[Federal Register Volume 76, Number 203 (Thursday, October 20, 2011)]
[Proposed Rules]
[Pages 65139-65153]
[FR Doc No: 2011-27186]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2009-0277; FRL-9481-9]
RIN 2060-AQ83

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing uses that qualify for the 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 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-Second Meeting of the Parties. EPA is seeking comment on the
list of critical uses and on EPA's determination of the amounts of
methyl bromide needed to satisfy those uses.

DATES: Comments must be submitted by November 21, 2011. Any party
requesting a public hearing must notify the contact person listed below
by 5 p.m. Eastern Standard Time on October 25, 2011. If a hearing is
requested it will be held on November 4, 2011 and comments will be due
to the agency December 5, 2011. EPA will post information regarding a
hearing, if one is requested, on the Ozone Protection Web site http://
www.epa.gov/ozone/strathome.html. Persons interested in attending a
public hearing should consult with the contact person below regarding
the location and time of the hearing.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2009-0277, by one of the following methods:
     http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Phone:<PHONE_NUMBER>.
     U.S. Mail: Docket EPA-HQ-OAR-2009-0277, U.S. Environmental
Protection Agency, EPA Docket Center, Air and Radiation Docket, Mail
Code 28221T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
     Hand Delivery or Courier: Docket EPA-HQ-OAR-2009-0277, EPA
Docket Center--Public Reading Room, EPA West Building, Room 3334, 1301
Constitution Avenue, NW., Washington, DC 20004. Such deliveries are
only accepted during the Docket's normal hours of operation, and
special arrangements should be made for deliveries of boxed
information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2009-0277. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

FOR FURTHER INFORMATION CONTACT: For further information about this
proposed rule, contact Jeremy Arling by telephone at<PHONE_NUMBER>, or
by e-mail at<EMAIL_ADDRESS>or by mail at U.S. Environmental
Protection Agency, Stratospheric Protection Division, Stratospheric
Program Implementation Branch (6205J), 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460. You may also visit the methyl bromide section of
the Ozone Depletion Web site of EPA's Stratospheric Protection Division
at 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 proposed rule concerns Clean Air Act
(CAA) restrictions on the consumption, production, and use of methyl
bromide (a Class I, Group VI controlled substance) for critical uses
during calendar year 2012. Under the Clean Air Act, methyl bromide
consumption (consumption is defined under the CAA as production plus
imports minus exports) and production were phased out on January 1,
2005, apart from allowable exemptions, such as the critical use
exemption and the quarantine and preshipment (QPS) exemption. With this
action, EPA is proposing and seeking comment on the uses that will
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'' or ``inventory'') for proposed critical
uses in 2012.

Table of Contents

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

I. General Information

A. Regulated Entities

    Entities potentially regulated by this proposed action are those
associated with the production, import, export, sale, application, and
use of methyl bromide covered by an approved critical use exemption.
Potentially regulated categories and entities include producers,
importers, and exporters of methyl bromide; applicators and
distributors of methyl bromide; and users of methyl bromide that
applied for the 2012 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
proposed action. To determine whether your facility, company, business,
or organization could be regulated by this proposed action, you should
carefully examine the regulations promulgated at 40 CFR part 82,
subpart A. If you have questions regarding the applicability of this
action to a particular entity, consult the person listed in the
preceding section.

B. What should I consider when preparing my comments?

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

II. What is methyl bromide?

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

III. What is the background to the phaseout regulations for ozone-
depleting substances?

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

that Deplete the Ozone Layer (Montreal Protocol). The Montreal Protocol
is the international agreement aimed at reducing and eliminating the
production and consumption of stratospheric ozone-depleting substances.
The U.S. was one of the original signatories to the 1987 Montreal
Protocol and the U.S. ratified the Protocol on April 12, 1988. Congress
then enacted, and President George H.W. Bush signed into law, the Clean
Air Act Amendments of 1990 (CAAA of 1990) which included Title VI on
Stratospheric Ozone Protection, codified as 42 U.S.C. Chapter 85,
Subchapter VI, to ensure that the U.S. 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 in industrialized countries, with reduction steps leading to a
2005 phaseout. The Parties also established a phaseout date of 2015 for
Article 5 countries.

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

    In October 1998, the U.S. Congress amended the Clean Air Act (CAA)
to prohibit the termination of production of methyl bromide prior to
January 1, 2005, to require EPA to bring the U.S. phaseout of methyl
bromide in line with the schedule specified under the Protocol, and to
authorize EPA to provide certain exemptions. These amendments were
contained in Section 764 of the 1999 Omnibus Consolidated and Emergency
Supplemental Appropriations Act (Pub. L. 105-277, October 21, 1998) and
were codified in section 604 of the CAA, 42 U.S.C. 7671c. The amendment
that specifically addresses the critical use exemption appears at
section 604(d)(6), 42 U.S.C. 7671c(d)(6). EPA revised the phaseout
schedule for methyl bromide production and consumption in a direct
final rulemaking on November 28, 2000 (65 FR 70795), which allowed for
the 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
2011. Under authority of section 604(d)(6) of the CAA, this action
proposes the uses that will 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 proposed action on critical uses for 2012 reflects Decision
XXII/6, taken at the Twenty-Second Meeting of the Parties in November
2010. In accordance with Article 2H(5), the Parties have issued several
Decisions pertaining to the critical use exemption. These include
Decisions IX/6 and Ex. I/4, which set forth criteria for review of
proposed critical uses. The status of Decisions is addressed in NRDC v.
EPA, (464 F.3d 1, D.C. Cir. 2006) and in EPA's ``Supplemental Brief for
the Respondent,'' filed in NRDC v. EPA and available in the docket for
this action. In this proposed rule 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

    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 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 to methyl bromide, and efforts to minimize use
and emissions of methyl bromide.

    EPA's Office of Pesticide Programs reviews the data submitted by
applicants, as well as data from governmental and academic sources, to
establish whether there are technically and economically feasible
alternatives available for a particular use of methyl 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 22, 2010, the U.S. Government (USG) submitted the eighth
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 2012 critical uses. In February
2010, MBTOC sent questions to the USG concerning technical and economic
issues in the 2012 nomination. The USG transmitted 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
proposed critical uses and amounts reflect the analysis contained in
those documents.

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

    The December 23, 2004, Framework Rule (69 FR 76982) established the
framework for the critical use exemption program in the U.S., including
definitions, prohibitions, trading provisions, and recordkeeping and
reporting obligations. The preamble to the Framework Rule included
EPA's determinations on key issues for the critical use exemption
program.
    Since publishing the Framework Rule, EPA has annually promulgated
regulations to exempt from the phaseout of methyl bromide specific
quantities of production and import for each control period (each
calendar year), 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), 76 FR 23769 (calendar year 2011 proposal).
    Today's action proposes to utilize 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 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 inventory produced or imported prior to the January 1, 2005,
phaseout date for an approved critical use during the specified control
period.
    The critical uses that EPA is proposing to approve as 2012 critical
uses are the uses included in the USG's eighth CUN and authorized by
the Parties in Decision XXII/6. EPA is utilizing the existing
regulatory framework for critical uses. This framework is discussed in
Section V.D.1 of the preamble.

C. Proposed 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.
    The Decision XXII/6 critical use levels for 2012 total 1,022,826
kilograms (kg), which is equivalent to 4.0% of the U.S. 1991 methyl
bromide consumption baseline of 25,528,270 kg. The maximum amount of
allowable new production and import for U.S. critical uses in Table D
of Decision XXII/6 is 922,826 kg (3.6% of baseline), minus available
stocks.
    EPA is proposing a total critical use exemption in 2012 of
1,022,826 kg (4.0% of baseline) with new production or import of methyl
bromide for critical uses up to 759,744 kg (3.0% of baseline), and with
up to 263,082 kg (1.0% of baseline) coming from pre-phaseout inventory
(i.e., stocks).
    EPA is seeking comment on the technical analysis contained in the
U.S. nomination (available for public review in the docket to this
rulemaking), and seeks information regarding 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. EPA recognizes that as the market for
alternatives evolves, the thresholds for what constitutes ``significant
market disruption'' or ``technical and economic

feasibility'' change. Comments on the technical data contained in the
nomination or new information could potentially alter the agency's
analysis on the uses and amounts of methyl bromide qualifying for the
critical use exemption. The agency may, in response to new information,
reduce the proposed quantities of critical use methyl bromide, or
decide not to approve uses authorized by the Parties. However, the
agency will not increase the quantities or add new uses in the final
rule beyond those authorized by the Parties.
    EPA is also proposing to modify the table in 40 CFR part 82,
subpart A, appendix L to reflect the agreed critical use categories
identified in Decision XXII/6. The agency is amending the table of
critical uses based in part on the technical analysis contained in the
2012 U.S. nomination that assesses data submitted by applicants to the
CUE program. First, EPA is proposing to remove from the list of
approved critical users those uses that did not submit applications and
therefore were not included in the U.S. nomination. These uses are
International Paper and Weyerhaeuser Company in the forest nursery
seedlings sector and beans in the commodities sector. The Parties have
not authorized them as critical uses for 2012 and EPA proposes not to
list these uses as critical for this control period.
    Second, EPA is proposing to remove North Carolina and Tennessee
strawberry nurseries. Growers in this sector applied for a critical use
in 2012. The U.S. did not submit a nomination to UNEP for this use
because EPA's technical review found that there are alternatives to
methyl bromide for Southeast strawberry nurseries. The Parties have not
authorized them as critical uses for 2012 and EPA proposes not to list
these uses as critical for this control period.
    Third, EPA is proposing to reduce the number of allowable uses for
the National Pest Management Association's (NPMA) post harvest
fumigations. Past critical uses for NPMA 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. EPA is proposing
to modify the NPMA critical use to include only ``Members of the
National Pest Management Association treating cheese storage
facilities.'' EPA seeks comment on these proposed changes to Appendix
L.
    EPA is not proposing other changes to the table but is repeating
the following clarifications made in previous years for ease of
reference. The ``local township limits prohibiting 1,3-
dichloropropene'' are prohibitions on the use of 1,3-dichloropropene
products in cases where local township limits on use of this
alternative have been reached. In addition, ``pet food'' under
subsection B of Food Processing refers to food for domesticated dogs
and cats. Finally, ``rapid fumigation'' for commodities is when a buyer
provides short (two working days or fewer) notification for a purchase
or there is a short period after harvest in which to fumigate and there
is limited silo availability for using alternatives.

D. Proposed 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 authorized critical use 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
authorized amount and the authorized amount of new production is
100,000 kg (0.4% of baseline). This difference is the minimum that the
Parties expect the U.S. to use from pre-phaseout inventory on critical
uses.
    EPA is proposing to allocate 759,744 kg (3.0% of baseline) of new
production and import of methyl bromide for critical uses for 2012. EPA
is also proposing to allocate 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. EPA is seeking comment on the proposed total
levels of exempted new production and import for critical uses and the
amount of material that may be sold from pre-phaseout inventory for
critical uses. The sub-sections below explain EPA's reasons for
proposing the above critical use amounts for 2012.
1. Approach for Determining Critical Stock Allowances
    The 2004 Framework Rule established the provisions governing the
sale of pre-phaseout inventories for critical uses, including the
concept of Critical Stock Allowances (CSAs) and a prohibition on the
sale of pre-phaseout inventories for critical uses in excess of the
amount of CSAs held by the seller. In addition, EPA noted that pre-
phaseout inventories were further taken into account through the
trading provisions that allow CUAs to be converted into CSAs. EPA is
not proposing changes to these CSA provisions for calendar year 2012.
    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 CUE allocation rules from 2006 through 2010, EPA allocated CSAs
in amounts that represented not only the difference between the total
authorized CUE amount and the amount of authorized new production and
import but also an additional amount to reflect available stocks. In
the 2006 CUE Rule, EPA issued a total of 1,136,008 CSAs, equivalent to
4.4% of baseline. For 2006, the difference in the Parties' decision
between the total CUE amount and the amount of new production and
import was 3.6% of baseline. In the 2007 rule, EPA added to the minimum
amount (6.3% of baseline) an additional amount (1.2% of baseline) for a
total of 1,914,600 CSAs (7.5% of baseline). In the 2008 rule, EPA added
to the minimum amount (3.0% of baseline) an additional amount (3.8% of
baseline) for a total of 1,729,689 CSAs (6.8% of baseline). In the 2009
rule, EPA added to the minimum amount (1.2% of baseline) an additional
amount (6.3% of baseline) for a total of 1,919,193 CSAs (7.5% of
baseline). In the 2010 rule, EPA added to the minimum amount (1.8% of
baseline) an additional amount (2.2% of baseline) for a total of
1,028,108 CSAs (4.0% of baseline). After determining the CSA amount,
EPA reduced the portion of CUE methyl bromide to come from new
production and import such that the total amount of methyl bromide
exempted for critical uses did not exceed the total amount authorized
by the Parties for that year.
    As established in the earlier rulemakings, EPA views the inclusion
of these additional amounts in the calculation of the year's overall
CSA level as an appropriate exercise of discretion. The Agency is not
required to allocate the full amount of authorized new production and
consumption. The Parties only agree to ``permit'' a particular level of
production and consumption; they do not--and cannot--mandate that the
U.S. authorize this level of production and consumption domestically.
Nor does the CAA require EPA to allow the full amount permitted by the
Parties. Section 604(d)(6) of the CAA does not

require EPA to exempt any amount of production and consumption from the
phaseout, but instead specifies that the Agency ``may'' create an
exemption for critical uses, providing EPA with substantial discretion.
When determining the CSA amount for a year, EPA considers what portion
of existing stocks is ``available'' for critical uses. As discussed in
prior CUE rulemakings, the Parties to the Protocol recognized in their
Decisions that the level of existing stocks may differ from the level
of available stocks. 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.
    EPA employs the concept of ``available stocks'' in determining
whether to allocate additional CSAs beyond the minimum stock amount
stipulated by the Parties. In response to stakeholder questions about
how EPA derived its CSA amounts, the 2008 CUE rule established a
refined approach for determining the amount of existing methyl bromide
stocks that is ``available'' for critical uses. The approach uses a
tool called the Supply Chain Factor (SCF). The SCF is EPA's technical
estimate of the amount of methyl bromide inventory that would be
adequate to meet the need for critical use methyl bromide after an
unforeseen domestic production failure. The SCF recognizes the benefit
of allowing the private sector to maintain a buffer in case of a major
supply disruption. However, the SCF is not intended to set aside or
physically separate stocks as an inventory reserve.
2. Calculation of Available Pre-Phaseout Inventory
    For 2012, EPA proposes to calculate the amount of ``available''
stocks as follows, using the formula adopted in the 2008 CUE rule:
AS2012 = ES2011 - D2011 -
SCF2012, where AS2012 is the available stocks on
January 1, 2012; ES2011 is the existing pre-phaseout stocks
of methyl bromide held in the United States by producers, importers,
and distributors on January 1, 2011; D2011 is the estimated
drawdown of existing stocks during calendar year 2011; and
SCF2012 is the supply chain factor for 2012. Using this
formula, EPA calculates that there will be 263,082 kg of pre-phaseout
stocks of methyl bromide ``available'' on January 1, 2012.
    Existing Stocks. In the above formula, ``ES2011'' is
methyl bromide that was produced before the January 1, 2005, phaseout
date but is still held by domestic producers, distributors, and third-
party applicators as of January 1, 2011. ES2011 does not
include critical use methyl bromide that was produced after January 1,
2005, and carried over into subsequent years. Nor does it include
methyl bromide produced (1) Under the quarantine and preshipment (QPS)
exemption, (2) with Article 5 allowances to meet the basic domestic
needs of Article 5 countries, or (3) for feedstock or transformation
purposes. EPA considers all pre-phaseout inventory to be suitable for
both pre-plant and post harvest uses. Similarly, EPA considers
inventory methyl bromide to be available to all users, including users
in California and the Southeastern United States. These assumptions are
discussed in the 2009 CUE rule (74 FR 19887).
    Estimated Drawdown. In past CUE rules, EPA either estimated the
drawdown of existing stocks using a simple linear fit estimation of
inventory data from all available years or used actual reported end of
year data if available. A linear estimate would project that no methyl
bromide would remain in inventory on January 1, 2012. EPA does not
believe this estimate to be accurate because it does not consider that
the use of inventory on critical uses is limited by the allocation of
CSAs. A better estimate of drawdown would instead add the estimated
amount of CSAs that will be expended in 2011 plus the estimated amount
of methyl bromide that will be used in 2011 for non-critical uses.
    The first element of EPA's proposed drawdown estimate is the amount
of inventory that will be used in 2011 on critical uses. This can be no
more than the number of CSAs EPA allocates in the final 2011 CUE Rule.
For purposes of this estimate, we are assuming the number of CSAs
allocated in the final 2011 CUE Rule will be the same as the number EPA
has proposed, which is 482,333 kg. As discussed in the Technical
Support Document, on average only 58% of the CSAs allocated for a
control period are reported as sold in that control period. Based on
this historical pattern, EPA believes that not all of the CSAs will
actually be expended in 2011 either. To estimate the number of expended
CSAs in 2011, EPA conservatively assumes that 70% of the CSAs allocated
for 2011 will be sold. This amount is greater than any year's use of
CSA allocations. Thus, EPA estimates that 337,633 kg of inventory will
be sold for critical uses in 2011.
    The second element in the drawdown estimate is the amount of methyl
bromide used on non-critical uses in 2011. Under the recent
reregistration decision for methyl bromide, seven non-critical uses
remain on the pre-plant methyl bromide labels. These non-critical uses
can continue to use methyl bromide but are restricted to pre-phaseout
inventory. The uses are caneberries, fresh market tomatoes grown in
California, fresh market peppers grown in California, Vidalia onions
grown in Georgia, ginger grown in Hawaii, soils on golf courses and
athletic/recreational fields for resurfacing/replanting of turf, and
tobacco seedling trays. See 76 FR 7200. Collectively they are referred
to as ``Group II uses.'' EPA proposes to estimate the amount of
inventory that will be sold to these Group II uses in 2011 by averaging
the amounts sold in 2006-2010 for all non-critical uses. There is no
clear trend in the pattern of usage which is why EPA is proposing to
simply take an average. EPA is not including 2005 because it does not
have data for that year. These data are contained in EPA's annual
Accounting Frameworks submitted to UNEP and are available in the
docket. The average use of pre-phaseout inventory on all non-critical
uses over the last five years is 773 MT. EPA believes that this
estimate is conservative because it includes the use of inventory for
all non-critical uses, not just for Group II uses. Therefore, EPA
proposes to adopt this average as its estimate of non-critical use in
2011.
    Therefore, EPA proposes to estimate the potential drawdown of
inventory in 2011 as (1) The projected sum of the use of CSAs for 2011
and (2) the estimate for Group II uses for 2011. Using this method, EPA
projects that the pre-phaseout methyl bromide inventory will be drawn
down by 1,110,633 kg (337,633 + 773,000) during 2011. This would result
in a pre-phaseout inventory declining from 1,802,715 kg on January 1,
2011, to 692,082 kg on January 1, 2012. EPA welcomes comment on this
proposed method of calculating inventory drawdown. If EPA receives
actual end-of-year reported data

on inventory levels before this rule is finalized, EPA may substitute
that data for this estimate.
    Supply Chain Factor. The SCF represents EPA's technical estimate of
the amount of pre-phaseout inventory that would be adequate to meet a
need for critical use methyl bromide after an unforeseen domestic
production failure. As described in the 2008 CUE Rule, and the
Technical Support Document contained in the docket to this rule, EPA
estimates that it would take 15 weeks for significant imports of methyl
bromide to reach the U.S. in the event of a major supply disruption.
Consistent with the regulatory framework used in previous CUE
allocation rules, the SCF for 2012 conservatively reflects the effect
of a supply disruption occurring in the peak period of critical use
methyl bromide production, which is the first quarter of the year.
While this 15-week disruption is based on shipping capacity and does
not change year to year, other inputs to EPA's analysis do change each
year including the total U.S. and global authorizations for methyl
bromide and the average seasonal production of critical use methyl
bromide in the U.S. Using updated numbers, EPA estimates that critical
use production in the first 15 weeks of each year (the peak supply
period) currently accounts for approximately 42% of annual critical use
methyl bromide demand. EPA, therefore, estimates that the peak 15-week
shortfall in 2012 could be 429 MT.
    As EPA stated in previous CUE Rules, the SCF is not a ``reserve''
or ``strategic inventory'' of methyl bromide but is merely an
analytical tool used to provide greater transparency regarding how the
Agency determines CSA amounts. Its use in the equation above
demonstrates that 263,082 kg are available to be allocated. Further
general discussion of the SCF is in the final 2008 CUE rule (72 FR
74118) and further detail about the analysis used to derive the value
for the 2012 supply chain factor is provided in the Technical Support
Document available on the public docket for this rulemaking.
    Using the following formula AS2012 = ES2011-
D2011-SCF2012, EPA estimates that there will be
263,082 kg of pre-phaseout stocks of methyl bromide ``available'' on
January 1, 2012. (263,082 = 1,802,715-1,110,633-429,000). Therefore,
EPA proposes to allocate 263,082 kg as Critical Stock Allowances for
2012.
2. Approach for Determining New Production and Import Allowances
    For the 2012 control period, EPA is proposing to apply the existing
framework established in the Framework Rule. Under this approach, the
amount of new production would equal the total amount authorized by the
Parties to the Montreal Protocol in Decision XXII/6, minus the CSA
amount detailed above, minus any reductions for carryover and the
uptake of alternatives. Applying this established approach, EPA is
proposing to exempt limited amounts of new production and imports of
methyl bromide for critical uses in 2012 in the amount of 759,744 kg
(3.0% of baseline). EPA is taking comment on this approach.
    Carryover Material. The Parties in paragraph 6 of Decision XXII/6
``urge parties operating under a critical-use exemption to put in place
an effective system to discourage the accumulation of methyl bromide
produced under the exemption.'' As discussed in the Framework Rule, EPA
does not permit the building of stocks of methyl bromide produced or
imported after January 1, 2005, under the critical use exemption.
Quantities of methyl bromide produced, imported, exported, or sold to
end-users under the critical use exemption in a control period must be
reported to EPA the following year. EPA uses these reports to calculate
the amount of methyl bromide produced or imported under the critical
use exemption, but not exported or sold to end-users in that year. EPA
deducts an amount equivalent to this ``carryover'' from the total level
of allowable new production and import in the year following the year
of the data report. Carryover material (which is produced using
critical use allowances) is not included in EPA's definition of
existing stocks (which applies to pre-phaseout material) because this
would lead to a double-counting of carryover amounts, and a double
reduction of critical use allowances (CUAs).
    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. Using the existing
framework, EPA is proposing to apply the carryover deduction of 0 kg to
the new production amount. EPA's calculation of the amount of carryover
at the end of 2010 is consistent with the method used in previous CUE
rules, and with the method agreed to by the Parties in Decision XVI/6
for calculating column L of the U.S. Accounting Framework. Past U.S.
Accounting Frameworks, including the one for 2010, are available in the
public docket for this rulemaking.
    Uptake of Alternatives. EPA also is proposing to continue
considering new data about alternatives that were not available at the
time the U.S. Government submitted its CUN to the Parties and adjust
the allocation for new production accordingly. Two alternatives not
considered in the 2012 CUN, which was submitted to UNEP in January
2010, may potentially be used in 2012. In July 2010, EPA registered
Dimethyl Disulfide (DMDS) to control nematodes, weeds, and pathogens in
tomatoes, peppers, eggplants, curcurbits, strawberries, ornamentals and
forest nursery seedlings, and onions. Currently, 12 states have
registered DMDS for use in that state. Neither California nor Florida
has yet to register DMDS. EPA anticipates uptake during 2012 to be
minimal as the primary states with critical uses have not yet
registered the alternative. In addition, once registered, growers are
likely to experiment on only a limited number of acres.
    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
impacts of larger buffer zones and the lack of efficacy studies at the
California label's lower use rates. In addition to the state
registration, County Agricultural Commissioners must permit each
iodomethane application that occurs within their jurisdiction.
    While EPA is not proposing a specific amount of reduction to
account for the uptake of these alternatives, EPA will consider new
data received during the comment period. If the registration status of
either of these alternatives changes, EPA is proposing to estimate and
account for that uptake in the final rule. EPA is not proposing to take
any other reductions for alternatives 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.
    In addition, EPA is taking 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 No Action Assurance letters that producers and importers could
assume the 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 proposed 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 is taking 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. While EPA is taking comment on this
alternative, EPA is not proposing it 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 does not believe the 2011 allocation will result in
carryover; however, if it does, EPA will follow its standard practice,
discussed in prior CUE notices, of subtracting the carryover amount
from the CUA amount in a subsequent year. In addition, any effects that
the 2011 CSA allocation had on the amount of pre-phaseout inventory
used in 2011 is captured in the ``available stocks'' analysis contained
in this rule.
3. Summary of Calculations
    The calculations described above for determining the level of new
production and critical stock allowances are summarized in the table
below:

------------------------------------------------------------------------
                                                           Kilograms
------------------------------------------------------------------------
Step 1: Calculate supply chain factor:                 .................
    U.S. authorization for 2012 in Decision XXII/6...          1,022,826
    - Reduction for uptake of alternatives...........                  0
    = One year's CUE need............................          1,022,826
    x Percentage of year's production to recover from                42%
     production failure..............................
                                                      ------------------
        = Supply Chain Factor........................            429,000
                                                      ==================
Step 2: Calculate available stocks:                    .................
    Existing pre-phaseout inventory on January 1,              1,802,715
     2011............................................
    - Drawdown of inventory for critical uses........            337,633
    - Drawdown of inventory for non-critical uses....            773,000
    - Supply Chain Factor (Step 1)...................            429,000
                                                      ------------------
        = Available stocks = Critical Stock Allowance            263,082
                                                      ==================
Step 3: Calculate new production:                      .................
    Total U.S. authorization for 2012................          1,022,826
    - Critical Stock Allowance (Step 2)..............            263,082
    - Carryover......................................                  0
    - Uptake of alternatives.........................                  0
                                                      ------------------
        = New production/import = Critical Use                   759,744
         Allowance...................................
------------------------------------------------------------------------

E. 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.C., V.D., and
V.H. of this preamble. In section V.C. the agency solicits comments on
the technical and economic basis for determining that the uses listed
in this proposed rule meet the criteria of the critical use exemption.
The CUNs detail how each proposed critical use meets the criteria
listed in paragraph 1 of Decision IX/6, apart from the criterion
located at (b)(ii), as well as the criteria in paragraphs 5 and 6 of
Decision Ex. I/4.
    The criterion in Decision IX/6(1)(b)(ii), which refers to the use
of available stocks of methyl bromide, is addressed in sections V.D.,
V.G., and V.H. 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, updated in October 2009, as well as in ongoing
consultations with industry. The National Management Strategy addresses
all of the aims specified in Decision Ex.I/4(3) to the extent feasible
and is available in the docket for this rulemaking.
    There continues to be a need for methyl bromide for research
purposes. A common example is an outdoor field experiment that requires
methyl bromide as a standard control treatment with which to compare
the trial alternatives' results. As in past CUE rules, EPA is proposing
to allocate CSAs rather than CUAs for any amounts authorized
specifically for research purposes. Also as in past years, EPA is
proposing to retain research on the crops shown in the table in
Appendix L to subpart A as a critical use of methyl bromide. The USG
recently submitted a supplemental nomination for 2,576 kg for research
activities in 2012. Because the supplemental nomination was submitted
this year, the Parties have not yet taken a decision authorizing an
amount. The Parties are expected to take a decision at their upcoming
Meeting of the Parties in November 2011. Therefore, EPA is proposing to
increase the final CSA allocation by up to 2,576 kg after consideration
of the action taken by the Parties in November and comments received on
this proposed rule regarding research needs.
    EPA encourages methyl bromide suppliers to sell inventory to
researchers and encourages researchers to purchase inventory for
research purposes. As discussed in the 2010 CUE rule, research is a key
element of the critical use process. Therefore, researchers may
continue to use newly produced methyl bromide, as well as pre-phaseout
inventory purchased through the expenditure of CSAs, for field, post-
harvest, and emission minimization studies requiring the use of methyl
bromide. EPA is taking comment on this proposal to increase the CSA
amount as described above for research.

F. 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. The agency encourages
researchers and users who are successfully utilizing such techniques to
inform EPA of their experiences as part of their comments on this
proposed rule and to provide such information with their critical use
applications. In addition, the agency welcomes comments on the
implementation of emission minimization techniques and whether and how
emissions could be reduced further.

G. Critical Use Allowance Allocations

    EPA is proposing to allocate 2012 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 proposed changes to the table in 40
CFR 82.8(c)(1). EPA is seeking comment on the total levels and
allocations of exempted new production or import for pre-plant and
post-harvest critical uses in 2012. 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
proposed CUA allocation is subject to the trading provisions at 40 CFR
82.12, which are discussed in section V.G. of the preamble to the
Framework Rule (69 FR 76982).
    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. 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.

H. Critical Stock Allowance Allocations

    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 is not retaining pre-
phaseout inventory for any particular purpose. Pre-phaseout inventory
is held by private companies who may sell to any use that meets the
labeling under FIFRA. However, EPA believes that its practice of
encouraging the use of inventory by allocating CSAs equivalent to all
``available stocks'' is consistent with this statement by the Parties.
EPA is proposing to allocate CSAs for the 2012 control period in the
amount of 263,082 kg (1.0% of baseline). This amount is greater 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).
    EPA's proposed 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.

I. Stocks of Methyl Bromide

    An approved critical user may purchase methyl bromide produced or
imported with CUAs as well as limited inventories of pre-phaseout
methyl bromide, the combination of which constitute the supply of
``critical use methyl bromide'' intended to meet the needs of agreed
critical uses. The Framework Rule established provisions governing the
sale of pre-phaseout inventories for critical uses, including the
concept of CSAs and a prohibition on the sale of pre-phaseout
inventories for critical uses in excess of the amount of CSAs held by
the seller. It also established trading provisions that allow CUAs to
be converted into CSAs. EPA is not proposing to change these
provisions.
    The aggregate amount of pre-phaseout methyl bromide reported as
being in inventory at the beginning of 2011 is 1,802,715 kg. As in
prior years, the Agency will continue to closely monitor CUA and CSA
data. As stated in the final 2006 CUE Rule, if an inventory shortage
occurs, EPA may consider various options including authorizing the
conversion of a limited number of CSAs to CUAs through a rulemaking,
bearing in mind the upper limit on U.S. production/import for critical
uses. In sections V.D. and V.G. of this preamble, EPA seeks comment on
the amount of critical use methyl bromide to come from stocks compared
to new production and import.
    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. EPA notes that if the number of
competitors in the industry were to decline appreciably, EPA would
revisit the question of whether the aggregate is entitled to treatment
as confidential information and whether to release the aggregate
without notice. EPA is not proposing to change the treatment of
submitted information but welcomes information concerning the
composition of the industry in this regard. The aggregate information
for 2003 through 2011 is available in the docket for this rulemaking.

VI. Statutory and Executive Order Reviews

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

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

B. Paperwork Reduction Act

    This action does not impose any new information collection burden.
The application, recordkeeping, and reporting requirements have already
been established under previous Critical Use Exemption rulemakings and
this action does not propose to change any of those existing
requirements. The Office of Management and Budget (OMB) has previously
approved the information collection requirements contained in the
existing regulations at 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  (in
               Category                       NAICS code                SIC code          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
                                        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    500 employees.
                                                                 Grain Mill Products.
                                       311212--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 proposed rule would only affect entities
that applied to EPA for an exemption to the phaseout of methyl bromide.
In most cases, EPA received aggregated requests for exemptions from
industry consortia. On the exemption application, EPA asked consortia
to describe the number and size distribution of entities their
application covered. EPA estimated that 3,218 entities petitioned EPA
for an exemption for the 2005 control period. EPA revised this estimate
in 2011 down to 1,800 end users of critical use methyl bromide. EPA
believes that the number continues to decline as growers cease applying
for critical uses. Since many applicants did not provide information on
the distribution of sizes of entities covered in their applications,
EPA estimated that, based on the above definition, between one-fourth
and 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 proposed rule on
small entities, EPA certifies that this action will not have a
significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' (5 U.S.C.
603-604). Thus, an agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves a regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule. Since
this rule 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. 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
owing to the high value of methyl bromide for crop production and
agriculture related activities. We have therefore concluded that this
proposed rule would relieve regulatory burden for all small entities.

D. Unfunded Mandates Reform Act

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

E. Executive Order 13132: Federalism

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

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

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

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

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to

EO 13045 because it does not establish an environmental standard
intended to mitigate health or safety risks.

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

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

I. National Technology Transfer and Advancement Act

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

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

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations, because it affects the
level of environmental protection equally for all affected populations
without having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. Any ozone depletion that results from this proposed
rule will impact all affected populations equally because ozone
depletion is a global environmental problem with environmental and
human effects that are, in general, equally distributed across
geographical regions.

List of Subjects in 40 CFR Part 82

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

    Dated: October 13, 2011.
Lisa P. Jackson,
Administrator.

    For the reasons stated in the preamble, 40 CFR part 82 is proposed
to be amended as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

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

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

    2. Section 82.8 is amended as follows:
    a. by revising the table in paragraph (c)(1);
    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 use  2012 Critical use
                                      allowances for     allowances for
              Company                pre-plant uses *  post-harvest uses
                                       (kilograms)       *  (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp., A                 425,197             36,499
 Chemtura 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
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--263,082 kilograms

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

Appendix L to Subpart A of Part 82--Approved Critical Uses and Limiting
Critical Conditions for Those Uses for the 2012 Control Period

------------------------------------------------------------------------
          Column A                  Column B              Column C
------------------------------------------------------------------------
Approved Critical Uses        Approved Critical     Limiting Critical
                               User and Location     Conditions that
                               of Use.               exist, or that the
                                                     approved critical
                                                     user 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,           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.
                              (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.
                              (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 infestation
                               and Gwaltney and
                               Smithfield Inc.
------------------------------------------------------------------------

[FR Doc. 2011-27186 Filed 10-19-11; 8:45 am]
BILLING CODE 6560-50-P