 1114--Greenhouse,        0173--Tree Nuts........
                                  Nursery, and
                                  Floriculture
                                  Production.
                                                          0175--Deciduous Tree
                                                           Fruits (except apple
                                                           orchards and farms).
                                                          0179--Fruit and Tree
                                                           Nuts, NEC.
                                                          0181--Ornamental
                                                           Floriculture and
                                                           Nursery Products.
                                                          0831--Forest Nurseries
                                                           and Gathering of
                                                           Forest Products.
Storage Uses...................  115114--Postharvest      .......................  $7 million.
                                  Crop activities
                                  (except Cotton
                                  Ginning).
                                 311211--Flour Milling..  2041--Flour and Other
                                                           Grain Mill Products
                                                           500 employees.
                                 31121--Rice Milling....  2044--Rice Milling.....  500 employees
                                 493110--General          4225--General            $25.5 million
                                  Warehousing and          Warehousing and
                                  Storage.                 Storage.
                                 493130--Farm Product     4221--Farm Product       $25.5 million.
                                  Warehousing and          Warehousing and
                                  Storage.                 Storage.
Distributors and Applicators...  115112--Soil             0721--Crop Planting,     $7 million.
                                  Preparation, Planting    Cultivation, and
                                  and Cultivating.         Protection.
Producers and Importers........  325320--Pesticide and    2879--Pesticides and     500 employees
                                  Other Agricultural       Agricultural
                                  Chemical Manufacturing.  Chemicals, NEC.
----------------------------------------------------------------------------------------------------------------

    Agricultural producers of minor crops and entities that store 
agricultural commodities are categories of affected entities that 
contain small entities. This rule only affects entities that applied to 
EPA for an exemption to the phaseout of methyl bromide for 2012. In 
most cases, EPA received aggregated requests for exemptions from 
industry consortia. On the exemption application, EPA asked consortia 
to describe the number and size distribution of entities their

[[Page 29228]]

application covered. EPA estimated that 3,218 entities petitioned EPA 
for an exemption for the 2005 control period. EPA revised this estimate 
in 2011 down to 1,800 end users of critical use methyl bromide. EPA 
believes that the number will continue to decline as growers stop 
applying for critical uses. Since many applicants did not provide 
information on the distribution of sizes of entities covered in their 
applications, EPA estimated that, based on the above definition, 
between one-fourth and one-third of the entities may be small 
businesses. In addition, other categories of affected entities do not 
contain small businesses based on the above description.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities.'' (5 U.S.C. 
603-604). Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves a regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule. Since 
this rule exempts methyl bromide for approved critical uses after the 
phaseout date of January 1, 2005, this action confers a benefit to 
users of methyl bromide. EPA estimates in the Regulatory Impact 
Assessment found in the docket to this rule that the reduced costs 
resulting from the de-regulatory creation of the exemption are 
approximately $22 million to $31 million on an annual basis (using a 3% 
or 7% discount rate respectively). These reduced costs are dramatic due 
to the high value of methyl bromide for crop production and agriculture 
related activities. We have therefore concluded that this rule would 
relieve regulatory burden for all small entities.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. The action imposes no enforceable duty on any State, local or 
tribal governments or the private sector. Instead, this action provides 
an exemption for the manufacture and use of a phased out compound and 
would not impose any new requirements on any entities. Therefore, this 
action is not subject to the requirements of sections 202 or 205 of the 
UMRA. This action is also not subject to the requirements of section 
203 of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It does not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This rule is expected to affect 
producers, suppliers, importers, and exporters and users of methyl 
bromide. Thus, Executive Order 13132 does not apply to this rule. In 
the spirit of Executive Order 13132, and consistent with EPA policy to 
promote communications between EPA and State and local governments, EPA 
specifically solicited comment on this action from State and local 
officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule does 
not significantly or uniquely affect the communities of Indian tribal 
governments nor does it impose any enforceable duties on communities of 
Indian tribal governments. Thus, Executive Order 13175 does not apply 
to this action. EPA specifically solicited additional comment on this 
action from tribal officials.

G. Executive Order No. 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA interprets EO 13045 (62 F.R. 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it does not establish an environmental standard intended 
to mitigate health or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. This rule does 
not pertain to any segment of the energy production economy nor does it 
regulate any manner of energy use. Therefore, we have concluded that 
this rule is not likely to have any adverse energy effects.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the agency decides not to use 
available and applicable voluntary consensus standards. This rulemaking 
does not involve technical standards. Therefore, EPA did not consider 
the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this rule does not have disproportionately 
high and adverse human health or environmental effects on minority or 
low-income populations, because it affects the level of environmental

[[Page 29229]]

protection equally for all affected populations without having any 
disproportionately high and adverse human health or environmental 
effects on any population, including any minority or low-income 
population. Any ozone depletion that results from this rule will impact 
all affected populations equally because ozone depletion is a global 
environmental problem with environmental and human effects that are, in 
general, equally distributed across geographical regions of the United 
States.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective May 17, 2012.

List of Subjects in 40 CFR Part 82

    Environmental protection, Chemicals, Exports, Imports, Ozone 
depletion.

    Dated: May 11, 2012.
Lisa P. Jackson,
Administrator.

    For the reasons stated in the preamble, 40 CFR Part 82 is amended 
as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

0
1. The authority citation for part 82 continues to read as follows:

    Authority:  42 U.S.C. 7414, 7601, 7671-7671q.


0
2. Section 82.8 is amended as follows:
0
a. By revising the table in paragraph (c)(1);
0
b. By revising paragraph (c)(2) including the table.


Sec.  82.8  Grant of essential use allowances and critical use 
allowances.

* * * * *
    (c) * * *
    (1) * * *

------------------------------------------------------------------------
                                           2012 Critical   2012 Critical
                                          use allowances  use allowances
                 Company                   for pre-plant     for post-
                                              uses *      harvest uses *
                                            (kilograms)     (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp. A Chemtura            425,197          36,499
 Company................................
Albemarle Corp..........................         174,851          15,009
ICL-IP America..........................          96,626           8,294
TriCal, Inc.............................           3,009             258
                                         -------------------------------
    Total **............................         699,683          60,061
------------------------------------------------------------------------
* For production or import of Class I, Group VI controlled substance
  exclusively for the Pre-Plant or Post-Harvest uses specified in
  appendix L to this subpart.
** Due to rounding, numbers do not add exactly.

    (2) Allocated critical stock allowances granted for specified 
control period. The following companies are allocated critical stock 
allowances for 2012 on a pro-rata basis in relation to the inventory 
held by each.

Company

Albemarle
Degesch America, Inc.
Prosource One
Bill Clark Pest Control, Inc.
Helena Chemical Co.
Trical Inc.
Burnside Services, Inc.
ICL-IP America
Trident Agricultural Products
Cardinal Professional Products
Industrial Fumigant Company
TriEst Ag Group, Inc.
Chemtura Corp.
Pacific Ag Supplies Inc.
Univar
Crop Production Services
Pest Fog Sales Corp.
Western Fumigation
    TOTAL--263,082 kilograms

0
3. Appendix L to Subpart A is revised to read as follows:

APPENDIX L TO SUBPART A OF PART 82--APPROVED CRITICAL USES AND LIMITING 
CRITICAL CONDITIONS FOR THOSE USES FOR THE 2012 CONTROL PERIOD

------------------------------------------------------------------------
                                                      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
Column A                      Column B............  Column C
------------------------------------------------------------------------
                             PRE-PLANT USES
------------------------------------------------------------------------
Cucurbits...................  (a) Growers in        Moderate to severe
                               Delaware and          soilborne disease
                               Maryland.             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,           Moderate to severe
                               Mississippi, North    root knot nematode
                               Carolina, South       infestation.
                               Carolina,
                               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.

[[Page 29230]]

 
                              (b) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Moderate to severe
                                                     pythium collar,
                                                     crown and root rot.
                                                    Moderate to severe
                                                     southern blight
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features.
Forest Nursery Seedlings....  (a) Southern Forest   Moderate to severe
                               Nursery Management    yellow or purple
                               Cooperative           nutsedge
                               (Growers in           infestation.
                               Alabama, Arkansas,   Moderate to severe
                               Florida, Georgia,     soilborne disease
                               Kentucky,             infestation.
                               Louisiana,           Moderate to severe
                               Mississippi, North    nematode
                               Carolina, Oklahoma,   infestation.
                               South Carolina,
                               Tennessee, Texas,
                               and Virginia).
                              (b) Northeastern      Moderate to severe
                               Forest and            weed infestation
                               Conservation          including purple
                               Nursery Association   and yellow nutsedge
                               (Government-owned     infestation.
                               seedling nurseries   Moderate to severe
                               in Illinois,          Canada thistle
                               Indiana, Kentucky,    infestation.
                               Maryland, Missouri,  Moderate to severe
                               New Jersey, Ohio,     nematode
                               Pennsylvania, West    infestation.
                               Virginia, and        Moderate to severe
                               Wisconsin).           soilborne disease
                                                     infestation.
                              (c) Michigan          Moderate to severe
                               Seedling Growers.     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     Canada thistle
                                                     infestation.
                                                    Moderate to severe
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
Nursery Stock (Fruit, Nut,    (a) Members of the    Moderate to severe
 Flower).                      California            nematode
                               Association of        infestation.
                               Nursery and Garden   Medium to heavy clay
                               Centers               soils.
                               representing         Local township
                               Deciduous Tree        limits prohibiting
                               Fruit Growers.        1,3-
                                                     dichloropropene.
                              (b) California rose   Moderate to severe
                               nurseries.            nematode
                                                     infestation.
                                                    Local township
                                                     limits prohibiting
                                                     1,3-
                                                     dichloropropene.
Orchard Replant.............  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.
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.
Peppers.....................  (a) Alabama,          Moderate to severe
                               Arkansas, Kentucky,   yellow or purple
                               Louisiana,            nutsedge
                               Mississippi, North    infestation.
                               Carolina, South      Moderate to severe
                               Carolina,             nematode
                               Tennessee, and        infestation.
                               Virginia growers.    Moderate to severe
                                                     pythium root,
                                                     collar, crown and
                                                     root rots.
                              (b) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                              (c) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation, or
                                                     moderate to severe
                                                     pythium root and
                                                     collar rots.
                                                    Moderate to severe
                                                     southern blight
                                                     infestation, crown
                                                     or root rot.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features.
Strawberry Fruit............  (a) California        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.

[[Page 29231]]

 
                              (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........  California growers..  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
Sweet Potato Slips..........  California growers..  Local township
                                                     limits prohibiting
                                                     1,3-
                                                     dichloropropene.
Tomatoes....................  (a) Alabama,          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.
                              (b) 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    Mite infestation.
                               National Pest
                               Management
                               Association
                               treating cheese
                               storage facilities.
Commodities.................  California entities   Rapid fumigation
                               storing walnuts,      required to meet a
                               dried plums, figs,    critical market
                               raisins, and dates    window, such as
                               (in Riverside         during the holiday
                               county only) in       season.
                               California.
Dry Cured Pork Products.....  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.
------------------------------------------------------------------------

[FR Doc. 2012-11972 Filed 5-16-12; 8:45 am]
BILLING CODE 6560-50-P