[Federal Register: November 23, 2009 (Volume 74, Number 224)]
[Proposed Rules]
[Page 61078-61096]
[DOCID:fr23no09-23]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

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

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

FOR FURTHER INFORMATION CONTACT: For further information about this
proposed rule, contact Jeremy Arling by telephone at<PHONE_NUMBER>, or
by e-mail at<EMAIL_ADDRESS>or by mail at U.S. Environmental
Protection Agency, Stratospheric Protection Division, Stratospheric
Program Implementation Branch (6205J), 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460. You may also visit the Ozone Depletion Web site
of EPA's Stratospheric Protection Division at http://www.epa.gov/ozone/
strathome.html for further information about EPA's Stratospheric Ozone
Protection regulations, the science of ozone layer depletion, and
related topics.

SUPPLEMENTARY INFORMATION:
    This proposed rule concerns Clean Air Act (CAA) restrictions on the
consumption, production, and use of methyl bromide (a Class I, Group VI
ozone-depleting substance) for critical uses during calendar year 2010.
Under the Clean Air Act, methyl bromide consumption (consumption is
defined under the CAA as production plus imports minus exports) and
production was phased out on January 1, 2005, apart from allowable
exemptions, such as the critical use exemption and the quarantine and
preshipment exemption. With this action, EPA is proposing and seeking
comment on the uses that will qualify for the 2010 critical use
exemption as well as specific amounts of methyl bromide that may be
produced, imported, or sold from pre-phaseout inventory for proposed
critical uses in 2010.

Table of Contents

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

Authorized by the Parties to the Montreal Protocol?
V. What Is the Critical Use Exemption Process?
    A. Background of the Process
    B. How Does This Proposed Rule Relate to Previous Critical Use
Exemption Rules?
    C. Proposed Critical Uses
    D. Proposed Critical Use Amounts
    1. Background of Proposed Critical Use Amounts
    2. Calculation of Available Pre-Phaseout Inventory
    3. Approach for Determining Critical Use Amounts
    4. Treatment of Carryover Material
    5. Methyl Bromide Alternatives
    E. The Criteria in Decisions IX/6 and Ex. I/4
    F. Emissions Minimization
    G. Critical Use Allowance Allocations
    H. Critical Stock Allowance Allocations
    I. Stocks of Methyl Bromide
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations

I. General Information

Regulated Entities

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

What Should I Consider When Preparing My Comments?

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

II. What Is Methyl Bromide?

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

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

    The regulatory requirements of the stratospheric ozone protection
program that limit production and consumption of ozone-depleting
substances are in 40 CFR part 82, subpart A. The regulatory program was
originally published in the Federal Register on August 12, 1988 (53 FR
30566), in response to the 1987 signing and subsequent ratification of
the Montreal Protocol on Substances that Deplete the Ozone Layer
(Montreal Protocol). The Montreal Protocol is the international
agreement aimed at reducing and eliminating the production and
consumption of stratospheric ozone-depleting substances. The U.S. was
one of the original signatories to the 1987 Montreal Protocol and the
U.S. ratified the Protocol on April 12, 1988. Congress then enacted,
and President George H.W. Bush signed into law, the Clean Air Act
Amendments of 1990 (CAAA of 1990) which included Title VI on
Stratospheric Ozone Protection, codified as 42 U.S.C. Chapter 85,
Subchapter VI, to ensure that the United States could

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

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

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

V. What Is the Critical Use Exemption Process?

A. Background of the Process

    The critical use exemption is designed to permit the production and
import of methyl bromide for uses that do not have technically and
economically feasible alternatives and for which the lack of methyl
bromide would result in significant market disruption (40 CFR 82.3). On
May 8, 2003, the Agency published its first notice in the Federal
Register (68 FR 24737) announcing the availability of the application
for a critical use exemption and the deadline for submission of the
requisite data. Applicants were informed that they may apply as
individuals or as part of a group of users (a ``consortium'') who face
the same limiting critical conditions (i.e., specific conditions that
establish a critical need for methyl bromide). EPA has repeated this
process annually since then.
    The criteria for the exemption initially appeared in Decision IX/6.
In that Decision, the Parties agreed that ``a use of methyl bromide
should qualify as `critical' only if the nominating Party determines
that: (i) The specific use is critical because the lack of availability
of methyl bromide for that use would result in a significant market
disruption; and (ii) there are no technically and economically feasible
alternatives or substitutes available to the user that are acceptable
from the standpoint of environment and public health and are suitable
to the crops and circumstances of the nomination.'' These criteria are
reflected in EPA's definition of ``critical use'' at 40 CFR 82.3.
    In response to the annual requests for critical use exemption
applications published in the Federal Register, applicants provide data
on the technical and economic feasibility of using alternatives to
methyl bromide. Applicants also submit data on their use of methyl
bromide, research programs into the use of alternatives to methyl
bromide, and efforts to minimize use and emissions of methyl bromide.
    EPA's Office of Pesticide Programs reviews the data submitted by
applicants, as well as data from governmental and academic sources, to
establish whether there are technically and economically feasible
alternatives available for a particular use of methyl

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

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

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

C. Proposed Critical Uses

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

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

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

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

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

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

are prohibitions on the use of 1,3-dichloropropene products in cases
where local township limits on use of this alternative have been
reached. In addition, ``pet food'' under subsection B of Food
Processing refers to food for domesticated dogs and cats. Finally,
``rapid fumigation'' for commodities is when a buyer provides short
(two working days or fewer) notification for a purchase or there is a
short period after harvest in which to fumigate and there is limited
silo availability for using alternatives.
    Since the critical use exemption was first established, many
critical users have transitioned to alternatives and a variety of
sectors that were once critical uses no longer are. These uses include
ginger, golf courses and turf production, tobacco, cocoa beans,
pistachios, and now bakeries.

D. Proposed Critical Use Amounts

    Section V.C. of this preamble explains that Table C of the annex to
Decision XX/5 lists critical uses and amounts agreed to by the Parties
to the Montreal Protocol. When added together, the authorized critical
use amounts for 2010 total 3,233,456 kilograms (kg), which is
equivalent to 12.7% of the U.S. 1991 methyl bromide consumption
baseline of 25,528,270 kg as defined at 40 CFR 82.3. However, the
maximum amount of authorized new production or import as set forth in
Table D of the annex to Decision XX/5 is 2,763,456 kg (10.8% of
baseline).
    EPA is proposing to exempt limited amounts of new production and
import of methyl bromide for critical uses for 2010 in the amount of
2,275,715 kg (8.9% of baseline) as shown in Table III. EPA is also
proposing to allow sale of 690,464 kg (2.7% of baseline) of existing
pre-phaseout inventory for critical uses in 2010. EPA is seeking
comment on the proposed total levels of exempted new production and
import for critical uses and the amount of material that may be sold
from pre-phaseout inventory for critical uses. The sub-sections below
explain EPA's reasons for proposing the above critical use amounts for
2010.
1. Background of Proposed Critical Use Amounts
    The 2004 Framework Rule established the provisions governing the
sale of pre-phaseout inventories for critical uses, including the
concept of Critical Stock Allowances (CSAs) and a prohibition on the
sale of pre-phaseout inventories for critical uses in excess of the
amount of CSAs held by the seller. In addition, EPA noted that pre-
phaseout inventories were further taken into account through the
trading provisions that allow CUAs to be converted into CSAs. EPA is
not proposing changes to these CSA provisions for calendar year 2010.
    Paragraph 5 of Decision XX/5 further addresses pre-phaseout
inventory of methyl bromide. The Decision states ``that a Party with a
critical use exemption level in excess of permitted levels of
production and consumption for critical uses is to make up any such
differences between those levels by using quantities of methyl bromide
from stocks that the Party has recognized to be available.'' In the
Framework Rule (69 FR 52366), EPA issued CSAs in an amount equal to the
difference between the total authorized CUE amount and the amount of
new production or import authorized by the Parties.
    In the 2006, 2007, 2008, and 2009 CUE Rules, EPA allocated CSAs in
amounts that represented not only the difference between the total
authorized CUE amount and the amount of authorized new production and
import but also an additional amount to reflect available stocks. In
the 2006 CUE Rule, EPA issued a total of 1,136,008 CSAs, equivalent to
4.4% of baseline. For 2006, the difference in the Parties' decision
between the total CUE amount and the amount of new production and
import was 3.6% of baseline. In the 2007 rule, EPA added to the minimum
amount (6.3% of baseline) an additional amount (1.2% of baseline) for a
total of 1,914,600 CSAs (7.5% of baseline). In the 2008 rule, EPA added
to the minimum amount (3.0% of baseline) an additional amount (3.8% of
baseline) for a total of 1,729,689 CSAs (6.8% of baseline). In the 2009
rule, EPA added to the minimum amount (1.2% of baseline) an additional
amount (6.3% of baseline) for a total of 1,919,193 CSAs (7.5% of
baseline). After determining the CSA amount, EPA reduced the portion of
CUE methyl bromide to come from new production and import in each of
the 2006-2009 control periods such that the total amount of methyl
bromide exempted for critical uses did not exceed the total amount
authorized by the Parties for that year.
    As established in the earlier rulemakings, EPA views the inclusion
of these additional amounts in the calculation of the year's overall
CSA level as an appropriate exercise of discretion. The Agency is not
required to allocate the full amount of authorized new production and
consumption. The Parties only agree to ``permit'' a particular level of
production and consumption; they do not--and cannot--mandate that the
U.S. authorize this level of production and consumption domestically.
Nor does the CAA require EPA to allow the full amount permitted by the
Parties. Section 604(d)(6) of the CAA does not require EPA to exempt
any amount of production and consumption from the phaseout, but instead
specifies that the Agency ``may'' create an exemption for critical
uses, providing EPA with substantial discretion.
    When determining the CSA amount for a year, EPA considers what
portion of existing stocks is ``available'' for critical uses. As
discussed in prior CUE rulemakings, the Parties to the Protocol
recognized in their Decisions that the level of existing stocks may
differ from the level of available stocks. For example, Decision IX/6
states that ``production and consumption, if any, of methyl bromide for
critical uses should be permitted only if * * * methyl bromide is not
available in sufficient quantity and quality from existing stocks.''
Decision XX/5, as well as earlier decisions, refers to use of
``quantities of methyl bromide from stocks that the Party has
recognized to be available.'' Thus, it is clear that individual Parties
have the ability to determine their level of available stocks. Decision
XX/5 further reinforces this concept by including the phrase ``minus
available stocks'' as a footnote to the United States' authorized level
of production and consumption in Table D. Section 604(d)(6) of the CAA
does not require EPA to adjust the amount of new production and import
to reflect the availability of stocks; however, as explained in
previous rulemakings, making such an adjustment is a reasonable
exercise of EPA's discretion under this provision.
    EPA employs the concept of ``available stocks'' in determining
whether to allocate additional CSAs beyond the minimum stock amount
stipulated by the Parties. In response to stakeholder questions about
how EPA derived its CSA amounts, the 2008 CUE rule established a
refined approach for determining the amount of existing methyl bromide
stocks that is ``available'' for critical uses. The approach uses a
tool called the Supply Chain Factor (SCF). The SCF is EPA's technical
estimate of the amount of methyl bromide inventory that would be
adequate to meet the need for critical use methyl bromide after an
unforeseen domestic production failure. The SCF recognizes the benefit
of allowing the private sector to maintain a buffer in case of a major
supply disruption. However, the SCF is not intended to set aside or
physically separate stocks as an inventory reserve.

2. Calculation of Available Pre-Phaseout Inventory
    For 2010, EPA proposes to calculate the amount of ``available''
stocks as follows, using the formula adopted in the 2008 CUE rule:
AS2010 = ES2009-D2009-
SCF2010, where AS2010 is the available stocks on
January 1, 2010; ES2009 is the existing pre-phaseout stocks
of methyl bromide held in the United States by producers, importers,
and distributors on January 1, 2009; D2009 is the estimated
drawdown of existing stocks during calendar year 2009; and
SCF2010 is the supply chain factor for 2010. Using this
formula, EPA calculates that there will be no pre-phaseout stocks of
methyl bromide ``available'' on January 1, 2010.
    Existing Stocks. In the above formula, ``ES2009'' refers
to pre-phaseout inventory--methyl bromide that was produced before the
January 1, 2005 phaseout date but is still held by domestic producers,
distributors, and third-party applicators. ES2009 does not
include critical use methyl bromide that was produced after January 1,
2005 and carried over into subsequent years. Nor does it include methyl
bromide produced (1) under the quarantine and preshipment (QPS)
exemption, (2) with Article 5 allowances to meet the basic domestic
needs of Article 5 countries, or (3) for feedstock or transformation
purposes. EPA considers all pre-phaseout inventory to be suitable for
both pre-plant and post harvest uses. Similarly, EPA considers
inventory methyl bromide to be available to all users, including users
in California and the Southeastern United States. These assumptions are
discussed in the 2009 CUE rule (74 FR 19887).
    Supply Chain Factor. The SCF represents EPA's technical estimate of
the amount of pre-phaseout inventory that would be adequate to meet a
need for critical use methyl bromide after an unforeseen domestic
production failure. As described in the 2008 CUE rule, and the
Technical Support Document contained in the docket to this rule, EPA
estimates that it would take 15 weeks for significant imports of methyl
bromide to reach the U.S. in the event of a major supply disruption.
Consistent with the regulatory framework used in the 2008 and 2009
rules, the SCF for 2010 conservatively reflects the effect of a supply
disruption occurring in the peak period of critical use methyl bromide
production, which is the first quarter of the year. While this 15-week
disruption is based on shipping capacity and does not change year to
year, other inputs to EPA's analysis do change each year including the
total U.S. and global authorizations for methyl bromide and the average
seasonal production of critical use methyl bromide in the U.S. Using
updated numbers, EPA estimates that critical use production in the
first 15 weeks of each year (the peak supply period) currently accounts
for approximately 63% of annual critical use methyl bromide demand.
EPA, therefore, estimates that the peak 15-week shortfall in 2010 could
be 2,035,000 kg (63% x 3,233,456 kg).
    As EPA stated in the 2008 and 2009 CUE Rules, the SCF is not a
``reserve'' or ``strategic inventory'' of methyl bromide but is merely
an analytical tool used to provide greater transparency regarding how
the Agency determines CSA amounts. Its use in the equation above
demonstrates that for 2010 no ``additional'' stocks are available to
allocate beyond what is required by the Parties. Further general
discussion of the SCF is in the final 2008 CUE rule (72 FR 74118) and
further detail about the analysis used to derive the value for the 2010
supply chain factor is provided in the Technical Support Document
available on the public docket for this rulemaking.
    Estimated Drawdown. In the 2008 CUE rule, EPA estimated the
drawdown of existing stocks (the D2009 term in the above
equation) by using a simple linear fit estimation of inventory data
from all available years. In the 2009 CUE proposed rule, however, EPA
estimated drawdown using an exponential model. The Agency did so
because it appeared that the rate of drawdown was slowing and because
EPA believed that the exponential estimate provided a more reasonable
reflection of market conditions than the linear estimate. The end-of-
year data for 2008, which EPA received in February 2009, however, were
contrary to that trend and showed that the use of inventory in 2008
increased rather than continued to decrease. Ultimately, EPA did not
need to estimate the drawdown because it had end-of-year data. These
new data suggest that EPA should reconsider the use of the exponential
model and instead use a linear model as was done for 2008.
    Commenters on the 2009 CUE rule suggested two other forecasting
techniques: Time series forecasting (extrapolating past behavior into
the future) and change-point detection methods (change-point detection
is the identification of abrupt changes in the generative parameters of
sequential data--looking at data and calculating when it changes its
slope). EPA is not proposing to use these methods because they would
require more data than the six data points that EPA currently has on
annual inventory levels. EPA welcomes comment on these techniques for
forecasting future drawdown amounts.
    EPA also welcomes comment on whether the estimate should be limited
to a statistical analysis of past inventory levels or whether EPA
should collect additional data or consider other factors. For example,
one commenter on the 2009 proposed rule suggested that EPA collect
information on pre-phaseout inventory levels near the end of the
calendar year before the final rule is issued instead of in February.
The Methyl Bromide Industry Panel (MBIP) voluntarily collected such
data in early December 2008 in support of its comment on the 2009 CUE
Rule. EPA could estimate the drawdown in the proposed rule and then
collect the actual data on stocks near the end of the calendar year
through EPA's information gathering authority under section 114 of the
Clean Air Act. Alternatively, EPA could revise the regulations to add a
reporting requirement to facilitate the early collection of this
information in future years. If EPA did collect actual data on stocks
before the end of the calendar year, the Agency would still need to
estimate stock drawdown for the remaining portion of the year in order
to calculate the total drawdown for 2009. For example, in November 2009
EPA could collect data on the first three quarters of the year and use
those data to estimate fourth quarter drawdown. EPA requests comment on
the feasibility, accuracy, and burden imposed by such an approach.
    EPA is proposing to estimate the drawdown of inventory in 2009
based on a linear projection. Using this method, EPA projects that the
pre-phaseout methyl bromide inventory, which was 4,271,226 kg on
January 1, 2009, will be drawn down by 2,834,226 kg during 2009. This
will result in a pre-phaseout inventory of 1,437,000 kg on January 1,
2010. EPA's proposed methodology for estimating the inventory drawdown
is described in more detail in the Technical Support Document available
in the public docket for this rulemaking.
3. Approach for Determining Critical Use Amounts
    In developing this proposed rule, EPA applied the approach
described in Section V.D.2 above, as it did for 2008 and 2009, to
calculate ``available stocks.'' EPA has calculated that in 2010 there
will no longer be an amount of pre-phaseout inventory that meets the
definition of ``available stocks.'' EPA recognized in the 2008 rule
that its

formula for calculating ``available'' stocks would in some future
rulemaking yield a number less than the minimum effectively stipulated
by the Parties (the difference between the total authorized critical
use amount and the authorized amount of new production and imports). In
the preambles to the 2008 and 2009 rules, EPA indicated that when that
occurred, it would issue CSAs equal to the minimum amount stipulated by
the Parties. However, for the 2010 control period there is an
additional circumstance not discussed in prior CUE rulemakings. If EPA
were to issue CSAs equal to the minimum amount stipulated by the
Parties, and issue CUAs for the remaining amount of the total critical
need, then new production and import in 2010 could exceed the previous
year's level.
    To ensure continued progress in reducing U.S. production and import
of critical use methyl bromide, EPA is proposing to limit 2010 CUAs
(i.e., production and import) to the same level as in 2009. EPA is
proposing to make up the remaining critical need by using its
discretion to increase the CSA allocation proportionately. EPA is
proposing to allocate only the amount of CSAs necessary to make up the
difference between the overall U.S. critical need and the CUA amount in
the 2009 CUE rule and consistent with levels authorized by the Parties.
    EPA's proposed action continues to meet the needs of critical
users. EPA is also limiting this proposal to the situation where the
total need can continue to be met through a combination of newly-
produced or -imported methyl bromide and stocks. Ascertaining which
uses of methyl bromide in a control period are critical, and in which
amounts, is integral to the critical use process. The USG submits an
annual critical use nomination to the Ozone Secretariat that reflects
rigorous EPA review of applications to ensure that the nomination
identifies only those uses meeting the criteria of Decision IX/6. The
nominated critical uses and amounts are refined further during
evaluation by the Methyl Bromide Technical Options Committee (MBTOC),
such that the authorization for a particular control period ultimately
reflects the Parties' best assessment of the actual critical need.
EPA's critical use rulemakings reflect the U.S. critical need
identified by the Parties, with further adjustments only to account for
carryover of unsold critical use methyl bromide from a previous year,
new information regarding availability of alternatives, and (in some
cases) research amounts.
    Second, EPA's proposed action continues U.S. progress in phasing
down the production and import of critical use methyl bromide. The
proposed 2010 allocations reflect the consistent trend that the
allocation for newly-produced or -imported critical use methyl bromide
has decreased each and every year since the start of the critical use
exemption process in 2005. Not allowing an increase in production or
import is appropriate given that this is the sixth year following the
methyl bromide phaseout under the Montreal Protocol (i.e., the
international goal for developed countries has been zero new production
and import since 2005), and considering that the remainder of the
U.S.'s 2010 critical need can be met from pre-phaseout stockpiles.
    EPA recognizes that this approach would allocate more from stocks
than the Agency indicated it would when describing the supply chain
factor in the 2008 and 2009 CUE rules. However, even if EPA issued CSAs
equal to what the Parties authorized, as was discussed in those rules,
the pre-phaseout inventory levels would be less than the supply chain
factor calculated for 2010. As stated in prior CUE rulemakings, the
supply chain factor is neither a reserve nor a guarantee. EPA will
continue to calculate the SCF to determine whether additional amounts
should be taken from stocks and, if so, in what amounts. In this rule,
EPA is proposing to allocate CSAs as described in the decision of the
Parties plus an additional amount to prevent an increase in new
production. In future rules, if EPA calculates available stocks to be
less than the SCF amount, EPA will only issue CSAs in the amounts
authorized by the Parties, provided that this level does not increase
new production compared to a prior year. EPA is not revisiting the
concept of allowing the private sector to maintain limited amounts of
inventory. Nor is EPA proposing to allocate the entire remaining amount
of the stockpile as CSAs in today's proposed action.
    The proposed reduction to the CUA level is greater than the
reductions EPA would otherwise make based on the approach described in
the 2008 and 2009 rules. Of the reductions described in the 2008 and
2009 rules--for carryover amounts, research amounts, and uptake of
alternatives--EPA would make a reduction only for carryover amounts
because the other two adjustments are not applicable to the 2010
control period. EPA would not propose to make reductions for research
amounts, because, as discussed below, the USG did not nominate a
separate, additional amount specifically for research purposes. At this
time EPA also would not propose adjustments to reflect uptake of
alternatives, although the Agency may make adjustments in the final
rule to reflect information obtained during the comment period, if such
adjustments would exceed the reduction made to bring the 2010 CUA level
down to the 2009 CUA level.
    If EPA were to apply only the carryover reduction, the amount of
CUAs for 2010 would be 236,150 kg (0.9% of baseline) higher than the
CUA amount allocated in the 2009 CUE rule. Thus, new production in 2010
could exceed the level of new production in 2009. EPA does not believe
that an increase in new production is merited when existing pre-
phaseout inventory can be used. As discussed above, EPA estimates that
there will be a pre-phaseout inventory of 1,437,000 kg on January 1,
2010. EPA therefore proposes to reduce the calculated CUA amount by
236,150 kg to maintain CUAs at the same level as in the 2009 CUE rule.
    EPA considered two approaches to ensuring that the CUAs for one
year do not exceed the CUA level adopted in the previous year's CUE
rule. The approach EPA is proposing would, for 2010, reduce the
calculated level of CUAs by 236,130 kg so that the CUA allocation
declines from 2,981,865 kg (11.7% of baseline) to 2,745,715 (10.8% of
baseline) and increase the CSA amount to 690,464 kg so as to meet the
overall level of proposed critical needs. Under the second approach,
EPA considered maintaining the CSA level at 470,000 kg in order to
allow private entities to maintain as much as possible of the supply
chain factor amount. EPA prefers the first approach because it meets
the overall U.S. CUE need and it appropriately gives greater importance
to meeting the current authorized need than a hypothetical future need.
    EPA is not addressing the circumstance in which existing inventory
cannot make up the difference between the production amount and the
total critical need. Rather, EPA is proposing that it not increase new
production while there is sufficient existing inventory. When the
inventory is depleted or reaches a negligible amount, EPA may revisit
the issue of whether there are circumstances in which production could
be allowed to increase.
    Although EPA's proposed 2010 CUEs reflect a policy goal of not
allowing an increase in new production and import in 2010, EPA is also
seeking comment on applying its existing approach (as described in the
2008 and 2009 CUE rules) without this modification. Under that
approach, EPA would allocate

470,000 kg of CSAs to reflect the minimum amount from stocks stipulated
in the Parties' decision, reduce the production level authorized by the
Parties by the carryover amount of 251,591 kg (see the detailed
discussion below), and allocate 2,511,865 kg of CUAs, which is a
236,150 kg increase over the 2009 CUA level. Although this is not the
preferred policy option for 2010, EPA is seeking comment on whether it
should continue to apply the 2008-2009 approach without modification.
That approach would also enable the total critical need for 2010 to be
met, but would do so in a way that allowed private entities to maintain
a greater level of pre-phaseout inventory.
4. Treatment of Carryover Material
    As discussed in the Framework Rule, EPA does not permit the
building of stocks of methyl bromide produced or imported after January
1, 2005, under the critical use exemption. Quantities of methyl bromide
produced, imported, exported, or sold to end-users under the critical
use exemption in a control period must be reported to EPA the following
year. EPA uses the reported information to calculate the amount of
methyl bromide produced or imported under the critical use exemption,
but not exported or sold to end-users in that year. EPA deducts an
amount equivalent to this ``carryover,'' whether pre-plant or post-
harvest, from the total level of allowable new production and import in
the year following the year of the data report. Carryover material
(which is produced using critical use allowances) is not included in
EPA's definition of existing stocks (ES) (which applies to pre-phaseout
material) because this would lead to a double-counting of carryover
amounts, and a double reduction of critical use allowances (CUAs).
    In 2009, companies reported that 3,036,130 kg of critical use
methyl bromide was acquired through production or import in 2008. The
information reported to EPA is that 2,784,539 kg of critical use methyl
bromide was exported or sold to end-users in 2008. EPA calculates that
the carryover amount at the end of 2008 was 251,591 kg, which is the
difference between the reported amount of critical use methyl bromide
acquired in 2008 and the reported amount of exports or sales of that
material to end users in 2008 (3,036,130-2,784,539 = 251,591 kg). EPA's
calculation of the amount of carryover at the end of 2008 is consistent
with the method used in previous CUE rules, and with the method agreed
to by the Parties in Decision XVI/6, which established the Accounting
Framework for critical use methyl bromide, for calculating column L of
the U.S. Accounting Framework. The 2008 U.S. Accounting Framework is
available in the public docket for this rulemaking. EPA notes that the
carryover value in the Accounting Framework is higher by 17 MT due to
additional reports received after EPA provided the Accounting Framework
to UNEP. EPA may take into account additional reports received within a
reasonable time in calculating the carryover amount for the final 2010
rule.
    As discussed in the section above, if EPA were to apply only the
carryover reduction, the amount of CUAs for 2010 would be 236,150 kg
(0.9% of baseline) higher than the CUA amount allocated in the 2009 CUE
rule. EPA is proposing not to authorize new production in 2010 at a
level that could exceed the level of new production in 2009. Thus,
while EPA has calculated the carryover amount, its value does not
affect the new production level under the preferred option. If EPA were
to apply the approach set forth in the 2008 CUE rule without making an
adjustment to avoid an increase in new production, EPA would reduce the
total level of new production and import for critical uses by 251,591
kg to reflect the total level of carryover material in existence at the
end of 2008.
5. Methyl Bromide Alternatives
    EPA considers new data regarding alternatives that were not
available at the time the U.S. Government submitted its Critical Use
Nomination (CUN) to the Parties, and adjusts the allocation for new
production accordingly. For 2010, EPA is not proposing to make further
reductions in post-harvest or pre-plant critical use allowances to
reflect the transition to alternatives because the 2010 CUN applied
transition rates for all critical use sectors. The TEAP report of
October 2008 included reductions in its recommendations for critical
use categories based on the transition rates in the 2010 CUN. The
TEAP's recommendations were then considered in the Parties' 2010
authorization amounts, as listed in Decision XX/5. Therefore,
transition rates, which account for the uptake of alternatives, have
already been applied for authorized 2010 critical use amounts.
    Furthermore, the 2011 CUN, which represents the most recent
analysis and the best available data for methyl bromide alternatives,
does not conclude that transition rates should be increased for 2010.
As the 2011 CUN reflects, the United States Government has not found
new information that supports changing the 2010 transition rates
included in the 2010 CUN and applied by MBTOC. EPA continues to gather
information about methyl bromide alternatives through the CUE
application process, and by other means.
    In the 2009 CUE rule, EPA took into consideration new information
about iodomethane and Telone. Iodomethane transition rates were not
included in the 2009 CUN due to a lack of registrations at the time the
nomination was prepared. EPA estimated iodomethane uptake during the
2009 CUE rulemaking based on new information regarding federal and
state registrations. EPA also took into consideration information
regarding a shortage of Telone and concluded that it should not make a
reduction for iodomethane in view of the decline in Telone production.
EPA therefore did not adjust the amount of new production either upward
or downward in the final 2009 CUE rule.
    Unlike the 2009 CUN, the 2010 CUN did include transition rates for
iodomethane, and as stated above, there is no new information that
would suggest changing those rates. Currently, iodomethane is
registered for use in 47 states. We note that California has not yet
decided whether to register iodomethane for use in the state. EPA may
adjust the proposed uptake of iodomethane if additional state
registrations occur within a reasonable time prior to signature of the
final rule. EPA is not proposing at this point any further adjustment
based on iodomethane beyond those already incorporated into the
nominated amounts. EPA specifically invites comments on the
availability, uptake, and use of iodomethane as an alternative to
methyl bromide.
    EPA also does not intend to make any adjustments to account for the
reduced production of Telone in 2009. EPA has been made aware that Dow
AgroSciences is seeking to restore production of Telone to full levels
by the end of 2009. EPA does not believe that the shortage will
continue into 2010 and therefore sees no need to account for it in the
2010 CUE allocation. EPA also seeks comment on its assumption that
Telone supply will return to pre-shortage levels by 2010.
    Finally, EPA seeks comment on its proposal not to make further
reductions in 2010 to account for the uptake of methyl bromide
alternatives because the Agency has already accounted for these other
alternatives' transition rates. EPA 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.

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

    Paragraphs 2 and 7 of Decision XX/5 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 2010 control
period. A discussion of the Agency's application of the criteria in
paragraph 1 of Decision IX/6 appears in sections V.A., V.C., V.D., and
V.H. of this preamble. In section V.C. the Agency solicits comments on
the technical and economic basis for determining that the uses listed
in this proposed rule meet the criteria of the critical use exemption
(CUE). The critical use nominations (CUNs) detail how each proposed
critical use meets the criteria listed in paragraph 1 of Decision IX/6,
apart from the criterion located at (b)(ii), as well as the criteria in
paragraphs 5 and 6 of Decision Ex. I/4.
    The criterion in Decision IX/6(1)(b)(ii), which refers to the use
of available stocks of methyl bromide, is addressed in sections V.D.,
V.G., and V.H. of this preamble. The Agency has previously provided its
interpretation of the criterion in Decision IX/6(1)(a)(i) regarding the
presence of significant market disruption in the absence of an
exemption, and EPA refers readers to the 2006 CUE final rule (71 FR
5989) as well as to the memo on the docket titled ``Development of 2003
Nomination for a Critical Use Exemption for Methyl Bromide for the
United States of America'' for further elaboration.
    The remaining considerations, including the lack of available
technically and economically feasible alternatives under the
circumstance of the nomination; efforts to minimize use and emissions
of methyl bromide where technically and economically feasible; the
development of research and transition plans; and the requests in
Decision Ex. I/4(5) and (6) that Parties consider and implement MBTOC
recommendations, where feasible, on reductions in the critical use of
methyl bromide and include information on the methodology they use to
determine economic feasibility, are addressed in the nomination
documents.
    The USG's approach to research changed slightly in the 2010
nomination. In previous years, while the nomination was broad enough to
cover both research and non-research uses, the USG nominated a
separate, additional amount specifically for research purposes.
Decision XVII/9 requested that the Parties ``endeavor to use stocks,
where available, to meet any demand for methyl bromide for the purposes
of research and development.'' Therefore, when allocating allowances,
EPA subtracted the separate research amount from the Parties'
authorized production level. This in effect encouraged the use of
stocks for research purposes. This year, the USG did not nominate a
separate, additional amount specifically for research purposes; thus,
EPA is not proposing to adjust the production level to subtract this
amount. However, the nomination was again broad enough to cover both
research and non-research uses. As discussed below, research continues
to be a key element of the critical use process. EPA therefore proposes
that research on the critical use crops shown in the table in Appendix
L to subpart A remain a critical use of methyl bromide. The USG may or
may not nominate additional amounts for research in future years.
    EPA maintains that research is a critical use as research on
critical use crops is fundamental to the critical use process. Decision
IX/6, which sets forth the criteria for a ``critical use''
determination, requires ongoing research programs in order for a Party
to receive critical uses:

    (b) That production and consumption, if any, of methyl bromide
for a critical use should be permitted only if: (iii) It is
demonstrated that an appropriate effort is being made to evaluate,
commercialize and secure national regulatory approval of
alternatives and substitutes, taking into consideration the
circumstances of the particular nomination * * *. Non-Article 5
Parties [e.g., the U.S.] must demonstrate that research programmes
are in place to develop and deploy alternatives and substitutes * *
*.

Though the USG did not request an additional amount for 2010, the
nomination remains consistent with past nominations both in discussing
how current research affects the use and uptake of alternatives as well
as the USG's efforts to conduct research. The nomination states, ``As
noted in our previous nomination, the USG provides a great deal of
funding and other support for agricultural research, and in particular,
for research into alternatives for methyl bromide. This support takes
the form of direct research conducted by the Agricultural Research
Service (ARS) of USDA, through grants by ARS and CSREES, by IR-4, the
national USDA-funded project that facilitates research needed to
support registration of pesticides for specialty crop vegetables,
fruits and ornamentals, through funding of conferences such as MBAO,
and through the land grant university system.'' Consistent with past
practice, EPA proposes that research be a critical use in 2010. EPA
requests that researchers use pre-phaseout inventory when possible. EPA
is seeking comment on this approach for addressing researching amounts
in 2010.
    Some of these criteria are evaluated in other documents as well.
For example, the U.S. has further considered matters regarding the
adoption of alternatives and research into methyl bromide alternatives,
criterion (1)(b)(iii) in Decision IX/6, in the development of the
National Management Strategy submitted to the Ozone Secretariat in
December 2005 and in ongoing consultations with industry. The National
Management Strategy addresses all of the aims specified in Decision
Ex.I/4(3) to the extent feasible and is available in the docket for
this rulemaking.

F. Emissions Minimization

    Decision XX/5, paragraph 11 states 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.'' In the
judgment of USG scientists, use of virtually impermeable film (VIF)
tarps allows pest control with lower application rates in addition to
minimizing emissions. The quantity of methyl bromide nominated by the
USG reflects the lower application rates necessary when using tarps.
    Users of methyl bromide should make every effort to minimize
overall emissions of methyl bromide to the extent consistent with State
and local laws and regulations. The Agency encourages researchers and
users who are successfully utilizing such techniques to inform EPA of
their experiences as part of their comments on this proposed rule and
to provide such information with their critical use applications. In
addition, the Agency welcomes comments on the implementation of
emission minimization techniques and whether and how further emissions
could be reduced further.

G. Critical Use Allowance Allocations

    EPA is proposing to allocate 2010 critical use allowances for new
production or import of methyl bromide up to the amount of 2,275,715 kg
(8.9% of baseline) as shown in Table III below. EPA is seeking comment
on the total levels and allocations of exempted new production or
import for pre-plant and post-harvest critical uses in 2010. Each

critical use allowance (CUA) is equivalent to 1 kg of critical use
methyl bromide. These allowances expire at the end of the control
period and, as explained in the Framework Rule, are not bankable from
one year to the next. This proposal for allocating the following number
of pre-plant and post-harvest CUAs to the entities listed below 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):

        Table III--Proposed Allocation of Critical Use Allowances
------------------------------------------------------------------------
                                    2010 Critical use  2010 Critical use
                                      allowances for     allowances for
              Company                pre-plant uses *  post-harvest uses
                                       (kilograms)       *  (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp., a               1,282,653            100,299
 Chemtura Company.................
Albemarle Corp....................            527,456             41,245
ICL-IP America....................            291,483             22,793
TriCal, Inc.......................              9,076                710
                                   -------------------------------------
    Total **......................          2,110,668            165,047
------------------------------------------------------------------------
* 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 40 CFR part 82.
** Due to rounding, numbers do not add exactly.

    Paragraph six of Decision XX/5 states ``that Parties shall endeavor
to license, permit, authorize or allocate quantities of critical-use
methyl bromide as listed in tables A and C of the annex to the present
decision.'' This is similar to language in Decisions authorizing prior
critical uses. The language from these Decisions calls on Parties to
endeavor to allocate critical use methyl bromide on a sector basis.
    The Framework Rule proposed several options for allocating critical
use allowances, including a sector-by-sector approach. The Agency
evaluated the various options based on their economic, environmental,
and practical effects. After receiving comments, EPA determined that a
lump-sum, or universal, allocation, modified to include distinct caps
for pre-plant and post-harvest uses, was the most efficient and least
burdensome approach that would achieve the desired environmental
results, and that a sector-by-sector approach would pose significant
administrative and practical difficulties. For the reasons discussed in
the preamble to the 2009 CUE rule (74 FR 19894), the Agency believes
that under the approach adopted in the Framework Rule, the actual
critical use will closely follow the sector breakout listed in the
Parties' decisions.

H. Critical Stock Allowance Allocations

    EPA is proposing to allocate critical stock allowances (CSAs) to
the entities listed below in Table IV for the 2010 control period in
the amount of 690,464 kg (2.7% of baseline). As described previously,
EPA's calculations indicate that there are no ``available stocks'' for
allocation in 2010, and thus EPA is proposing to allocate only the
amount of stocks stipulated by the Parties in Decision XX/5.
    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). EPA's allocation of CSAs is based on each
company's proportionate share of the aggregate inventory. 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 below. EPA will inform the
listed companies of their CSA allocations in a letter following
publication of the final rule.

                           Table III--Proposed Allocation of Critical Stock Allowances
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
Company:
    Albemarle                         Hy Yield Bromine                      Royster-Clark, Inc.
    Bill Clark Pest Control, Inc.     ICL-IP America                        Trical Inc.
    Burnside Services, Inc.           Industrial Fumigation Company         Trident Agricultural Products
    Cardinal Professional Products    Pacific Ag                            UAP Southeast (NC)
    Chemtura Corp.                    Pest Fog Sales Corp.                  UAP Southeast (SC)
    Degesch America, Inc.             Prosource One                         Univar
    Helena Chemical Co.               Reddick Fumigants                     Western Fumigation
    Hendrix & Dail                    ....................................  ....................................
----------------------------------------------------------------------------------------------------------------
                                            Total--690,464 kilograms
----------------------------------------------------------------------------------------------------------------

I. Stocks of Methyl Bromide

    An approved critical user may purchase methyl bromide produced or
imported with CUAs as well as limited inventories of pre-phaseout
methyl bromide, the combination of which constitute the supply of
``critical use methyl bromide'' intended to meet the needs of agreed
critical uses. The Framework Rule established provisions governing the
sale of pre-phaseout inventories for critical uses, including the
concept of CSAs and a prohibition on the sale of pre-phaseout
inventories for critical uses in excess of the amount of CSAs held by
the seller. It also established trading provisions that allow critical
use allowances (CUAs) to be converted into CSAs. EPA is not proposing
to change these provisions.
    The aggregate amount of pre-phaseout methyl bromide reported as
being in inventory at the beginning of 2009 is 4,271,226 kg. EPA
estimates that the

aggregate inventory on January 1, 2010, will be approximately 1,437 MT.
Thus, while EPA calculates that there will be no ``available stocks''
in 2010, for purposes of determining whether and how to allocate
additional amounts from stocks beyond the minimum stipulated in
Decision XX/5, EPA does not mean that the pre-phaseout inventory will
be zero in 2010. As in prior years, the Agency will continue to closely
monitor CUA and CSA data. Further, as stated in the final 2006 CUE
rule, safety valves continue to exist. If an inventory shortage occurs,
EPA may consider various options including authorizing the conversion
of a limited number of CSAs to CUAs through a rulemaking, bearing in
mind the upper limit on U.S. production/import for critical uses. In
sections V.D. and V.G. of this preamble, EPA seeks comment on the
amount of critical use methyl bromide to come from stocks compared to
new production and import.
    As explained in the 2008 CUE final rule, the Agency intends to
continue releasing the aggregate of methyl bromide stockpile
information reported to the Agency under the reporting requirements at
40 CFR 82.13 for the end of each control period. EPA notes that if the
number of competitors in the industry were to decline appreciably, EPA
would revisit the question of whether the aggregate is entitled to
treatment as confidential information and whether to release the
aggregate without notice. EPA is not proposing to change the treatment
of submitted information but welcomes information concerning the
composition of the industry in this regard. The aggregate information
for 2003 through 2008 is available in the docket for this rulemaking.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

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

B. Paperwork Reduction Act

    This action does not impose any new information collection burden.
The application, recordkeeping, and reporting requirements have already
been established under previous Critical Use Exemption rulemakings and
this action does not propose to change any of those existing
requirements. However, 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 that is identified by the North American Industry
Classification System (NAICS) Code in the 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
            Category                   NAICS code            SIC code        (in number of employees or millions
                                                                                of dollars)
----------------------------------------------------------------------------------------------------------------
Agricultural production.........  1112--Vegetable and  0171--Berry Crops..  $0.75 million.
                                   Melon farming.
                                  1113--Fruit and Nut  0172--Grapes.......
                                   Tree Farming.
                                  1114--Greenhouse,    0173--Tree Nuts....
                                   Nursery, and        0175--Deciduous
                                   Floriculture         Tree Fruits
                                   Production.          (except apple
                                                        orchards and
                                                        farms).
                                                       0179--Fruit and
                                                        Tree Nuts, NEC.
                                                       0181--Ornamental
                                                        Floriculture and
                                                        Nursery Products.
                                                       0831--Forest
                                                        Nurseries and
                                                        Gathering of
                                                        Forest Products.
Storage Uses....................  115114--Postharvest                       $7 million.
                                   Crop activities
                                   (except Cotton
                                   Ginning).
                                  311211--Flour        2041--Flour and      500 employees.
                                   Milling.             Other Grain Mill
                                                        Products.
                                  311212--Rice         2044--Rice Milling.  500 employees.
                                   Milling.
                                  493110--General      4225--General        $25.5 million.
                                   Warehousing and      Warehousing and
                                   Storage.             Storage.
                                  493130--Farm         4221--Farm Product   $25.5 million.
                                   Product              Warehousing and
                                   Warehousing and      Storage.
                                   Storage.
Distributors and Applicators....  115112--Soil         0721--Crop           $7 million.
                                   Preparation,         Planting,
                                   Planting and         Cultivation, and
                                   Cultivating.         Protection.
Producers and Importers.........  325320--Pesticide    2879--Pesticides     500 employees.
                                   and Other            and Agricultural
                                   Agricultural         Chemicals, NEC.
                                   Chemical
                                   Manufacturing.
----------------------------------------------------------------------------------------------------------------

    Agricultural producers of minor crops and entities that store
agricultural commodities are categories of affected entities that
contain small entities. This proposed rule will only affect entities
that applied to EPA for an exemption to the phaseout of methyl bromide.
In most cases, EPA received aggregated requests for exemptions from
industry consortia. On the exemption application, EPA asked consortia
to describe the number and size distribution of entities their
application covered. EPA estimated that 3,218 entities petitioned EPA
for an exemption for the 2005 control period. EPA now estimates there
to be 2,000 end users of critical use methyl bromide. Since many
applicants did not provide information on the distribution of sizes of
entities covered in their applications, EPA estimated that, based on
the above definition, between one-fourth and one-third of the entities
may be small businesses. In addition, other categories of affected
entities do not contain small businesses based on the above
description.
    After considering the economic impacts of this proposed rule on
small entities, EPA certifies that this action will not have a
significant economic impact on a substantial number of small entities.
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the proposed rule on small entities.'' (5 U.S.C.
603-604). Thus, an Agency may certify that a rule will not have a
significant economic impact on a substantial number of small entities
if the rule relieves a regulatory burden, or otherwise has a positive
economic effect on all of the small entities subject to the rule. Since
this rule 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 believes the estimated value for users of
methyl bromide is between $20 million and $30 million annually. We have
therefore concluded that this proposed rule will relieve regulatory
burden for all small entities.

D. Unfunded Mandates Reform Act

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

E. Executive Order 13132: Federalism

    Executive Order 13132, titled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
The phrase ``policies that have federalism implications'' is defined in
the Executive Order to include regulations that 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.''
    This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. This proposed rule is expected
to primarily affect producers, suppliers, importers and exporters and
users of methyl bromide. Thus, Executive Order 13132 does not apply to
this proposed rule.

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

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

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

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

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

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

I. National Technology Transfer and Advancement Act

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

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

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,

policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations, because it affects the
level of environmental protection equally for all affected populations
without having any disproportionately high and adverse human health or
environmental effects on any population, including any minority or low-
income population. Any ozone depletion that results from this proposed
rule will impact all affected populations equally because ozone
depletion is a global environmental problem with environmental and
human effects that are, in general, equally distributed across
geographical regions.

List of Subjects in 40 CFR Part 82

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

    Dated: November 12, 2009.
Lisa P. Jackson,
Administrator.
    For the reasons stated in the preamble, 40 CFR part 82 is proposed
to be amended as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

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

    Authority:  42 U.S.C. 7414, 7601, 7671-7671q.
    2. Section 82.8 is amended by revising the table in paragraph
(c)(1) and paragraph (c)(2) to read as follows:

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

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

------------------------------------------------------------------------
                                    2010 Critical use  2010 Critical use
                                      allowances for     allowances for
              Company                pre-plant uses*      post-harvest
                                       (kilograms)     uses* (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp., a               1,282,653            100,299
 Chemtura Company.................
Albemarle Corp....................            527,456             41,245
ICL-IP America....................            291,483             22,793
TriCal, Inc.......................              9,076                710
                                   -------------------------------------
    Total **......................          2,110,668            165,047
------------------------------------------------------------------------
* 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 2009 on a pro-rata basis in relation to the inventory
held by each.

----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
Company:
    Albemarle                         Hy Yield Bromine                      Royster-Clark, Inc.
    Bill Clark Pest Control, Inc      ICL-IP America                        Trical Inc.
    Burnside Services, Inc            Industrial Fumigation Company         Trident Agricultural Products.
    Cardinal Professional Products    Pacific Ag                            UAP Southeast (NC).
    Chemtura Corp                     Pest Fog Sales Corp                   UAP Southeast (SC).
    Degesch America, Inc              Prosource One                         Univar.
    Helena Chemical Co                Reddick Fumigants                     Western Fumigation.
    Hendrix & Dail                    ....................................  ....................................
----------------------------------------------------------------------------------------------------------------
                                            Total--690,464 kilograms
----------------------------------------------------------------------------------------------------------------

    3. Appendix L to Subpart A of Part 82 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 2010 Control Period

------------------------------------------------------------------------
          Column A                  Column B              Column C
------------------------------------------------------------------------
                                                      Limiting critical
                                                       conditions that
                                                     exist, or that the
                                Approved critical     approved critical
   Approved critical uses      user and  location      user reasonably
                                     of use          expects could arise
                                                       without methyl
                                                     bromide fumigation:
------------------------------------------------------------------------
                             PRE-PLANT USES
------------------------------------------------------------------------
Cucurbits...................  (a) Growers in        Moderate to severe
                               Delaware, Maryland,   soilborne disease
                               and Michigan.         infestation.
                              (b) Growers in        Moderate to severe
                               Georgia and           yellow or purple
                               Southeastern U.S.     nutsedge
                               limited to growing    infestation.
                               locations in         Moderate to severe
                               Alabama, Arkansas,    soilborne disease
                               Kentucky,             infestation.
                               Louisiana, North     Moderate to severe
                               Carolina, South       root knot nematode
                               Carolina,             infestation.
                               Tennessee, and
                               Virginia.
Eggplant....................  (a) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.

                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                              (b) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Moderate to severe
                                                     pythium collar,
                                                     crown and root rot.
                                                    Moderate to severe
                                                     southern blight
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features.
                              (c) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
Forest Nursery Seedlings....  (a) Growers in        Moderate to severe
                               Alabama, Arkansas,    yellow or purple
                               Georgia, Louisiana,   nutsedge
                               Mississippi, North    infestation.
                               Carolina, Oklahoma,  Moderate to severe
                               South Carolina,       soilborne disease
                               Tennessee, Texas,     infestation.
                               and Virginia.        Moderate to severe
                                                     nematode
                                                     infestation.
                              (b) International     Moderate to severe
                               Paper and its         yellow or purple
                               subsidiaries          nutsedge
                               limited to growing    infestation.
                               locations in         Moderate to severe
                               Alabama, Arkansas,    soilborne disease
                               Georgia, South        infestation.
                               Carolina, and Texas.
                              (c) Government-owned  Moderate to severe
                               seedling nurseries    weed infestation
                               in Illinois,          including purple
                               Indiana, Kentucky,    and yellow nutsedge
                               Maryland, Missouri,   infestation.