[Federal Register Volume 74, Number 82 (Thursday, April 30, 2009)]
[Rules and Regulations]
[Pages 19878-19900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9966]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[EPA-HQ-OAR-2008-0009; FRL-8899-5]
RIN 2060-AO78
Protection of Stratospheric Ozone: The 2009 Critical Use
Exemption From the Phaseout of Methyl Bromide
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This final rule authorizes uses of methyl bromide that qualify
for the 2009 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 2009. EPA is taking action under the
authority of the Clean Air Act to reflect a consensus decision taken at
the Nineteenth Meeting of by the Parties to the Montreal Protocol on
Substances that Deplete the Ozone Layer.
DATES: This rule is effective on April 30, 2009.
ADDRESSES: EPA has established a docket for this action identified
under EPA-HQ-OAR-2008-0009. All documents in the docket are listed on
the http://www.regulations.gov site. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available only through http://www.regulations.gov or in
hard copy. To obtain copies of materials in hard copy, please call the
EPA Docket Center at (202) 564-1744 between the hours of 8:30 a.m.-4:30
p.m. E.S.T., Monday-Friday, excluding legal holidays, to schedule an
appointment. The EPA
[[Page 19879]]
Docket Center's Public Reading Room address is EPA/DC, EPA West, Room
3334, 1301 Constitution Ave., NW., Washington, DC.
FOR FURTHER INFORMATION 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 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 final 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 2009. 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
authorizing the uses that will qualify for the 2009 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 2009.
Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C.
Chapter 5, generally provides that rules may not take effect earlier
than 30 days after they are published in the Federal Register. EPA is
issuing this final rule under section 307(d)(1) of the Clean Air Act,
which states: ``The provisions of section 553 through 557 * * * of
Title 5 shall not, except as expressly provided in this section, apply
to actions to which this subsection applies.'' Thus, section 553(d) of
the APA does not apply to this rule. EPA is nevertheless acting
consistently with the policies underlying APA section 553(d) in making
this rule effective on April 30, 2009. APA section 553(d) provides an
exception for any action that grants or recognizes an exemption or
relieves a restriction. This final rule grants an exemption from the
phaseout of methyl bromide.
Table of Contents
I. General Information
Regulated Entities
II. What Is Methyl Bromide?
III. What Is the Background to the Phaseout Regulations for Ozone
Depleting Substances?
IV. What Is the Legal Authority for Exempting the Production and
Import of Methyl Bromide for Critical Uses Authorized by the Parties
to the Montreal Protocol?
V. What Is the Critical Use Exemption Process?
A. Background of the Process
B. How Does This Final Rule Relate to Previous CUE Rules?
C. Critical Uses
D. Critical Use Amounts
1. Background of Critical Use Amounts
2. Calculation of Available Pre-Phaseout Inventory
a. Estimated Drawdown
b. Supply Chain Factor
3. Approach for Determining Critical Use Amounts
4. Treatment of Carryover Material
5. Amounts for Research Purposes
6. Methyl Bromide Alternatives
7. Summary of Calculations
E. The Criteria in Decisions IX/6 and Ex. I/4
F. Emissions Minimization
G. Critical Use Allowance Allocations
H. Critical Stock Allowance Allocations
I. Stocks of Methyl Bromide
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
I. General Information
Regulated Entities
Entities potentially regulated by this action are those associated
with the production, import, export, sale, application, and use of
methyl bromide covered by an approved critical use exemption.
Potentially regulated categories and entities include producers,
importers, and exporters of methyl bromide; applicators and
distributors of methyl bromide; users of methyl bromide, e.g., farmers
of vegetable crops, fruits and nursery stock; owners of stored food
commodities and structures such as grain mills and processors; and
agricultural researchers.
This list is not intended to be exhaustive, but rather to provide a
guide for readers regarding entities likely to be regulated by this
action. To determine whether your facility, company, business, or
organization could be regulated by this action, you should carefully
examine the regulations promulgated at 40 CFR part 82, subpart A. If
you have questions regarding the applicability of this action to a
particular entity, consult the person listed in the preceding section.
II. What Is Methyl Bromide?
Methyl bromide is an odorless, colorless, toxic gas which is used
as a broad-spectrum pesticide and is controlled under the CAA as a
Class I ozone-depleting substance (ODS). Methyl bromide 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 final rule implementing the Clean Air Act is intended to
derogate from provisions in any other Federal, State, or local laws or
regulations governing actions including, but not limited to, the sale,
distribution, transfer, and use of methyl bromide. Entities affected by
this action must continue to comply with FIFRA and other pertinent
statutory and regulatory requirements for pesticides when importing,
exporting, acquiring, selling, distributing, transferring, or using
methyl bromide for critical uses. The regulations in this final rule
only 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 that limit production and consumption
of ozone-depleting substances are in 40 CFR part 82, subpart A. The
Montreal Protocol on
[[Page 19880]]
Substances that Deplete the Ozone Layer (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 amended them as needed.
Methyl bromide was added to the Protocol as an ODS in 1992 through
the Copenhagen Amendment to the Protocol. The Parties to the Montreal
Protocol 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 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 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 that
established the framework for the critical use exemption, listed
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. Since then, EPA
has published rules applying the critical use exemption (CUE) framework
to subsequent control periods. Under authority of section 604(d)(6) of
the CAA, this action lists the uses that will qualify as approved
critical uses in 2009 and the amount of methyl bromide that may be
produced, imported, or supplied from inventory to satisfy those uses.
This action reflects Decision XIX/9, taken at the Nineteenth
Meeting of the Parties in September 2007. 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 final 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 permits the production and import of
methyl bromide for uses that do not have technically and economically
feasible alternatives. 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. EPA informed applicants
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, on research programs into the use of alternatives to methyl
bromide, and on 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
[[Page 19881]]
significant market disruption if no exemption were available. In
addition, EPA reviews other parameters of the exemption applications
such as dosage and emissions minimization techniques and applicants'
research or transition plans. This assessment process culminates in the
development of the 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, subsequently review the CUNs of the various
countries and make recommendations to the Parties on the nominations.
The Parties then take a Decision to authorize a critical use exemption
for a particular country. The Decision also identifies how much methyl
bromide may be supplied for the exempted critical uses. As required in
Section 604(d)(6) of the Clean Air Act, 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 has determined to be necessary for critical uses and the
uses that the Agency has determined meet the criteria of the critical
use exemption.
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 December 22, 2006, the U.S. Government (USG) submitted the fifth
CUN to the Ozone Secretariat. This fifth nomination contained the
request for 2009 critical uses. In February 2007, MBTOC sent questions
to the USG concerning technical and economic issues in the 2009
nomination. The USG transmitted preliminary responses to MBTOC on March
13, 2007. The USG received a second round of questions from MBTOC and
submitted responses to those questions in May, 2007. These documents,
together with reports by the advisory bodies noted above, are in the
public docket for this rulemaking. The determination in this final rule
reflects the analysis contained in those documents.
B. How Does This Final Rule Relate to Previous CUE Rules?
The December 23, 2004, Framework Rule (69 FR 76982) established the
operational framework for the CUE 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 CUE program.
Since then, EPA has annually promulgated regulations to exempt from
the phaseout of methyl bromide specific quantities of production and
import for each control period and to indicate which uses meet the
criteria for the exemption program for that year. See 71 FR 5985 (2006
control period), 71 FR 75386 (2007 control period), and 72 FR 74118
(2008 control period).
Today's action authorizes specific critical uses for 2009 and the
amounts of critical use allowances (CUAs) and critical stock allowances
(CSAs) allocated for those uses. These are the uses included in the
USG's fifth CUN and authorized by the Parties in Decision XIX/9. EPA is
not modifying the Framework Rule or the approach to determining the
level of available stocks finalized in the 2008 CUE rule published on
December 28, 2007.
C. Critical Uses
In Decision XIX/9, taken in September 2007, the Parties to the
Protocol agreed ``to permit, for the agreed critical use categories for
2009, 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 2009 set forth in table D
of the annex to the present decision which are necessary to satisfy
critical uses. * * *''
Table C of the annex to Decision XIX/9 lists the following uses:
Commodities, NPMA food processing structures (cocoa beans removed),\1\
Mills and processors, Dried cured pork, Cucurbits, Eggplant--field,
Forest nursery seedlings, Nursery stock--fruit, nut, flower, Orchard
replant, Ornamentals, Peppers--field, Strawberry--field, Strawberry
runners, Tomatoes--field, Sweet potato slips. The agreed critical use
levels for 2009 total 4,261,974 kilograms (kg), which is equivalent to
16.7% of the U.S. 1991 methyl bromide consumption baseline of
25,528,270 kg. However, the maximum amount of allowable new production
and import as set forth in Table D of Decision XIX/9 is 3,961,974 kg
(15.5% of baseline), minus available stocks. For the reasons described
in Section V.D of this preamble, EPA is allowing limited amounts of new
production or import of methyl bromide for critical uses for 2009 up to
the amount of 2,275,715 kg (8.9% of baseline), with 1,919,193 kg (7.5%
of baseline) coming from pre-phaseout inventory (i.e., stocks).
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\1\ NPMA, National Pest Management Association, includes both
food processing structures and processed foods. This year's
exemption does not include cocoa beans.
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This final rule modifies 40 CFR part 82, subpart A, Appendix L to
reflect the agreed critical use categories identified in Decision XIX/9
for the 2009 control period. The Agency is amending the table of
critical uses based, in part, on the technical analysis contained in
the 2009 U.S. nomination that assesses data submitted by applicants to
the CUE program as well as public and proprietary data on the use of
methyl bromide and its alternatives. EPA sought comment on the
technical analysis (which is provided in the docket) and as well as
information regarding changes to the registration or use of
alternatives that may have transpired after the 2009 U.S. nomination
was written. The Agency stated that such information has the potential
to alter the technical or economic feasibility of an alternative and
could thus cause EPA to modify the analysis that underpins EPA's
determination as to which uses and what amounts of methyl bromide
qualify for the critical use exemption. Based on the information
described above, EPA is determining that the uses in Table I: Approved
Critical Uses, with the limiting critical conditions specified, qualify
to obtain and use critical use methyl bromide in 2009.
[[Page 19882]]
Table I--Approved Critical Uses
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Limiting critical conditions that exist,
Approved critical user and or that the approved critical user
Approved critical uses location of use reasonably expects could arise without
methyl bromide fumigation:
Column A Column B...................... Column C
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PRE-PLANT USES
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Cucurbits............................. (a) Growers in Delaware, Moderate to severe soilborne disease
Maryland, and Michigan. infestation.
A need for methyl bromide for research
purposes.
(b) Growers in Georgia and Moderate to severe yellow or purple
Southeastern U.S. limited to nutsedge infestation.
growing locations in Alabama, Moderate to severe soilborne disease
Arkansas, Kentucky, infestation.
Louisiana, Mississippi, North Moderate to severe root knot nematode
Carolina, South Carolina, infestation.
Tennessee, and Virginia. A need for methyl bromide for research
purposes.
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.
A need for methyl bromide for research
purposes.
(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.
A need for methyl bromide for research
purposes.
(c) Michigan growers.......... Moderate to severe soilborne disease
infestation.
A need for methyl bromide for research
purposes.
Forest Nursery Seedlings.............. (a) Growers in Alabama, Moderate to severe yellow or purple
Arkansas, Georgia, Louisiana, nutsedge infestation.
Mississippi, North Carolina, Moderate to severe soilborne disease
Oklahoma, South Carolina, infestation.
Tennessee, Texas, and Moderate to severe nematode infestation.
Virginia.
(b) International Paper and Moderate to severe yellow or purple
its subsidiaries limited to nutsedge infestation Moderate to severe
growing locations in Alabama, soilborne disease infestation.
Arkansas, Georgia, South
Carolina, and Texas.
(c) Government-owned seedling Moderate to severe weed infestation
nurseries in Illinois, including purple and yellow nutsedge
Indiana, Kentucky, Maryland, infestation.
Missouri, New Jersey, Ohio, Moderate to severe Canada thistle
Pennsylvania, West Virginia, infestation.
and Wisconsin. Moderate to severe nematode infestation.
Moderate to severe soilborne disease
infestation.
(d) Weyerhaeuser Company and Moderate to severe yellow or purple
its subsidiaries limited to nutsedge infestation.
growing locations in Alabama, Moderate to severe soilborne disease
Arkansas, North Carolina, and infestation.
South Carolina. Moderate to severe nematode or worm
infestation.
(e) Weyerhaeuser Company and Moderate to severe yellow nutsedge
its subsidiaries limited to infestation.
growing locations in Oregon Moderate to severe 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 Western Moderate to severe nematode infestation.
Raspberry Nursery Consortium Medium to heavy clay soils.
limited to growing locations Local township limits prohibiting 1,3-
in Washington, and members of dichloropropene.
the California Association of A need for methyl bromide for research
Nursery and Garden Centers purposes.
representing Deciduous Tree
Fruit Growers.
(b) California rose nurseries. Moderate to severe nematode infestation.
Local township limits prohibiting 1,3-
dichloropropene.
A need for methyl bromide for research
purposes.
Orchard Replant....................... (a) California stone fruit, Moderate to severe nematode infestation.
table and raisin grape, wine Moderate to severe soilborne disease
grape, walnut, and almond infestation.
growers. Replanted orchard soils to prevent
orchard replant disease.
Medium to heavy soils.
Local township limits prohibiting 1,3-
dichloropropene.
Ornamentals........................... (a) California growers........ Moderate to severe soilborne disease
infestation.
Moderate to severe nematode infestation.
Local township limits prohibiting 1,3-
dichloropropene.
A need for methyl bromide for research
purposes.
(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.
[[Page 19883]]
A need for methyl bromide for research
purposes.
(c) Michigan herbaceous Moderate to severe nematode infestation.
perennial growers. Moderate to severe soilborne disease
infestation.
Moderate to severe yellow nutsedge and
other weed infestation.
Peppers............................... (a) Alabama, Arkansas, Moderate to severe yellow or purple
Kentucky, Louisiana, nutsedge infestation.
Mississippi, North Carolina, Moderate to severe nematode infestation.
South Carolina, Tennessee, Moderate to severe pythium root, collar,
and Virginia growers. crown and root rots.
A need for methyl bromide for research
purposes.
(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.
A need for methyl bromide for research
purposes.
(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.
A need for methyl bromide for research
purposes
(d) Michigan growers.......... Moderate to severe soilborne disease
infestation.
A need for methyl bromide for research
purposes.
Strawberry Fruit...................... (a) California growers........ Moderate to severe 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.
A need for methyl bromide for research
purposes.
(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.
A need for methyl bromide for research
purposes.
(c) Alabama, Arkansas, Moderate to severe yellow or purple
Georgia, Illinois, Kentucky, nutsedge infestation.
Louisiana, Maryland, Moderate to severe nematode infestation.
Mississippi, Missouri, New Moderate to severe black root and crown
Jersey, North Carolina, Ohio, rot.
South Carolina, Tennessee, A need for methyl bromide for research
and Virginia growers. purposes
Strawberry Nurseries.................. (a) California growers........ Moderate to severe soilborne disease
infestation.
Moderate to severe yellow or purple
nutsedge infestation.
Moderate to severe nematode infestation.
A need for methyl bromide for research
purposes.
(b) North Carolina and Moderate to severe black root rot.
Tennessee growers. Moderate to severe root-knot nematode
infestation.
Moderate to severe yellow and purple
nutsedge infestation.
A need for methyl bromide for research
purposes.
Sweet Potato Slips.................... (a) California growers........ Local township limits prohibiting 1,3-
dichloropropene.
Tomatoes.............................. (a) Michigan growers.......... Moderate to severe soilborne disease
infestation.
Moderate to severe fungal pathogen
infestation.
A need for methyl bromide for research
purposes.
(b) Alabama, Arkansas, Moderate to severe yellow or purple
Florida, Georgia, Kentucky, nutsedge infestation.
Louisiana, Mississippi, North Moderate to severe soilborne disease
Carolina, South Carolina, infestation.
Tennessee, and Virginia Moderate to severe nematode infestation.
growers. Restrictions on alternatives due to
karst topographical features and, in
Florida, soils not supporting seepage
irrigation.
A need for methyl bromide for research
purposes.
(c) Maryland growers.......... Moderate to severe fungal pathogen
infestation.
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POST-HARVEST USES
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Food Processing....................... (a) Rice millers in the U.S. Moderate to severe beetle, weevil, or
who are members of the USA moth infestation.
Rice Millers Association. Presence of sensitive electronic
equipment subject to corrosion.
Time to transition to an alternative.
(b) Pet food manufacturing Moderate to severe beetle, moth, or
facilities in the U.S. who cockroach infestation.
are members of the Pet Food Presence of sensitive electronic
Institute. equipment subject to corrosion.
Time to transition to an alternative.
(c) Bakeries in the U.S....... Presence of sensitive electronic
equipment subject to corrosion.
[[Page 19884]]
Time to transition to an alternative.
(d) Members of the North Moderate to severe beetle infestation.
American Millers' Association Presence of sensitive electronic
in the U.S. equipment subject to corrosion.
Time to transition to an alternative.
(e) Members of the National Moderate to severe beetle or moth
Pest Management Association infestation.
treating processed food, Presence of sensitive electronic
cheese, herbs and spices, and equipment subject to corrosion.
spaces and equipment in Time to transition to an alternative.
associated processing and
storage facilities.
Commodities........................... (a) California entities Rapid fumigation required to meet a
storing walnuts, beans, dried critical market window, such as during
plums, figs, raisins, and the holiday season.
dates (in Riverside county Export to countries which do not allow
only) in California. the use of sulfuryl fluoride.
A need for methyl bromide for research
purposes.
Dry Cured Pork Products............... (a) Members of the National Red legged ham beetle infestation.
Country Ham Association and Cheese/ham skipper infestation.
the Association of Meat Dermested beetle infestation.
Processors, Nahunta Pork Ham mite infestation.
Center (North Carolina), and
Gwaltney and Smithfield Inc.
----------------------------------------------------------------------------------------------------------------
EPA proposed revising the description of the National Pest
Management Association (NPMA) to remove the term cocoa beans in storage
and associated spaces. NPMA has transitioned to sulfuryl fluoride for
cocoa bean fumigation and such fumigations were not included in the CUN
or approved by the Parties. NPMA requested that instead of the proposed
description, EPA describe their members as ``Members of the National
Pest Management Association treating processed food, cheese, dried
milk, herbs and spices, and spaces and equipment in associated
processing and storage facilities.'' The use of methyl bromide for
dried milk was not included in the CUN or approved by the Parties.
Therefore, EPA agrees with NPMA's revised description except for the
inclusion of dried milk.
EPA proposed adding ``restrictions on alternatives due to karst
topographical features and soils not supporting seepage irrigation'' as
a limiting critical condition for Georgia grown peppers and eggplants.
Dow AgroSciences commented that there are no soil restrictions on the
uses of 1,3-D in Georgia and asked that that limiting critical
condition be revised. Dow AgroSciences is correct that ``soils not
supporting seepage irrigation'' is not a limiting critical condition
for Georgia and the final rule reflects this change. EPA intended this
limiting critical condition to only reflect restrictions due to karst
topographical features. This change does not affect the amount of
critical use methyl bromide EPA is allocating because EPA's analysis
only assumed limitations due to karst topographical features.
EPA proposal inadvertently included ``Local township limits
prohibiting 1,3-dichloropropene'' as a limiting critical condition for
tomato growers in the Southeast. There are no such township limits in
the Southeast. Instead, this critical condition should have been
``Restrictions on alternatives due to karst topographical features and,
in Florida, soils not supporting seepage irrigation,'' as was the
language in the 2008 CUE Rule. The final rule has added back the
appropriate limiting critical condition for those growers in the
Southeast.
EPA proposed adding tomatoes grown in Maryland as a critical use
when limited by ``high water tables and proximity to environmentally
sensitive estuaries which limit use of 1,3-D.'' Dow AgroSciences
commented that there are no restrictions on the uses of 1,3-D products
in Maryland associated with high water tables or environmentally
sensitive estuaries and asked that that Maryland tomatoes thus not be
approved as a critical use. EPA has ascertained that there is no
labeling restriction concerning high water tables or environmentally
sensitive estuaries for 1,3-D and thus the final rule does not include
this as a limiting critical condition. Moderate to severe fungal
pathogen infestation still remains a limiting critical condition for
Maryland tomatoes, as authorized by the Parties to the Protocol.
Therefore, EPA is approving Maryland tomatoes as an authorized critical
use. Removing the language concerning high water tables and proximity
to environmentally sensitive estuaries does not affect the amount of
critical use methyl bromide EPA is allocating because EPA's analysis
did not include use or acreage estimates where this limiting critical
condition would apply. Therefore, EPA is not reducing the estimated
amount of demand or the amount of new production based on this change.
EPA also proposed adding ``export to countries which do not allow
the use of sulfuryl fluoride'' as a limiting critical condition for
commodities. Dow AgroSciences commented that import Maximum Residue
Levels (MRLs) exist in countries that import commodities treated with
sulfuryl fluoride and asked that this limiting critical condition be
removed. EPA disagrees with that this limiting critical condition be
removed. EPA has accounted for the Codex MRLs in the 2007 nomination
for use in 2009. However, many countries that the U.S. exports to set
their own MRLs and many have not yet done so for sulfuryl fluoride.
Therefore EPA is retaining the limiting critical condition for the use
of methyl bromide in the commodities sector.
Dow AgroSciences also had other comments on limiting critical
conditions that have existed in prior CUE Rules. EPA has addressed
those comments in the Response to Comments document contained in the
docket for this rule.
EPA is finalizing most of the proposed changes to the table in
Appendix L, with the exception of the three issues discussed above. The
remaining changes reflect the recommendations made by MBTOC and the
critical uses authorized by the Parties to the Protocol. Specifically,
the changes between this year's critical uses and those in 2008 are:
adding cucurbits grown in Maryland and Delaware as a critical use
[[Page 19885]]
under the limiting critical conditions listed in the table; moving
herbaceous perennials grown in Michigan from forest nursery seedlings
to ornamentals; adding ``restrictions on alternatives due to karst
topographical features'' as a limiting critical condition for Georgia
grown peppers; adding tomatoes grown in Maryland as a critical use
under the limiting critical conditions of ``moderate to severe fungal
pathogen infestation''; adding ``export to countries which do not allow
the use of sulfuryl fluoride'' as a limiting critical condition for
commodities; and revising the description of NPMA to remove cocoa beans
as was done in the CUN, but in a manner consistent with the CUN.
In addition, EPA is making the following editorial changes to Table
I to remove redundancy and ensure that the limiting critical conditions
are described uniformly throughout. First, EPA has consolidated, into
the same row, all critical users with the same limiting critical
condition within a critical use. Second, EPA moved clarifying
information from the table to the preamble to improve readability.
Thus, EPA clarifies here that the ``local township limits prohibiting
1,3-dichloropropene'' are prohibitions on the use of 1,3-
dichloropropene products because 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. EPA does not
intend for these edits to change the effect of any of the limiting
critical conditions, the approved critical user, location of use, or
any other aspect of the table.
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, and
pistachios.
The categories listed in Table I were designated as critical uses
for 2009 in Decision XIX/9 of the Parties. The amount of methyl bromide
approved for research purposes is included in the amount of methyl
bromide approved by the Parties for the commodities for which
``research purposes'' is indicated as a limiting critical condition in
Table I. As explained in Section V.D.5., EPA is issuing CSAs to allow
the sale of 22,171 kg of methyl bromide from existing stocks for
research purposes, and adjusting new production accordingly.
In accordance with the recommendations in Tables 4 and 8 of the
TEAP's August 2007 Final Report titled ``Evaluations of 2007 Critical
Use Nominations for Methyl Bromide and Related Matters,'' available on
the docket for this rulemaking, EPA is allowing the following to use
critical use methyl bromide for research purposes: commodities,
cucurbits, eggplant (field), nursery stock (fruit, nut, flower),
orchard replant, ornamentals, peppers (field), strawberry (field),
strawberry runners, sweet potato slips, and tomatoes (field). As
discussed below, EPA allows the use of newly-produced methyl bromide
for research purposes but encourages researchers to use pre-phaseout
inventory by reducing the amount of new production by the amount the
Parties authorize for research. In their applications to EPA, these
sectors identified research programs that require the use of methyl
bromide.
D. Critical Use Amounts
Section V.C. of this preamble explains that Table C of the annex to
Decision XIX/9 lists critical uses and amounts agreed to by the Parties
to the Montreal Protocol. When added together, the authorized critical
use amounts for 2009 total 4,261,974 kilograms (kg), which is
equivalent to 16.7% 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 XIX/9 is 3,961,974 kg (15.5% of
baseline), ``minus available stocks.''
EPA's allocation of critical use allowances and critical stock
allowances for 2009 applies the existing regulatory framework to the
amounts authorized by the Parties to reflect the following factors:
(a) The amount of available stocks;
(b) The amount of unused critical use methyl bromide at the end of
2007 (the carryover amount); and
(c) The amount of methyl bromide authorized for research purposes.
Using the existing framework, EPA also proposed a reduction to
accommodate a certain amount of transition to the recently registered
fumigant iodomethane for some pre-plant uses. Given recent information
concerning the reduced production of another alternative, Telone, EPA
is not making a reduction for the uptake of alternatives in this final
rule. Commenters' concerns about each of these reductions are described
in the sections below.
EPA proposed to issue 1,617,921 kg (6.3% of baseline) of critical
use allowances (CUAs) and 2,576,987 kg (10.1% of baseline) of critical
stock allowances (CSAs). Generally, commenters were opposed to the
proposed level of new production, stating it would be insufficient to
meet the needs of critical users and would result in shortages in some
areas. Based on comments received on the proposed rule, as well as
additional data, EPA is issuing 2,275,715 kg (8.9% of baseline) of
critical use allowances, which allow limited amounts of new production
and import of methyl bromide for 2009 critical uses up to the amount of
2,275,715 kg as shown in Table III. EPA is also issuing 1,919,193 kg
(7.5% of baseline) of critical stock allowances, which allow sales of
1,919,193 kg from existing pre-phaseout inventories for critical uses
in 2009. The sub-sections below explain EPA's reasons for issuing these
critical use amounts for 2009.
1. Background of Critical Use Amounts
The December 23, 2004, Framework Rule and subsequent CUE rules each
took note of language regarding stocks of methyl bromide in relevant
decisions of the Parties. In developing this action, the Agency noted
that paragraph seven of Decision XIX/9 contains the following language:
``that each Party which has an agreed critical use renews its
commitment to ensure that the criteria in paragraph 1 of decision IX/6
are applied when licensing, permitting or authorizing critical use of
methyl bromide and, in particular, the criterion laid down in paragraph
1(b)(ii) of decision IX/6.'' Language calling on Parties to address
pre-phaseout inventory also appears in prior Decisions related to the
critical use exemption.
In the Framework Rule, which established the architecture of the
CUE program and set out the exempted levels of critical use for 2005,
EPA interpreted paragraph 5 of Decision Ex. I/3, which is similar to
Decision XIX/9(7), ``as meaning that the U.S. should not authorize
critical use exemptions without including provisions addressing
drawdown from stocks for critical uses'' (69 FR 76987). Consistent with
that interpretation, 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. In addition, EPA noted that pre-phaseout
inventories were further taken into account through the trading
provisions that allow CUAs
[[Page 19886]]
to be converted into CSAs. In developing this final rule, EPA did not
propose changes to these basic CSA provisions.
Paragraph 5 of Decision XIX/9 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
August 25, 2004, proposed Framework Rule (69 FR 52366), EPA proposed to
adjust the authorized level of new production and consumption for
critical uses by the amount of ``available stocks.'' The methodology
for determining the amount of available stocks considered exports,
methyl bromide for feedstock uses, and the need for a buffer in case of
catastrophic events. However, the final Framework Rule did not adopt
the proposed methodology for determining available stocks. Instead, for
the 2005 control period 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 (Total Authorized
CUE Amount--Authorized New Production and Import).
EPA issued CSAs for the 2006, 2007, and 2008 control periods 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. In the 2006 CUE Rule, EPA issued a total of
1,136,008 CSAs, equivalent to 4.4% of baseline. For that control
period, 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). EPA reduced
the portion of CUE methyl bromide to come from new production and
import in each of the 2006-2008 control periods accordingly in order to
ensure that the total critical use allocation did not exceed the total
amount authorized by the Parties for that year.
As established in these earlier rulemakings, EPA views the
allocation of additional CSA amounts as an appropriate exercise of its
discretion. The Agency is not required to allocate the full amount of
authorized new production and consumption. The Parties agreed to
``permit'' a particular level of production and consumption; they did
not--and could not--mandate that the U.S. authorize this level of
production and consumption domestically. Nor does the CAA require EPA
to exempt the full amount permitted by the Parties. Section 604(d)(6)
of the Clean Air Act (CAA) does not require EPA to exempt any amount of
production and consumption for critical uses, but instead specifies
that the Agency ``may'' exempt amounts for production, import, and
consumption, thus providing EPA with substantial discretion in creating
critical use exemptions.
The Methyl Bromide Industry Panel commented that EPA abused its
discretion by proposing to allocate a much greater number of CSAs than
required by the Parties to the Protocol. EPA believes that it has the
discretion to allocate beyond the minimum stock drawdown set forth in
the Parties' decision, as described above. EPA's basis for setting the
specific CSA amount is detailed in the remainder of this notice.
Prior to determining the CSA amount for a particular year, EPA
considers what portion of ``existing'' stocks is ``available'' for
critical uses. As discussed in the 2008 rulemaking, 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.'' In addition, Decision XIX/9, 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 XIX/9 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 Clean Air Act does not require that EPA
adjust the amount of new production and import to reflect the
availability of stocks; however, as explained in previous rulemakings,
making such an adjustment is a reasonable exercise of EPA's discretion
under this provision. In this action, EPA did not propose to change its
practice of adjusting the level of new production and import authorized
by the Parties to reflect the availability of stocks.
EPA introduced in the 2008 CUE rule a refined approach for
determining the amount of existing methyl bromide stocks that is
available for critical uses (72 FR 74118). That approach involves the
concept of a ``Supply Chain Factor'' (SCF). The SCF represents EPA's
technical estimate of the amount of methyl bromide inventory that would
be adequate to meet a need for critical use methyl bromide after an
unforeseen domestic production failure. The SCF is used in the formula
finalized in the 2008 CUE rule for calculating the available stocks.
That formula is expressed as AS = ES-D-SCF, where AS = available
stocks; ES = existing pre-phaseout stocks of methyl bromide held in the
United States by producers, importers, and distributors; and D =
estimated drawdown of existing stocks. In the 2008 CUE rule, EPA stated
that it would use this refined approach in 2008 and each year
thereafter as appropriate and feasible (72 FR 14134). EPA is not
changing the SCF concept or the formula finalized in the 2008 CUE rule
for calculating the available stocks, with the exception that for 2009
EPA will not estimate the drawdown of existing stocks during 2008 but
rather, as was encouraged by commenters, use the actual drawdown based
on end-of-year reported data. The SCF approach continues to be
appropriate and feasible, as it is the most reasonable, efficient, and
transparent way for the Agency to continue to facilitate responsible
management of the pre-phaseout inventory.
2. Calculation of Available Pre-Phaseout Inventory
In this action, EPA is adjusting the authorized level of new
production and consumption for critical uses to account for the amount
of existing pre-phaseout inventory that is ``available'' for critical
uses. EPA is calculating the amount of existing stocks that is
available for critical uses in 2009 based on the SCF and formula
introduced in the 2008 CUE final rule (72 FR 74118). EPA is allowing
sales of the amount of existing pre-phaseout inventory that the Agency
has determined to be available for critical uses by issuing an
equivalent number of CSAs on a one-CSA-per-one-kilogram-of-methyl-
bromide basis.
As described in the 2008 CUE Rule, EPA calculates the amount of
available stocks as follows: AS2009 = ES2008-
D2008-SCF2009, where AS2009 is the
available stocks on January 1, 2009; ES2008 is the existing
pre-phaseout stocks of methyl bromide held in the United States by
producers, importers,
[[Page 19887]]
and distributors on January 1, 2008; D2008 is the estimated
drawdown of existing stocks during calendar year 2008; and
SCF2009 is the supply chain factor for 2009.
EPA received comment from MBIP that the Agency has not adequately
explained why using a formulaic approach is preferable to utilizing an
amount of stocks that is more consistent with past control periods. In
response, EPA notes that the formula for calculating available stocks
is not a new approach: It was finalized in the 2008 CUE Rule.
Information on the development of that formula can be found in the
proposed and final 2008 CUE Rules, as well as in the Technical Support
Document for the 2008 control period, which is included in the docket
for today's action. In addition, the CSA amount allocated in today's
final rule is within the same range as past allocations. In previous
control periods, EPA has authorized CSAs ranging from 4.4% to 7.5% of
baseline. As discussed below, EPA is finalizing a CSA amount of 7.5% of
baseline.
As established in the 2008 CUE Rule, ``ES2008'' refers
to pre-phaseout inventory--i.e., existing stocks of methyl bromide that
was produced before January 1, 2005, and that is still held by domestic
producers, distributors, and third-party applicators. January 1, 2005,
was the phaseout date for production and import of methyl bromide in
the United States. ES2008 does not include critical use
methyl bromide that was produced after January 1, 2005, and carried
over into subsequent years. EPA addresses the carryover amount in
section V.D.4 of this preamble. ``ES2008'' also does not
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. Methyl bromide produced for QPS uses or for
export to Article 5 countries may not be sold to domestic entities for
critical uses and, therefore, is separate from the CUE program. Thus,
such amounts have been removed from the calculation of the amount of
``available stocks'' for critical uses.
In the proposed rule, EPA stated that unless the Agency received
evidence to the contrary, it would assume that all pre-phaseout
inventory is suitable for both pre-plant and post-harvest uses. EPA is
making this assumption because the Agency has received no data that
show that pre-phaseout inventory is mixed with chloropicrin and is
unsuitable for post-harvest uses. One commenter requested that EPA
require inventory holders to report information regarding the purity of
their stocks. EPA does not believe that such a step is necessary. EPA
has not received any data through comments or other means indicating
that some pre-phaseout inventory is unsuitable for particular critical
uses due to its formulation. Therefore, this final rule assumes that
all pre-phaseout inventory is suitable for all uses.
The Agency also sought comment on its presumption that geographic
location is not a factor in the availability of pre-phaseout inventory.
EPA based this conclusion on the geographic distribution of the
companies that are granted CSAs (See Table IV) as well as end of year
reporting data submitted by CSA holders regarding the size of their
inventory. EPA continues to believe that geography is not a factor in
inventory methyl bromide. However, commenters did cite regional
shortages of inventoried methyl bromide and questioned the actual
availability of pre-phaseout inventory. First, commenters said that
pre-phaseout inventory is held by only a small number of distributors.
EPA's end-of-year reporting data support this comment and this has been
the case since methyl bromide was phased out in 2005. These
distributors, however, serve the major markets for methyl bromide.
Thus, even though there may be a small number of distributors, this
does not necessarily limit the ability to supply customers in different
regions.
Second, EPA has received comment that these distributors will
likely continue to supply their existing client base, which consist
mainly of non-CUE users. These commenters also state that EPA has no
authority to require distributors to sell their material to critical
users. As a result, the commenters state that critical users who are
unable to purchase newly produced material will not have access to any
methyl bromide and that the Agency should assume all inventoried
material to be unavailable and increase the amount of new production to
the level authorized by the Parties.
EPA disagrees that it should allocate increased production of new
methyl bromide in response to distributors' decisions not to sell their
pre-phaseout inventory to critical users. Issues concerning supply of
pre-phaseout inventory are addressed in the Response to Comment
Document for the 2008 CUE Rule. Briefly, EPA regards this material as
``available'' because it is owned by someone other than the end user.
While a distributor might prefer to sell methyl bromide to non-critical
users to satisfy prior contracts or internal business decisions, this
is not the result of any EPA regulatory constraint. EPA does not
currently require the sale of inventory to critical users. However,
beginning in 2010, distributors will be unable to sell to non-critical
users due to labeling changes to methyl bromide. Under the
Reregistration Eligibility Determination (RED) for methyl bromide soil
fumigation uses issued in July 2008, uses already considered critical
by the Parties have been considered eligible for reregistration, along
with QPS uses. More information is available in the methyl bromide RED,
available on the Web at: http://www.epa.gov/oppsrrd1/REDs/methylbromide-red.pdf.
a. Estimated Drawdown
In the 2008 CUE rule, EPA estimated the drawdown of existing stocks
(D2008) by using a simple linear fit estimation of inventory
data from all available years. For the 2009 CUE rule, EPA proposed to
estimate drawdown using an exponential projection. Using that method,
EPA projected that the pre-phaseout methyl bromide inventory, which was
6,457,806 kg on January 1, 2008, would be drawn down by 1,528,806 kg
during 2008 resulting in a pre-phaseout inventory of 4,929,000 kg on
January 1, 2009. Under the exponential model, 2,576,987 kg (10.1% of
baseline) of existing pre-phaseout stocks of methyl bromide would have
been deemed ``available'' for critical uses on January 1, 2009. EPA
also provided the results of the linear model for comment. Under the
linear model, EPA estimated a much greater drawdown leading to a lower
amount of available stocks, 777 MT (3% of baseline), in 2009. EPA
invited comment on those two different analyses or any alternative
method of estimating drawdown. Comments were unanimous that EPA should
use actual end-of-year data on inventory levels instead of a
statistical estimate of drawdown. EPA agrees that it would be less
accurate to use an estimate when the Agency has actual reported data at
the time it is preparing the final rule. Therefore, for 2009, EPA is
using actual end-of-year data submitted to the Agency under the
reporting requirements of 40 CFR 82.13. EPA responds to additional
comments about various statistical methods in the response to comments
document. EPA is not deciding in this action how to calculate the
drawdown for future years. Such calculations may use an estimate or
actual reported data depending on the timing of those future rules.
The Methyl Bromide Industry Panel, in its comment to the Agency,
provided
[[Page 19888]]
EPA with preliminary data regarding the size of the pre-phaseout
inventory. MBIP collected this data through an outside accounting firm
who contacted most of the CSA holders in mid-December. The data showed
that in mid-December, the inventory was 4,252,931 kilograms. EPA
welcomed this initial estimate because it provided crucial early
information in formulating a final rule before the end of year data was
reported February 15. The Agency may find such information to be useful
in drafting future CUE allocation rules as well. In this final rule,
EPA is using the actual end-of-year data as it is more complete than
the information MBIP submitted.
The reported inventory on December 31, 2008, was 4,271,226 kg. This
is less than the 4,929,000 kilograms that EPA estimated under the
exponential model (although more than the 3,129,000 kg estimated by the
linear model). This means that the drawdown for 2008 was 2,186,600 kg.
The effect of this value on the levels for new production and CSAs is
discussed in more detail below.
EPA also asked for comment on its discussion of the market
conditions that could be affecting the decline in inventory use,
including whether inventory during 2008 is being depleted at rates
similar to 2007 or whether it is being depleted faster than that. For
2008, the drawdown did not appear to have adhered precisely to either
an exponential or linear curve. EPA still believes that the market
conditions in 2008 are substantively different from those in 2004, as
described in the proposed rule. First, the Critical Use Exemption
process did not exist in 2004, as that was the last year of the methyl
bromide phaseout. EPA believes that the economics and use patterns
since the 2005 phaseout differ from those pre-phaseout. Second, at the
beginning of 2004, the inventory was 16,422,000 kg MT, a substantially
higher amount than an inventory of 4,271,226 kg at the end of 2008.
Third, the price of methyl bromide has increased roughly 30-50% since
2004. Therefore, today growers face stronger economic incentive to use
alternatives and reduce application rates than they did in 2004.
Fourth, more alternatives are available, including sulfuryl fluoride
and iodomethane, reducing the total demand for methyl bromide. However,
the comments suggest that the rate of drawdown at this point is based
mostly on the business decisions of the companies that hold pre-
phaseout inventory. In the proposed rule, EPA stated that less of the
inventory was used for non-critical uses in 2007 than 2006. In 2006,
1,519 MT of pre-phaseout inventory was for non-critical uses, whereas
in 2007, this dropped to 291 MT. This pattern does not appear to
continue through 2008. Preliminary review of the data submitted for
2008 show an increase in sales of inventory for non-critical uses. The
exact amounts will be contained in the 2008 Accounting Framework
submitted to UNEP in late spring 2009.
The goal of EPA's methodology for the CSA allocation is to allocate
CSAs equal to ``available stocks'' such that the private sector has the
flexibility to retain in inventory the amount needed in case of a
catastrophic supply chain failure (the Supply Chain Factor). As the
Agency stated in the 2008 CUE Rule and in Section V.D.3 below, once the
inventory declines below the SCF level, the Agency will not require any
additional drawdown of stocks beyond what is required in the
authorization by the Parties to the Protocol for that control period.
b. Supply Chain Factor
The supply chain factor (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, EPA estimated
that in the event of a major supply disruption, it would take 15 weeks
for significant imports of methyl bromide to reach the U.S. Using
updated numbers on average production during each quarter of the year,
EPA estimated in the proposed 2009 CUE rule that critical use
production in the first 15 weeks of each year (the peak supply period)
accounts for 55% of annual critical use methyl bromide production. In
the proposed rule, EPA estimated that the peak 15-week shortfall in
2009 could be 2,352,013 kg (55.186% x 4,261,974 kg). EPA received two
comments regarding the SCF. The MBIP generally supported the inclusion
of the SCF but commented that it should be equivalent to one year's
supply of material rather than 55%, which they asserted would not be
sufficient to meet the needs of critical users were a catastrophic
disruption to occur. EPA disagrees with this comment, as it relates to
decisions made in the 2008 CUE Rule rather than any new decisions made
for 2009. MBIP made the same comment in the 2008 proposed rule and EPA
responded to their comments in the 2008 Response to Comments document
contained in the docket to this rule. As EPA states in that document,
the SCF is based on conservative assumptions about the effect of a
disruption.
MBIP also commented that the rate of inventory drawdown that would
result from the new production levels in the proposed rule would lead
to too little stockpiled methyl bromide for a Supply Chain Factor in
2010 and beyond. EPA disagrees that this will occur. First, as
discussed elsewhere, this final rule allocates more for new production
and authorizes less to be taken from stocks than the proposed rule.
Second, EPA has calculated a preliminary estimate of the SCF for 2010
based on the amounts authorized by the Parties, and believes that there
will be sufficient inventory to meet the SCF.
Ultimately, MBIP's comment appears to be based on the assumption
that the Agency seeks through this rule to deplete the inventory to
zero. EPA reiterates that the Agency's purpose in utilizing the SCF is
to give the private sector the flexibility to retain in inventory the
amount needed in case of a catastrophic supply chain failure. EPA does
believe that the amount of drawdown should exceed the minimum amount
required by the Parties to the Protocol as long as the inventory
remains above the SCF level. While MBIP's comment suggested that EPA
simply maintain the same level of CSAs as was finalized last year, the
Agency believes that using the available stocks formula adopted in the
2008 CUE Rule provides a more rigorous approach. While MBIP states that
under the proposed rule, the level of existing stocks would be
``dangerously close to EPA's 55% SCF target,'' EPA believes that this
is appropriate, as it is the Agency's goal to draw down inventory
levels to the SCF target.
EPA also received comments from Dow AgroSciences, which argued that
the SCF is unnecessarily conservative, given the remoteness of an event
such as an unforeseen domestic production failure occurring. As EPA
stated in the 2008 CUE Rule, the Agency did not conduct a statistical
or probability analysis of the likelihood of this scenario. EPA
recognizes that a catastrophic loss is unlikely, but this does not
obviate the need to plan for such a scenario. Methyl bromide, unlike
most commercial chemicals, is produced at only one facility. Therefore,
a scenario in which this facility completely ceases production is of
special concern. While EPA expects private entities to take prudent
steps to protect themselves, EPA does not wish to render them incapable
of maintaining a reasonable supply buffer.
EPA explained in the 2008 CUE rule that the SCF is affected by the
uptake of alternatives, because the SCF is based on the peak demand and
the uptake of
[[Page 19889]]
alternatives affects the peak demand for methyl bromide. The proposed
rule did not adjust for the uptake of iodomethane because the analysis
had not yet been completed. Since then, EPA has developed projections
for uptake of iodomethane in 2009. Nevertheless, the allocation in the
final rule does not explicitly reflect uptake of iodomethane because,
due to the Telone shortage discussed below, the Agency is not making
any reductions to account for the uptake of alternatives. Therefore,
EPA will finalize the proposed value of 2,352,013 kg for the SCF.
Consistent with the 2008 CUE rule, this is a conservative estimate of
the amount of methyl bromide needed to cover a supply disruption during
the estimated peak 15-week period of critical use supply.
As stated in the 2008 CUE Rule, EPA reiterates that the SCF is not
a ``reserve'' or ``strategic inventory'' of methyl bromide. Rather, it
is merely an analytical tool used to provide greater transparency
regarding how the Agency determines CSA amounts, in cases where CSA
amounts are greater than the amounts stipulated by the Parties. For
further general discussion of the SCF, see the final 2008 CUE rule (72
FR 74118). Further detail about the analysis used to derive the value
for the 2009 SCF is provided in the Technical Support Document
available on the public docket for this rulemaking.
3. Approach for Determining Critical Use Amounts
In the proposed rule, EPA applied the SCF to estimate that
2,576,987 of pre-phaseout inventory would be ``available stocks''.
Following its CSA allocation framework, EPA proposed to allow the sale
of 2,576,987 kg from existing stocks for critical uses in 2008 by
allocating an equivalent number of CSAs. As in past years, EPA proposed
to adjust the critical use allowance (CUA) amounts accordingly, so that
the total number of CUAs and CSAs is not greater than the total
critical use amount authorized by the Parties. The proposed rule noted
that under EPA's framework, the Agency may allocate a total number of
CUAs and CSAs that is less than the total critical use amount
authorized by the Parties for 2009 to account for carryover amounts of
methyl bromide, amounts for research purposes or other appropriate
reasons, including updated information on alternatives.
EPA received one comment that the total number of CUAs and CSAs
should not be less than the amount authorized by the Parties to the
Protocol because the full amount is needed for critical uses. In making
reductions for research purposes and to account for carryover material,
EPA is following its existing framework. The reductions for these
purposes are both necessary and appropriate, as discussed below.
Furthermore, these reductions are minor. While the Parties approved
4,261,974 kg (or 16.7% of baseline) for use in 2009, this final rule
allocates 4,194,908 kg (or 16.4% of baseline). EPA believes that this
total CUE amount in the final rule meets the needs of critical users
while still responding to decisions taken by the Parties regarding
carryover and research amounts.
More commenters were concerned about the level of CSAs than the
total amounts of CUAs and CSAs being allocated. Commenters stated that
the ratio of CUAs to CSAs was inappropriate and would also not allow
for production or import of enough new material to meet the needs of
critical users. As discussed elsewhere in this preamble, EPA is
finalizing CUAs and CSAs based on new inventory data which will allow
for greater levels of new production. The CUAs and CSAs in this final
rule were calculated using the approach adopted in the 2008 CUE Rule,
but have changed from the proposal because of new data showing the
actual inventory levels at the end of 2008. Some commenters may still
contend that inventory is declining too rapidly and that new production
should thus be increased. As stated elsewhere in this preamble, EPA
believes that it has appropriately applied its discretion regarding the
rate of drawdown of pre-phaseout inventory. Consistent with the 2008
CUE Rule, the allocations for 2009 continue to allow private entities
to maintain an amount equal to the ``supply chain factor''--i.e., an
amount that would allow continued availability of pre-phaseout
inventory in the event of a catastrophic disruption to supply. As
discussed above, this approach is consistent with the relevant
Decisions of the Parties, especially Table D of the Annex to Decision
XIX/9, which for 2009 explicitly authorizes for the United States a
certain amount of new production and import ``minus available stocks.''
After considering all of the comments received, EPA believes that this
is the most reasonable, efficient, and transparent way for the Agency
to continue to facilitate responsible management of pre-phaseout
inventory. EPA calculates that, as of January 1, 2009, 1,919,193 kg of
pre-phaseout inventory meets the definition of ``available stocks'' as
calculated using the approach described in Section V.D.2. of this
preamble. Therefore, with this action the Agency is allowing 1,919,193
kg of methyl bromide to be supplied from pre-phaseout inventory for
critical uses in 2009 by issuing an equivalent number of CSAs, and
adjusting the amount of CUAs accordingly. EPA also calculates that
there will be sufficient pre-phaseout inventory at the beginning of the
2010 control period to satisfy the amount of 2010 inventory drawdown
(470,000 kg) for critical uses identified by the Parties in Decision
XX/5.
To summarize, the critical use amounts authorized by the Parties in
Decision XIX/9 for 2009 total 4,261,974 kg. The maximum amount of
authorized new production or import as set forth in Table D of the
Annex to Decision XIX/9 is 3,961,974 kg, ``minus available stocks.''
Applying the ``available stocks'' approach finalized in the 2008 CUE
Rule, EPA is expecting 1,919,193 kg of 2009 critical use needs to be
met from pre-phaseout inventory and thus is issuing CSAs in that
amount. As in past years, EPA is adjusting the amount of CUAs
accordingly, so that the sum of CUAs and CSAs is not greater than the
total amount authorized by the Parties. After accounting for the
additional reductions for unsold critical use methyl bromide at the end
of 2007 and reductions to encourage research amounts to be supplied
from pre-phaseout inventory, EPA is allowing 2,275,715 kg of new
production and import for critical uses in 2009.
4. Treatment of Carryover Material
As described in the December 23, 2004, Framework Rule (69 FR
76997), EPA is not permitting entities to build stocks of methyl
bromide produced or imported after January 1, 2005, under the critical
use exemption. Under the current regulations, quantities of methyl
bromide produced, imported, exported, or sold to end-users under the
critical use exemption in a calendar year must be reported to EPA the
following year. These reporting requirements appear at 40 CFR
82.13(f)(3), 82.13(g)(4), 82.13(h)(1), 82.13(bb)(2), and 82.13(cc)(2).
EPA uses the reported information to calculate the amount of critical
use methyl bromide that has been produced or imported in that control
period but not exported or sold to end-users in that year. An amount
equivalent to this ``carryover,'' whether pre-plant or post-harvest, is
then deducted from the total level of allowable new production and
import in the year following the year of the data report. For example,
EPA deducted the amount of carryover from 2006 (reported in 2007) from
the allowable amount of production or import for critical uses in 2008.
As discussed in
[[Page 19890]]
Section V.D.2., carryover material is not included in EPA's definition
of existing stocks (ES) as it applies to the formula for determining
the amount of available stocks (AS). EPA is not including carryover
amounts as part of ES, because doing so could lead to a double-counting
of carryover amounts, with proportionate effects on the calculation of
critical use allowances (CUAs).
EPA stated in the proposed rule that it calculates the amount of
carryover CUE material each year based on data reported to EPA by
distributors and applicators regarding sales to end-users. In 2008, 57
entities reported information to EPA under the reporting requirements
at 40 CFR 82.13 about critical use methyl bromide production, imports,
exports, sales, and/or inventory holdings in 2007. In 2007, 4,314,150
kg of critical use methyl bromide was acquired through production or
import. The information reported to EPA indicates that 4,269,255 kg of
critical use methyl bromide was exported or sold to end-users in 2007.
The carryover amount at the end of 2007 was thus 44,895 kg, which is
the difference between the reported amount of critical use methyl
bromide acquired in 2007 and the reported amount of exports or sales of
that material to end users in 2007 (4,314,150 kg-4,269,255 kg = 44,895
kg). EPA's calculation of the amount of carryover at the end of 2007 is
consistent with the method used in the final 2008 CUE Rule, 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. the Accounting Framework. The 2007
U.S. Accounting Framework is available in the public docket for this
rulemaking.
As a result of stakeholder concerns regarding the completeness of
reporting and in response to public comment, EPA stated in the 2008 CUE
Rule that it would collect the names of all distributors and third-
party applicators with critical use exemption reporting requirements
under 40 CFR 82.13 using its information gathering authority under
section 114 of the Clean Air Act. On January 31, 2008, EPA sent letters
to all producers, distributors, and third-party applicators of critical
use methyl bromide that it was aware of asking for ``the name and
address of each non-end user entity (i.e. distributors of methyl
bromide and third-party applicators of methyl bromide) to which your
company sold critical use methyl bromide during calendar year 2007.''
As a result, EPA received contact information for distributors and
third-party applicators that had never reported sales data to EPA as
well as actual sales reports from some of those new entities. On March
11, 2008, the Agency sent a follow-up letter to the previously unknown
entities that had not reported sales data for 2007 and reminded them of
their reporting obligations under 40 CFR 82.13. The Agency received 18
responses from previously unknown entities satisfying the required
annual reporting requirements.
MBIP suggested that EPA calculate the carryover as the sum of all
critical use methyl bromide that companies report as being held in
inventory. MBIP raised this issue in the 2008 CUE Rule and EPA
continues to maintain that the established methodology is a simple and
accurate way to calculate the carryover amount each year and that
adjusting the established method could create international confusion
about U.S. reporting. More details of MBIP's proposals to modify how
the carryover amount is calculated, as well as EPA's response, are
found in the 2008 CUE Rule Preamble and Response to Comments document.
In previous CUE rules, EPA has used the approach described in the
Framework Rule for implementing carryover reductions. Consistent with
that approach, EPA is reducing the total level of new production and
import for critical uses by 44,895 kg to reflect the total level of
carryover material in existence at the end of 2007.
5. Amounts for Research Purposes
There continues to be a need for methyl bromide for research
purposes. A common example is an outdoor field experiment that requires
methyl bromide as a standard control treatment with which to compare
the trial alternatives' results. EPA notes that the use of methyl
bromide under the critical use exemption for research is distinct from
the use of methyl bromide under the laboratory and analytical use
exemption. Research uses under the critical use exemption refer to
field trials of alternative fumigants where methyl bromide is used as a
control. Research uses under the laboratory and analytical use
exemption refer to methyl bromide used as a reference or standard; in
laboratory toxicology studies; to compare the efficacy of methyl
bromide and its alternatives inside a laboratory; and as a laboratory
agent which is destroyed in a chemical reaction in the manner of
feedstock. Decision XVIII/15(1). The critical use sectors that were
approved by the Parties to use methyl bromide for research purposes in
2009 are listed in Section V.C. and have ``research purposes'' as a
limiting critical condition in Table I of this preamble. While use of
methyl bromide for the research purposes listed in that section is a
critical use, EPA has consistently encouraged research needs be met
through the sale of inventory by deducting the amount needed for
research from the overall critical use production level and issuing
additional CSAs in that amount.
MBIP commented that because the inventory is so low, EPA should
increase the level of new production by 22,171 kg instead of issuing
CSAs for that amount. EPA disagrees, and a detailed analysis of the
amount of available stocks, explained further in Section V.D.2 of this
preamble, finds that more than 1,900,000 kg of pre-phaseout inventory
is available for critical uses. EPA is therefore allowing the sale of
22,171 kg of pre-phaseout inventory for research purposes in 2009 to
account for the amount authorized for those purposes. EPA is allowing
methyl bromide sale from stocks for exempted research purposes by
expending CSAs. The Agency continues to encourage methyl bromide
suppliers to sell inventory to researchers and to encourage researchers
to purchase inventory for research purposes.
6. Methyl Bromide Alternatives
In this rule, as in previous CUE rules, EPA has considered new data
regarding alternatives that was not available at the time the U.S.
Government submitted its Critical Use Nomination (CUN) to the Parties.
EPA has used this new information in deciding whether to adjust the
amount of new production. For example, in the 2006 CUE Rule (71 FR
5985), EPA adjusted the allocation for new production in order to
account for the recent registration of sulfuryl fluoride. That
allocation reflected transition rates that were included for the first
time in the 2007 U.S. Critical Use Nomination (CUN). In the 2007 CUE
Rule (72 FR 74139), EPA explained that the transition rates had already
been applied as part of the international review process for that year
and did not apply them as part of the Agency's domestic rulemaking. EPA
did, however, reduce the total volume of critical use methyl bromide in
the final CUE rule for 2008 by 27,769 kg because the transition rates
did not account for the uptake of iodomethane in various pre-plant
sectors or sulfuryl fluoride in cocoa fumigation.
For 2009, EPA is taking into consideration new information about
iodomethane and Telone. Absent other factors, new data on the uptake of
iodomethane in 2009 would lead the Agency to adjust the CUA allocation
to
[[Page 19891]]
account for the uptake of this alternative. Through the public
comments, EPA also received information regarding a shortage in Telone
production, the magnitude of which is uncertain but expected to be
significant. EPA therefore believes that it would be imprudent to make
a reduction for iodomethane in the face of this substantial but
currently unquantifiable reduction in Telone. EPA also received
comments regarding the uptake of sulfuryl fluoride. As described below,
the Agency does not believe that this information is new or sufficient
to adjust new production levels for 2009. Therefore, EPA is not making
any adjustment to the authorized amount of new production to account
for new data regarding alternatives.
EPA proposed to reduce critical use allowances to account for new
information about the uptake of iodomethane. The TEAP report of August
2007 included reductions based on the transition rates for alternatives
considered in the 2009 CUN. These alternatives included sulfuryl
fluoride, but not iodomethane, which was not yet registered for use.
The TEAP's recommendations were then considered in the Parties' 2009
authorization amounts, as listed in Decision XIX/9. Therefore, with the
exception of iodomethane, transition rates accounting for the uptake of
alternatives like sulfuryl fluoride have already been applied for
authorized 2009 critical use amounts. Furthermore, the 2010 CUN, which
is the U.S. Government's last opportunity to adjust the 2009
authorization, did not conclude that transition rates should be
increased for 2009. As the 2010 CUN reflected, the United States
Government had not found new information that supports changing the
2009 transition rates included in the 2009 CUN and applied by MBTOC.
After considering new information about iodomethane, EPA expects
that in 2009 iodomethane will be a technically and economically
feasible alternative for many pre-plant applications. Beginning in Fall
2008, iodomethane obtained a full pesticide registration for use as a
soil fumigant by EPA for a limited number of crops. Iodomethane also
received state registrations by all states except California, New York,
and Washington.
Iodomethane is currently registered on food crops (peppers,
tomatoes, strawberries) and non-food nursery crops (ornamentals, forest
seedlings, and strawberry nurseries). EPA has assumed uptake on only
the food crops at this time. Although it is registered on non-food
nursery crops, the Agency has not assumed any uptake for 2009. This is
in keeping with the Agency's policy of being protective of nursery
crops until there is certainty that use of the newly registered
alternative is efficacious on nematodes, diseases, and fungi and can
meet any certification requirement. There are two major CUE food crops
that do not have an iodomethane registration: Curcurbits and eggplants.
EPA did not estimate any uptake on those crops. For the crops and
states where iodomethane is registered, EPA has estimated that an
additional 15 percent of the critical use methyl bromide authorized by
the Parties for 2009 can transition to iodomethane use. The Agency's
analysis, described in a memo on the docket for this action, estimates
that iodomethane can feasibly replace 262,035 kg of methyl bromide in
2009.
MBIP commented that EPA may not reduce new production to account
for the uptake of iodomethane because EPA did not provide a meaningful
opportunity to comment. MBIP states that EPA did not explain the
factors it would consider in assessing the uptake of iodomethane or
include a memo in the docket setting forth the Agency's methodology,
and that accounting for anything other than a de minimis uptake of
iodomethane would be contrary to administrative law. EPA disagrees that
it could not account for the uptake of iodomethane in the final rule.
EPA provided for reference the estimated market uptake for iodomethane
in the 2008 CUE Rule along with the number of states in which
iodomethane was registered at that time compared to the date of the
proposed rule. While EPA did not place the analysis conducted for the
2008 CUE Rule in the 2009 Rule docket prior to proposal, EPA's
methodology for estimating uptake can be found in the docket to the
2008 Final CUE Rule and has been reviewed and commented upon by MBIP in
the past. EPA believes that it has the discretion to make a reduction
to account for iodomethane uptake based on the information provided in
the proposal and the methodology used in 2008. However, as discussed
further below, EPA is not making such a reduction in this rule.
EPA also received comments that it should make reductions for
increased use of sulfuryl fluoride. As described above, data about the
uptake of sulfuryl fluoride was included in the 2009 CUN and thus was
included in the TEAP's August 2007 recommendations. Dow AgroSciences
commented that sulfuryl fluoride can currently replace 100% of current
post-harvest methyl bromide uses and that EPA should therefore reduce
the allocation of methyl bromide to account for market advances of
sulfuryl fluoride. EPA does not believe that the data Dow AgroSciences
submitted was applicable to the 2009 control period. Additionally, Dow
AgroSciences did not submit economic data regarding the transition to
sulfuryl fluoride. While many post-harvest users submitted comment
expressing support for sulfuryl fluoride as an efficacious fumigant,
the Agency does not yet have the economic data to support a faster
transition rate in 2009 than was contained in the CUN. Therefore, EPA
is not reducing new production of methyl bromide to account for the
adoption of sulfuryl fluoride in the post-harvest sector.
EPA also received information that Dow AgroSciences has reduced its
production of 1,3-D (marketed as Telone) for the first half of 2009.
The comment states, and the Agency has confirmed, that 1,3-D is a co-
product of a chemical used in the plastics industry. The recent
downturn in the economy has resulted in less demand of that chemical.
Dow AgroSciences has produced less of that chemical and as a result the
production of 1,3-D has similarly declined. Commenters believe that
this shortage will place greater pressure on stockpiled methyl bromide
as growers facing a shortage of Telone will be forced to rely on the
pre-phaseout inventory.
EPA agrees that a shortage of Telone in 2009 will result in a
greater reliance on methyl bromide, whether newly produced or pre-
phaseout inventory. Some growers who had planned to transition to
Telone this year will likely not do so and others who had already
transitioned to Telone may instead have to revert to methyl bromide for
this season. Other crops that use Telone, such a potatoes and tobacco,
will not be able to switch to critical use methyl bromide in 2009 as
they are not critical use crops.
The Agency believes that it should treat the new information on
Telone shortages in the same way as other new data on alternatives. In
previous CUE rules, EPA has reduced the amount of new production to
account for the expected uptake of alternatives such as sulfuryl
fluoride and iodomethane. In this instance, EPA believes that it should
not ignore the new information about the reduced production and
therefore opportunity for use of an alternative. This reduction in
supply directly affects the economic feasibility of Telone in a way not
contemplated in the CUN.
EPA is currently unable to quantify the effect that a reduction in
Telone
[[Page 19892]]
production may have on critical users of methyl bromide. EPA does not
know how long the reduction will last because it is due to a downturn
in the economy, and the demand for the chemical with which 1,3-D is co-
produced. While Dow AgroSciences has only announced this decision for
the first half of 2009, neither Dow AgroSciences nor EPA can estimate
the length of the economic downturn. EPA is thus unable to estimate the
extent of the shortage.
EPA does have some data, however, to suggest that there will be an
effect and that action is warranted. EPA anticipates this effect will
be greater in California, which has not registered iodomethane, than in
the Southeast where that alternative is available. In 2007, Telone was
the fifth-most-used pesticide in California by pounds of active
ingredient, according to the California Department of Pesticide
Regulation. According to that data, strawberries are the largest user
of Telone, with over 860,000 kg applied in 2007. Another 356,000 kg
were used for ``soil fumigation/preplant.'' Using this data, EPA
estimates that at least 1,450,000 kg of Telone were applied in
California in 2007 on CUE crops. This compares to the 4,269,255 kg of
methyl bromide used throughout the U.S. in 2007, as reported to UNEP in
the 2007 Accounting Framework. Any reduction in Telone production will
therefore likely result in an increase in the use of methyl bromide,
assuming the limiting critical conditions are met. EPA notes, however,
that Telone usage on CUE crops is only a small fraction of the total
amount of Telone used. EPA estimates that about 13,000,000 kg of Telone
is used on a variety of crops, with potatoes and tobacco constituting
about half of that use. The effect on methyl bromide will depend in
large part on how Telone is distributed, and whether some growers will
have greater access to what is produced than others.
Given these uncertainties, EPA is unable to model the effects of
the shortage with the same precision used to model the uptake of
iodomethane. The Agency does anticipate pressure on newly produced
methyl bromide as well as pre-phaseout inventory as a result of this
shortage. EPA believes that it would be imprudent to make a reduction
for iodomethane in the face of this substantial but unquantifiable
reduction in Telone production. Therefore, for the 2009 control period,
EPA is not adjusting the amount of new production either upward or
downward to account for new information regarding alternatives. For the
same reasons, EPA is also not making a reduction for the uptake of
alternatives when calculating the supply chain factor. EPA will
consider any appropriate adjustments for iodomethane and Telone in the
2010 CUE Rule based on information available at the time that rule is
developed.
7. Summary of Calculations
The calculations described above for determining the level of new
production and critical stock allowances are summarized in Table II
below:
Table II--Summary of Calculations
------------------------------------------------------------------------
Kilograms
------------------------------------------------------------------------
Step 1: Calculate supply chain factor
------------------------------------------------------------------------
U.S. authorization for 2009.......................... 4,261,974
- Further reduction for uptake of alternatives... 0
= One year's CUE need............................ 4,261,974
x Percentage of year's production to recover from 55.186%
production failure..............................
= Supply Chain Factor............................ 2,352,013
------------------------------------------------------------------------
Step 2: Calculate available stocks
------------------------------------------------------------------------
Existing pre-phaseout inventory on January 1, 2008 6,457,806
(``ES2008'')........................................
- Drawdown of inventory during 2008 (``D2008'').. 2,186,600
- Supply Chain Factor............................ 2,352,013
= Available stocks (``AS2009'') = Critical Stock 1,919,193
Allowance.......................................
------------------------------------------------------------------------
Step 3: Calculate carryover
------------------------------------------------------------------------
Reported as produced/imported in 2007................ 4,314,150
- Reported as sold in 2007....................... 4,269,255
= Carryover...................................... 44,895
------------------------------------------------------------------------
Step 4: Calculate new production
------------------------------------------------------------------------
U.S. authorization for 2009.......................... 4,261,974
- Critical Stock Allowance (Step 2).............. 1,919,193
- Carryover (Step 3)............................. 44,895
- Amounts Used for Research...................... 22,171
- Uptake of alternatives......................... 0
= New production = Critical Use Allowance........ 2,275,715
------------------------------------------------------------------------
E. The Criteria in Decisions IX/6 and Ex. I/4
Paragraphs 2 and 7 of Decision XIX/9 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 2009 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. The CUNs detail how each 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
[[Page 19893]]
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 all addressed in the nomination
documents.
Some of these criteria were 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 XIX/9, 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
proposed rule, EPA encouraged growers to use such techniques but did
not propose to require them. At the public hearing for this action the
California Strawberry Commission expressed its opinion that EPA should
create a regulatory incentive for emissions reduction. Similarly, Dow
AgroSciences commented that emissions minimization measures,
potentially including application rate reductions, soil sealing
requirements, minimum application depths, and maximum soil temperatures
be mandated and not merely recommended.
In the judgment of USG scientists, use of virtually impermeable
film (VIF) tarps allows pest control with lower application rates while
minimizing emissions. EPA encourages the use of tarps by reflecting the
lower application rates that are necessary when using tarps in its 2009
nomination. EPA believes that reducing supply through the phaseout
provides incentives for use minimization and therefore limits
emissions. EPA disagrees, however, that the 2009 CUE rule should
require the use of emissions minimization techniques, as the Agency did
not propose to do so. The Agency continues to investigate the emissions
reductions benefits of using various types of tarps, recognizing the
lack of data in field situations, variability in efficacy in reducing
emissions by application type (broadcast vs. raised bed), as well as
regulatory prohibitions on less permeable tarps in California. EPA has
placed a memo detailing some of this analysis into the docket for this
rule. Users of methyl bromide should make every effort to minimize
overall emissions of methyl bromide by implementing measures such as
the ones listed above, to the extent consistent with State and local
laws and regulations. The Agency also continues to encourage
researchers and users who are successfully utilizing such techniques to
provide such information with their critical use applications.
G. Critical Use Allowance Allocations
A critical use allowance (CUA) is a privilege granted by EPA, using
its authority under Section 604(d)(6) of the Clean Air Act, that
enables the holder to produce or import one kilogram 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. The
allocation of 2009 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).
EPA proposed to allocate 2009 critical use allowances for new
production or import of methyl bromide up to the amount of 1,617.921 kg
(6.3% of baseline). EPA sought comment on the total levels of exempted
new production or import for pre-plant and post-harvest critical uses
in 2009. For the reasons discussed in Section V.D. of this preamble,
EPA is adjusting the proposed CUA amounts to account for (1) new data
regarding the drawdown of pre-phaseout inventory, (2) carryover of
unsold methyl bromide in 2007, and (3) amounts authorized by the
Parties for research.
Therefore, the total critical use exemption amount for 2009 is
4,194,908 kg (16.4% of baseline), with 2,275,715 kg (8.9% of baseline)
of critical use allowances allowing new production or import, and the
remaining amount, 1,919,193 kg (7.5% of baseline), available through
critical stock allowances (CSAs) that allow critical users to access
pre-phaseout methyl bromide. EPA is continuing to apportion company-
specific CUA allocations on the basis of the 1991 baseline consumption
share of the companies listed in Table III. The updated calculation
spreadsheet is available in the docket. The CUAs are allocated as
follows:
Table III--Proposed Allocation of Critical Use Allowances
------------------------------------------------------------------------
2009 critical use 2009 critical use
allowances for pre- allowances for post-
Company plant uses* harvest uses*
(kilograms) (kilograms)
------------------------------------------------------------------------
Great Lakes Chemical Corp. A 1,249,703 133,249
Chemtura Company...........
Albemarle Corp.............. 513,906 54,795
ICL-IP America.............. 283,995 30,281
TriCal, Inc................. 8,843 943
-------------------------------------------
Total \2\............... 2,056,448 219,267
------------------------------------------------------------------------
* 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.
\2\ Due to rounding, numbers do not add exactly.
[[Page 19894]]
EPA received comment that Ameribrom changed its name to ICL-IP
America. This new name is reflected in Table III and in the final rule.
Paragraph 6 of Decision XIX/9 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 Ex. I/3(4), Ex.
II/1(4), XVII/9(4), and XVIII/13(5) regarding 2005, 2006, 2007, and
2008 critical uses, respectively. The language from these Decisions
calls on Parties to endeavor to allocate critical use methyl bromide on
a sector basis.
As it did in the final Framework Rule (69 FR 76989) and each
critical use allocation rulemaking since, EPA is allocating critical
use allowances on a lump-sum, or universal basis, modified to include
distinct caps for pre-plant and post-harvest uses. The Agency continues
to believe that this is the most efficient and least burdensome
approach that would achieve the desired environmental results, and that
a sector-specific approach would pose significant administrative and
practical difficulties. Although the approach adopted in the Framework
Rule does not directly allocate allowances to each category of use, the
Agency anticipates that reliance on market mechanisms will achieve
similar results indirectly. The Agency believes that under a system of
universal allocations, divided into pre-plant and post-harvest sectors,
the actual critical use will closely follow the sector breakout listed
by the TEAP. These issues were addressed in previous rules and EPA is
not aware of any factors that would alter the analysis performed during
the development of the Framework Rule.
In developing this action, EPA did not propose to change the
approach adopted in the Framework Rule for the allocation of CUAs but,
in an endeavor to address Decision XIX/9(6), sought additional comment
on the Agency's allocation of CUAs in the two groupings (pre-plant and
post-harvest) that the Agency has employed in the past. MBIP's comment
supported the continued use of the universal allocation approach
characterizing it as a simple and understandable system that has proven
to work well. Dow AgroSciences commented that CSAs and CUAs should be
allocated specifically to each of the 15 critical use categories
authorized by the Parties. The comment states that this method would
ensure that all critical users have access to methyl bromide, rather
than just those with the greatest ability to pay.
EPA agrees with the comments that supported the existing allocation
system. EPA considered sector-specific and other allocation approaches
in the proposed Framework Rule, and decided that the existing universal
allocation system with pre-plant and post-harvest allowances was the
most effective and least burdensome system.
H. Critical Stock Allowance Allocations
Each critical stock allowance (CSA) is equivalent to one kilogram
of critical use methyl bromide. CSAs expire at the end of the control
period and, as explained in the Framework Rule, are not bankable from
one year to the next (69 FR 76990). CSAs are not used to produce or
import methyl bromide but are privileges that enable the holder to sell
a specified amount of pre-phaseout inventory for approved critical
uses. A CSA is expended when the entity selling methyl bromide sells
the material, or fumigation services with the material, to an approved
critical user who certifies that the material is for an approved
critical use. Thus the movement of pre-phaseout inventories or methyl
bromide along the supply chain does not require expenditure of a CSA.
EPA proposed to allocate CSAs to the entities listed below in Table
IV for the 2009 control period in the amount of 2,576,987 kg (10.1% of
baseline). EPA followed its approach to determining available stocks
introduced in the 2008 CUE rule and described in Section V.D.4. For the
reasons discussed in Section V.D., in this action EPA is allocating
1,919,193 kg of CSAs to the entities listed in Table IV.
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 Table IV. Following past practice,
EPA will inform the listed companies of their CSA allocations in a
letter following publication of the final rule.
Table IV--Proposed Allocation of Critical Stock Allowances
------------------------------------------------------------------------
Company
-------------------------------------------------------------------------
Albemarle.
Bill Clark Pest Control, Inc.
Burnside Services, Inc.
Cardinal Professional Products.
Chemtura Corp.
Degesch America, Inc.
Helena Chemical Co.
Hendrix & Dail.
Hy Yield Bromine.
ICL-IP America.
Industrial Fumigation Company.
Pacific Ag.
Pest Fog Sales Corp.
Prosource One.
Reddick Fumigants.
Royster-Clark, Inc.
Trical Inc.
Trident Agricultural Products.
UAP Southeast (NC).
UAP Southeast (SC).
Univar.
Western Fumigation.
------------------------------------------------------------------------
Total--1,919,193 kilograms.
------------------------------------------------------------------------
Several companies that receive very small amounts of CSAs from EPA
have contacted the Agency and requested that they be permitted to
permanently retire their allowances. Some companies receive as few as 6
kg of CSAs. Due to the small allocation and because they typically do
not sell critical use methyl bromide, some companies find the
allocation of CSAs, and associated record-keeping and reporting
requirements, to be unduly burdensome.
For the last two rounds of CUE allocation rulemakings EPA has
allowed CSA holders, on a voluntary basis, to permanently relinquish
their allowances through written notification to the Agency. Such
companies would not receive CSA allocations and would be excluded from
future allocations. During the comment period for the 2008 CUE Rule,
seven companies voluntarily agreed to permanently relinquish their
allowances. In the final 2008 CUE Rule, the Agency reallocated the
allowances forfeited by these companies to the remaining companies on a
pro-rata basis. Though no companies voluntarily relinquished their
allowances this year, EPA continues to strongly encourage CSA holders
to take advantage of this voluntary opportunity to retire their CSA
allocations.
I. Stocks of Methyl Bromide
As discussed above and in the December 23, 2004, Framework Rule, 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
[[Page 19895]]
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 has retained these provisions
for the 2009 control period.
EPA believes that the refined approach for calculating available
stocks that was finalized in the 2008 CUE Rule reduces the risks of
methyl bromide shortages for critical uses. However, 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.
The aggregate amount of pre-phaseout methyl bromide reported as
being in inventory on December 31, 2007, was 6,457, 806 kg. Based on
reported end-of-year data submitted by inventory owners, the aggregate
inventory on December 31, 2008, was 4,271,226 kg. As explained in
detail 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 2007 is available in the docket for this rulemaking.
EPA is also correcting its assessment of the amount pre-phaseout
inventory that was available on December 31, 2006, which EPA originally
stated was 7,671,091 kg. EPA received late data in 2007 that it did not
incorporate into the total inventory level for the year. The corrected
value for the amount of pre-phaseout inventory as of December 31, 2006,
is 7,941,009 kg. This change does not affect the CUA or CSA allocations
in this rule, which are based on reported data rather than estimates.
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 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. 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 (in
Category NAICS code SIC code number of employees or millions of
dollars)
----------------------------------------------------------------------------------------------------------------
Agricultural production........ 1112--Vegetable 0171--Berry Crops. $0.75 million.
and Melon farming.
1113--Fruit and 0172--Grapes......
Nut Tree Farming.
1114--Greenhouse, 0173--Tree Nuts...
Nursery, and
Floriculture
Production.
0175--Deciduous
Tree Fruits
(except apple
orchards and
farms).
0179--Fruit and
Tree Nuts, NEC.
0181--Ornamental
Floriculture and
Nursery Products.
0831--Forest
Nurseries and
Gathering of
Forest Products.
Storage Uses................... 115114--Postharves .................. $7 million.
t 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.
[[Page 19896]]
493110--General 4225--General $25.5 million.
Warehousing and Warehousing and
Storage. Storage.
493130--Farm 4221--Farm Product $25.5 million.
Product Warehousing and
Warehousing and Storage.
Storage.
Distributors and Applicators... 115112--Soil 0721--Crop $7 million.
Preparation, Planting,
Planting and Cultivation, and
Cultivating. Protection.
Producers and Importers........ 325320--Pesticide 2879--Pesticides 500 employees.
and Other and Agricultural
Agricultural Chemicals, NEC.
Chemical
Manufacturing.
----------------------------------------------------------------------------------------------------------------
Agricultural producers of minor crops and entities that store
agricultural commodities are categories of affected entities that
contain small entities. This rule will only affect entities that
applied to EPA for a de-regulatory exemption. In most cases, EPA
received aggregated requests for exemptions from industry consortia.
EPA asked consortia applying for critical use exemptions to describe
the number and size distribution of entities their applications
covered. EPA estimated that 3,218 entities petitioned EPA for critical
use exemptions 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 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 is a de-regulatory action which
will confer a benefit to users of methyl bromide. EPA believes the
estimated de-regulatory value for users of methyl bromide is between
$20 million and $30 million annually. We have therefore concluded that
this 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 is
deregulatory 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 final 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 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 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 action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This rule does not have any effect on
energy as it only relates to the production, import, and uses of
critical use the agricultural fumigant methyl bromide.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No.
[[Page 19897]]
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 action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has determined that this rule will not have disproportionately
high and adverse human health or environmental effects on minority or
low-income populations, because it affects the level of environmental
protection equally for all affected populations without having any
disproportionately high and adverse human health or environmental
effects on any population, including any minority or low-income
population. Any ozone depletion that results from this rule will impact
all affected populations equally because ozone depletion is a global
environmental problem with environmental and human effects that are, in
general, equally distributed across geographical regions.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq. as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective April 30, 2009.
List of Subjects in 40 CFR Part 82
Environmental protection, Ozone depletion, Chemicals, Exports,
Imports.
Dated: April 24, 2009.
Lisa P. Jackson,
Administrator.
0
For the reasons stated in the preamble, 40 CFR Part 82 is amended as
follows:
PART 82--PROTECTION OF STRATOSPHERIC OZONE
0
1. The authority citation for part 82 continues to read as follows:
Authority: 42 U.S.C. 7414, 7601, 7671-7671q.
0
2. Section 82.8 is amended 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) * * *
----------------------------------------------------------------------------------------------------------------
2009 critical use
2009 critical use allowances for post-
Company allowances for pre- harvest uses*
plant uses* (kilograms) (kilograms)
----------------------------------------------------------------------------------------------------------------
Great Lakes Chemical Corp. A Chemtura Company................. 1,249,703 133,249
Albemarle Corp................................................ 513,906 54,795
ICL-IP America................................................ 283,995 30,281
TriCal, Inc................................................... 8,843 943
-------------------------------------------------
Total**................................................... 2,056,448 219,267
----------------------------------------------------------------------------------------------------------------
* 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.
Bill Clark Pest Control, Inc.
Burnside Services, Inc.
Cardinal Professional Products.
Chemtura Corp.
Degesch America, Inc.
Helena Chemical Co.
Hendrix & Dail.
Hy Yield Bromine.
ICL-IP America.
Industrial Fumigation Company.
Pacific Ag.
Pest Fog Sales Corp.
Prosource One.
Reddick Fumigants.
Royster-Clark, Inc.
Trical Inc.
Trident Agricultural Products.
UAP Southeast (NC).
UAP Southeast (SC).
Univar.
Western Fumigation.
------------------------------------------------------------------------
Total--1,919,193 kilograms.
------------------------------------------------------------------------
0
3. Appendix L to Subpart A is revised to read as follows:
APPENDIX L TO PART 82 SUBPART A--APPROVED CRITICAL USES AND LIMITING
CRITICAL CONDITIONS FOR THOSE USES FOR THE 2009 CONTROL PERIOD
[[Page 19898]]
----------------------------------------------------------------------------------------------------------------
Limiting critical conditions that exist,
Approved critical user and or that the approved critical user
Approved critical uses location of use reasonably expects could arise without
methyl bromide fumigation:
Column A Column B...................... Column C
----------------------------------------------------------------------------------------------------------------
PRE-PLANT USES
----------------------------------------------------------------------------------------------------------------
Cucurbits............................. (a) Growers in Delaware, Moderate to severe soilborne disease
Maryland, and Michigan. infestation.
A need for methyl bromide for research
purposes.
(b) Growers in Georgia and Moderate to severe yellow or purple
Southeastern U.S. limited to nutsedge infestation.
growing locations in Alabama, Moderate to severe soilborne disease
Arkansas, Kentucky, infestation.
Louisiana, Mississippi, North Moderate to severe root knot nematode
Carolina, South Carolina, infestation.
Tennessee, and Virginia. A need for methyl bromide for research
purposes.
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.
A need for methyl bromide for research
purposes.
(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.
A need for methyl bromide for research
purposes.
(c) Michigan growers.......... Moderate to severe soilborne disease
infestation.
A need for methyl bromide for research
purposes.
Forest Nursery Seedlings.............. (a) Growers in Alabama, Moderate to severe yellow or purple
Arkansas, Georgia, Louisiana, nutsedge infestation.
Mississippi, North Carolina, Moderate to severe soilborne disease
Oklahoma, South Carolina, infestation.
Tennessee, Texas, and Moderate to severe nematode infestation.
Virginia.
(b) International Paper and Moderate to severe yellow or purple
its subsidiaries limited to nutsedge infestation.
growing locations in Alabama, Moderate to severe soilborne disease
Arkansas, Georgia, South infestation.
Carolina, and Texas.
(c) Government-owned seedling Moderate to severe weed infestation
nurseries in Illinois, including purple and yellow nutsedge
Indiana, Kentucky, Maryland, infestation.
Missouri, New Jersey, Ohio, Moderate to severe Canada thistle
Pennsylvania, West Virginia, infestation.
and Wisconsin. Moderate to severe nematode infestation.
Moderate to severe soilborne disease
infestation.
(d) Weyerhaeuser Company and Moderate to severe yellow or purple
its subsidiaries limited to nutsedge infestation.
growing locations in Alabama, Moderate to severe soilborne disease
Arkansas, North Carolina, and infestation.
South Carolina. Moderate to severe nematode or worm
infestation.
(e) Weyerhaeuser Company and Moderate to severe yellow nutsedge
its subsidiaries limited to infestation.
growing locations in Oregon Moderate to severe 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 Western Moderate to severe nematode infestation.
Raspberry Nursery Consortium Medium to heavy clay soils.
limited to growing locations Local township limits prohibiting 1,3-
in Washington, and members of dichloropropene.
the California Association of A need for methyl bromide for research
Nursery and Garden Centers purposes.
representing Deciduous Tree
Fruit Growers.
(b) California rose nurseries. Moderate to severe nematode infestation.
Local township limits prohibiting 1,3-
dichloropropene.
A need for methyl bromide for research
purposes.
Orchard Replant....................... (a) California stone fruit, Moderate to severe nematode infestation.
table and raisin grape, wine
grape, walnut, and almond
growers.
Moderate to severe 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 growers........ Moderate to severe soilborne disease
infestation.
Moderate to severe nematode infestation.
Local township limits prohibiting 1,3-
dichloropropene.
A need for methyl bromide for research
purposes.
(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.
[[Page 19899]]
A need for methyl bromide for research
purposes.
(c) Michigan herbaceous Moderate to severe nematode infestation.
perennial growers.
Moderate to severe soilborne disease
infestation.
Moderate to severe yellow nutsedge and
other weed infestation.
Peppers............................... (a) Alabama, Arkansas, Moderate to severe yellow or purple
Kentucky, Louisiana, nutsedge infestation.
Mississippi, North Carolina, Moderate to severe nematode infestation.
South Carolina, Tennessee, Moderate to severe pythium root, collar,
and Virginia growers. crown and root rots.
A need for methyl bromide for research
purposes.
(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.
A need for methyl bromide for research
purposes.
(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.
A need for methyl bromide for research
purposes.
(d) Michigan growers.......... Moderate to severe soilborne disease
infestation.
A need for methyl bromide for research
purposes.
Strawberry Fruit...................... (a) California growers........ Moderate to severe 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.
A need for methyl bromide for research
purposes.
(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.
A need for methyl bromide for research
purposes.
(c) Alabama, Arkansas, Moderate to severe yellow or purple
Georgia, Illinois, Kentucky, nutsedge infestation.
Louisiana, Maryland, Moderate to severe nematode infestation.
Mississippi, Missouri, New Moderate to severe black root and crown
Jersey, North Carolina, Ohio, rot.
South Carolina, Tennessee, A need for methyl bromide for research
and Virginia growers. purposes.
Strawberry Nurseries.................. (a) California growers........ Moderate to severe soilborne disease
infestation.
Moderate to severe yellow or purple
nutsedge infestation.
Moderate to severe nematode infestation.
A need for methyl bromide for research
purposes.
(b) North Carolina and Moderate to severe black root rot.
Tennessee growers.
Moderate to severe root-knot nematode
infestation.
Moderate to severe yellow and purple
nutsedge infestation.
A need for methyl bromide for research
purposes.
Sweet Potato Slips.................... (a) California growers........ Local township limits prohibiting 1,3-
dichloropropene.
Tomatoes.............................. (a) Michigan growers.......... Moderate to severe soilborne disease
infestation.
Moderate to severe fungal pathogen
infestation.
A need for methyl bromide for research
purposes.
(b) Alabama, Arkansas, Moderate to severe yellow or purple
Florida, Georgia, Kentucky, nutsedge infestation.
Louisiana, Mississippi, North Moderate to severe soilborne disease
Carolina, South Carolina, infestation.
Tennessee, and Virginia Moderate to severe nematode infestation.
growers. Restrictions on alternatives due to
karst topographical features and, in
Florida, soils not supporting seepage
irrigation.
A need for methyl bromide for research
purposes.
(c) Maryland growers.......... Moderate to severe fungal pathogen
infestation.
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POST-HARVEST USES
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Food Processing....................... (a) Rice millers in the U.S. Moderate to severe beetle, weevil, or
who are members of the USA moth infestation.
Rice Millers Association. Presence of sensitive electronic
equipment subject to corrosion.
Time to transition to an alternative.
(b) Pet food manufacturing Moderate to severe beetle, moth, or
facilities in the U.S. who cockroach infestation.
are members of the Pet Food Presence of sensitive electronic
Institute. equipment subject to corrosion.
Time to transition to an alternative.
(c) Bakeries in the U.S....... Presence of sensitive electronic
equipment subject to corrosion.
Time to transition to an alternative.
[[Page 19900]]
(d) Members of the North Moderate to severe beetle infestation.
American Millers' Association
in the U.S.
Presence of sensitive electronic
equipment subject to corrosion.
Time to transition to an alternative.
(e) Members of the National Moderate to severe beetle or moth
Pest Management Association infestation.
treating processed food, Presence of sensitive electronic
cheese, herbs and spices, and equipment subject to corrosion.
spaces and equipment in Time to transition to an alternative.
associated processing and
storage facilities.
Commodities........................... (a) California entities Rapid fumigation required to meet a
storing walnuts, beans, dried critical market window, such as during
plums, figs, raisins, and the holiday season.
dates (in Riverside county Export to countries which do not allow
only) in California. the use of sulfuryl fluoride.
A need for methyl bromide for research
purposes.
Dry Cured Pork Products............... (a) Members of the National Red legged ham beetle infestation.
Country Ham Association and Cheese/ham skipper infestation.
the Association of Meat Dermested beetle infestation.
Processors, Nahunta Pork Ham mite infestation.
Center (North Carolina), and
Gwaltney and Smithfield Inc.
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[FR Doc. E9-9966 Filed 4-29-09; 8:45 am]
BILLING CODE 6560-50-P