[Federal Register Volume 76, Number 190 (Friday, September 30, 2011)]
[Rules and Regulations]
[Pages 60736-60748]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25273]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[EPA-HQ-OAR-2008-0321; FRL-9473-5]
RIN 2060-AP92
Protection of Stratospheric Ozone: The 2011 Critical Use
Exemption From the Phaseout of Methyl Bromide
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is finalizing uses that qualify for the 2011 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 2011. EPA is taking this action under the authority of the
Clean Air Act to reflect a recent consensus decision taken by the
Parties to the Montreal Protocol on Substances that Deplete the Ozone
Layer at the Twenty-First Meeting of the Parties.
DATES: Effective Date: September 30, 2011.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OAR-2008-0321. All documents in the docket are listed on the
http://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 will be
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 e-
mail at arling.jeremy@epa.gov or by mail at U.S. Environmental
Protection Agency, Stratospheric Protection Division, Stratospheric
Program Implementation Branch (6205J), 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460. You may also visit the methyl bromide section of
the ozone layer protection Web site at http://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 2011. Under the Clean Air Act, methyl bromide consumption
(consumption is defined under the CAA as production plus imports minus
exports) and production was phased out on January 1, 2005, apart from
allowable exemptions, such as the critical use exemption and the
quarantine and preshipment (QPS) exemption. With this action, EPA is
finalizing the uses that qualify for the 2011 critical use exemption as
well as specific amounts of methyl bromide that may be produced,
imported, or sold from pre-phaseout inventory for proposed critical
uses in 2011.
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. Background of the Process
B. How does this rule relate to previous critical use exemption
rules?
C. Critical Uses
D. Critical Use Amounts
E. Critical Use Allowance Allocations
F. Critical Stock Allowance Allocations
G. The Criteria in Decisions IX/6 and Ex. I/4
H. 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
[[Page 60737]]
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 potentially regulated by this action are those associated
with the production, import, export, sale, application, and use of
methyl bromide covered by an approved critical use exemption.
Potentially regulated categories and entities include producers,
importers, and exporters of methyl bromide; applicators and
distributors of methyl bromide; and users of methyl bromide that
applied for the 2011 critical use exemption including farmers 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 applications 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 the phaseout
of methyl bromide can be found at http://www.epa.gov/ozone/mbr.
Methyl bromide is also regulated by EPA under the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA) and other statutes
and regulatory authority, as well as by states under their own statutes
and regulatory authority. Under FIFRA, methyl bromide is a restricted
use pesticide. Restricted use pesticides are subject to federal and
state requirements governing their sale, distribution, and use. Nothing
in this rule implementing the Clean Air Act is intended to derogate
from provisions in any other federal, state, or local laws or
regulations governing actions including, but not limited to, the sale,
distribution, transfer, and use of methyl bromide. Entities affected
this rule must continue to comply with FIFRA and other pertinent
statutory and regulatory requirements for pesticides (including, but
not limited to, requirements pertaining to restricted use pesticides)
when importing, exporting, acquiring, selling, distributing,
transferring, or using methyl bromide for critical uses. The provisions
in this action are intended only to implement the CAA Title VI
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. EPA initially published
the regulatory program in the Federal Register on August 12, 1988 (53
FR 30566), in response to the 1987 signing and subsequent ratification
of the Montreal Protocol on Substances that Deplete the Ozone Layer
(Montreal Protocol). The Montreal Protocol is the international
agreement aimed at reducing and eliminating the production and
consumption of stratospheric ozone-depleting substances. The U.S. was
one of the original signatories to the 1987 Montreal Protocol and the
U.S. ratified the Protocol on April 12, 1988. Congress then enacted,
and President George H.W. Bush signed into law, the Clean Air Act
Amendments of 1990 (CAAA of 1990) which included Title VI on
Stratospheric Ozone Protection, codified as 42 U.S.C. chapter 85,
Subchapter VI, to ensure that the United States could satisfy its
obligations under the Protocol. EPA issued regulations to implement
this legislation and has since amended the regulations as needed.
Methyl bromide was added to the Protocol as an ozone-depleting
substance in 1992 through the Copenhagen Amendment to the Protocol. The
Parties to the Montreal Protocol (Parties) agreed that each
industrialized country's level of methyl bromide production and
consumption in 1991 should be the baseline for establishing a freeze in
the level of methyl bromide production and consumption for
industrialized countries. EPA published a final rule in the Federal
Register on December 10, 1993 (58 FR 65018), listing methyl bromide as
a Class I, Group VI controlled substance, freezing U.S. production and
consumption at this 1991 baseline level of 25,528,270 kilograms, and
setting forth the percentage of baseline allowances for methyl bromide
granted to companies in each control period (each calendar year) until
2001, when the complete phaseout would occur. This phaseout date was
established in response to a petition filed in 1991 under Sections
602(c)(3) and 606(b) of the CAAA of 1990, requesting that EPA list
methyl bromide as a Class I substance and phase out its production and
consumption. This date was consistent with Section 602(d) of the CAAA
of 1990, which for newly listed Class I ozone-depleting substances
provides that ``no extension [of the phaseout schedule in section 604]
under this subsection may extend the date for termination of production
of any class I substance to a date more than 7 years after January 1 of
the year after the year in which the substance is added to the list of
class I substances.''
At the Seventh Meeting of the Parties (MOP) in 1995, the Parties
made adjustments to the methyl bromide control measures and agreed to
reduction steps and a 2010 phaseout date for industrialized countries
with exemptions permitted for critical uses. At that time, the U.S.
continued to have a 2001 phaseout date in accordance with Section
602(d) of the CAAA of 1990. At the Ninth MOP in 1997, the Parties
agreed to further adjustments to the phaseout schedule for methyl
bromide with reduction steps leading to a 2005 phaseout in
industrialized countries and a 2015 phaseout for developing countries.
IV. What is the legal authority for exempting the production and import
of methyl bromide for critical uses authorized by the parties to the
Montreal Protocol?
In October 1998, the U.S. Congress amended the Clean Air Act (CAA)
to prohibit the termination of production of methyl bromide prior to
January 1, 2005, to require EPA to bring the U.S. phaseout of methyl
bromide in line with the schedule specified under the Protocol, and to
authorize EPA to provide certain exemptions. These amendments were
contained in Section 764 of the 1999 Omnibus Consolidated
[[Page 60738]]
and Emergency Supplemental Appropriations Act (Pub. L. 105-277, October
21, 1998) and were codified in section 604 of the CAA, 42 U.S.C. 7671c.
The amendment that specifically addresses the critical use exemption
appears at section 604(d)(6), 42 U.S.C. 7671c(d)(6). EPA revised the
phaseout schedule for methyl bromide production and consumption in a
direct final rulemaking on November 28, 2000 (65 FR 70795), which
allowed for the phased reduction in methyl bromide consumption
specified under the Protocol and extended the phaseout to 2005 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 final rule (the
``Framework Rule'') that established the framework for the critical use
exemption; set forth a list of approved critical uses for 2005; and
specified the amount of methyl bromide that could be supplied in 2005
from stocks and new production or import to meet the needs of approved
critical uses. EPA subsequently published rules applying the critical
use exemption framework for each of the control periods from 2006 to
2010. Under authority of section 604(d)(6) of the CAA, this action
lists approved critical uses in 2011 and specifies the amount of methyl
bromide that may be produced, imported, or supplied from inventory to
satisfy those uses.
This rule reflects Decision XXI/11, taken at the Twenty-First
Meeting of the Parties in November 2009. In accordance with Article
2H(5), the Parties have issued several Decisions pertaining to the
critical use exemption. These include Decisions IX/6 and Ex. I/4, which
set forth criteria for review of proposed critical uses. The status of
Decisions is addressed in NRDC v. EPA, (464 F.3d 1, DC Cir. 2006) and
in EPA's ``Supplemental Brief for the Respondent,'' filed in NRDC v.
EPA and available in the docket for this action. In this rule on
critical uses for 2011, EPA is honoring commitments made by the United
States in the Montreal Protocol context.
V. What is the critical use exemption process?
A. Background of the Process
The critical use exemption is designed to permit the production and
import of methyl bromide for uses that do not have technically and
economically feasible alternatives and for which the lack of methyl
bromide would result in significant market disruption (40 CFR 82.3).
Article 2H of the Montreal Protocol established the critical use
exemption provision. At the Ninth Meeting of the Parties (1997) the
criteria for the exemption appeared in Decision IX/6. In that Decision,
the Parties agreed that ``a use of methyl bromide should qualify as
`critical' only if the nominating Party determines that: (i) The
specific use is critical because the lack of availability of methyl
bromide for that use would result in a significant market disruption;
and (ii) there are no technically and economically feasible
alternatives or substitutes available to the user that are acceptable
from the standpoint of environment and public health and are suitable
to the crops and circumstances of the nomination.'' These criteria are
reflected in EPA's definition of ``critical use'' at 40 CFR 82.3.
In response to EPA's request for critical use exemption
applications published in the Federal Register on May 2, 2008 (73 FR
24282), 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 a document referred
to as the 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, and 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.
More on the domestic review process and methodology employed by the
Office of Pesticide Programs is available in a detailed memorandum
titled ``Development of 2003 Nomination for a Critical Use Exemption
for Methyl Bromide for the United States of America,'' contained in the
docket for this rulemaking. While the particulars of the data continue
to evolve and administrative matters are further streamlined, the
technical review itself remains rigorous with careful consideration of
new technical and economic conditions.
On January 23, 2009, the U.S. Government (USG) submitted the
seventh Nomination for a Critical Use Exemption for Methyl Bromide for
the United States of America to the Ozone Secretariat of the UNEP. This
nomination contained the request for 2011 critical uses. In February
2009, MBTOC sent two sets of questions to the USG concerning technical
and economic issues in the 2011 nomination, one for post-harvest uses
and one for pre-plant uses. The USG transmitted responses to MBTOC on
April 10, 2009. These documents, together with reports by the advisory
bodies noted above, are in the public docket for this rulemaking. The
critical uses and amounts in this rule reflect the analysis contained
in those documents.
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 changes to the registration or
use of alternatives that have transpired after the 2011 U.S. nomination
was written. EPA did not propose to estimate uptake of Iodomethane in
California in 2011 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.
[[Page 60739]]
Two commenters agreed that the California label and other state
regulations constrain the adoption of iodomethane in that state. The
registrant of iodomethane stated that they are continuing to work with
California Department of Pesticide Regulations to improve applicability
of iodomethane in that state. The comment, however, did not include any
data on which EPA could base an estimate of uptake of iodomethane in
California in 2011. Therefore, EPA is not reducing the amount of new
production for 2011 for the uptake of iodomethane in California.
EPA received a comment stating the difficulty pet food facilities
have using alternatives including longer periods of downtime needed to
effectively use those fumigants or the presence of electronics that may
corrode if exposed to phosphene. The commenter also noted that the use
of sulfuryl fluoride for pet food is low given that pet food is not
listed on the sulfuryl fluoride label as a commodity that can be
fumigated. EPA's critical use nomination for structures includes these
specific concerns about these alternatives and they, in part, form the
basis for pet food being recognized as a critical use in 2011.
One commenter stated that some growers are having problems with
pre-plant alternatives, specifically the re-emergence of plant pests
after several years of fumigating with alternatives. The commenter
requested that a survey of Florida growers that had been submitted to
EPA in June 2011 in support of the 2013 CUN be added to the docket for
this rule. EPA received these data too late to consider them for the
2011 rule but EPA is reviewing the data in support of the 2013 CUN. The
contents of the survey are claimed CBI and therefore will be added to
the confidential portion of a future rulemaking docket.
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.
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), and 75 FR 23167 (calendar year
2010).
C. Critical Uses
In Decision XXI/11, taken in November 2009, the Parties to the
Protocol agreed ``to permit, for the agreed critical use categories for
2011 set forth in table C of the annex to the present decision for each
Party, subject to the conditions set forth in the present decision and
decision Ex. I/4 to the extent that those conditions are applicable,
the levels of production and consumption for 2011 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 XXI/11 for the United States:
Commodities
NPMA food processing structures (cocoa beans removed) \1\
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\1\ NPMA, National Pest Management Association, includes both
food processing structures and processed foods.
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Mills and processors
Dried cured pork
Cucurbits
Eggplant--field
Forest nursery seedlings
Nursery stock--fruits, nuts, flowers
Orchard replant
Ornamentals
Peppers--field
Strawberries--field
Strawberry runners
Tomatoes--field
Sweet potato slips
EPA is modifying the table in 40 CFR part 82, subpart A, appendix L
to reflect the agreed critical use categories identified in Decision
XXI/11. The amendments to the table of critical uses is based in part
on the technical analysis contained in the 2011 CUN that assesses data
submitted by applicants to the CUE program. EPA is removing ornamental
growers in New York. MBTOC did not recommend this use for 2011,
concluding that alternatives are available for replacing methyl bromide
use in Anemone coronaria. The Parties did not authorize this use. EPA
agrees with the Parties' conclusion, and is not listing this use as
critical for 2011. Second, EPA is removing Michigan cucurbit growers,
Michigan eggplant growers, Michigan ornamental growers (specifically,
herbaceous perennial growers), Michigan tomato growers, Michigan pepper
growers, and members of the Western Raspberry Nursery Consortium
operating in Washington State. These users did not submit applications
and were not part of the CUN. The Parties have not authorized them as
critical uses for 2011 and EPA is not listing these uses as critical
for this control period.
EPA received one comment agreeing that the listed critical uses
have a continuing need for access to methyl bromide under a 2011 CUE.
EPA also received two comments 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. EPA's CUN
addresses the need for methyl bromide for the proposed critical uses.
In addition, the proposed 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 under FIFRA and other authorities and are beyond the scope of
this rulemaking. EPA is finalizing the proposed changes to the table.
EPA repeats 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.
D. Critical Use Amounts
Table C of the annex to Decision XXI/11 lists critical uses and
amounts agreed to by the Parties to the Montreal Protocol in 2009 as
critical uses for 2011. When added together, the total authorized
critical use for 2011 is 2,055,200 kg, which is equivalent to 8.1% of
the U.S. 1991 methyl bromide consumption baseline. The maximum amount
of new production or import authorized by the Parties is 1,855,200 kg
(7.3% of baseline) as set forth in Table D of the annex to Decision
XXI/11. The difference between the total authorized amount and the
authorized amount of new production is the minimum that the Parties
expect the U.S. to use from pre-phaseout inventory. This difference is
200,000 kg (0.8% of baseline). EPA
[[Page 60740]]
proposed to allocate 482,333 kg (1.9% of baseline) in the form of
Critical Stock Allowances (CSA) for sale of existing pre-phaseout
inventory for critical uses in 2011. EPA also proposed to exempt
limited amounts of new production and import of methyl bromide for
critical uses for 2011 in the amount of 1,500,000 kg (5.9% of
baseline). EPA is finalizing the amount of new production and import
contained in the proposed rule. For the reasons discussed below, EPA is
increasing the CSA allocation from 482,333 kg to 555,200 kg (2.2% of
baseline). Thus the total allocation for 2011 is 2,055,200 (8.1% of
baseline).
As discussed in the proposed rule, EPA calculated the allocation
amounts differently than in past CUE allocation rulemakings. Initially,
EPA used the methodology established in the 2008 CUE Rule to determine
the level of ``available stocks,'' from which the CSA and CUA
allowances are calculated. As described in previous CUE allocation
rules, one input to this methodology is the previous year's inventory
drawdown. Consistent with past practice, EPA prepared an estimate of
the pre-phaseout inventory on December 31, 2010.
Due to the timing of the 2011 CUE rulemaking, EPA issued a No
Action Assurance letter December 22, 2010, to allow Critical Use
Allowance holders to continue producing and importing methyl bromide
beyond December 31, 2010, in the absence of allowances, subject to
certain conditions. The amounts authorized in the December 22, 2010,
letter, and a subsequent clarification letter dated January 13, 2011,
were based on the estimates of the 2010 inventory drawdown.
Specifically, EPA clarified that producers and importers ``may assume
that the allocations for production and import will equal at least
1,500 MT.'' After EPA issued the No Action Assurance letter, companies
submitted their annual end of year reports to EPA containing data about
how much pre-phaseout inventory they held on December 31, 2010. These
data show that the pre-phaseout inventory is greater than the estimated
amounts that formed the basis of the No Action Assurance letter. If EPA
were to use these data in the existing methodology for calculating
``available stocks,'' this would result in more ``available stocks''
and fewer allowances for new production or import as compared to the
December 2010-January 2011 estimates. However, because regulated
entities have been acting on the estimate developed for the No Action
Assurance letter in good faith, EPA proposed the amount provided for in
the No Action Assurance letter, as clarified by the January 2011
letter.
EPA received one comment about the increasing lateness of the CUE
rules. The commenter described how producers and distributors need
advanced notice of their allowances so they may plan their production
and import schedule. Growers also need the approval of critical uses
before fumigating with critical use methyl bromide. EPA is aware of the
delay and is developing the 2012 CUE rule as quickly as possible.
However, the Agency must conduct a notice and comment rulemaking for
each year's allocation which takes a significant amount of time. The
commenter encouraged EPA to move to a two-year allocation schedule,
suggesting that we nominate two years together and issue a rule to
address both years. To date the Parties have only approved critical
uses through 2012 and the U.S. government has only submitted
nominations through 2013. Therefore, EPA would be unable to write a
rule covering the 2012 and 2013 control periods before 2012. In
addition, moving to a two-year nomination system would require the U.S.
to project the needs of critical users several years in advance. As a
result, the nominations would be less accurate for that second year.
EPA received two comments that the total allocation for 2011 should
be 2,055,200 kg, which is the amount the Parties authorized, rather
than 1,982,333, which is what EPA proposed. The commenters expressed
frustration that the EPA reduces the allocated amounts from those
authorized by the Parties. One of the commenters states that it is
inconceivable that since the nomination was submitted less than 18
months ago, EPA has developed sufficient scientific and objective
information that supports a reduction. In past CUE Rules, EPA has made
reductions after considering several factors. First, EPA considers new
data on alternatives such as the registration of a new alternative not
considered when the CUN was submitted to UNEP. EPA does not have new
data regarding the uptake of alternatives and is not reducing the total
CUE amount on that basis. Second, in some past years, EPA has made
reductions to the new production/import amount equal to the amounts
approved by the Parties specifically for research. As discussed below,
the U.S. did not nominate any separate additional amount for research
for 2011 and therefore EPA is not making reductions for that purpose.
Third, EPA has made reductions to the new production/import amount
to account for amounts of methyl bromide produced in one control period
but not sold in that control period. This amount is referred to as the
``carryover.'' Quantities of methyl bromide produced, imported,
exported, or sold to end-users under the critical use exemption in a
control period must be reported to EPA the following year. EPA uses
these reports to calculate the amount of methyl bromide produced or
imported under the critical use exemption, but not exported or sold to
end-users in that year. In past CUE rules, EPA deducted an amount
equivalent to this carryover from the total level of allowable new
production and import in the year following the year of the data
report. Companies reported that the carryover from 2009 to 2010 was
72,867 kg. In the proposed 2011 CUE Rule, however, EPA did not propose
to reduce the amount of new production and import by 72,867 kg because
EPA proposed to honor the amounts allowed in the No Action Assurance
letter. Instead, EPA proposed to reduce the total authorization by this
carryover amount.
Based on the comments received, EPA is not reducing the total
authorization by the carryover amount in this final rule, because the
only means to do so would be through an adjustment to the CSA amount.
Carryover is separate from ``stockpiled'' methyl bromide, which is
material that was produced prior to the phaseout in 2005. EPA does not
believe it is necessary to reduce the number of critical stock
allowances to account for the carryover of critical use methyl bromide
produced but not sold in 2009. On the contrary, EPA seeks to encourage
the use of pre-phaseout inventory. Therefore, as compared to the
proposal, EPA is increasing the CSA allocation by 72,867 kg to a total
of 555,200 kg. EPA does not believe that this will result in the
accumulation of critical use methyl bromide. Due to the timing of this
year's CUE rule, EPA has data indicating that the full 72,867 kg of
carryover from 2009 was sold in 2010. In addition, EPA has since
received end of year data for 2010 showing that there is no carryover
from the 2010 control period either. Therefore, EPA is finalizing a
total allocation that matches the Parties' authorization for 2011.
Three commenters stated that EPA should not be allocating fewer
CUEs than the amount authorized by the Parties given EPA's January 19,
2011, proposal to grant objections to the tolerances established for
sulfuryl fluoride and fluoride under section 408 of the Federal Food,
Drug, and Cosmetic Act (76 FR 3422). This CUE Rule is based on the
current status of alternatives and is limited to 2011. The proposed
revocation of tolerances for
[[Page 60741]]
sulfuryl fluoride has not been finalized and does not apply to use in
2011. Therefore, EPA has not based the allocation amounts in the 2011
CUE Rule on that proposal. In addition, commenters should note that EPA
proposed a staggered implementation for withdrawal of the affected
tolerances (76 FR 3447).
EPA also took comment on how to account for the fact that the
critical use allowance allocation of 1,500,000 kg is greater than what
would be allocated if it were based on the ``available stocks''
calculation using end of year inventory data. The proposal stated that
EPA could reduce critical use allowances for new production and import
in the 2012 allocation rule. EPA received one comment that while the
distribution between stocks and new production is different than the
result produced by the framework calculation, the total amount is
unaffected. In addition, the commenter stated that the calculations in
the 2012 rule will automatically compensate for the lesser drawdown of
inventory in 2011. EPA will address this issue further in the notice of
proposed rulemaking for the 2012 CUE rule.
E. Critical Use Allowance Allocations
EPA is allocating 2011 critical use allowances for new production
or import of methyl bromide up to the amount of 1,500,000 kg (5.9% of
baseline) as shown in the table at 40 CFR 82.8(c)(1). Each critical use
allowance (CUA) is equivalent to 1 kg of critical use methyl bromide.
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).
One commenter objected to EPA allocating only 1,500,000 kg for new
production or import. The commenter stated that Decision XXI/11
authorized 1,855,200 kg for new production and import. EPA disagrees
with the commenter's interpretation of Decision XXI/11. In Table D of
Decision XXI/11, the Parties authorized 1,855,200 kg for new production
and import ``minus available stocks.'' EPA is acting consistently with
Decision XXI/11by considering ``available stocks.'' How EPA determines
``available stocks'' is discussed in the next section.
Paragraph three of Decision XXI/11 states ``that Parties shall
endeavor to license, permit, authorize or allocate quantities of
critical-use methyl bromide as listed in tables A and C of the annex to
the present decision.'' This is similar to language in Decisions
authorizing prior critical uses. The language from these Decisions
calls on Parties to endeavor to allocate critical use methyl bromide on
a sector basis. The Framework Rule proposed several options for
allocating critical use allowances, including a sector-by-sector
approach. The Agency evaluated 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. For
the reasons discussed in the preamble to the 2009 CUE rule (74 FR
19894), the Agency believes that under the approach adopted in the
Framework Rule, the actual critical use will closely follow the sector
breakout listed in the Parties' decisions, but continues to welcome
comments on this issue.
One commenter stated that the demand for methyl bromide exceeds the
supply granted to the post-harvest sector. That commenter requested
that their uses receive priority over other post harvest uses. It would
be counter to EPA's past practice to grant priority for some critical
uses over others. EPA does not have a system in place for ranking
critical uses against each other. Rather, EPA allows the market to
determine the distribution of methyl bromide among critical uses in the
post-harvest or pre-plant sectors.
Finally, one commenter noted a typographical error in the table in
40 CFR 82.8(c)(1). The proposed post-harvest amount for ICL-IP was
listed as 12,267 kg but should have read 16,267 kg. The final rule
corrects this error.
F. Critical Stock Allowance Allocations
An approved critical user may purchase methyl bromide produced or
imported with CUAs as well as limited inventories of pre-phaseout
methyl bromide, the combination of which constitute the supply of
``critical use methyl bromide'' intended to meet the needs of agreed
critical uses. The Framework Rule established provisions governing the
sale of pre-phaseout inventories for critical uses, including the
concept of CSAs and a prohibition on the sale of pre-phaseout
inventories for critical uses in excess of the amount of CSAs held by
the seller. It also established trading provisions that allow CUAs to
be converted into CSAs.
When determining the CSA amount for a year, EPA considers what
portion of existing stocks is ``available'' for critical uses. As
discussed in prior CUE rulemakings, the Parties to the Protocol
recognized in their Decisions that the level of existing stocks may
differ from the level of available stocks. For example, Decision IX/6
states that ``production and consumption, if any, of methyl bromide for
critical uses should be permitted only if * * * methyl bromide is not
available in sufficient quantity and quality from existing stocks.''
Previous decisions refer to use of ``quantities of methyl bromide from
stocks that the Party has recognized to be available.'' Thus, it is
clear that individual Parties have the ability to determine their level
of available stocks. Decision XXI/11 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.
In the Framework Rule (69 FR 52366), EPA issued CSAs in an amount
equal to the difference between the total authorized CUE amount and the
amount of new production or import authorized by the Parties. In each
of the subsequent CUE Rules, EPA allocated CSAs in amounts that
represented not only the difference between the total authorized CUE
amount and the amount of authorized new production and import but also
an additional amount to reflect available stocks. After determining the
CSA amount, EPA reduced the portion of CUE methyl bromide to come from
new production and import in each of the 2006-2010 control periods such
that the total amount of methyl bromide exempted for critical uses did
not exceed the total amount authorized by the Parties for that year.
EPA views the inclusion of these additional amounts in the
calculation of the year's overall CSA level as an appropriate exercise
of discretion. The Agency is not required to allocate the full amount
of authorized new production and consumption. The Parties only agree to
``permit'' a particular level of production and consumption; they do
not--and cannot--mandate that the U.S. authorize this level of
production and consumption domestically. Nor does the
[[Page 60742]]
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.
In this final rule, EPA is allocating the equivalent of 555,200 kg
in the form of CSAs. This amount is greater than EPA proposed but less
than the amount of ``available stocks.'' The aggregate amount of pre-
phaseout methyl bromide reported as being in inventory at the beginning
of 2011 was 1,802,705 kg. EPA's analysis of ``available stocks'' shows
that there are 610,715 kg of stocks available for use in 2011. In the
proposal, EPA took the total U.S. authorization as a starting point,
subtracted the new production and import amount stated in the No Action
Assurance provided to industry in December 2010, and then subtracted a
carryover amount before reaching the tentative conclusion that the CSA
amount should be the equivalent of 482,333 kg. EPA received comments,
discussed above, that the total CUE amount should not be less than the
U.S. authorization. After considering those comments and evaluating its
approach to carryover in the specific circumstances of this year's
allocation, EPA has determined that the CSA amount should be the
difference between the total U.S. authorization and the proposed new
production and import amount, which is the equivalent of 555,200 kg.
Because at least 555,200 kg of stocks are available, EPA is increasing
the CSA allocation in the final rule so that the CSA and CUA
allocations taken together equal the total U.S. authorization.
Two commenters also stated that the Agency is incorrect to assume
that 482,333 kg of pre-phaseout inventory will be available for
critical uses in 2011. Instead, the commenters stated that EPA should
allocate only 200,000 kg from stocks, which is the difference between
the total authorization and the maximum authorized new production
amount. The commenters also say 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. The fact that
distributors can choose to sell to non-critical users does not mean
that the inventory is unavailable to critical users. End of year
reported data show that the inventory on December 31, 2010, was
1,802,715 kg. Of this amount, EPA estimates that 610,715 kg of stocks
are available for use in 2011. While EPA is allocating more critical
stock allowances than proposed, the amount is still less than the
``available stocks.'' EPA expects that holders of pre-phaseout
inventory will be able to expend the full amount of CSA allocations in
order to satisfy the needs of critical users.
Two commenters 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 inventory. These data support the comment that some
companies no longer maintain any pre-phaseout inventory. However, there
has not been a significant change in the overall distribution of
inventory among companies. Inventory is still held by companies in
large amounts in both California and the Southeast, the two largest
markets for critical use methyl bromide. If some critical users were
unable to purchase inventory, that is due to market decisions by
distributors, not the quantity of methyl bromide held in inventory.
One commenter stated that the CSA allocation failed to consider the
effect of a catastrophic failure in the domestic supply of methyl
bromide, either for 2011 or for future years. The commenter states that
the critical stock allowance levels undercut EPA's own analysis that
the amount necessary to address a catastrophic failure could be as much
as 58% of the critical need. EPA disagrees with the commenter's
conclusion. EPA's supply chain factor calculation for 2011 indicates
that 1,192,000 kg (2,055,200 kg x 0.58) is the maximum amount of
inventory that would be needed in the event of a supply disruption.
With 1,802,715 kg of existing inventory for 2011, EPA's analysis of
``available stocks'' shows that there are 610,715 kg of stocks
available for use in 2011. EPA is actually allocating only the
equivalent of 555,200 kg in the form of CSAs due to the No Action
Assurance provided to industry in December 2010.
EPA also disagrees with the comment that it did not consider the
effect of this rule on availability of stocks for supply disruptions in
the future. The supply chain factor is proportional to the CUE amount.
The authorization for 2012 and potential authorization for 2013
continue to decline in pace with both the inventory and the supply
chain factor. In 2012, the U.S. was authorized 1,022,826 kg of critical
use methyl bromide. EPA estimates that the SCF will be 429,000 kg for
2012, which is less than the estimated amount of stocks in 2012. EPA
will discuss this in more detail in the proposed 2012 CUE rule.
EPA reiterates that the SCF is not a ``reserve'' or ``strategic
inventory'' of methyl bromide. Rather, it is merely an analytical tool
used to provide greater transparency regarding how the Agency
determines CSA amounts, in cases where CSA amounts are greater than the
amounts stipulated by the Parties. EPA does not guarantee that critical
users will have access to inventory in the event of a supply
disruption. The timely distribution of pre-phaseout stocks would depend
upon business decisions made by suppliers. However, the SCF is large
enough to give suppliers the opportunity to provide uninterrupted
distribution in the analyzed scenario.
EPA is allocating CSAs to the entities shown in the table for the
2011 control period in the amount of 555,200 kg (2.2% of baseline). EPA
is updating the table by incorporating information from recent mergers.
Therefore, EPA is listing a single entry for Royster Clark, UAP
Southeast (NC), and UAP Southeast (SC) called Crop Production Services.
The CSA allocation for Crop Production Services is the sum of the three
allocations that would have gone to Royster Clark and the two UAP
Southeast entities.
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 will
inform the listed companies of their CSA allocations in a letter
following publication of the final rule.
As stated in the final 2006 CUE Rule, if an inventory shortage
occurs, EPA
[[Page 60743]]
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, the Agency intends to continue
releasing the aggregate of methyl bromide stockpile information
reported to the Agency under the reporting requirements at 40 CFR 82.13
for the end of each control period. In past years, EPA has noted that
if the number of competitors in the industry were to decline
appreciably, EPA would revisit the question of whether the aggregate is
entitled to treatment as confidential information and whether to
release the aggregate without notice. A commenter to the 2008 CUE Rule
stated that the aggregate data should be confidential if there are
fewer than three competitors. More than three companies continue to
sell pre-phaseout inventory. While EPA is not adopting a definitive
threshold number of companies at this point, EPA has not received any
information suggesting that the number of companies has declined to the
point that EPA should consider treating the aggregate as confidential
information. Therefore, EPA will continue making aggregate inventory
information available. The aggregate information for 2003 through 2010
is available in the docket for this rulemaking.
G. The Criteria in Decisions IX/6 and Ex. I/4
Paragraphs 2 and 6 of Decision XXI/11 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 2011 control
period. A discussion of the Agency's application of the criteria in
paragraph 1 of Decision IX/6 appears in sections V.C, V.D. and V.E. of
this preamble. The CUNs detail how each proposed critical use meets the
criteria listed in paragraph 1 of Decision IX/6, apart from the
criterion located at (b)(ii), as well as the criteria in paragraphs 5
and 6 of Decision Ex. I/4.
The criterion in Decision IX/6(1)(b)(ii), which refers to the use
of available stocks of methyl bromide, is addressed in section V.F. of
this preamble. The Agency has previously provided its interpretation of
the criterion in Decision IX/6(1)(a)(i) regarding the presence of
significant market disruption in the absence of an exemption, and EPA
refers readers to the 2006 CUE final rule (71 FR 5989) as well as to
the memo on the docket titled ``Development of 2003 Nomination for a
Critical Use Exemption for Methyl Bromide for the United States of
America'' for further elaboration.
The remaining considerations, including the lack of available
technically and economically feasible alternatives under the
circumstance of the nomination; efforts to minimize use and emissions
of methyl bromide where technically and economically feasible; the
development of research and transition plans; and the requests in
Decision Ex. I/4(5) and (6) that Parties consider and implement MBTOC
recommendations, where feasible, on reductions in the critical use of
methyl bromide and include information on the methodology they use to
determine economic feasibility, are addressed in the nomination
documents.
Some of these criteria are evaluated in other documents as well.
For example, the U.S. has further considered matters regarding the
adoption of alternatives and research into methyl bromide alternatives,
criterion (1)(b)(iii) in Decision IX/6, in the development of the
National Management Strategy submitted to the Ozone Secretariat in
December 2005 and in ongoing consultations with industry. The National
Management Strategy addresses all of the aims specified in Decision Ex.
I/4(3) to the extent feasible and is available in the docket for this
rulemaking.
EPA received one comment that the Agency should adjust production
and import levels in the 2011 CUE Rule to account for research amounts.
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 CUN for the 2011
control period, as in the CUN for the 2010 control period, the U.S.
government did not nominate a separate, additional amount specifically
for research purposes. Nonetheless, both the 2010 and 2011 nominations
were broad enough to cover both research and non-research uses. While
EPA continues to encourage use of inventory for research purposes, EPA
is not reducing the CUA level as it did in pre-2010 CUE rules to
subtract a research amount because no specific research amount has been
identified. EPA also is not increasing the CUA allocation because the
Parties did not authorize specific amounts for this purpose in addition
to the authorization for pre-plant and post-harvest uses. EPA
understands the Parties' decision as including the research amounts in
the amounts authorized for pre-plant and post-harvest uses. As
discussed in the preamble to the 2010 CUE rule (75 FR 23179), research
is a key element of the critical use process. EPA is retaining research
on the crops shown in the table in Appendix L to subpart A as a
critical use of methyl bromide. While EPA encourages use of pre-
phaseout inventory for research purposes, researchers may use either
newly produced methyl bromide or pre-phaseout inventory for field,
post-harvest, and emission minimization studies requiring the use of
methyl bromide.
H. 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. Through the recent
Reregistration Eligibility Decision (RED) for methyl bromide, the
Agency requires that methyl bromide applications be tarped except for
California orchard replant where EPA instead requires deep (18 inches
or greater) shank applications. The RED also encourages the use of
high-barrier tarps, such as virtually impermeable film (VIF), by
providing credits that applicators can use to minimize their buffer
zones. 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 USG reflects the lower
application rates necessary when using high-barrier tarps, where such
tarps are allowed. Emissions minimization efforts should not be limited
to pre-plant fumigations. While the RED addresses emissions
minimization only in the context of pre-plant fumigation, EPA also
urges users to reduce emissions from structures and port facilities
through the use of recapture technologies.
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.
[[Page 60744]]
The Agency 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 action is a ``significant regulatory action.'' This action is
likely to result in a rule that may raise novel legal or policy issues.
Accordingly, EPA submitted this action to the Office of Management and
Budget (OMB) for review under 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; (2) a small business that is identified by the North
American Industry Classification System (NAICS) Code in the Table
below; (3) 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 (4) 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
Category NAICS code SIC code (in number of 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 0175--Deciduous
Floriculture Tree Fruits
Production. (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 2041--Flour and 500 employees.
Milling. Other Grain Mill
Products.
311212--Rice 2044--Rice Milling. 500 employees.
Milling.
493110--General 4225--General $25.5 million.
Warehousing and Warehousing and
Storage. Storage.
493130--Farm 4221--Farm Product $25.5 million.
Product Warehousing and
Warehousing and Storage.
Storage.
Distributors and Applicators.... 115112--Soil 0721--Crop $7 million.
Preparation, Planting,
Planting and Cultivation, and
Cultivating. Protection.
Producers and Importers......... 325320--Pesticide 2879--Pesticides 500 employees.
and Other and Agricultural
Agricultural Chemicals, NEC.
Chemical
Manufacturing.
----------------------------------------------------------------------------------------------------------------
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. In most cases,
EPA received aggregated requests for exemptions from industry
consortia. On the exemption application, EPA asked consortia to
describe the number and size distribution of entities their application
covered. EPA estimated that 3,218 entities petitioned EPA for an
exemption for the 2005 control period. EPA revised this estimate in
2008 down to 2,000 end users of critical use methyl bromide. EPA
believes that the number continues 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 this rule on small
entities, EPA certifies that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant
[[Page 60745]]
adverse economic impact on small entities, since the primary purpose of
the regulatory flexibility analyses is to identify and address
regulatory alternatives ``which minimize any significant economic
impact of the proposed rule on small entities.'' (5 U.S.C. 603-604).
Thus, an Agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves a regulatory burden, or otherwise has a positive economic
effect on all of the small entities subject to the rule. Since this
rule would exempt methyl bromide for approved critical uses after the
phaseout date of January 1, 2005, this action would confer a benefit to
users of methyl bromide. 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
does not impose any new requirements on any entities. Therefore, this
action is not subject to the requirements of sections 202 or 205 of the
UMRA. This action is also not subject to the requirements of section
203 of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.
E. Executive Order 13132: Federalism
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 primarily affects
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.
G. Executive Order No. 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it does not establish an environmental standard intended
to mitigate health or safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This 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 does not 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 does not 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 rule does
not involve technical standards therefore EPA did not consider the use
of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this rule will not have disproportionately
high and adverse human health or environmental effects on minority or
low-income populations, because it affects the level of environmental
protection equally for all affected populations without having any
disproportionately high and adverse human health or environmental
effects on any population, including any minority or low-income
population. Any ozone depletion that results from this rule will impact
all affected populations equally because ozone depletion is a global
environmental problem with environmental and human effects that are, in
general, equally distributed across geographical regions.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective September 30, 2011.
List of Subjects in 40 CFR Part 82
Environmental protection, Ozone depletion, Chemicals, Exports,
Imports.
[[Page 60746]]
Dated: September 26, 2011.
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) * * *
----------------------------------------------------------------------------------------------------------------
2011 Critical use 2011 Critical use
allowances for pre- allowances for post-
Company plant uses * harvest uses *
(kilograms) (kilograms)
----------------------------------------------------------------------------------------------------------------
Great Lakes Chemical Corp. A Chemtura Company................. 839,966 71,584
Albemarle Corp................................................ 345,413 29,437
ICL-IP America................................................ 190,883 16,267
TriCal, Inc................................................... 5,943 507
-------------------------------------------------
Total * *................................................. 1,382,206 117,794
----------------------------------------------------------------------------------------------------------------
* 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 2011 on a pro-rata basis in relation to the inventory
held by each.
Company
Albemarle
Bill Clark Pest Control, Inc.
Burnside Services, Inc.
Cardinal Professional Products
Chemtura Corp.
Crop Production Services
Degesch America, Inc.
Helena Chemical Co.
Hendrix & Dail
Hy Yield Products
ICL-IP America
Industrial Fumigant Company
Pacific Ag Supplies Inc.
Pest Fog Sales Corp.
Prosource One
Reddick Fumigants
Trical Inc.
Trident Agricultural Products
Univar
Western Fumigation
TOTAL--555,200 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 2011 CONTROL PERIOD
------------------------------------------------------------------------
Column C Limiting
Critical Conditions
that exist, or that
Column B Approved the approved
Column A Approved Critical Critical User and critical user
Uses Location of Use reasonably expects
could arise without
methyl bromide
fumigation:
------------------------------------------------------------------------
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, North Moderate to severe
Carolina, South root knot nematode
Carolina, infestation.
Tennessee, and
Virginia.
Eggplant.................... (a) Florida growers. Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
soilborne disease
infestation.
Restrictions on
alternatives due to
karst topographical
features and soils
not supporting
seepage irrigation.
(b) Georgia growers. Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
nematode
infestation.
Moderate to severe
pythium collar,
crown and root rot.
Moderate to severe
southern blight
infestation.
Restrictions on
alternatives due to
karst topographical
features.
Forest Nursery Seedlings.... (a) Growers in Moderate to severe
Alabama, Arkansas, yellow or purple
Georgia, Louisiana, nutsedge
Mississippi, North infestation.
Carolina, Oklahoma, Moderate to severe
South Carolina, soilborne disease
Tennessee, Texas, infestation.
and Virginia. Moderate to severe
nematode
infestation.
(b) International Moderate to severe
Paper and its yellow or purple
subsidiaries nutsedge
limited to growing infestation.
locations in Moderate to severe
Alabama, Arkansas, soilborne disease
Georgia, South infestation.
Carolina, and Texas.
[[Page 60747]]
(c) Government-owned Moderate to severe
seedling nurseries weed infestation
in Illinois, including purple
Indiana, Kentucky, and yellow nutsedge
Maryland, Missouri, infestation.
New Jersey, Ohio, Moderate to severe
Pennsylvania, West Canada thistle
Virginia, and infestation.
Wisconsin. Moderate to severe
nematode
infestation.
Moderate to severe
soilborne disease
infestation.
(d) Weyerhaeuser Moderate to severe
Company and its yellow or purple
subsidiaries nutsedge
limited to growing infestation.
locations in Moderate to severe
Alabama, Arkansas, soilborne disease
North Carolina, and infestation.
South Carolina. Moderate to severe
nematode or worm
infestation.
(e) Weyerhaeuser Moderate to severe
Company and its yellow nutsedge
subsidiaries infestation.
limited to growing Moderate to severe
locations in Oregon soilborne disease
and Washington. infestation.
(f) Michigan growers Moderate to severe
soilborne disease
infestation.
Moderate to severe
Canada thistle
infestation.
Moderate to severe
nutsedge
infestation.
Moderate to severe
nematode
infestation.
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, North nutsedge
Carolina, South infestation.
Carolina, Moderate to severe
Tennessee, and nematode
Virginia growers. infestation.
Moderate to severe
pythium root,
collar, crown and
root rots.
(b) Florida growers. Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
soilborne disease
infestation.
Moderate to severe
nematode
infestation.
Restrictions on
alternatives due to
karst topographical
features and soils
not supporting
seepage irrigation.
(c) Georgia growers. Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
nematode
infestation, or
moderate to severe
pythium root and
collar rots.
Moderate to severe
southern blight
infestation, crown
or root rot.
Restrictions on
alternatives due to
karst topographical
features.
Strawberry Fruit............ (a) California Moderate to severe
growers. black root rot or
crown rot.
Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
nematode
infestation.
Local township
limits prohibiting
1,3-
dichloropropene.
Time to transition
to an alternative.
(b) Florida growers. Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
nematode
infestation.
Moderate to severe
soilborne disease
infestation.
Carolina geranium or
cut-leaf evening
primrose
infestation.
Restrictions on
alternatives due to
karst topographical
features and soils
not supporting
seepage irrigation.
(c) Alabama, Moderate to severe
Arkansas, Georgia, yellow or purple
Illinois, Kentucky, nutsedge
Louisiana, infestation.
Maryland, Moderate to severe
Mississippi, nematode
Missouri, New infestation.
Jersey, North Moderate to severe
Carolina, Ohio, black root and
South Carolina, crown rot.
Tennessee, and
Virginia growers.
[[Page 60748]]
Strawberry Nurseries........ (a) California Moderate to severe
growers. soilborne disease
infestation.
Moderate to severe
yellow or purple
nutsedge
infestation.
Moderate to severe
nematode
infestation.
(b) North Carolina Moderate to severe
and Tennessee black root rot.
growers. Moderate to severe
root-knot nematode
infestation.
Moderate to severe
yellow and purple
nutsedge
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 Moderate to severe
National Pest beetle or moth
Management infestation.
Association Presence of
treating processed sensitive
food, cheese, herbs electronic
and spices, and equipment subject
spaces and to corrosion.
equipment in Time to transition
associated to an alternative.
processing and
storage facilities.
Commodities................. California entities Rapid fumigation
storing walnuts, required to meet a
beans, dried plums, critical market
figs, raisins, and window, such as
dates (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. 2011-25273 Filed 9-29-11; 8:45 am]
BILLING CODE 6560-50-P