[Federal Register Volume 76, Number 82 (Thursday, April 28, 2011)]
[Proposed Rules]
[Pages 23769-23781]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10345]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2008-0321; FRL-9300-3]
RIN 2060-AP92


Protection of Stratospheric Ozone: The 2011 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 2011 critical use 
exemption and the amount of methyl bromide that may be produced, 
imported, or supplied from existing pre-phaseout inventory for those 
uses in 2011. EPA is taking action under the authority of the Clean Air 
Act to reflect a recent consensus decision taken by the Parties to the 
Montreal Protocol on Substances that Deplete the Ozone Layer at the 
Twenty-First Meeting of the Parties. 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 May 31, 2011. Any party requesting 
a public hearing must notify the contact person listed below by 5 p.m. 
Eastern Standard Time on May 3, 2011. If a hearing is requested it will 
be held on May 13, 2011 and comments will be due to the Agency June 13, 
2011. EPA will post information regarding a hearing, if one is 
requested, on the Ozone Protection Web site http://www.epa.gov/ozone/strathome.html. Persons interested in attending a public hearing should 
consult with the contact person below regarding the location and time 
of the hearing.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2008-0321, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: 202-566-1741.
     Mail: Docket EPA-HQ-OAR-2008-0321, Air and Radiation 
Docket and

[[Page 23770]]

Information Center, U.S. Environmental Protection Agency, Mail code: 
6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: Docket EPA-HQ-OAR-2008-0321, Air and 
Radiation Docket at EPA West, 1301 Constitution Avenue, NW., Room B108, 
Mail Code 6102T, Washington, DC 20004. Such deliveries are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2008-0321. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

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

SUPPLEMENTARY INFORMATION: This proposed rule concerns Clean Air Act 
(CAA) restrictions on the consumption, production, and use of methyl 
bromide (a Class I, Group VI controlled substance) for critical uses 
during calendar year 2011. Under the Clean Air Act, methyl bromide 
consumption (consumption is defined under the CAA as production plus 
imports minus exports) and production was phased out on January 1, 
2005, apart from allowable exemptions, such as the critical use 
exemption and the quarantine and preshipment (QPS) exemption. With this 
action, EPA is proposing and seeking comment on the uses that will 
qualify for the 2011 critical use exemption as well as specific amounts 
of methyl bromide that may be produced, imported, or sold from pre-
phaseout inventory for proposed critical uses in 2011.

Table of Contents

I. General Information
    A. Regulated Entities
    B. What should I consider when preparing my comments?
II. What is methyl bromide?
III. What is the background to the phaseout regulations for ozone-
depleting substances?
IV. What is the legal authority for exempting the production and 
import of methyl bromide for critical uses authorized by the parties 
to the Montreal Protocol?
V. What is the critical use exemption process?
    A. Background of the Process
    B. How does this proposed rule relate to previous critical use 
exemption rules?
    C. Proposed Critical Uses
    D. Proposed Critical Use Amounts
    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

A. Regulated Entities

    Entities potentially regulated by this proposed action are those 
associated with the production, import, export, sale, application, and 
use of methyl bromide covered by an approved critical use exemption. 
Potentially regulated categories and entities include producers, 
importers, and exporters of methyl bromide; applicators and 
distributors of methyl bromide; 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.

B. What should I consider when preparing my comments?

    1. Confidential Business Information. Do not submit confidential 
business information (CBI) to EPA through http://www.regulations.gov or 
e-mail. Clearly mark the part or all of the information that you claim 
to be CBI. For CBI information in a disk or CD-ROM that you mail to 
EPA, mark the outside of the disk or CD-ROM as CBI and then identify 
electronically within the disk or CD-ROM the specific information that 
is claimed as CBI. Information so marked will not be disclosed except 
in accordance with procedures set forth in 40 CFR part 2. In addition 
to one complete version of the comment that includes information 
claimed as CBI, a copy of the comment that does not contain the 
information claimed as CBI must be submitted for inclusion in the 
public docket.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying

[[Page 23771]]

information (subject heading, Federal Register date, and page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

II. What is methyl bromide?

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

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framework for the critical use exemption; set forth a list of approved 
critical uses for 2005; and specified the amount of methyl bromide that 
could be supplied in 2005 from stocks and new production or import to 
meet the needs of approved critical uses. EPA subsequently published 
rules applying the critical use exemption framework for each of the 
control periods from 2006 to 2010. Under authority of section 604(d)(6) 
of the CAA, this action proposes the uses that will qualify as approved 
critical uses in 2011 and the amount of methyl bromide that may be 
produced, imported, or supplied from inventory to satisfy those uses.
    This proposed action on critical uses for 2011 reflects Decision 
XXI/11, taken at the Twenty-First Meeting of the Parties in November 
2009. In accordance with Article 2H(5), the Parties have issued several 
Decisions pertaining to the critical use exemption. These include 
Decisions IX/6 and Ex. I/4, which set forth criteria for review of 
proposed critical uses. The status of Decisions is addressed in NRDC v. 
EPA, (464 F.3d 1, DC Cir. 2006) and in EPA's ``Supplemental Brief for 
the Respondent,'' filed in NRDC v. EPA and available in the docket for 
this action. In this proposed rule on critical uses for 2011, EPA is 
honoring commitments made by the United States in the Montreal Protocol 
context.

V. What is the critical use exemption process?

A. Background of the Process

    The critical use exemption is designed to permit the production and 
import of methyl bromide for uses that do not have technically and 
economically feasible alternatives and for which the lack of methyl 
bromide would result in significant market disruption (40 CFR 82.3). 
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 EPA's request for critical use exemption 
applications published in the Federal Register on May 2, 2008 (73 FR 
24282), applicants provided data on the technical and economic 
feasibility of using alternatives to methyl bromide. Applicants also 
submitted data on their use of methyl bromide, research programs into 
the use of alternatives to methyl bromide, and efforts to minimize use 
and emissions of methyl bromide.
    EPA's Office of Pesticide Programs reviews the data submitted by 
applicants, as well as data from governmental and academic sources, to 
establish whether there are technically and economically feasible 
alternatives available for a particular use of methyl bromide, and 
whether there would be a significant market disruption if no exemption 
were available. In addition, EPA reviews other parameters of the 
exemption applications such as dosage and emissions minimization 
techniques and applicants' research or transition plans. This 
assessment process culminates in the development of a document referred 
to as the critical use nomination (CUN). The U.S. Department of State 
has submitted a CUN annually to the United Nations Environment 
Programme (UNEP) Ozone Secretariat. The Methyl Bromide Technical 
Options Committee (MBTOC) and the Technology and Economic Assessment 
Panel (TEAP), which are 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 (USDA) and other departments and institutions 
of the Federal government that have regulatory authority related to 
methyl bromide, and provides an opportunity for public comment on the 
amounts of methyl bromide that the Agency is proposing to exempt for 
critical uses and the uses that the Agency is proposing as approved 
critical uses.
    More on the domestic review process and methodology employed by the 
Office of Pesticide Programs is available in a detailed memorandum 
titled ``Development of 2003 Nomination for a Critical Use Exemption 
for Methyl Bromide for the United States of America,'' contained in the 
docket for this rulemaking. While the particulars of the data continue 
to evolve and administrative matters are further streamlined, the 
technical review itself remains rigorous with careful consideration of 
new technical and economic conditions.
    On January 23, 2009, the U.S. Government (USG) submitted the 
seventh Nomination for a Critical Use Exemption for Methyl Bromide for 
the United States of America to the Ozone Secretariat of the UNEP. This 
nomination contained the request for 2011 critical uses. In February 
2009, MBTOC sent two sets of questions to the USG concerning technical 
and economic issues in the 2011 nomination, one for post-harvest uses 
and one for pre-plant uses. The USG transmitted responses to MBTOC on 
April 10, 2009. These documents, together with reports by the advisory 
bodies noted above, are in the public docket for this rulemaking. The 
proposed critical uses and amounts reflect the analysis contained in 
those documents.

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

    The December 23, 2004, Framework Rule (69 FR 76982) established the 
framework for the critical use exemption program in the U.S., including 
definitions, prohibitions, trading provisions, and recordkeeping and 
reporting obligations. The preamble to the Framework Rule included 
EPA's determinations on key issues for the critical use exemption 
program.
    Since publishing the Framework Rule, EPA has annually promulgated 
regulations to exempt from the phaseout of methyl bromide specific 
quantities of production and import for each control period (each 
calendar year), to determine the amounts that may be supplied from pre-
phaseout inventory, and to indicate which uses meet the criteria for 
the exemption program for that year. See 71 FR 5985 (calendar year 
2006), 71 FR 75386 (calendar year 2007), 72 FR 74118 (calendar year 
2008), 74 FR 19878 (calendar year 2009), and 75 FR 23167 (calendar year 
2010).
    Today's action proposes to utilize the existing regulatory 
framework to determine critical uses for 2011 and the amounts of 
Critical Use Allowances (CUAs) and Critical Stock Allowances (CSAs) to 
be allocated for those uses. A CUA is the privilege granted through 40 
CFR part 82 to produce or import 1 kg of methyl bromide for an approved 
critical use during the specified control period. These allowances 
expire at the end of the control period and, as explained in the 
Framework Rule, are not bankable from one year to the next. A CSA is 
the right granted through 40

[[Page 23773]]

CFR part 82 to sell 1 kg of methyl bromide from inventory produced or 
imported prior to the January 1, 2005, phaseout date for an approved 
critical use during the specified control period.
    The critical uses that EPA is proposing to approve as 2011 critical 
uses are the uses included in the USG's seventh CUN and authorized by 
the Parties in Decision XXI/11. EPA is utilizing the existing 
regulatory framework for critical uses. This framework is discussed in 
Section V.D.1 of the preamble.

C. Proposed Critical Uses

    In Decision XXI/11, taken in November 2009, the Parties to the 
Protocol agreed ``to permit, for the agreed critical use categories for 
2011 set forth in table C of the annex to the present decision for each 
Party, subject to the conditions set forth in the present decision and 
decision Ex.I/4 to the extent that those conditions are applicable, the 
levels of production and consumption for 2011 set forth in table D of 
the annex to the present decision which are necessary to satisfy 
critical uses * * *''
    The following uses are those set forth in table C of the annex to 
Decision XXI/11 for the United States:

 Commodities
 NPMA food processing structures (cocoa beans removed) \1\
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    \1\ NPMA, National Pest Management Association, includes both 
food processing structures and processed foods.
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 Mills and processors
 Dried cured pork
 Cucurbits
 Eggplant--field
 Forest nursery seedlings
 Nursery stock--fruit, nut, flower
 Orchard replant
 Ornamentals
 Peppers--field
 Strawberries--field
 Strawberry runners
 Tomatoes--field
 Sweet potato slips

    The Decision XXI/11 critical use levels for 2011 total 2,055,200 
kilograms (kg), which is equivalent to 8.1% 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 XXI/11 is 1,855,200 kg (7.3% of baseline), minus available 
stocks.
    EPA is proposing a total critical use exemption in 2011 of 
1,982,333 kg (7.8% of baseline) with new production or import of methyl 
bromide for critical uses up to 1,500,000 kg (5.9% of baseline), and 
with up to 482,333 kg (1.9% of baseline) coming from pre-phaseout 
inventory (i.e., stocks).
    EPA is seeking comment on the technical analysis contained in the 
U.S. nomination (available for public review in the docket to this 
rulemaking), and seeks information regarding changes to the 
registration or use of alternatives that have transpired after the 2011 
U.S. nomination was written. Specifically, California has recently 
registered Iodomethane and EPA has recently registered DMDS. EPA is 
unable to estimate uptake of Iodomethane in California due to 
uncertainties created by the California label, specifically impacts of 
larger buffer zones and the lack of efficacy studies at the California 
label's lower use rates. Second, each state must register DMDS before 
that alternative may be used in that state. None of the states where 
critical use methyl bromide is used have registered DMDS, though EPA 
anticipates that states will likely do so. While EPA is not proposing a 
specific amount of reduction to account for the uptake of these 
alternatives, EPA will consider new data received during the comment 
period. EPA recognizes that as the market for alternatives evolves, the 
thresholds for what constitutes ``significant market disruption'' or 
``technical and economic feasibility'' change. Comments on the 
technical data contained in the nomination or new information could 
potentially alter the Agency's analysis on the uses and amounts of 
methyl bromide qualifying for the critical use exemption. The Agency 
may, in response to new information, reduce the proposed quantities of 
critical use methyl bromide, or decide not to approve uses authorized 
by the Parties. However, the Agency will not increase the quantities or 
add new uses in the final rule beyond those authorized by the Parties.
    EPA is also proposing to modify the table in 40 CFR part 82, 
subpart A, appendix L to reflect the agreed critical use categories 
identified in Decision XXI/11. The Agency is amending the table of 
critical uses based in part on the technical analysis contained in the 
2011 U.S. nomination that assesses data submitted by applicants to the 
CUE program. EPA is proposing to remove ornamental growers in New York. 
MBTOC did not recommend this use for 2011, concluding that alternatives 
are available for replacing methyl bromide use in Anemone coronaria. 
The Parties did not authorize this use. EPA agrees with the Parties' 
conclusion, and proposes not to list this use as critical for 2011. 
Second, EPA is proposing to remove Michigan cucurbit growers, Michigan 
eggplant growers, Michigan ornamental growers (specifically, herbaceous 
perennial growers), Michigan tomato growers, Michigan pepper growers, 
and members of the Western Raspberry Nursery Consortium operating in 
Washington State. These users did not submit applications and were not 
part of the CUN. The Parties have not authorized them as critical uses 
for 2011, and EPA proposes not to list this use as critical for this 
control period. EPA seeks comment on these proposed changes to Appendix 
L.
    EPA is not proposing other changes to the table but is repeating 
the following clarifications made in previous years for ease of 
reference. The ``local township limits prohibiting 1,3-
dichloropropene'' are prohibitions on the use of 1,3-dichloropropene 
products in cases where local township limits on use of this 
alternative have been reached. In addition, ``pet food'' under 
subsection B of Food Processing refers to food for domesticated dogs 
and cats. Finally, ``rapid fumigation'' for commodities is when a buyer 
provides short (two working days or fewer) notification for a purchase 
or there is a short period after harvest in which to fumigate and there 
is limited silo availability for using alternatives.

D. Proposed Critical Use Amounts

    Table C of the annex to Decision XXI/11 lists critical uses and 
amounts agreed to by the Parties to the Montreal Protocol. When added 
together, the total authorized critical use for 2010 is 2,055,200 kg, 
which is equivalent to 8.1% of the U.S. 1991 methyl bromide consumption 
baseline. The maximum amount of authorized new production or import 
authorized by the Parties is 1,855,200 kg (7.3% of baseline) as set 
forth in Table D of the annex to Decision XXI/11. The difference 
between the total authorized amount and the authorized amount of new 
production is the minimum that the Parties expect the U.S. to use from 
pre-phaseout inventory. This difference is 200,000 kg (0.8% of 
baseline). EPA is proposing to allocate 482,333 kg (1.9% of baseline) 
of existing pre-phaseout inventory for critical uses in 2011. EPA is 
also proposing to exempt limited amounts of new production and import 
of methyl bromide for critical uses for 2011 in the amount of 1,500,000 
kg (5.9% of baseline).
    EPA has calculated the proposed allocation amounts differently than 
in past CUE allocation rulemakings. Initially, EPA used the ``available 
stocks'' methodology to calculate the allocation amounts for new 
production/import and stocks. As described in previous CUE allocation 
rules, one of

[[Page 23774]]

the inputs to this methodology is the previous year's inventory 
drawdown. Consistent with past practice, EPA prepared an estimate of 
the pre-phaseout inventory on December 31, 2010.
    Due to the timing of the 2011 CUE rulemaking, EPA issued a No 
Action Assurance letter December 22, 2010, to allow Critical Use 
Allowance holders to continue producing and importing methyl bromide 
beyond December 31, 2010, in the absence of allowances, subject to 
certain conditions. The amounts authorized in the December 22, 2010, 
letter, and a subsequent clarification letter dated January 13, 2011, 
were based on the estimates of the 2010 inventory drawdown. 
Specifically, EPA clarified that producers and importers ``may assume 
that the allocations for production and import will equal at least 
1,500 MT.'' Following the development of the No Action Assurance 
letter, companies submitted end of year reports to EPA detailing how 
much pre-phaseout inventory they held on December 31, 2010. These data 
show that the amount of pre-phaseout inventory is larger than the 
estimated amounts that formed the basis of the No Action Assurance 
letter. If EPA were to use these data in the existing methodology for 
calculating ``available stocks,'' this would result in more ``available 
stocks'' and fewer allowances for new production or import as compared 
to the December 2010-January 2011 estimates. However, because regulated 
entities have been acting on the estimate developed for the No Action 
Assurance letter in good faith, EPA believes it would be inappropriate 
to propose less than the amount provided for in the No Action Assurance 
letter, as clarified by the January 2011 letter. Therefore, EPA is 
proposing to allocate 1,500,000 kg for new production and import. EPA 
is also proposing a critical stock allowance allocation of 482,333 kg. 
Together the total allocation equals 1,982,333 kg. 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. In addition, EPA is 
taking comment on how to account for the fact that the proposed 
critical-use allowance allocation of 1,500,000 kg is greater than what 
would be allocated if it were based on the ``available stocks'' 
calculation using end of year inventory data. One possibility is that 
EPA could reduce critical-use allowances for new production and import 
in the 2012 allocation rule. More information on the available stocks 
calculation and the estimate that preceded it is available in the 
docket for this rulemaking.

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

    Paragraphs 2 and 6 of Decision XXI/11 request Parties to ensure 
that the conditions or criteria listed in Decisions Ex. I/4 and IX/6, 
paragraph 1, are applied to exempted critical uses for the 2011 control 
period. A discussion of the Agency's application of the criteria in 
paragraph 1 of Decision IX/6 appears in sections V.A., V.C., V.D., and 
V.H. of this preamble. In section V.C. the Agency solicits comments on 
the technical and economic basis for determining that the uses listed 
in this proposed rule meet the criteria of the critical use exemption. 
The CUNs detail how each proposed critical use meets the criteria 
listed in paragraph 1 of Decision IX/6, apart from the criterion 
located at (b)(ii), as well as the criteria in paragraphs 5 and 6 of 
Decision Ex. I/4.
    The criterion in Decision IX/6(1)(b)(ii), which refers to the use 
of available stocks of methyl bromide, is addressed in sections V.D., 
V.G., and V.H. of this preamble. The Agency has previously provided its 
interpretation of the criterion in Decision IX/6(1)(a)(i) regarding the 
presence of significant market disruption in the absence of an 
exemption, and EPA refers readers to the 2006 CUE final rule (71 FR 
5989) as well as to the memo on the docket titled ``Development of 2003 
Nomination for a Critical Use Exemption for Methyl Bromide for the 
United States of America'' for further elaboration.
    The remaining considerations, including the lack of available 
technically and economically feasible alternatives under the 
circumstance of the nomination; efforts to minimize use and emissions 
of methyl bromide where technically and economically feasible; the 
development of research and transition plans; and the requests in 
Decision Ex. I/4(5) and (6) that Parties consider and implement MBTOC 
recommendations, where feasible, on reductions in the critical use of 
methyl bromide and include information on the methodology they use to 
determine economic feasibility, are addressed in the nomination 
documents.
    Some of these criteria are evaluated in other documents as well. 
For example, the U.S. has further considered matters regarding the 
adoption of alternatives and research into methyl bromide alternatives, 
criterion (1)(b)(iii) in Decision IX/6, in the development of the 
National Management Strategy submitted to the Ozone Secretariat in 
December 2005 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.
    As discussed in the 2010 CUE Rule, EPA is no longer making an 
additional reduction to new production to account for approved research 
amounts. In the 2011 CUN, as in the 2010 CUN, 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. The nomination was again broad enough to cover both research 
and non-research uses. As discussed in the 2010 CUE rule, research is a 
key element of the critical use process. EPA therefore is retaining 
research on the critical use crops shown in the table in Appendix L to 
subpart A as a critical use of methyl bromide. Therefore, researchers 
may continue to use newly produced methyl bromide, as well as pre-
phaseout inventory purchased through the expenditure of CSAs, for field 
studies requiring the use of methyl bromide.

F. Emissions Minimization

    Previous decisions have stated that Parties shall request critical 
users to employ emission minimization techniques such as virtually 
impermeable films, barrier film technologies, deep shank injection and/
or other techniques that promote environmental protection, whenever 
technically and economically feasible. Through the recent 
Reregistration Eligibility Decision (RED) for methyl bromide, the 
Agency requires that methyl bromide applications be tarped except for 
California orchard replant where EPA instead requires deep (18 inches 
or greater) shank applications. The RED also encourages the use of 
high-barrier tarps, such as virtually impermeable film (VIF), by 
providing credits that applicators can use to minimize their buffer 
zones. In addition to minimizing emissions, use of high-barrier tarps 
has the benefit of providing pest control at lower application rates. 
The amount of methyl bromide nominated by the USG reflects the lower 
application rates necessary when using high-barrier tarps, where such 
tarps are allowed. Emissions minimization efforts should not be limited 
to pre-plant fumigations. While the RED addresses emissions 
minimization only in the context of pre-plant fumigation, EPA also 
urges users to reduce emissions from structures and port facilities

[[Page 23775]]

through the use of recapture technologies.
    Users of methyl bromide should continue to make every effort to 
minimize overall emissions of methyl bromide to the extent consistent 
with State and local laws and regulations. The Agency encourages 
researchers and users who are successfully utilizing such techniques to 
inform EPA of their experiences as part of their comments on this 
proposed rule and to provide such information with their critical use 
applications. In addition, the Agency welcomes comments on the 
implementation of emission minimization techniques and whether and how 
emissions could be reduced further.

G. Critical Use Allowance Allocations

    EPA is proposing to allocate 2011 critical use allowances for new 
production or import of methyl bromide up to the amount of 1,500,000 kg 
(5.9% of baseline) as shown in the proposed changes to the table in 40 
CFR 82.8(c)(1). EPA is seeking comment on the total levels and 
allocations of exempted new production or import for pre-plant and 
post-harvest critical uses in 2011. Each critical use allowance (CUA) 
is equivalent to 1 kg of critical use methyl bromide. These allowances 
expire at the end of the control period and, as explained in the 
Framework Rule, are not bankable from one year to the next. The 
proposed CUA allocation is subject to the trading provisions at 40 CFR 
82.12, which are discussed in section V.G. of the preamble to the 
Framework Rule (69 FR 76982).
    Paragraph three of Decision XXI/11 states ``that Parties shall 
endeavor to license, permit, authorize or allocate quantities of 
critical-use methyl bromide as listed in tables A and C of the annex to 
the present decision.'' This is similar to language in Decisions 
authorizing prior critical uses. The language from these Decisions 
calls on Parties to endeavor to allocate critical use methyl bromide on 
a sector basis.
    The Framework Rule proposed several options for allocating critical 
use allowances, including a sector-by-sector approach. The Agency 
evaluated the various options based on their economic, environmental, 
and practical effects. After receiving comments, EPA determined that a 
lump-sum, or universal, allocation, modified to include distinct caps 
for pre-plant and post-harvest uses, was the most efficient and least 
burdensome approach that would achieve the desired environmental 
results, and that a sector-by-sector approach would pose significant 
administrative and practical difficulties. For the reasons discussed in 
the preamble to the 2009 CUE rule (74 FR 19894), the Agency believes 
that under the approach adopted in the Framework Rule, the actual 
critical use will closely follow the sector breakout listed in the 
Parties' decisions, but continues to welcome comments on this issue.

H. Critical Stock Allowance Allocations

    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 basic CSA provisions.
    Previous decisions further addressed pre-phaseout inventory of 
methyl bromide. For example, Decision XX/5 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 each of the 
subsequent CUE Rules, EPA allocated CSAs in amounts that represented 
not only the difference between the total authorized CUE amount and the 
amount of authorized new production and import but also an additional 
amount to reflect available stocks. After determining the CSA amount, 
EPA reduced the portion of CUE methyl bromide to come from new 
production and import in each of the 2006-2010 control periods such 
that the total amount of methyl bromide exempted for critical uses did 
not exceed the total amount authorized by the Parties for that year.
    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, or any 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.'' 
Previous decisions refer to use of ``quantities of methyl bromide from 
stocks that the Party has recognized to be available.'' Thus, it is 
clear that individual Parties have the ability to determine their level 
of available stocks. Decision XXI/11 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 is proposing to allocate CSAs to the entities shown in the 
proposed table for the 2011 control period in the amount of 482,333 kg 
(1.9% of baseline). EPA proposes to update the table by incorporating 
information from recent mergers. Therefore, EPA proposes to list a 
single entry for Royster Clark, UAP Southeast (NC), and UAP Southeast 
(SC) called Crop Production Services. The CSA allocation for Crop 
Production Services would be the sum of the three allocations that 
would have gone to Royster Clark and the two UAP Southeast entities.
    EPA's proposed allocation of CSAs is based on each company's 
proportionate share of the aggregate inventory. In 2006, the United 
States District Court for the District of Columbia upheld EPA's 
treatment of company-specific methyl bromide inventory information as 
confidential. NRDC v. Leavitt, 2006 WL 667327 (D.D.C. March 14, 2006). 
Therefore, the documentation regarding

[[Page 23776]]

company-specific allocation of CSAs is in the confidential portion of 
the rulemaking docket and the individual CSA allocations are not listed 
in the table in 40 CFR 82.8(c)(2). EPA will inform the listed companies 
of their CSA allocations in a letter following publication of the final 
rule.

I. Stocks of Methyl Bromide

    An approved critical user may purchase methyl bromide produced or 
imported with CUAs as well as limited inventories of pre-phaseout 
methyl bromide, the combination of which constitute the supply of 
``critical use methyl bromide'' intended to meet the needs of agreed 
critical uses. The Framework Rule established provisions governing the 
sale of pre-phaseout inventories for critical uses, including the 
concept of CSAs and a prohibition on the sale of pre-phaseout 
inventories for critical uses in excess of the amount of CSAs held by 
the seller. It also established trading provisions that allow CUAs to 
be converted into CSAs. EPA is not proposing to change these 
provisions.
    The aggregate amount of pre-phaseout methyl bromide reported as 
being in inventory at the beginning of 2010 was 3,062,674 kg. The 
Agency continues to closely monitor CUA and CSA data. End of year 
reporting shows that the inventory at the beginning of 2011 was 
1,802,705 kg. Given this amount, EPA believes there is sufficient 
inventory to allocate 482,333 kg as critical stock allowances. As 
stated in the final 2006 CUE Rule, if an inventory shortage occurs, EPA 
may consider various options including authorizing the conversion of a 
limited number of CSAs to CUAs through a rulemaking, bearing in mind 
the upper limit on U.S. production/import for critical uses. In 
sections V.D. and V.G. of this preamble, EPA seeks comment on the 
amount of critical use methyl bromide to come from stocks compared to 
new production and import.
    As explained in the 2008 CUE Rule, the Agency intends to continue 
releasing the aggregate of methyl bromide stockpile information 
reported to the Agency under the reporting requirements at 40 CFR 82.13 
for the end of each control period. EPA notes that if the number of 
competitors in the industry were to decline appreciably, EPA would 
revisit the question of whether the aggregate is entitled to treatment 
as confidential information and whether to release the aggregate 
without notice. EPA is not proposing to change the treatment of 
submitted information but welcomes information concerning the 
composition of the industry in this regard. The aggregate information 
for 2003 through 2009 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 proposal is a ``significant regulatory action.'' This action is 
likely to result in a rule that may raise novel legal or policy issues. 
Accordingly, EPA submitted this action to the Office of Management and 
Budget (OMB) for review under 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. 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 (in number of
              Category                     NAICS code               SIC code           employees or millions of
                                                                                               dollars)
----------------------------------------------------------------------------------------------------------------
Agricultural production............  1112--Vegetable and     0171--Berry Crops.....  $0.75 million.
                                      Melon Farming.
                                     1113--Fruit and Nut     0172--Grapes.
                                      Tree Farming.
                                     1114--Greenhouse,       0173--Tree Nuts.
                                      Nursery, and           0175--Deciduous Tree
                                      Floriculture            Fruits (except apple
                                      Production.             orchards and farms)..
                                                             0179--Fruit and Tree
                                                              Nuts, NEC.
                                                             0181--Ornamental
                                                              Floriculture and
                                                              Nursery Products.
                                                             0831--Forest Nurseries
                                                              and Gathering of
                                                              Forest Products.
Storage Uses.......................  115114--Postharvest     ......................  $7 million.
                                      Crop activities
                                      (except Cotton
                                      Ginning).
                                     311211--Flour Milling.  2041--Flour and Other   500 employees.
                                                              Grain Mill Products.

[[Page 23777]]

 
                                     311212--Rice Milling..  2044--Rice Milling....  500 employees.
                                     493110--General         4225--General           $25.5 million.
                                      Warehousing and         Warehousing and
                                      Storage.                Storage.
                                     493130--Farm Product    4221--Farm Product      $25.5 million.
                                      Warehousing and         Warehousing and
                                      Storage.                Storage.
Distributors and Applicators.......  115112--Soil            0721--Crop Planting,    $7 million.
                                      Preparation, Planting   Cultivation, and
                                      and Cultivating.        Protection.
Producers and Importers............  325320--Pesticide and   2879--Pesticides and    500 employees.
                                      Other Agricultural      Agricultural
                                      Chemical                Chemicals, NEC.
                                      Manufacturing.
----------------------------------------------------------------------------------------------------------------

    Agricultural producers of minor crops and entities that store 
agricultural commodities are categories of affected entities that 
contain small entities. This proposed rule would only affect entities 
that applied to EPA for an exemption to the phaseout of methyl bromide. 
In most cases, EPA received aggregated requests for exemptions from 
industry consortia. On the exemption application, EPA asked consortia 
to describe the number and size distribution of entities their 
application covered. EPA estimated that 3,218 entities petitioned EPA 
for an exemption for the 2005 control period. EPA revised this estimate 
in 2008 down to 2,000 end users of critical use methyl bromide. EPA 
believes that the number continues to decline as growers cease applying 
for critical uses. Since many applicants did not provide information on 
the distribution of sizes of entities covered in their applications, 
EPA estimated that, based on the above definition, between one-fourth 
and one-third of the entities may be small businesses. In addition, 
other categories of affected entities do not contain small businesses 
based on the above description.
    After considering the economic impacts of this proposed rule on 
small entities, EPA certifies that this action will not have a 
significant economic impact on a substantial number of small entities. 
In determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities.'' (5 U.S.C. 
603-604). Thus, an Agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves a regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule. Since 
this rule would exempt methyl bromide for approved critical uses after 
the phaseout date of January 1, 2005, this action would confer a 
benefit to users of methyl bromide. We have therefore concluded that 
this proposed rule would relieve regulatory burden for all small 
entities.

D. Unfunded Mandates Reform Act

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

E. Executive Order 13132: Federalism

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

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

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

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.

[[Page 23778]]

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: April 22, 2011.
Lisa P. Jackson,
Administrator.

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

PART 82--PROTECTION OF STRATOSPHERIC OZONE

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

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

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


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

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

 
------------------------------------------------------------------------
                                   2011 Critical use   2011 Critical use
                                    allowances for      allowances for
             Company                pre-plant uses     post-harvest uses
                                      (kilograms)       *  (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp. A                 839,966              71,584
 Chemtura Company...............
Albemarle Corp..................             345,413              29,437
ICL-IP America..................             190,883              12,267
TriCal, Inc.....................               5,943                 507
                                 ---------------------------------------
    Total **....................           1,382,206             117,794
------------------------------------------------------------------------
* For production or import of Class I, Group VI controlled substance
  exclusively for the Pre-Plant or Post-Harvest uses specified in
  appendix L to this subpart.
** Due to rounding, numbers do not add exactly.

    (2) Allocated critical stock allowances granted for specified 
control period. The following companies are allocated critical stock 
allowances for 2011 on a pro-rata basis in relation to the inventory 
held by each.

------------------------------------------------------------------------
                                 Company
-------------------------------------------------------------------------
Albemarle.
Bill Clark Pest Control, Inc.
Burnside Services, Inc.
Cardinal Professional Products.
Chemtura Corp.
Crop Production Services.
Degesch America, Inc.
Helena Chemical Co.
Hendrix & Dail.
Hy Yield Products.
ICL-IP America.
Industrial Fumigant Company.
Pacific Ag Supplies Inc.
Pest Fog Sales Corp.
Prosource One.
Reddick Fumigants.
Trical Inc.
Trident Agricultural Products.
Univar.
Western Fumigation.
    Total--482,333 kilograms.
------------------------------------------------------------------------

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

Appendix L to Subpart A of Part 82--Approved Critical Uses and Limiting 
Critical Conditions for Those Uses for the 2011 Control Period

[[Page 23779]]



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

[[Page 23780]]

 
                              (b) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                              (c) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation, or
                                                     moderate to severe
                                                     pythium root and
                                                     collar rots.
                                                    Moderate to severe
                                                     southern blight
                                                     infestation, crown
                                                     or root rot.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features.
Strawberry Fruit............  (a) California        Moderate to severe
                               growers.              black root rot or
                                                     crown rot,
                                                    Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Local township
                                                     limits prohibiting
                                                     1,3-
                                                     dichloropropene.
                                                    Time to transition
                                                     to an alternative.
                              (b) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Carolina geranium or
                                                     cut-leaf evening
                                                     primrose
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                              (c) Alabama,          Moderate to severe
                               Arkansas, Georgia,    yellow or purple
                               Illinois, Kentucky,   nutsedge
                               Louisiana,            infestation.
                               Maryland,            Moderate to severe
                               Mississippi,          nematode
                               Missouri, New         infestation.
                               Jersey, North        Moderate to severe
                               Carolina, Ohio,       black root and
                               South Carolina,       crown rot.
                               Tennessee, and
                               Virginia growers.
Strawberry Nurseries........  (a) California        Moderate to severe
                               growers.              soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                              (b) North Carolina    Moderate to severe
                               and Tennessee         black root rot.
                               growers.             Moderate to severe
                                                     root-knot nematode
                                                     infestation.
                                                    Moderate to severe
                                                     yellow and purple
                                                     nutsedge
                                                     infestation.
Sweet Potato Slips..........  California growers..  Local township
                                                     limits prohibiting
                                                     1,3-
                                                     dichloropropene.
Tomatoes....................  (a) Alabama,          Moderate to severe
                               Arkansas, Florida,    yellow or purple
                               Georgia, Kentucky,    nutsedge
                               Louisiana,            infestation.
                               Mississippi, North   Moderate to severe
                               Carolina, South       soilborne disease
                               Carolina,             infestation.
                               Tennessee, and       Moderate to severe
                               Virginia growers.     nematode
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and, in
                                                     Florida, soils not
                                                     supporting seepage
                                                     irrigation.
                              (b) Maryland growers  Moderate to severe
                                                     fungal pathogen
                                                     infestation.
------------------------------------------------------------------------
                            POST-HARVEST USES
------------------------------------------------------------------------
Food Processing.............  (a) Rice millers in   Moderate to severe
                               the U.S. who are      beetle, weevil, or
                               members of the USA    moth infestation.
                               Rice Millers         Presence of
                               Association.          sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.
                              (b) Pet food          Moderate to severe
                               manufacturing         beetle, moth, or
                               facilities in the     cockroach
                               U.S. who are          infestation.
                               members of the Pet   Presence of
                               Food Institute.       sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.
                              (c) Members of the    Moderate to severe
                               North American        beetle infestation.
                               Millers'             Presence of
                               Association in the    sensitive
                               U.S.                  electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.
                              (d) Members of the    Moderate to severe
                               National Pest         beetle or moth
                               Management            infestation.
                               Association          Presence of
                               treating processed    sensitive
                               food, cheese, herbs   electronic
                               and spices, and       equipment subject
                               spaces and            to corrosion.
                               equipment in         Time to transition
                               associated            to an alternative.
                               processing and
                               storage facilities.
Commodities.................  California entities   Rapid fumigation
                               storing walnuts,      required to meet a
                               beans, dried plums,   critical market
                               figs, raisins, and    window, such as
                               dates (in Riverside   during the holiday
                               county only) in       season.
                               California.

[[Page 23781]]

 
Dry Cured Pork Products.....  Members of the        Red legged ham
                               National Country      beetle infestation.
                               Ham Association and  Cheese/ham skipper
                               the Association of    infestation.
                               Meat Processors,     Dermested beetle
                               Nahunta Pork Center   infestation.
                               (North Carolina),    Ham mite
                               and Gwaltney and      infestation.
                               Smithfield Inc.
------------------------------------------------------------------------

[FR Doc. 2011-10345 Filed 4-27-11; 8:45 am]
BILLING CODE 6560-50-P