
[Federal Register Volume 76, Number 190 (Friday, September 30, 2011)]
[Rules and Regulations]
[Pages 60736-60748]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25273]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2008-0321; FRL-9473-5]
RIN 2060-AP92


Protection of Stratospheric Ozone: The 2011 Critical Use 
Exemption From the Phaseout of Methyl Bromide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing uses that qualify for the 2011 critical use 
exemption and the amount of methyl bromide that may be produced, 
imported, or supplied from existing pre-phaseout inventory for those 
uses in 2011. EPA is taking this action under the authority of the 
Clean Air Act to reflect a recent consensus decision taken by the 
Parties to the Montreal Protocol on Substances that Deplete the Ozone 
Layer at the Twenty-First Meeting of the Parties.

DATES: Effective Date: September 30, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2008-0321. All documents in the docket are listed on the 
http://www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through 
www.regulations.gov or in hard copy at the Air and Radiation Docket, 
EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, 
DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
Air and Radiation Docket is (202) 566-1742).

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

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

Table of Contents

I. General Information
    A. Regulated Entities
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 rule relate to previous critical use exemption 
rules?
    C. Critical Uses
    D. Critical Use Amounts
    E. Critical Use Allowance Allocations
    F. Critical Stock Allowance Allocations
    G. The Criteria in Decisions IX/6 and Ex. I/4
    H. Emissions Minimization
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism

[[Page 60737]]

    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. General Information

A. Regulated Entities

    Entities 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; and users of methyl bromide that 
applied for the 2011 critical use exemption including farmers of 
vegetable crops, fruits and nursery stock and owners of stored food 
commodities and structures such as grain mills and processors. This 
rulemaking does not affect applications for future control periods.
    This list is not intended to be exhaustive, but rather to provide a 
guide for readers regarding entities likely to be regulated by this 
action. To determine whether your facility, company, business, or 
organization could be regulated by this action, you should carefully 
examine the regulations promulgated at 40 CFR part 82, subpart A. If 
you have questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding section.

II. What is methyl bromide?

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

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

    The regulatory requirements of the stratospheric ozone protection 
program that limit production and consumption of ozone-depleting 
substances are in 40 CFR part 82, subpart A. EPA initially published 
the regulatory program in the Federal Register on August 12, 1988 (53 
FR 30566), in response to the 1987 signing and subsequent ratification 
of the Montreal Protocol on Substances that Deplete the Ozone Layer 
(Montreal Protocol). The Montreal Protocol is the international 
agreement aimed at reducing and eliminating the production and 
consumption of stratospheric ozone-depleting substances. The U.S. was 
one of the original signatories to the 1987 Montreal Protocol and the 
U.S. ratified the Protocol on April 12, 1988. Congress then enacted, 
and President George H.W. Bush signed into law, the Clean Air Act 
Amendments of 1990 (CAAA of 1990) which included Title VI on 
Stratospheric Ozone Protection, codified as 42 U.S.C. chapter 85, 
Subchapter VI, to ensure that the United States could satisfy its 
obligations under the Protocol. EPA issued regulations to implement 
this legislation and has since amended the regulations as needed.
    Methyl bromide was added to the Protocol as an ozone-depleting 
substance in 1992 through the Copenhagen Amendment to the Protocol. The 
Parties to the Montreal Protocol (Parties) agreed that each 
industrialized country's level of methyl bromide production and 
consumption in 1991 should be the baseline for establishing a freeze in 
the level of methyl bromide production and consumption for 
industrialized countries. EPA published a final rule in the Federal 
Register on December 10, 1993 (58 FR 65018), listing methyl bromide as 
a Class I, Group VI controlled substance, freezing U.S. production and 
consumption at this 1991 baseline level of 25,528,270 kilograms, and 
setting forth the percentage of baseline allowances for methyl bromide 
granted to companies in each control period (each calendar year) until 
2001, when the complete phaseout would occur. This phaseout date was 
established in response to a petition filed in 1991 under Sections 
602(c)(3) and 606(b) of the CAAA of 1990, requesting that EPA list 
methyl bromide as a Class I substance and phase out its production and 
consumption. This date was consistent with Section 602(d) of the CAAA 
of 1990, which for newly listed Class I ozone-depleting substances 
provides that ``no extension [of the phaseout schedule in section 604] 
under this subsection may extend the date for termination of production 
of any class I substance to a date more than 7 years after January 1 of 
the year after the year in which the substance is added to the list of 
class I substances.''
    At the Seventh Meeting of the Parties (MOP) in 1995, the Parties 
made adjustments to the methyl bromide control measures and agreed to 
reduction steps and a 2010 phaseout date for industrialized countries 
with exemptions permitted for critical uses. At that time, the U.S. 
continued to have a 2001 phaseout date in accordance with Section 
602(d) of the CAAA of 1990. At the Ninth MOP in 1997, the Parties 
agreed to further adjustments to the phaseout schedule for methyl 
bromide with reduction steps leading to a 2005 phaseout in 
industrialized countries and a 2015 phaseout for developing countries.

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

    In October 1998, the U.S. Congress amended the Clean Air Act (CAA) 
to prohibit the termination of production of methyl bromide prior to 
January 1, 2005, to require EPA to bring the U.S. phaseout of methyl 
bromide in line with the schedule specified under the Protocol, and to 
authorize EPA to provide certain exemptions. These amendments were 
contained in Section 764 of the 1999 Omnibus Consolidated

[[Page 60738]]

and Emergency Supplemental Appropriations Act (Pub. L. 105-277, October 
21, 1998) and were codified in section 604 of the CAA, 42 U.S.C. 7671c. 
The amendment that specifically addresses the critical use exemption 
appears at section 604(d)(6), 42 U.S.C. 7671c(d)(6). EPA revised the 
phaseout schedule for methyl bromide production and consumption in a 
direct final rulemaking on November 28, 2000 (65 FR 70795), which 
allowed for the phased reduction in methyl bromide consumption 
specified under the Protocol and extended the phaseout to 2005 while 
creating a placeholder for critical use exemptions. EPA again amended 
the regulations to allow for an exemption for quarantine and 
preshipment (QPS) purposes on July 19, 2001 (66 FR 37751), with an 
interim final rule and with a final rule on January 2, 2003 (68 FR 
238).
    On December 23, 2004 (69 FR 76982), EPA published a final rule (the 
``Framework Rule'') that established the framework for the critical use 
exemption; set forth a list of approved critical uses for 2005; and 
specified the amount of methyl bromide that could be supplied in 2005 
from stocks and new production or import to meet the needs of approved 
critical uses. EPA subsequently published rules applying the critical 
use exemption framework for each of the control periods from 2006 to 
2010. Under authority of section 604(d)(6) of the CAA, this action 
lists approved critical uses in 2011 and specifies the amount of methyl 
bromide that may be produced, imported, or supplied from inventory to 
satisfy those uses.
    This rule reflects Decision XXI/11, taken at the Twenty-First 
Meeting of the Parties in November 2009. In accordance with Article 
2H(5), the Parties have issued several Decisions pertaining to the 
critical use exemption. These include Decisions IX/6 and Ex. I/4, which 
set forth criteria for review of proposed critical uses. The status of 
Decisions is addressed in NRDC v. EPA, (464 F.3d 1, DC Cir. 2006) and 
in EPA's ``Supplemental Brief for the Respondent,'' filed in NRDC v. 
EPA and available in the docket for this action. In this rule on 
critical uses for 2011, EPA is honoring commitments made by the United 
States in the Montreal Protocol context.

V. What is the critical use exemption process?

A. Background of the Process

    The critical use exemption is designed to permit the production and 
import of methyl bromide for uses that do not have technically and 
economically feasible alternatives and for which the lack of methyl 
bromide would result in significant market disruption (40 CFR 82.3). 
Article 2H of the Montreal Protocol established the critical use 
exemption provision. At the Ninth Meeting of the Parties (1997) the 
criteria for the exemption appeared in Decision IX/6. In that Decision, 
the Parties agreed that ``a use of methyl bromide should qualify as 
`critical' only if the nominating Party determines that: (i) The 
specific use is critical because the lack of availability of methyl 
bromide for that use would result in a significant market disruption; 
and (ii) there are no technically and economically feasible 
alternatives or substitutes available to the user that are acceptable 
from the standpoint of environment and public health and are suitable 
to the crops and circumstances of the nomination.'' These criteria are 
reflected in EPA's definition of ``critical use'' at 40 CFR 82.3.
    In response to EPA's request for critical use exemption 
applications published in the Federal Register on May 2, 2008 (73 FR 
24282), applicants provided data on the technical and economic 
feasibility of using alternatives to methyl bromide. Applicants also 
submitted data on their use of methyl bromide, research programs into 
the use of alternatives, and efforts to minimize use and emissions.
    EPA's Office of Pesticide Programs reviews the data submitted by 
applicants, as well as data from governmental and academic sources, to 
establish whether there are technically and economically feasible 
alternatives available for a particular use of methyl bromide, and 
whether there would be a significant market disruption if no exemption 
were available. In addition, EPA reviews other parameters of the 
exemption applications such as dosage and emissions minimization 
techniques and applicants' research or transition plans. This 
assessment process culminates in the development of a document referred 
to as the critical use nomination (CUN). The U.S. Department of State 
has submitted a CUN annually to the United Nations Environment 
Programme (UNEP) Ozone Secretariat. The Methyl Bromide Technical 
Options Committee (MBTOC) and the Technology and Economic Assessment 
Panel (TEAP), which are advisory bodies to Parties to the Montreal 
Protocol, review the CUNs of the Parties and make recommendations to 
the Parties on the nominations. The Parties then take Decisions to 
authorize critical use exemptions for particular Parties, including how 
much methyl bromide may be supplied for the exempted critical uses. As 
required in section 604(d)(6) of the CAA, for each exemption period, 
EPA consults with the United States Department of Agriculture (USDA) 
and other departments and institutions of the Federal government that 
have regulatory authority related to methyl bromide, and provides an 
opportunity for public comment on the amounts of methyl bromide that 
the Agency is proposing to exempt for critical uses and the uses that 
the Agency is proposing as approved critical uses.
    More on the domestic review process and methodology employed by the 
Office of Pesticide Programs is available in a detailed memorandum 
titled ``Development of 2003 Nomination for a Critical Use Exemption 
for Methyl Bromide for the United States of America,'' contained in the 
docket for this rulemaking. While the particulars of the data continue 
to evolve and administrative matters are further streamlined, the 
technical review itself remains rigorous with careful consideration of 
new technical and economic conditions.
    On January 23, 2009, the U.S. Government (USG) submitted the 
seventh Nomination for a Critical Use Exemption for Methyl Bromide for 
the United States of America to the Ozone Secretariat of the UNEP. This 
nomination contained the request for 2011 critical uses. In February 
2009, MBTOC sent two sets of questions to the USG concerning technical 
and economic issues in the 2011 nomination, one for post-harvest uses 
and one for pre-plant uses. The USG transmitted responses to MBTOC on 
April 10, 2009. These documents, together with reports by the advisory 
bodies noted above, are in the public docket for this rulemaking. The 
critical uses and amounts in this rule reflect the analysis contained 
in those documents.
    EPA sought comment on the technical analysis contained in the U.S. 
nomination (available for public review in the docket to this 
rulemaking), and information regarding changes to the registration or 
use of alternatives that have transpired after the 2011 U.S. nomination 
was written. EPA did not propose to estimate uptake of Iodomethane in 
California in 2011 due to uncertainties created by the California 
label. Specifically, the California label has larger buffer zones and 
lower use rates than the Federal label. EPA does not have efficacy 
studies at the California label's lower use rates and is uncertain how 
widely it will be adopted without that data.

[[Page 60739]]

Two commenters agreed that the California label and other state 
regulations constrain the adoption of iodomethane in that state. The 
registrant of iodomethane stated that they are continuing to work with 
California Department of Pesticide Regulations to improve applicability 
of iodomethane in that state. The comment, however, did not include any 
data on which EPA could base an estimate of uptake of iodomethane in 
California in 2011. Therefore, EPA is not reducing the amount of new 
production for 2011 for the uptake of iodomethane in California.
    EPA received a comment stating the difficulty pet food facilities 
have using alternatives including longer periods of downtime needed to 
effectively use those fumigants or the presence of electronics that may 
corrode if exposed to phosphene. The commenter also noted that the use 
of sulfuryl fluoride for pet food is low given that pet food is not 
listed on the sulfuryl fluoride label as a commodity that can be 
fumigated. EPA's critical use nomination for structures includes these 
specific concerns about these alternatives and they, in part, form the 
basis for pet food being recognized as a critical use in 2011.
    One commenter stated that some growers are having problems with 
pre-plant alternatives, specifically the re-emergence of plant pests 
after several years of fumigating with alternatives. The commenter 
requested that a survey of Florida growers that had been submitted to 
EPA in June 2011 in support of the 2013 CUN be added to the docket for 
this rule. EPA received these data too late to consider them for the 
2011 rule but EPA is reviewing the data in support of the 2013 CUN. The 
contents of the survey are claimed CBI and therefore will be added to 
the confidential portion of a future rulemaking docket.

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

    The December 23, 2004, Framework Rule (69 FR 76982) established the 
framework for the critical use exemption program in the U.S., including 
definitions, prohibitions, trading provisions, and recordkeeping and 
reporting obligations. The preamble to the Framework Rule included 
EPA's determinations on key issues for the critical use exemption 
program.
    Since publishing the Framework Rule, EPA has annually promulgated 
regulations to exempt from the phaseout of methyl bromide specific 
quantities of production and import for each control period (each 
calendar year), to determine the amounts that may be supplied from pre-
phaseout inventory, and to indicate which uses meet the criteria for 
the exemption program for that year. See 71 FR 5985 (calendar year 
2006), 71 FR 75386 (calendar year 2007), 72 FR 74118 (calendar year 
2008), 74 FR 19878 (calendar year 2009), and 75 FR 23167 (calendar year 
2010).

C. Critical Uses

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

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

    EPA is modifying the table in 40 CFR part 82, subpart A, appendix L 
to reflect the agreed critical use categories identified in Decision 
XXI/11. The amendments to the table of critical uses is based in part 
on the technical analysis contained in the 2011 CUN that assesses data 
submitted by applicants to the CUE program. EPA is removing ornamental 
growers in New York. MBTOC did not recommend this use for 2011, 
concluding that alternatives are available for replacing methyl bromide 
use in Anemone coronaria. The Parties did not authorize this use. EPA 
agrees with the Parties' conclusion, and is not listing this use as 
critical for 2011. Second, EPA is removing Michigan cucurbit growers, 
Michigan eggplant growers, Michigan ornamental growers (specifically, 
herbaceous perennial growers), Michigan tomato growers, Michigan pepper 
growers, and members of the Western Raspberry Nursery Consortium 
operating in Washington State. These users did not submit applications 
and were not part of the CUN. The Parties have not authorized them as 
critical uses for 2011 and EPA is not listing these uses as critical 
for this control period.
    EPA received one comment agreeing that the listed critical uses 
have a continuing need for access to methyl bromide under a 2011 CUE. 
EPA also received two comments that there should be no uses of methyl 
bromide given its toxicity and effect on the stratospheric ozone layer. 
EPA disagrees that all methyl bromide use should stop. EPA's CUN 
addresses the need for methyl bromide for the proposed critical uses. 
In addition, the proposed critical uses were reviewed by the technical 
bodies to the Ozone Secretariat and authorized by the Parties to the 
Montreal Protocol. Concerns about the toxicity of methyl bromide are 
addressed under FIFRA and other authorities and are beyond the scope of 
this rulemaking. EPA is finalizing the proposed changes to the table.
    EPA repeats the following clarifications made in previous years for 
ease of reference. The ``local township limits prohibiting 1,3-
dichloropropene'' are prohibitions on the use of 1,3-dichloropropene 
products in cases where local township limits on use of this 
alternative have been reached. In addition, ``pet food'' under 
subsection B of Food Processing refers to food for domesticated dogs 
and cats. Finally, ``rapid fumigation'' for commodities is when a buyer 
provides short (two working days or fewer) notification for a purchase 
or there is a short period after harvest in which to fumigate and there 
is limited silo availability for using alternatives.

D. Critical Use Amounts

    Table C of the annex to Decision XXI/11 lists critical uses and 
amounts agreed to by the Parties to the Montreal Protocol in 2009 as 
critical uses for 2011. When added together, the total authorized 
critical use for 2011 is 2,055,200 kg, which is equivalent to 8.1% of 
the U.S. 1991 methyl bromide consumption baseline. The maximum amount 
of new production or import authorized by the Parties is 1,855,200 kg 
(7.3% of baseline) as set forth in Table D of the annex to Decision 
XXI/11. The difference between the total authorized amount and the 
authorized amount of new production is the minimum that the Parties 
expect the U.S. to use from pre-phaseout inventory. This difference is 
200,000 kg (0.8% of baseline). EPA

[[Page 60740]]

proposed to allocate 482,333 kg (1.9% of baseline) in the form of 
Critical Stock Allowances (CSA) for sale of existing pre-phaseout 
inventory for critical uses in 2011. EPA also proposed to exempt 
limited amounts of new production and import of methyl bromide for 
critical uses for 2011 in the amount of 1,500,000 kg (5.9% of 
baseline). EPA is finalizing the amount of new production and import 
contained in the proposed rule. For the reasons discussed below, EPA is 
increasing the CSA allocation from 482,333 kg to 555,200 kg (2.2% of 
baseline). Thus the total allocation for 2011 is 2,055,200 (8.1% of 
baseline).
    As discussed in the proposed rule, EPA calculated the allocation 
amounts differently than in past CUE allocation rulemakings. Initially, 
EPA used the methodology established in the 2008 CUE Rule to determine 
the level of ``available stocks,'' from which the CSA and CUA 
allowances are calculated. As described in previous CUE allocation 
rules, one input to this methodology is the previous year's inventory 
drawdown. Consistent with past practice, EPA prepared an estimate of 
the pre-phaseout inventory on December 31, 2010.
    Due to the timing of the 2011 CUE rulemaking, EPA issued a No 
Action Assurance letter December 22, 2010, to allow Critical Use 
Allowance holders to continue producing and importing methyl bromide 
beyond December 31, 2010, in the absence of allowances, subject to 
certain conditions. The amounts authorized in the December 22, 2010, 
letter, and a subsequent clarification letter dated January 13, 2011, 
were based on the estimates of the 2010 inventory drawdown. 
Specifically, EPA clarified that producers and importers ``may assume 
that the allocations for production and import will equal at least 
1,500 MT.'' After EPA issued the No Action Assurance letter, companies 
submitted their annual end of year reports to EPA containing data about 
how much pre-phaseout inventory they held on December 31, 2010. These 
data show that the pre-phaseout inventory is greater than the estimated 
amounts that formed the basis of the No Action Assurance letter. If EPA 
were to use these data in the existing methodology for calculating 
``available stocks,'' this would result in more ``available stocks'' 
and fewer allowances for new production or import as compared to the 
December 2010-January 2011 estimates. However, because regulated 
entities have been acting on the estimate developed for the No Action 
Assurance letter in good faith, EPA proposed the amount provided for in 
the No Action Assurance letter, as clarified by the January 2011 
letter.
    EPA received one comment about the increasing lateness of the CUE 
rules. The commenter described how producers and distributors need 
advanced notice of their allowances so they may plan their production 
and import schedule. Growers also need the approval of critical uses 
before fumigating with critical use methyl bromide. EPA is aware of the 
delay and is developing the 2012 CUE rule as quickly as possible. 
However, the Agency must conduct a notice and comment rulemaking for 
each year's allocation which takes a significant amount of time. The 
commenter encouraged EPA to move to a two-year allocation schedule, 
suggesting that we nominate two years together and issue a rule to 
address both years. To date the Parties have only approved critical 
uses through 2012 and the U.S. government has only submitted 
nominations through 2013. Therefore, EPA would be unable to write a 
rule covering the 2012 and 2013 control periods before 2012. In 
addition, moving to a two-year nomination system would require the U.S. 
to project the needs of critical users several years in advance. As a 
result, the nominations would be less accurate for that second year.
    EPA received two comments that the total allocation for 2011 should 
be 2,055,200 kg, which is the amount the Parties authorized, rather 
than 1,982,333, which is what EPA proposed. The commenters expressed 
frustration that the EPA reduces the allocated amounts from those 
authorized by the Parties. One of the commenters states that it is 
inconceivable that since the nomination was submitted less than 18 
months ago, EPA has developed sufficient scientific and objective 
information that supports a reduction. In past CUE Rules, EPA has made 
reductions after considering several factors. First, EPA considers new 
data on alternatives such as the registration of a new alternative not 
considered when the CUN was submitted to UNEP. EPA does not have new 
data regarding the uptake of alternatives and is not reducing the total 
CUE amount on that basis. Second, in some past years, EPA has made 
reductions to the new production/import amount equal to the amounts 
approved by the Parties specifically for research. As discussed below, 
the U.S. did not nominate any separate additional amount for research 
for 2011 and therefore EPA is not making reductions for that purpose.
    Third, EPA has made reductions to the new production/import amount 
to account for amounts of methyl bromide produced in one control period 
but not sold in that control period. This amount is referred to as the 
``carryover.'' Quantities of methyl bromide produced, imported, 
exported, or sold to end-users under the critical use exemption in a 
control period must be reported to EPA the following year. EPA uses 
these reports to calculate the amount of methyl bromide produced or 
imported under the critical use exemption, but not exported or sold to 
end-users in that year. In past CUE rules, EPA deducted an amount 
equivalent to this carryover from the total level of allowable new 
production and import in the year following the year of the data 
report. Companies reported that the carryover from 2009 to 2010 was 
72,867 kg. In the proposed 2011 CUE Rule, however, EPA did not propose 
to reduce the amount of new production and import by 72,867 kg because 
EPA proposed to honor the amounts allowed in the No Action Assurance 
letter. Instead, EPA proposed to reduce the total authorization by this 
carryover amount.
    Based on the comments received, EPA is not reducing the total 
authorization by the carryover amount in this final rule, because the 
only means to do so would be through an adjustment to the CSA amount. 
Carryover is separate from ``stockpiled'' methyl bromide, which is 
material that was produced prior to the phaseout in 2005. EPA does not 
believe it is necessary to reduce the number of critical stock 
allowances to account for the carryover of critical use methyl bromide 
produced but not sold in 2009. On the contrary, EPA seeks to encourage 
the use of pre-phaseout inventory. Therefore, as compared to the 
proposal, EPA is increasing the CSA allocation by 72,867 kg to a total 
of 555,200 kg. EPA does not believe that this will result in the 
accumulation of critical use methyl bromide. Due to the timing of this 
year's CUE rule, EPA has data indicating that the full 72,867 kg of 
carryover from 2009 was sold in 2010. In addition, EPA has since 
received end of year data for 2010 showing that there is no carryover 
from the 2010 control period either. Therefore, EPA is finalizing a 
total allocation that matches the Parties' authorization for 2011.
    Three commenters stated that EPA should not be allocating fewer 
CUEs than the amount authorized by the Parties given EPA's January 19, 
2011, proposal to grant objections to the tolerances established for 
sulfuryl fluoride and fluoride under section 408 of the Federal Food, 
Drug, and Cosmetic Act (76 FR 3422). This CUE Rule is based on the 
current status of alternatives and is limited to 2011. The proposed 
revocation of tolerances for

[[Page 60741]]

sulfuryl fluoride has not been finalized and does not apply to use in 
2011. Therefore, EPA has not based the allocation amounts in the 2011 
CUE Rule on that proposal. In addition, commenters should note that EPA 
proposed a staggered implementation for withdrawal of the affected 
tolerances (76 FR 3447).
    EPA also took comment on how to account for the fact that the 
critical use allowance allocation of 1,500,000 kg is greater than what 
would be allocated if it were based on the ``available stocks'' 
calculation using end of year inventory data. The proposal stated that 
EPA could reduce critical use allowances for new production and import 
in the 2012 allocation rule. EPA received one comment that while the 
distribution between stocks and new production is different than the 
result produced by the framework calculation, the total amount is 
unaffected. In addition, the commenter stated that the calculations in 
the 2012 rule will automatically compensate for the lesser drawdown of 
inventory in 2011. EPA will address this issue further in the notice of 
proposed rulemaking for the 2012 CUE rule.

E. Critical Use Allowance Allocations

    EPA is allocating 2011 critical use allowances for new production 
or import of methyl bromide up to the amount of 1,500,000 kg (5.9% of 
baseline) as shown in the table at 40 CFR 82.8(c)(1). Each critical use 
allowance (CUA) is equivalent to 1 kg of critical use methyl bromide. 
These allowances expire at the end of the control period and, as 
explained in the Framework Rule, are not bankable from one year to the 
next. The CUA allocation is subject to the trading provisions at 40 CFR 
82.12, which are discussed in section V.G. of the preamble to the 
Framework Rule (69 FR 76982).
    One commenter objected to EPA allocating only 1,500,000 kg for new 
production or import. The commenter stated that Decision XXI/11 
authorized 1,855,200 kg for new production and import. EPA disagrees 
with the commenter's interpretation of Decision XXI/11. In Table D of 
Decision XXI/11, the Parties authorized 1,855,200 kg for new production 
and import ``minus available stocks.'' EPA is acting consistently with 
Decision XXI/11by considering ``available stocks.'' How EPA determines 
``available stocks'' is discussed in the next section.
    Paragraph three of Decision XXI/11 states ``that Parties shall 
endeavor to license, permit, authorize or allocate quantities of 
critical-use methyl bromide as listed in tables A and C of the annex to 
the present decision.'' This is similar to language in Decisions 
authorizing prior critical uses. The language from these Decisions 
calls on Parties to endeavor to allocate critical use methyl bromide on 
a sector basis. The Framework Rule proposed several options for 
allocating critical use allowances, including a sector-by-sector 
approach. The Agency evaluated the various options based on their 
economic, environmental, and practical effects. After receiving 
comments, EPA determined that a lump-sum, or universal, allocation, 
modified to include distinct caps for pre-plant and post-harvest uses, 
was the most efficient and least burdensome approach that would achieve 
the desired environmental results, and that a sector-by-sector approach 
would pose significant administrative and practical difficulties. For 
the reasons discussed in the preamble to the 2009 CUE rule (74 FR 
19894), the Agency believes that under the approach adopted in the 
Framework Rule, the actual critical use will closely follow the sector 
breakout listed in the Parties' decisions, but continues to welcome 
comments on this issue.
    One commenter stated that the demand for methyl bromide exceeds the 
supply granted to the post-harvest sector. That commenter requested 
that their uses receive priority over other post harvest uses. It would 
be counter to EPA's past practice to grant priority for some critical 
uses over others. EPA does not have a system in place for ranking 
critical uses against each other. Rather, EPA allows the market to 
determine the distribution of methyl bromide among critical uses in the 
post-harvest or pre-plant sectors.
    Finally, one commenter noted a typographical error in the table in 
40 CFR 82.8(c)(1). The proposed post-harvest amount for ICL-IP was 
listed as 12,267 kg but should have read 16,267 kg. The final rule 
corrects this error.

F. Critical Stock Allowance Allocations

    An approved critical user may purchase methyl bromide produced or 
imported with CUAs as well as limited inventories of pre-phaseout 
methyl bromide, the combination of which constitute the supply of 
``critical use methyl bromide'' intended to meet the needs of agreed 
critical uses. The Framework Rule established provisions governing the 
sale of pre-phaseout inventories for critical uses, including the 
concept of CSAs and a prohibition on the sale of pre-phaseout 
inventories for critical uses in excess of the amount of CSAs held by 
the seller. It also established trading provisions that allow CUAs to 
be converted into CSAs.
    When determining the CSA amount for a year, EPA considers what 
portion of existing stocks is ``available'' for critical uses. As 
discussed in prior CUE rulemakings, the Parties to the Protocol 
recognized in their Decisions that the level of existing stocks may 
differ from the level of available stocks. For example, Decision IX/6 
states that ``production and consumption, if any, of methyl bromide for 
critical uses should be permitted only if * * * methyl bromide is not 
available in sufficient quantity and quality from existing stocks.'' 
Previous decisions refer to use of ``quantities of methyl bromide from 
stocks that the Party has recognized to be available.'' Thus, it is 
clear that individual Parties have the ability to determine their level 
of available stocks. Decision XXI/11 reinforces this concept by 
including the phrase ``minus available stocks'' as a footnote to the 
United States' authorized level of production and consumption in Table 
D. Section 604(d)(6) of the CAA does not require EPA to adjust the 
amount of new production and import to reflect the availability of 
stocks; however, as explained in previous rulemakings, making such an 
adjustment is a reasonable exercise of EPA's discretion under this 
provision.
    In the Framework Rule (69 FR 52366), EPA issued CSAs in an amount 
equal to the difference between the total authorized CUE amount and the 
amount of new production or import authorized by the Parties. In each 
of the subsequent CUE Rules, EPA allocated CSAs in amounts that 
represented not only the difference between the total authorized CUE 
amount and the amount of authorized new production and import but also 
an additional amount to reflect available stocks. After determining the 
CSA amount, EPA reduced the portion of CUE methyl bromide to come from 
new production and import in each of the 2006-2010 control periods such 
that the total amount of methyl bromide exempted for critical uses did 
not exceed the total amount authorized by the Parties for that year.
    EPA views the inclusion of these additional amounts in the 
calculation of the year's overall CSA level as an appropriate exercise 
of discretion. The Agency is not required to allocate the full amount 
of authorized new production and consumption. The Parties only agree to 
``permit'' a particular level of production and consumption; they do 
not--and cannot--mandate that the U.S. authorize this level of 
production and consumption domestically. Nor does the

[[Page 60742]]

CAA require EPA to allow the full amount permitted by the Parties. 
Section 604(d)(6) of the CAA does not require EPA to exempt any amount 
of production and consumption from the phaseout, but instead specifies 
that the Agency ``may'' create an exemption for critical uses, 
providing EPA with substantial discretion.
    In this final rule, EPA is allocating the equivalent of 555,200 kg 
in the form of CSAs. This amount is greater than EPA proposed but less 
than the amount of ``available stocks.'' The aggregate amount of pre-
phaseout methyl bromide reported as being in inventory at the beginning 
of 2011 was 1,802,705 kg. EPA's analysis of ``available stocks'' shows 
that there are 610,715 kg of stocks available for use in 2011. In the 
proposal, EPA took the total U.S. authorization as a starting point, 
subtracted the new production and import amount stated in the No Action 
Assurance provided to industry in December 2010, and then subtracted a 
carryover amount before reaching the tentative conclusion that the CSA 
amount should be the equivalent of 482,333 kg. EPA received comments, 
discussed above, that the total CUE amount should not be less than the 
U.S. authorization. After considering those comments and evaluating its 
approach to carryover in the specific circumstances of this year's 
allocation, EPA has determined that the CSA amount should be the 
difference between the total U.S. authorization and the proposed new 
production and import amount, which is the equivalent of 555,200 kg. 
Because at least 555,200 kg of stocks are available, EPA is increasing 
the CSA allocation in the final rule so that the CSA and CUA 
allocations taken together equal the total U.S. authorization.
    Two commenters also stated that the Agency is incorrect to assume 
that 482,333 kg of pre-phaseout inventory will be available for 
critical uses in 2011. Instead, the commenters stated that EPA should 
allocate only 200,000 kg from stocks, which is the difference between 
the total authorization and the maximum authorized new production 
amount. The commenters also say that the distributors that own stocks 
are free to sell them for any purpose, including for non-CUE uses, and 
that EPA cannot control how or whether inventory is sold.
    EPA agrees that the allocation system allows distributors of 
inventory to respond to market conditions instead of requiring them to 
sell inventory to critical users. EPA issues CSAs as a mechanism to 
track the use of stocks for critical uses. Under section 82.4(p), 
stocks may not be sold for use on critical uses if the seller does not 
hold the corresponding amount of CSAs. Critical users may purchase 
either newly produced or imported critical use methyl bromide or stocks 
sold through the expenditure of CSAs. EPA chose this approach, at least 
in part, to promote market flexibility and efficiency. The fact that 
distributors can choose to sell to non-critical users does not mean 
that the inventory is unavailable to critical users. End of year 
reported data show that the inventory on December 31, 2010, was 
1,802,715 kg. Of this amount, EPA estimates that 610,715 kg of stocks 
are available for use in 2011. While EPA is allocating more critical 
stock allowances than proposed, the amount is still less than the 
``available stocks.'' EPA expects that holders of pre-phaseout 
inventory will be able to expend the full amount of CSA allocations in 
order to satisfy the needs of critical users.
    Two commenters stated that inventory was disproportionately 
distributed among fewer distributors and thus is unavailable to 
critical users. EPA collects information annually on the number of 
companies that hold inventory. These data support the comment that some 
companies no longer maintain any pre-phaseout inventory. However, there 
has not been a significant change in the overall distribution of 
inventory among companies. Inventory is still held by companies in 
large amounts in both California and the Southeast, the two largest 
markets for critical use methyl bromide. If some critical users were 
unable to purchase inventory, that is due to market decisions by 
distributors, not the quantity of methyl bromide held in inventory.
    One commenter stated that the CSA allocation failed to consider the 
effect of a catastrophic failure in the domestic supply of methyl 
bromide, either for 2011 or for future years. The commenter states that 
the critical stock allowance levels undercut EPA's own analysis that 
the amount necessary to address a catastrophic failure could be as much 
as 58% of the critical need. EPA disagrees with the commenter's 
conclusion. EPA's supply chain factor calculation for 2011 indicates 
that 1,192,000 kg (2,055,200 kg x 0.58) is the maximum amount of 
inventory that would be needed in the event of a supply disruption. 
With 1,802,715 kg of existing inventory for 2011, EPA's analysis of 
``available stocks'' shows that there are 610,715 kg of stocks 
available for use in 2011. EPA is actually allocating only the 
equivalent of 555,200 kg in the form of CSAs due to the No Action 
Assurance provided to industry in December 2010.
    EPA also disagrees with the comment that it did not consider the 
effect of this rule on availability of stocks for supply disruptions in 
the future. The supply chain factor is proportional to the CUE amount. 
The authorization for 2012 and potential authorization for 2013 
continue to decline in pace with both the inventory and the supply 
chain factor. In 2012, the U.S. was authorized 1,022,826 kg of critical 
use methyl bromide. EPA estimates that the SCF will be 429,000 kg for 
2012, which is less than the estimated amount of stocks in 2012. EPA 
will discuss this in more detail in the proposed 2012 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. EPA does not guarantee that critical 
users will have access to inventory in the event of a supply 
disruption. The timely distribution of pre-phaseout stocks would depend 
upon business decisions made by suppliers. However, the SCF is large 
enough to give suppliers the opportunity to provide uninterrupted 
distribution in the analyzed scenario.
    EPA is allocating CSAs to the entities shown in the table for the 
2011 control period in the amount of 555,200 kg (2.2% of baseline). EPA 
is updating the table by incorporating information from recent mergers. 
Therefore, EPA is listing a single entry for Royster Clark, UAP 
Southeast (NC), and UAP Southeast (SC) called Crop Production Services. 
The CSA allocation for Crop Production Services is the sum of the three 
allocations that would have gone to Royster Clark and the two UAP 
Southeast entities.
    EPA's allocation of CSAs is based on each company's proportionate 
share of the aggregate inventory. In 2006, the United States District 
Court for the District of Columbia upheld EPA's treatment of company-
specific methyl bromide inventory information as confidential. NRDC v. 
Leavitt, 2006 WL 667327 (D.D.C. March 14, 2006). Therefore, the 
documentation regarding company-specific allocation of CSAs is in the 
confidential portion of the rulemaking docket and the individual CSA 
allocations are not listed in the table in 40 CFR 82.8(c)(2). EPA will 
inform the listed companies of their CSA allocations in a letter 
following publication of the final rule.
    As stated in the final 2006 CUE Rule, if an inventory shortage 
occurs, EPA

[[Page 60743]]

may consider various options including authorizing the conversion of a 
limited number of CSAs to CUAs through a rulemaking, bearing in mind 
the upper limit on U.S. production/import for critical uses. As 
explained in the 2008 CUE Rule, 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. In past years, EPA has noted 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. A commenter to the 2008 CUE Rule 
stated that the aggregate data should be confidential if there are 
fewer than three competitors. More than three companies continue to 
sell pre-phaseout inventory. While EPA is not adopting a definitive 
threshold number of companies at this point, EPA has not received any 
information suggesting that the number of companies has declined to the 
point that EPA should consider treating the aggregate as confidential 
information. Therefore, EPA will continue making aggregate inventory 
information available. The aggregate information for 2003 through 2010 
is available in the docket for this rulemaking.

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

    Paragraphs 2 and 6 of Decision XXI/11 request Parties to ensure 
that the conditions or criteria listed in Decisions Ex. I/4 and IX/6, 
paragraph 1, are applied to exempted critical uses for the 2011 control 
period. A discussion of the Agency's application of the criteria in 
paragraph 1 of Decision IX/6 appears in sections V.C, V.D. and V.E. of 
this preamble. The CUNs detail how each proposed critical use meets the 
criteria listed in paragraph 1 of Decision IX/6, apart from the 
criterion located at (b)(ii), as well as the criteria in paragraphs 5 
and 6 of Decision Ex. I/4.
    The criterion in Decision IX/6(1)(b)(ii), which refers to the use 
of available stocks of methyl bromide, is addressed in section V.F. of 
this preamble. The Agency has previously provided its interpretation of 
the criterion in Decision IX/6(1)(a)(i) regarding the presence of 
significant market disruption in the absence of an exemption, and EPA 
refers readers to the 2006 CUE final rule (71 FR 5989) as well as to 
the memo on the docket titled ``Development of 2003 Nomination for a 
Critical Use Exemption for Methyl Bromide for the United States of 
America'' for further elaboration.
    The remaining considerations, including the lack of available 
technically and economically feasible alternatives under the 
circumstance of the nomination; efforts to minimize use and emissions 
of methyl bromide where technically and economically feasible; the 
development of research and transition plans; and the requests in 
Decision Ex. I/4(5) and (6) that Parties consider and implement MBTOC 
recommendations, where feasible, on reductions in the critical use of 
methyl bromide and include information on the methodology they use to 
determine economic feasibility, are addressed in the nomination 
documents.
    Some of these criteria are evaluated in other documents as well. 
For example, the U.S. has further considered matters regarding the 
adoption of alternatives and research into methyl bromide alternatives, 
criterion (1)(b)(iii) in Decision IX/6, in the development of the 
National Management Strategy submitted to the Ozone Secretariat in 
December 2005 and in ongoing consultations with industry. The National 
Management Strategy addresses all of the aims specified in Decision Ex. 
I/4(3) to the extent feasible and is available in the docket for this 
rulemaking.
    EPA received one comment that the Agency should adjust production 
and import levels in the 2011 CUE Rule to account for research amounts. 
The commenter implied that EPA had a previous policy of adjusting the 
production and import level upward to provide an allocation for 
research. This is not an accurate characterization of EPA's policy. 
Prior to 2010, the U.S. Nomination did contain a separate amount for 
research. While the Parties approved research as a critical use, their 
decisions encouraged the use of inventory to meet critical research 
needs. In the corresponding CUE rules, EPA responded to the Parties' 
decisions by reducing the new production/import amounts by the research 
amount, leaving the research portion of the total critical use 
exemption to be met through the use of CSAs. In the CUN for the 2011 
control period, as in the CUN for the 2010 control period, the U.S. 
government did not nominate a separate, additional amount specifically 
for research purposes. Nonetheless, both the 2010 and 2011 nominations 
were broad enough to cover both research and non-research uses. While 
EPA continues to encourage use of inventory for research purposes, EPA 
is not reducing the CUA level as it did in pre-2010 CUE rules to 
subtract a research amount because no specific research amount has been 
identified. EPA also is not increasing the CUA allocation because the 
Parties did not authorize specific amounts for this purpose in addition 
to the authorization for pre-plant and post-harvest uses. EPA 
understands the Parties' decision as including the research amounts in 
the amounts authorized for pre-plant and post-harvest uses. As 
discussed in the preamble to the 2010 CUE rule (75 FR 23179), research 
is a key element of the critical use process. EPA is retaining research 
on the crops shown in the table in Appendix L to subpart A as a 
critical use of methyl bromide. While EPA encourages use of pre-
phaseout inventory for research purposes, researchers may use either 
newly produced methyl bromide or pre-phaseout inventory for field, 
post-harvest, and emission minimization studies requiring the use of 
methyl bromide.

H. Emissions Minimization

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

[[Page 60744]]

The Agency encourages researchers and users who are successfully 
utilizing such techniques to inform EPA of their experiences and to 
provide such information with their critical use applications.

VI. Statutory and Executive Order Reviews

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

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this 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 Executive Orders 12866 and 13563 (76 FR 
3821, January 21, 2011) and any changes made in response to interagency 
recommendations have been documented in the docket for this action.

B. Paperwork Reduction Act

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

C. Regulatory Flexibility Act

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice-and-comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions. For purposes of assessing the impacts of 
this rule on small entities, small entity is defined as: (1) A small 
business as defined by the Small Business Administration's regulations 
at 13 CFR 121.201; (2) a small business that is identified by the North 
American Industry Classification System (NAICS) Code in the Table 
below; (3) a small governmental jurisdiction that is a government of a 
city, county, town, school district or special district with a 
population of less than 50,000; and (4) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.

----------------------------------------------------------------------------------------------------------------
                                                                             NAICS small business size standard
            Category                   NAICS code            SIC code       (in number of  employees or millions
                                                                                        of  dollars)
----------------------------------------------------------------------------------------------------------------
Agricultural production.........  1112--Vegetable and  0171--Berry Crops..  $0.75 million.
                                   Melon farming.
                                  1113--Fruit and Nut  0172--Grapes.......
                                   Tree Farming.
                                  1114--Greenhouse,    0173--Tree Nuts....
                                   Nursery, and        0175--Deciduous
                                   Floriculture         Tree Fruits
                                   Production.          (except apple
                                                        orchards and
                                                        farms).
                                                       0179--Fruit and
                                                        Tree Nuts, NEC.
                                                       0181--Ornamental
                                                        Floriculture and
                                                        Nursery Products.
                                                       0831--Forest
                                                        Nurseries and
                                                        Gathering of
                                                        Forest Products.
Storage Uses....................  115114--Postharvest  ...................  $7 million.
                                   Crop activities
                                   (except Cotton
                                   Ginning).
                                  311211--Flour        2041--Flour and      500 employees.
                                   Milling.             Other Grain Mill
                                                        Products.
                                  311212--Rice         2044--Rice Milling.  500 employees.
                                   Milling.
                                  493110--General      4225--General        $25.5 million.
                                   Warehousing and      Warehousing and
                                   Storage.             Storage.
                                  493130--Farm         4221--Farm Product   $25.5 million.
                                   Product              Warehousing and
                                   Warehousing and      Storage.
                                   Storage.
Distributors and Applicators....  115112--Soil         0721--Crop           $7 million.
                                   Preparation,         Planting,
                                   Planting and         Cultivation, and
                                   Cultivating.         Protection.
Producers and Importers.........  325320--Pesticide    2879--Pesticides     500 employees.
                                   and Other            and Agricultural
                                   Agricultural         Chemicals, NEC.
                                   Chemical
                                   Manufacturing.
----------------------------------------------------------------------------------------------------------------

    Agricultural producers of minor crops and entities that store 
agricultural commodities are categories of affected entities that 
contain small entities. This rule only affects entities that applied to 
EPA for an exemption to the phaseout of methyl bromide. In most cases, 
EPA received aggregated requests for exemptions from industry 
consortia. On the exemption application, EPA asked consortia to 
describe the number and size distribution of entities their application 
covered. EPA estimated that 3,218 entities petitioned EPA for an 
exemption for the 2005 control period. EPA revised this estimate in 
2008 down to 2,000 end users of critical use methyl bromide. EPA 
believes that the number continues to decline as growers stop applying 
for critical uses. Since many applicants did not provide information on 
the distribution of sizes of entities covered in their applications, 
EPA estimated that, based on the above definition, between one-fourth 
and one-third of the entities may be small businesses. In addition, 
other categories of affected entities do not contain small businesses 
based on the above description.
    After considering the economic impacts of 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

[[Page 60745]]

adverse economic impact on small entities, since the primary purpose of 
the regulatory flexibility analyses is to identify and address 
regulatory alternatives ``which minimize any significant economic 
impact of the proposed rule on small entities.'' (5 U.S.C. 603-604). 
Thus, an Agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves a regulatory burden, or otherwise has a positive economic 
effect on all of the small entities subject to the rule. Since this 
rule would exempt methyl bromide for approved critical uses after the 
phaseout date of January 1, 2005, this action would confer a benefit to 
users of methyl bromide. We have therefore concluded that this rule 
would relieve regulatory burden for all small entities.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or Tribal governments or the private 
sector. The action imposes no enforceable duty on any State, local or 
Tribal governments or the private sector. Instead, this action provides 
an exemption for the manufacture and use of a phased out compound and 
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

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

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

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

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

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This rule 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 September 30, 2011.

List of Subjects in 40 CFR Part 82

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


[[Page 60746]]


    Dated: September 26, 2011.
Lisa P. Jackson,
Administrator.
    For the reasons stated in the preamble, 40 CFR part 82 is amended 
as follows:

PART 82--PROTECTION OF STRATOSPHERIC OZONE

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

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


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


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

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

----------------------------------------------------------------------------------------------------------------
                                                                   2011 Critical use        2011 Critical use
                                                                  allowances for pre-      allowances for post-
                            Company                                   plant uses *            harvest uses *
                                                                      (kilograms)              (kilograms)
----------------------------------------------------------------------------------------------------------------
Great Lakes Chemical Corp. A Chemtura Company.................                  839,966                   71,584
Albemarle Corp................................................                  345,413                   29,437
ICL-IP America................................................                  190,883                   16,267
TriCal, Inc...................................................                    5,943                      507
                                                               -------------------------------------------------
    Total * *.................................................                1,382,206                  117,794
----------------------------------------------------------------------------------------------------------------
* For production or import of Class I, Group VI controlled substance exclusively for the Pre-Plant or Post-
  Harvest uses specified in appendix L to this subpart.
* * Due to rounding, numbers do not add exactly.

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

Company

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

TOTAL--555,200 kilograms
0
3. Appendix L to Subpart A is revised to read as follows:

APPENDIX L TO SUBPART A OF PART 82--APPROVED CRITICAL USES AND LIMITING 
CRITICAL CONDITIONS FOR THOSE USES FOR THE 2011 CONTROL PERIOD

------------------------------------------------------------------------
                                                     Column C  Limiting
                                                     Critical Conditions
                                                     that exist, or that
                               Column B  Approved       the  approved
 Column A  Approved Critical    Critical User and       critical user
            Uses                 Location of Use     reasonably expects
                                                     could arise without
                                                       methyl bromide
                                                         fumigation:
------------------------------------------------------------------------
                             PRE-PLANT USES
------------------------------------------------------------------------
Cucurbits...................  (a) Growers in        Moderate to severe
                               Delaware and          soilborne disease
                               Maryland.             infestation.
                              (b) Growers in        Moderate to severe
                               Georgia and           yellow or purple
                               Southeastern U.S.     nutsedge
                               limited to growing    infestation.
                               locations in         Moderate to severe
                               Alabama, Arkansas,    soilborne disease
                               Kentucky,             infestation.
                               Louisiana, North     Moderate to severe
                               Carolina, South       root knot nematode
                               Carolina,             infestation.
                               Tennessee, and
                               Virginia.
Eggplant....................  (a) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                              (b) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Moderate to severe
                                                     pythium collar,
                                                     crown and root rot.
                                                    Moderate to severe
                                                     southern blight
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features.
Forest Nursery Seedlings....  (a) Growers in        Moderate to severe
                               Alabama, Arkansas,    yellow or purple
                               Georgia, Louisiana,   nutsedge
                               Mississippi, North    infestation.
                               Carolina, Oklahoma,  Moderate to severe
                               South Carolina,       soilborne disease
                               Tennessee, Texas,     infestation.
                               and Virginia.        Moderate to severe
                                                     nematode
                                                     infestation.
                              (b) International     Moderate to severe
                               Paper and its         yellow or purple
                               subsidiaries          nutsedge
                               limited to growing    infestation.
                               locations in         Moderate to severe
                               Alabama, Arkansas,    soilborne disease
                               Georgia, South        infestation.
                               Carolina, and Texas.

[[Page 60747]]

 
                              (c) Government-owned  Moderate to severe
                               seedling nurseries    weed infestation
                               in Illinois,          including purple
                               Indiana, Kentucky,    and yellow nutsedge
                               Maryland, Missouri,   infestation.
                               New Jersey, Ohio,    Moderate to severe
                               Pennsylvania, West    Canada thistle
                               Virginia, and         infestation.
                               Wisconsin.           Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                              (d) Weyerhaeuser      Moderate to severe
                               Company and its       yellow or purple
                               subsidiaries          nutsedge
                               limited to growing    infestation.
                               locations in         Moderate to severe
                               Alabama, Arkansas,    soilborne disease
                               North Carolina, and   infestation.
                               South Carolina.      Moderate to severe
                                                     nematode or worm
                                                     infestation.
                              (e) Weyerhaeuser      Moderate to severe
                               Company and its       yellow nutsedge
                               subsidiaries          infestation.
                               limited to growing   Moderate to severe
                               locations in Oregon   soilborne disease
                               and Washington.       infestation.
                              (f) Michigan growers  Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     Canada thistle
                                                     infestation.
                                                    Moderate to severe
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
Nursery Stock (Fruit, Nut,    (a) Members of the    Moderate to severe
 Flower).                      California            nematode
                               Association of        infestation.
                               Nursery and Garden   Medium to heavy clay
                               Centers               soils.
                               representing         Local township
                               Deciduous Tree        limits prohibiting
                               Fruit Growers.        1,3-
                                                     dichloropropene.
                              (b) California rose   Moderate to severe
                               nurseries.            nematode
                                                     infestation.
                                                    Local township
                                                     limits prohibiting
                                                     1,3-
                                                     dichloropropene.
Orchard Replant.............  California stone      Moderate to severe
                               fruit, table and      nematode
                               raisin grape, wine    infestation.
                               grape, walnut, and   Moderate to severe
                               almond growers.       soilborne disease
                                                     infestation.
                                                    Replanted orchard
                                                     soils to prevent
                                                     orchard replant
                                                     disease.
                                                    Medium to heavy
                                                     soils.
                                                    Local township
                                                     limits prohibiting
                                                     1,3-
                                                     dichloropropene.
Ornamentals.................  (a) California        Moderate to severe
                               growers.              soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Local township
                                                     limits prohibiting
                                                     1,3-
                                                     dichloropropene.
                              (b) Florida growers.  Moderate to severe
                                                     weed infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
Peppers.....................  (a) Alabama,          Moderate to severe
                               Arkansas, Kentucky,   yellow or purple
                               Louisiana, North      nutsedge
                               Carolina, South       infestation.
                               Carolina,            Moderate to severe
                               Tennessee, and        nematode
                               Virginia growers.     infestation.
                                                    Moderate to severe
                                                     pythium root,
                                                     collar, crown and
                                                     root rots.
                              (b) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                              (c) Georgia growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation, or
                                                     moderate to severe
                                                     pythium root and
                                                     collar rots.
                                                    Moderate to severe
                                                     southern blight
                                                     infestation, crown
                                                     or root rot.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features.
Strawberry Fruit............  (a) California        Moderate to severe
                               growers.              black root rot or
                                                     crown rot.
                                                    Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Local township
                                                     limits prohibiting
                                                     1,3-
                                                     dichloropropene.
                                                    Time to transition
                                                     to an alternative.
                              (b) Florida growers.  Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                                                    Moderate to severe
                                                     soilborne disease
                                                     infestation.
                                                    Carolina geranium or
                                                     cut-leaf evening
                                                     primrose
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and soils
                                                     not supporting
                                                     seepage irrigation.
                              (c) Alabama,          Moderate to severe
                               Arkansas, Georgia,    yellow or purple
                               Illinois, Kentucky,   nutsedge
                               Louisiana,            infestation.
                               Maryland,            Moderate to severe
                               Mississippi,          nematode
                               Missouri, New         infestation.
                               Jersey, North        Moderate to severe
                               Carolina, Ohio,       black root and
                               South Carolina,       crown rot.
                               Tennessee, and
                               Virginia growers.

[[Page 60748]]

 
Strawberry Nurseries........  (a) California        Moderate to severe
                               growers.              soilborne disease
                                                     infestation.
                                                    Moderate to severe
                                                     yellow or purple
                                                     nutsedge
                                                     infestation.
                                                    Moderate to severe
                                                     nematode
                                                     infestation.
                              (b) North Carolina    Moderate to severe
                               and Tennessee         black root rot.
                               growers.             Moderate to severe
                                                     root-knot nematode
                                                     infestation.
                                                    Moderate to severe
                                                     yellow and purple
                                                     nutsedge
                                                     infestation.
Sweet Potato Slips..........  California growers..  Local township
                                                     limits prohibiting
                                                     1,3-
                                                     dichloropropene.
Tomatoes....................  (a) Alabama,          Moderate to severe
                               Arkansas, Florida,    yellow or purple
                               Georgia, Kentucky,    nutsedge
                               Louisiana,            infestation.
                               Mississippi, North   Moderate to severe
                               Carolina, South       soilborne disease
                               Carolina,             infestation.
                               Tennessee, and       Moderate to severe
                               Virginia growers.     nematode
                                                     infestation.
                                                    Restrictions on
                                                     alternatives due to
                                                     karst topographical
                                                     features and, in
                                                     Florida, soils not
                                                     supporting seepage
                                                     irrigation.
                              (b) Maryland growers  Moderate to severe
                                                     fungal pathogen
                                                     infestation.
------------------------------------------------------------------------
                            POST-HARVEST USES
------------------------------------------------------------------------
Food Processing.............  (a) Rice millers in   Moderate to severe
                               the U.S. who are      beetle, weevil, or
                               members of the USA    moth infestation.
                               Rice Millers         Presence of
                               Association.          sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.
                              (b) Pet food          Moderate to severe
                               manufacturing         beetle, moth, or
                               facilities in the     cockroach
                               U.S. who are          infestation.
                               members of the Pet   Presence of
                               Food Institute.       sensitive
                                                     electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.
                              (c) Members of the    Moderate to severe
                               North American        beetle infestation.
                               Millers'             Presence of
                               Association in the    sensitive
                               U.S.                  electronic
                                                     equipment subject
                                                     to corrosion.
                                                    Time to transition
                                                     to an alternative.
                              (d) Members of the    Moderate to severe
                               National Pest         beetle or moth
                               Management            infestation.
                               Association          Presence of
                               treating processed    sensitive
                               food, cheese, herbs   electronic
                               and spices, and       equipment subject
                               spaces and            to corrosion.
                               equipment in         Time to transition
                               associated            to an alternative.
                               processing and
                               storage facilities.
Commodities.................  California entities   Rapid fumigation
                               storing walnuts,      required to meet a
                               beans, dried plums,   critical market
                               figs, raisins, and    window, such as
                               dates (in Riverside   during the holiday
                               county only) in       season.
                               California.
Dry Cured Pork Products.....  Members of the        Red legged ham
                               National Country      beetle infestation.
                               Ham Association and  Cheese/ham skipper
                               the Association of    infestation.
                               Meat Processors,     Dermested beetle
                               Nahunta Pork Center   infestation.
                               (North Carolina),    Ham mite
                               and Gwaltney and      infestation.
                               Smithfield Inc..
------------------------------------------------------------------------

[FR Doc. 2011-25273 Filed 9-29-11; 8:45 am]
BILLING CODE 6560-50-P


