[Federal Register Volume 77, Number 96 (Thursday, May 17, 2012)]
[Rules and Regulations]
[Pages 29218-29231]
[FR Doc No: 2012-11972]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

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

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

FOR FURTHER INFORMATION CONTACT: For further information about this
rule, contact Jeremy Arling by telephone at<PHONE_NUMBER>, or by email
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 layer protection Web site at www.epa.gov/ozone/mbr for
further information about the methyl bromide critical use exemption,
other stratospheric ozone protection regulations, the science of ozone
layer depletion, and related topics.

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

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

Table of Contents

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

I. General Information

A. Regulated Entities

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

II. What is methyl bromide?

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

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

    The regulatory requirements of the stratospheric ozone protection
program that limit production and consumption of ozone-depleting
substances are in 40 CFR part 82, subpart A. The regulatory program was
originally published in the Federal Register on August 12, 1988 (53 FR
30566), in response to the 1987 signing and subsequent ratification of
the Montreal Protocol on Substances that Deplete the Ozone Layer
(Montreal Protocol). The Montreal Protocol is the international
agreement aimed at reducing and eliminating the production and
consumption of stratospheric ozone-depleting substances. The United
States was one of the original signatories to the 1987 Montreal
Protocol and the United States ratified the Protocol on April 12, 1988.
Congress then enacted, and President George H.W. Bush signed into law,
the Clean Air Act Amendments of 1990 (CAAA of 1990) which included
Title VI on Stratospheric Ozone Protection, codified as 42 U.S.C.
Chapter 85, Subchapter VI, to ensure that the U.S. could satisfy its
obligations under the Montreal Protocol. EPA issued regulations to
implement this legislation and has since amended the regulations as
needed.
    Methyl bromide was added to the Montreal Protocol as an ozone-
depleting substance in 1992 through the Copenhagen Amendment. The
Parties to the Montreal Protocol (Parties) agreed that each
industrialized country's level of methyl bromide production and
consumption in 1991 should be the baseline for establishing a freeze in
the level of methyl bromide production and consumption for
industrialized countries. EPA published a rule in the Federal Register
on December 10, 1993 (58 FR 65018), listing methyl bromide as a Class
I, Group VI controlled substance, freezing U.S. production and
consumption at the 1991 baseline level of 25,528,270 kilograms, and
setting forth the percentage of baseline allowances for methyl bromide
granted to companies in each control period (each calendar year) until
2001, when the complete phaseout would occur. This phaseout date was
established in response to a petition filed in 1991 under sections
602(c)(3) and 606(b) of the CAAA of 1990, requesting that EPA list
methyl bromide as a Class I substance and phase out its production and
consumption. This date was consistent with section 602(d) of the CAAA
of 1990, which for newly listed Class I ozone-depleting substances
provides that ``no extension [of the phaseout schedule in section 604]
under this subsection may extend the date for termination of production
of any class I substance to a date more than 7 years after January 1 of
the year after the year in which the substance is added to the list of
class I substances.''

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

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

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

V. What is the critical use exemption process?

A. Background of the Process

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

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

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

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

C. Stocks of Methyl Bromide

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

D. Critical Uses

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

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

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

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

E. Critical Use Amounts

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

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

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

F. Critical Use Allowance Allocations

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

G. Critical Stock Allowance Allocations

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

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

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

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

I. Emissions Minimization

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

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

VI. Statutory and Executive Order Reviews

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

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

B. Paperwork Reduction Act

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

C. Regulatory Flexibility Act

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

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

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

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

D. Unfunded Mandates Reform Act

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

E. Executive Order 13132: Federalism

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

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

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

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

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

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

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

I. National Technology Transfer and Advancement Act

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

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

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

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

K. Congressional Review Act

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

List of Subjects in 40 CFR Part 82

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

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

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

PART 82--PROTECTION OF STRATOSPHERIC OZONE

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

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

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

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

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

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

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

Company

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

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

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

------------------------------------------------------------------------
                                                      Limiting critical
                                                       conditions that
                                                     exist, or that the
                                Approved critical     approved critical
   Approved critical uses     user and location of     user reasonably
                                       use           expects could arise
                                                       without methyl
                                                     bromide fumigation
Column A                      Column B............  Column C
------------------------------------------------------------------------
                             PRE-PLANT USES
------------------------------------------------------------------------
Cucurbits...................  (a) Growers in        Moderate to severe
                               Delaware and          soilborne disease
                               Maryland.             infestation.
                              (b) Growers in        Moderate to severe
                               Georgia and           yellow or purple
                               Southeastern U.S.     nutsedge
                               limited to growing    infestation.
                               locations in         Moderate to severe
                               Alabama, Arkansas,    soilborne disease
                               Kentucky,             infestation.
                               Louisiana,           Moderate to severe
                               Mississippi, North    root knot nematode
                               Carolina, South       infestation.
                               Carolina,
                               Tennessee, and
                               Virginia.
Eggplant....................  (a) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.

                              (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
                               and Gwaltney and      infestation.
                               Smithfield Inc.
------------------------------------------------------------------------

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