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6560-50-P

EO12866MethylBromideCUE2060-AR41NPRM20120626.docx

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 82

[EPA-HQ-OAR-2010-0280; FRL-]

RIN: 2060-AR41

Protection of Stratospheric Ozone: The 2013 Critical Use Exemption from the 

Phaseout of Methyl Bromide

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing uses that qualify for the 2013 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 2013. EPA is taking action under the authority of 

the Clean Air Act to reflect a recent consensus decision taken by the Parties to the 

Montreal Protocol on Substances that Deplete the Ozone Layer at the Twenty-Second

Meeting of the Parties. EPA is seeking comment on the list of critical uses and on EPA’s 

determination of the amounts of methyl bromide needed to satisfy those uses.

DATES: Comments must be submitted by [INSERT DATE 45 DAYS AFTER DATE 

OF PUBLICATION IN THE FEDERAL REGISTER]. Any party requesting a public 

hearing must notify the contact person listed below by 5 p.m. Eastern Standard Time on 

[INSERT DATE 5 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL 

REGISTER]. If a hearing is requested it will be held on [INSERT DATE 15 DAYS 

AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. EPA will post 
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information regarding a hearing, if one is requested, on the Ozone Protection website 

www.epa.gov/ozone/strathome.html. Persons interested in attending a public hearing 

should consult with the contact person below regarding the location and time of the 

hearing.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR2010-0280, by one of the following methods:

 www.regulations.gov: Follow the on-line instructions for submitting comments.

 Email: a-and-r-Docket@epa.gov

 Fax: (202) 566-9744

 Phone: (202) 566-1742

 U.S. Mail: Docket EPA-HQ-OAR-2010-0280, U.S. Environmental Protection 

Agency, EPA Docket Center, Air and Radiation Docket, Mail Code 28221T, 1200 

Pennsylvania Avenue, NW, Washington, DC 20460 

 Hand Delivery or Courier: Docket EPA-HQ-OAR-2010-0280, EPA Docket 

Center - Public Reading Room, EPA West Building, Room 3334, 1301 

Constitution Avenue, NW, Washington, DC 20004. Such deliveries are only 

accepted during the Docket’s normal hours of operation, and special arrangements 

should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-2010-0280. EPA's 

policy is that all comments received will be included in the public docket without change 

and may be made available online at www.regulations.gov, including any personal 

information provided, unless the comment includes information claimed to be 

Confidential Business Information (CBI) or other information whose disclosure is 
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restricted by statute. Do not submit information that you consider to be CBI or otherwise 

protected through www.regulations.gov or e-mail. The www.regulations.gov website is 

an “anonymous access” system, which means EPA will not know your identity or contact 

information unless you provide it in the body of your comment. If you send an e-mail 

comment directly to EPA without going through www.regulations.gov your e-mail 

address will be automatically captured and included as part of the comment that is placed 

in the public docket and made available on the Internet. If you submit an electronic 

comment, EPA recommends that you include your name and other contact information in 

the body of your comment and with any disk or CD-ROM you submit. If EPA cannot 

read your comment due to technical difficulties and cannot contact you for clarification, 

EPA may not be able to consider your comment. Electronic files should avoid the use of 

special characters, any form of encryption, and be free of any defects or viruses. For 

additional information about EPA’s public docket visit the EPA Docket Center homepage 

at http://www.epa.gov/epahome/dockets.htm.

Docket: All documents in the docket are listed in the www.regulations.gov index. 

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, will be publicly available only in hard copy. Publicly available 

docket materials are available either electronically in 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 
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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 

proposed 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, N.W., Washington, D.C., 20460. You may also visit 

the methyl bromide section of the Ozone Depletion website of EPA’s Stratospheric 

Protection Division at www.epa.gov/ozone/mbr for further information about the methyl 

bromide critical use exemption, other Stratospheric Ozone Protection regulations, the 

science of ozone layer depletion, and related topics.

SUPPLEMENTARY INFORMATION: This proposed rule concerns Clean Air Act 

(CAA) restrictions on the consumption, production, and use of methyl bromide (a Class I, 

Group VI controlled substance) for critical uses during calendar year 2013. Under the 

Clean Air Act, methyl bromide consumption (consumption is defined under section 601 

of the CAA as production plus imports minus exports) and production were phased out 

on January 1, 2005, apart from allowable exemptions, such as the critical use and the 

quarantine and preshipment (QPS) exemptions. With this action, EPA is proposing and 

seeking comment on the uses that will qualify for the 2013 critical use exemption as well 

as specific amounts of methyl bromide that may be produced and imported, or sold from 

pre-phaseout inventory (also referred to as “stocks” or “inventory”) for proposed critical 

uses in 2013.

Table of Contents
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I. General Information

A. Regulated Entities

B. What Should I Consider When Preparing My Comments?

II. What Is Methyl Bromide?

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

Substances?

IV. What Is the Legal Authority for Exempting the Production and Import of Methyl 

Bromide for Critical Uses Authorized by the Parties to the Montreal Protocol?

V. What Is the Critical Use Exemption Process?

A. Background of the Process

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

Rules?

C. Stocks of Methyl Bromide

D. Proposed Critical Uses

E. Proposed Critical Use Amounts

1. Approach for Determining Critical Stock Allowances

2. Estimating a Minimum Amount of Available Pre-Phaseout Inventory

3. Approach for Determining New Production and Import Allowances

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

G. Emissions Minimization

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory Planning and Review and Executive 

Order 13563: Improving Regulation and Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments

G. Executive Order 13045: Protection of Children from Environmental 

Health and Safety Risks

H. Executive Order 13211: Actions that Significantly Affect Energy Supply, 

Distribution, or Use

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions to Address Environmental Justice 

in Minority Populations and Low-Income Populations

I. General Information

A. Regulated Entities

Entities potentially regulated by this proposed action are those associated with the 

production, import, export, sale, application, and use of methyl bromide covered by an 

approved critical use exemption. Potentially regulated categories and entities include 
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producers, importers, and exporters of methyl bromide; applicators and distributors of 

methyl bromide; and users of methyl bromide that applied for the 2013 critical use 

exemption including growers of vegetable crops, fruits and nursery stock, and owners of 

stored food commodities and structures such as grain mills and processors. This 

rulemaking does not affect 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 proposed action. To determine whether 

your facility, company, business, or organization could be regulated by this proposed 

action, you should carefully examine the regulations promulgated at 40 CFR part 82, 

subpart A. If you have questions regarding the applicability of this action to a particular 

entity, consult the person listed in the preceding section.

B. What Should I Consider When Preparing My Comments?

1. Confidential Business Information. Do not submit confidential business information 

(CBI) to EPA through www.regulations.gov or e-mail. Clearly mark the part or all of the 

information that you claim to be CBI. For CBI information in a disk or CD-ROM that 

you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify 

electronically within the disk or CD-ROM the specific information that is claimed as 

CBI. Information so marked will not be disclosed except in accordance with procedures 

set forth in 40 CFR part 2. In addition to one complete version of the comment that 

includes information claimed as CBI, a copy of the comment that does not contain the 

information claimed as CBI must be submitted for inclusion in the public docket.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

 Identify the rulemaking by docket number and other identifying information (subject 
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heading, Federal Register date, and page number).

 Follow directions - The agency may ask you to respond to specific questions or 

organize comments by referencing a Code of Federal Regulations (CFR) part or 

section number.

 Explain why you agree or disagree; suggest alternatives and substitute language for 

your requested changes.

 Describe any assumptions and provide any technical information and/or data that you 

used.

 If you estimate potential costs or burdens, explain how you arrived at your estimate in 

sufficient detail to allow for it to be reproduced.

 Provide specific examples to illustrate your concerns, and suggest alternatives.

 Explain your views as clearly as possible, avoiding the use of profanity or personal 

threats.

 Make sure to submit your comments by the comment period deadline identified.

II. What Is Methyl Bromide?

Methyl bromide is an odorless, colorless, toxic gas which is used as a broadspectrum pesticide and is controlled under the CAA as a Class I ozone-depleting 

substance (ODS). Methyl bromide was once widely used as a fumigant to control a 

variety of pests such as insects, weeds, rodents, pathogens, and nematodes. Information 

on methyl bromide can be found at http://www.epa.gov/ozone/mbr.

Methyl bromide is also regulated by EPA under the Federal Insecticide, 

Fungicide, and Rodenticide Act (FIFRA) and other statutes and regulatory authority, as 

well as by States under their own statutes and regulatory authority. Under FIFRA, methyl 
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bromide is a restricted use pesticide. Restricted use pesticides are subject to Federal and 

State requirements governing their sale, distribution, and use. Nothing in this proposed 

rule implementing the Clean Air Act is intended to derogate from provisions in any other 

Federal, State, or local laws or regulations governing actions including, but not limited to, 

the sale, distribution, transfer, and use of methyl bromide. Entities affected by this 

proposal must continue to comply with FIFRA and other pertinent statutory and 

regulatory requirements for pesticides (including, but not limited to, requirements 

pertaining to restricted use pesticides) when importing, exporting, acquiring, selling, 

distributing, transferring, or using methyl bromide for critical uses. The provisions in this 

proposed action are intended only to implement the CAA restrictions on the production, 

consumption, and use of methyl bromide for critical uses exempted from the phaseout of 

methyl bromide. 

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

Substances?

The regulatory requirements of the stratospheric ozone protection program that 

limit production and consumption of ozone-depleting substances are in 40 CFR part 82, 

subpart A. The regulatory program was originally published in the Federal Register on 

August 12, 1988 (53 FR 30566), in response to the 1987 signing and subsequent 

ratification of the Montreal Protocol on Substances that Deplete the Ozone Layer 

(Montreal Protocol). The Montreal Protocol is the international agreement aimed at 

reducing and eliminating the production and consumption of stratospheric ozonedepleting 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 
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President George H.W. Bush signed into law, the Clean Air Act Amendments of 1990 

(CAAA of 1990) which included Title VI on Stratospheric Ozone Protection, codified as 

42 U.S.C. Chapter 85, Subchapter VI, to ensure that the U.S. could satisfy its obligations 

under the 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 developed country’s level of methyl bromide 

production and consumption in 1991 should be the baseline for establishing a freeze on

the level of methyl bromide production and consumption for developed 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. This rule froze U.S. 

production and consumption at the 1991 baseline level of 25,528,270 kilograms, and set

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.”
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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 developed countries with exemptions permitted for critical uses.

At that time, the U.S. continued to have a 2001 phaseout date in accordance with section 

602(d) of the CAAA of 1990. At the Ninth MOP in 1997, the Parties agreed to further 

adjustments to the phaseout schedule for methyl bromide in developed countries, with 

reduction steps leading to a 2005 phaseout. The Parties also established a phaseout date 

of 2015 for Article 5 countries.

IV. What Is the Legal Authority for Exempting the Production and Import of 

Methyl Bromide for Critical Uses Authorized by the Parties to the Montreal 

Protocol?

In October 1998, the U.S. Congress amended the Clean Air Act (CAA) to prohibit 

the termination of production of methyl bromide prior to January 1, 2005, to require EPA 

to bring the U.S. phaseout of methyl bromide in line with the schedule specified under 

the Protocol, and to authorize EPA to provide certain exemptions. These amendments 

were contained in Section 764 of the 1999 Omnibus Consolidated and Emergency 

Supplemental Appropriations Act (Pub. L. 105-277, October 21, 1998) and were codified 

in section 604 of the CAA, 42 U.S.C. 7671c. The amendment that specifically addresses 

the critical use exemption appears at section 604(d)(6), 42 U.S.C. 7671c(d)(6). EPA 

revised the phaseout schedule for methyl bromide production and consumption in a direct 

final rulemaking on November 28, 2000 (65 FR 70795), which allowed for the 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 
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regulations to allow for an exemption for quarantine and preshipment (QPS) purposes 

through an interim final rule on July 19, 2001 (66 FR 37751), and 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 annual control periods from 2006 to 

2011. Under authority of section 604(d)(6) of the CAA, today’s action proposes the uses 

that will qualify as approved critical uses in 2013 and the amount of methyl bromide that 

may be produced, imported, or supplied from inventory to satisfy those uses.

This proposed action on critical uses for 2013 reflects Decision XXIII/4, taken at 

the Twenty-Third Meeting of the Parties in November 2011. 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 reviewing proposed 

critical uses. The status of Decisions is addressed in NRDC v. EPA, (464 F.3d 1, D.C. 

Cir. 2006) and in EPA’s “Supplemental Brief for the Respondent,” filed in NRDC v. 

EPA and available in the docket for this action. In this proposed rule on critical uses for 

2013, 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
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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 20, 2009 (74 FR 23705), applicants provided data on the 

technical and economic feasibility of using alternatives to methyl bromide. Applicants 

also submitted data on their use of methyl bromide, ongoing research programs into the 

use of alternatives to methyl bromide in their sector, and efforts to minimize use and 

emissions of methyl bromide.

EPA and USDA review 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 
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addition, the interagency workgroup 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 each Party’s CUN 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 and specific uses of methyl bromide that the agency is 

proposing to exempt.

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.
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On January 22, 2010, the U.S. Government (USG) submitted the eighth

Nomination for a Critical Use Exemption for Methyl Bromide for the United States of 

America to the Ozone Secretariat of UNEP. This nomination contained the request for 

2013 critical uses. In February 2010, MBTOC sent questions to the USG concerning 

technical and economic issues in the 2013 nomination. The USG transmitted responses to 

MBTOC in March, 2010. These documents, together with reports by the advisory bodies 

noted above, are in the public docket for this rulemaking. The proposed critical uses and 

amounts reflect the analysis contained in those documents.

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

The December 23, 2004, Framework Rule (69 FR 76982) established the 

framework for the critical use exemption program in the U.S., including definitions, 

prohibitions, trading provisions, and recordkeeping and reporting obligations. The 

preamble to the Framework Rule included EPA’s determinations on key issues for the 

critical use exemption program.

Since publishing the Framework Rule, EPA has annually promulgated regulations 

to exempt specific quantities of production and import of methyl bromide, to determine 

the amounts that may be supplied from pre-phaseout inventory, and to indicate which 

uses meet the criteria for the exemption program for that year. See 71 FR 5985 (calendar 

year 2006), 71 FR 75386 (calendar year 2007), 72 FR 74118 (calendar year 2008), 74 FR 

19878 (calendar year 2009), 75 FR 23167 (calendar year 2010), 77 FR 29218 (calendar 

year 2012).

Today’s action proposes to amend the regulatory framework to determine the 

amounts of Critical Use Allowances (CUAs) and Critical Stock Allowances (CSAs) to be 
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allocated for those uses. A CUA is the privilege granted through 40 CFR part 82 to 

produce or import 1 kg of methyl bromide for an approved critical use during the 

specified control period. These allowances expire at the end of the control period and, as 

explained in the Framework Rule, are not bankable from one year to the next. The 

proposed CUA allocation is subject to the trading provisions at 40 CFR 82.12, which are

discussed in section V.G. of the preamble to the Framework Rule (69 FR 76982).

A CSA is the right granted through 40 CFR part 82 to sell 1 kg of methyl bromide 

from inventory produced or imported prior to the January 1, 2005, phaseout date for an 

approved critical use during the specified control period. The Framework Rule 

established provisions governing the sale of pre-phaseout inventories for critical uses, 

including the concept of CSAs and a prohibition on the sale of pre-phaseout inventories 

for critical uses in excess of the amount of CSAs held by the seller. It also established 

trading provisions that allow CUAs to be converted into CSAs. EPA is not proposing to 

change these provisions.

C. Stocks of Methyl Bromide

An approved critical user may purchase methyl bromide produced or imported 

with CUAs, as well as limited inventories of pre-phaseout methyl bromide, the 

combination of which constitute the supply of “critical use methyl bromide” intended to 

meet the needs of approved critical uses. EPA considers all pre-phaseout inventory to be 

suitable for both pre-plant and post harvest uses. The aggregate amount of pre-phaseout 

methyl bromide reported as being in inventory at the beginning of 2012 is 1,248,876 kg. 

This amount does not include critical use methyl bromide that was produced after 

January 1, 2005, and carried over into subsequent years. Nor does it include methyl 
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bromide produced 1) under the quarantine and preshipment (QPS) exemption, 2) with 

Article 5 allowances to meet the basic domestic needs of Article 5 countries, or 3) for 

feedstock or transformation purposes. As in prior years, the Agency will continue to 

closely monitor CUA and CSA data. As stated in the final 2006 CUE Rule, if an 

inventory shortage occurs, EPA may consider various options including authorizing the 

conversion of a limited number of CSAs to CUAs through a rulemaking, bearing in mind 

the upper limit on U.S. production/import for critical uses. In sections V.D. and V.G. of 

this preamble, EPA seeks comment on the amount of critical use methyl bromide to come 

from inventory compared to new production and import.

As explained in the 2008 CUE Rule, the agency intends to continue releasing 

aggregate methyl bromide inventory information reported to the agency under the 

reporting requirements at 40 CFR 82.13 at the end of each control period. EPA notes that 

if the number of competitors in the industry were to decline appreciably, EPA would 

revisit the question of whether the aggregate is entitled to treatment as confidential 

information and whether to release the aggregate without notice. EPA is not proposing to 

change the treatment of submitted information but welcomes information concerning the 

composition of the industry in this regard. The aggregate information for 2003 through 

2012 is available in the docket for this rulemaking.

D. Proposed Critical Uses

In Decision XXIII/4, taken in November 2011, the Parties to the Protocol agreed 

“to permit, for the agreed critical-use categories for 2013 set forth in table A of the annex 

to the present decision for each party, subject to the conditions set forth in the present 

decision and in decision Ex.I/4 to the extent that those conditions are applicable, the 
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levels of production and consumption for 2013 set forth in table B of the annex to the 

present decision which are necessary to satisfy critical uses ...”

The following uses are those set forth in table A of the annex to Decision XXIII/4

for the United States:

 Commodities

 Mills and food processing structures

 Dried cured pork

 Cucurbits

 Eggplant – field

 Nursery stock – fruit, nuts, flowers

 Orchard replants

 Ornamentals

 Peppers – field

 Strawberry – field

 Strawberry runners

 Tomatoes – field

EPA is seeking comment on the technical analysis contained in the U.S. 

nomination (available for public review in the docket to this rulemaking), and seeks 

information regarding any changes to the registration (including cancellation or new 

registrations), use, or efficacy of alternatives that have transpired after the 2013 U.S. 

CUN was forwarded. EPA recognizes that as the market for alternatives evolves, the 

thresholds for what constitutes “significant market disruption” or “technical and

economic feasibility” may change. Comments on technical data contained in the CUN, or 

new information, could potentially alter the agency’s analysis on the uses and amounts of 

methyl bromide qualifying for the critical use exemption. The agency may, in response to 

new information, reduce the proposed quantities of critical use methyl bromide, or decide 

not to approve uses authorized by the Parties. However, the agency will not increase the 

quantities or add new uses in the final rule beyond those authorized by the Parties.
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EPA is also proposing to modify the table in 40 CFR part 82, subpart A, appendix 

L to reflect the agreed critical use categories identified in Decision XXIII/4. The agency

is amending the table of critical uses and critical users based in part on the technical 

analysis contained in the 2013 U.S. nomination that assesses data submitted by applicants 

to the CUE program. First, EPA is proposing to remove two users who did not submit 

applications and therefore were not included in the U.S. nomination. These users are 

California rose nursery growers and Maryland tomato growers. 

Second, EPA is proposing to remove the National Pest Management Association 

(NPMA) food processing use from the list for 2013. The NPMA did not initially apply to 

be a critical user in 2013 and the Parties have not authorized NPMA as a critical use for 

2013. Members of the NPMA have worked to transition from methyl bromide to 

alternative practices and alternative fumigants like sulfuryl fluoride. In January 2004, 

EPA registered the first food uses of sulfuryl fluoride for control of insect pests in grain 

processing facilities and in harvested and processed food commodities such as cereal 

grains, dried fruits, and tree nuts. In July 2005, EPA approved sulfuryl fluoride for 

treatment of additional harvested and processed food commodities such as coffee and 

cocoa beans, and for fumigation of food handling and processing facilities.

On January 19, 2011, EPA proposed to revoke the residue limits on food, known 

as tolerances, for fluoride on the food commodities approved for treatment with sulfuryl 

fluoride (76 FR 3422). In response to this proposal, the NPMA submitted a supplemental 

request for 2013 during the open period for 2014 applications. The USG did not include

NPMA’s supplemental request in the 2014 nomination submitted to UNEP on January 

31, 2012, because EPA has only proposed to revoke the tolerances for sulfuryl fluoride 
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and has not taken action in any final rule. U.S. critical use nominations have been based 

on final decisions about alternatives. Additionally, the proposed tolerance revocation rule 

includes a staggered implementation scheme, making it unlikely that any specific 

revocation will be effective in 2013. Therefore, EPA is not proposing to include NPMA 

as a critical use in 2013.

Third, EPA is proposing to remove sectors or users that applied for a critical use 

in 2013 but that the U.S. did not nominate for 2013. The interagency workgroup 

conducted a thorough technical assessment of each application and considered the effects 

that the loss of methyl bromide would have for each agricultural sector, and whether 

significant market disruption would occur as a result. As a result of this technical review, 

the USG did not find that these sectors or users met the critical use criteria in Decision 

IX/6 and they were therefore not included in the 2013 Critical Use Nomination. EPA 

notified these sectors of their status in July 2011. These sectors are: members of the 

Southeastern Cucurbit Consortium and cucurbit growers in Maryland and Delaware; 

growers in the forest nursery sector (Southern Forest Nursery Management Cooperative, 

Northeastern Forest and Conservation Nursery Association, and Michigan seedling 

growers); members of the Southeastern Pepper Consortium; members of the Southeastern 

Strawberry Consortium and Florida strawberry growers; California sweet potato slip 

growers; members of the Southeastern Tomato Consortium and Virginia tomato growers. 

For each of these uses, EPA found that there are technically and economically feasible 

alternatives to methyl bromide. 

Finally, EPA is proposing to limit the CUE for cucurbit, eggplant, pepper, and 

tomato sectors in Georgia to small growers. The U.S. review of the available information 
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for Georgia indicates that farmers growing fewer than 10 acres of these crops need an 

additional year to successfully transition to the alternatives. These small growers do not 

have as much experience with the alternatives and need to convert their equipment to the 

University of Georgia “3-Way” mixture (a combination of 1,3-dichloropropene, 

chloropicrin, and metam). The U.S. conducted an economic assessment of small growers’ 

ability to convert their equipment (see revised nomination, dated July 15, in the docket). 

The assessment demonstrates that despite the UGA 3-Way mixture being more affordable 

than methyl bromide plus chloropicrin on a per acre basis, retrofitting farm equipment to 

use the UGA 3-Way mixture at a cost of $3,450 is not affordable for growers under four 

acres, amortized over 10 years at 7% interest (7% is a home equity loan rate for this 

region at the time the nomination was submitted; interest on agricultural loans could be 

lower). However, due to variations in impacts for individual growers and uncertainties in 

the assumptions used in the economic analysis, farms smaller than 10 acres are 

reasonably expected to incur negative impacts from having to covert to the UGA 3-Way 

mixture. Therefore, EPA is proposing to limit the Georgia cucurbit, eggplant, pepper, and 

tomato critical uses to small growers, which EPA is proposing to define as growers 

growing fewer than 10 acres. EPA seeks comment on these proposed changes to 

Appendix L.

EPA is not proposing other changes to the table but is repeating the following

clarifications made in previous years for ease of reference. The “local township limits 

prohibiting 1,3-dichloropropene” are prohibitions on the use of 1,3-dichloropropene 

products in cases where local township limits on use of this alternative have been 

reached. In addition, “pet food” under subsection B of Food Processing refers to food for 
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domesticated dogs and cats. Finally, “rapid fumigation” for commodities is when a buyer 

provides short (two working days or fewer) notification for a purchase or there is a short 

period after harvest in which to fumigate and there is limited silo availability for using 

alternatives.

E. Proposed Critical Use Amounts 

Table A of the annex to Decision XXIII/4 lists critical uses and amounts agreed to 

by the Parties to the Montreal Protocol. When added together, the total authorized critical 

use for 2013 for the U.S. is 562,326 kilograms (kg), which is equivalent to 2.2% of the 

U.S. 1991 methyl bromide consumption baseline of 25,528,270 kg. The maximum 

amount of new production and import for U.S. critical uses, specified in Table B of 

Decision XXIII/4, is 562,326 kg, minus available stocks. The difference is the minimum 

that the Parties expect the U.S. to use from pre-phaseout inventory on critical uses. In 

previous years, the maximum amount of new production has been less than the total 

authorization. As with previous years, for 2013 the Parties indicated that the U.S. should 

use “available stocks,” but unlike previous years, the Parties did not specify a minimum 

amount to be taken from stocks.

EPA is proposing to allocate 499,882 kg of new production or import allowances 

and 62,444 kg of critical stock allowances for a total allocation of 562,326 kg. As 

discussed below, EPA is taking comment on a range of CSA amounts between 0 kg and 

124,888 kg, with a corresponding adjustment to the new production/import allowances. 

Regardless of the precise allocation between CUAs and CSAs, EPA is proposing that the 

total allocation for the critical use exemption for 2013 be 562,326 kg. The following subsections explain EPA’s reasons for proposing those critical use amounts for 2013. EPA 
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welcomes comment on the proposed levels of exempted new production and import for 

critical uses and the amount of material that may be sold from pre-phaseout inventory for 

critical uses.

1. Approach for Determining Critical Stock Allowances

The 2004 Framework Rule (69 FR 52366) established provisions governing the 

sale of pre-phaseout inventories for critical uses, including the concept of critical stock 

allowances (CSAs) and a prohibition on the sale of pre-phaseout inventory for critical 

uses in excess of the amount of CSAs held by the seller. The Framework Rule also 

established trading provisions that allow CUAs to be converted into CSAs. EPA is not 

proposing changes to these CSA provisions for 2013.

In the Framework Rule, 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 allocation 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 

has determined the portion of CUE methyl bromide to come from new production and 

import such that the total amount of methyl bromide exempted for critical uses did not 

exceed the total amount authorized by the Parties for that year.

As established in the earlier rulemakings, EPA views the inclusion of these 

additional amounts in the calculation of the year’s overall CSA level as an appropriate 

exercise of discretion. The Agency is not required to allocate the full amount of 

authorized new production and consumption. The Parties only agree to “permit” a 
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particular level of production and consumption; they do not – and cannot – mandate that 

the U.S. authorize this level of production and consumption domestically. Nor does the 

CAA require EPA to allow the full amount permitted by the Parties. Section 604(d)(6) of 

the CAA does not require EPA to exempt any amount of production and consumption 

from the phaseout, but instead specifies that the Agency “may” create an exemption for 

critical uses, providing EPA with substantial discretion. 

When determining the CSA amounts, EPA considers what portion of existing 

stocks would be “available” for critical uses during that control period. The Parties to the 

Protocol recognized in their Decisions that the level of existing stocks may differ from 

the level of available stocks. Decision XXIII/4 states that “production and consumption 

of methyl bromide for critical uses should be permitted only if methyl bromide is not 

available in sufficient quantity and quality from existing stocks...” In addition, earlier 

Decisions refer to the use of “quantities of methyl bromide from stocks that the Party has 

recognized to be available.” Thus, it is clear that individual Parties have the ability to 

determine their level of available stocks. Decision XXIII/4 further reinforces this concept 

by including the phrase “minus available stocks” as a footnote to the United States’ 

authorized level of production and consumption in Table B. 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 Decision XXIII/4, the total authorized CUE amount and the amount of new 

production or import authorized by the Parties for 2013 are equivalent, indicating that the 

Parties did not establish a minimum stock amount. EPA does not interpret the Decision to 
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mean that the U.S. need not consider available stocks. The authorized amount of new 

production or import in Decision XXIII/4 still includes the subtraction of “available 

stocks.” Consistent with EPA’s past practice, and our commitments to the Parties, EPA is 

allocating CSAs for “available stocks.” However, EPA is changing its approach to 

determining the availability of stocks.

In past years’ rulemakings, EPA calculated the amount of “available” stocks using 

a formula adopted in the 2008 CUE rule: ASCP = ESPP – DPP – SCFCP, where ASCP would 

be the available stocks on the first day of the control period; ESPP would be the existing 

pre-phaseout stocks of methyl bromide held in the United States by producers, importers, 

and distributors on the first day of the prior control period; DPP would be the estimated 

drawdown of existing stocks during the prior control period; and SCFCP would be the 

supply chain factor for the control period. 

EPA is proposing to not apply this formula to determine the precise amount of 

“available stocks” for 2013. Instead EPA is proposing to allocate critical stock 

allowances equal to a percentage of the existing inventory. EPA believes that the 

framework calculation is increasingly inaccurate as the amount of inventory declines, 

overly complex, and contributes to delay in issuing the final critical use exemption. EPA 

is seeking comment on this proposed approach as well as the proposed percentage that 

the agency believes will be available. 

EPA is proposing this simpler approach for allocating critical stock allowances 

because the old approach was no longer effective. In the 2012 Final Rule, EPA 

recognized “that its estimates [of available stocks] have become increasingly inexact in 

characterizing actual drawdown of pre-phaseout inventory, as the amounts in inventory 
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have declined over time. EPA intends to consider the adequacy of using this formula to 

assess ‘available stocks’ in a future action.” Initially, the drawdown estimate was a 

simple linear model based on past years’ rates. EPA modified the approach when it 

became apparent that the inventory drawdown was decreasing exponentially rather than 

linearly. EPA noted in the 2009 CUE Rule that the rate of drawdown was based mostly 

on the business decisions of the companies that hold pre-phaseout inventory, and 

included aspects that are difficult for EPA to know or quantify, such as honoring longterm relationships with non-CUE customers or holding inventory in response to price 

fluctuations. To refine the analysis in subsequent rules EPA separately analyzed the use 

of inventory on critical uses, for which there are a set number of allowances, and noncritical uses, for which there are not. Despite increased specificity, the estimate still 

proved inaccurate. In successive years, EPA substantially overestimated inventory 

drawdown. Most recently, in the 2012 Rule, EPA estimated a drawdown of 1,110,633 

kg, when the actual drawdown was half that amount, or 556,794 kg. The results of the 

methodology using the updated data were sufficiently different that EPA considered 

providing additional notice and the opportunity to comment to incorporate them into the 

final allocation rule. EPA is concerned that as the total amount of both the U.S. 

authorization and the pre-phaseout stocks become smaller, efforts to perfect EPA 

estimates in this area will delay needed rulemaking.

Moreover, EPA believes that the fact that its projections consistently overestimate the amount of inventory that will be drawn down is evidence that EPA has been 

substantially over-estimating the availability of pre-phaseout stocks. EPA has received 

comments in past rulemakings that existing inventory was not actually available to users 
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because of reductions in the number of distributors, and decisions by distributors not to 

sell inventory. While EPA believes it is appropriate to rely on market flexibility and 

efficiency to distribute existing stocks of inventory, EPA recognizes that the data appear 

to show that inventory is less “available” than was estimated under EPA’s prior approach.

EPA believes problems with the existing formula would only become worse due 

to a recent change in the geographic distribution of critical users. In the past, EPA has

considered all pre-phaseout inventory to be available to all users, regardless of location. 

This assumption, as discussed in the 2009 CUE rule (74 FR 19887), was based on the fact 

that inventory is held in California and the Southeast, as well as other locations around 

the country. While the geographic distribution of inventory generally remains the same, 

the authorized critical uses have shifted to California over the last two years. In the 2011 

control period, 49% of the total authorization was for pre-plant uses in California and 

38% was for pre-plant uses in the Southeast. In 2013, this ratio will be 91% and 4% 

respectively.1

EPA believes that inventory held in the Southeast may not be equally available to 

critical users in California. Stakeholders have told EPA that distributors do not ship prephaseout inventory to buyers across the country. Unlike newly produced or imported 

material which enters nationwide distribution networks, inventory is mostly held by 

regional distributors. In addition, those distributors typically sell both the gas and the 

application services together. Distributors would therefore incur additional expense to 

ship material without being able to charge for performing the application. EPA 

 

1 EPA treats company-specific methyl bromide inventory information as confidential and believes that 

disaggregating the inventory data by geographic area could potentially reveal CBI. EPA solicits comment 

on this issue but is not proposing at this time to release data showing how much inventory is located in or 

near California. However, even in the absence of specific inventory data broken down by region, EPA 

believes that the fact that over 90% of critical use is in California is relevant to judging the availability of 

existing stocks.
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specifically encourages comment on the question of whether inventory held in one part of 

the country has been or can be transported to critical uses in another part of the country.

Another reason EPA is proposing to allocate critical stock allowances equal to a 

percentage of the existing inventory is that EPA believes this method will be easier to 

calculate and will help streamline the issuance of the CUE allocation rule. EPA has 

received comment in the past few CUE Rules that the agency should find ways to issue 

the allocation rulemakings before the start of the control period. In the 2012 CUE final 

rule, EPA stated that the agency “will consider means of streamlining the Critical Use 

Exemption rulemaking in the future so that the rule can be issued prior to the start of the 

control period.” Absent that, EPA will seek to issue a final rule as soon into the control 

period as possible. EPA is concerned that efforts to correct estimates and incorporate the 

most recent data into the calculation of the supply chain factor and the rest of the formula 

will further delay future CUE rules. EPA recognized in the 2012 Rule that “the timesensitive need for a CUE authorization for the current calendar year and concluded that 

re-opening the allocation for comment is not warranted.” EPA believes that its prior 

formula attempted to achieve greater precision than was possible or needed, especially in 

light of the continued reduction in both inventory and annual authorization for critical 

uses. Thus, EPA believes that it is appropriate to adopt a simpler approach, which 

provides a greater likelihood of expediting the rulemaking process. EPA will continue to 

consider other possible means of streamlining the CUE rulemaking process in the future. 

As part of EPA’s proposal to allocate a minimum amount of available stocks, 

EPA is proposing to end its use of the supply chain factor (SCF). The SCF was one of the 

inputs EPA used to determine the amount of existing methyl bromide stocks that is 
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“available” for critical uses. The SCF was a technical estimate of the amount of inventory 

that would be adequate to meet the need for critical uses after an unforeseen domestic 

production failure. EPA estimated that it would take 15 weeks for significant imports of 

methyl bromide to reach the U.S in such an event. 

Because EPA is proposing not to use the available stocks calculation developed in 

the 2008 CUE Rule to determine the amount of available stocks for use by critical users 

in 2013, calculation of the SCF is unnecessary. As EPA stated in previous CUE Rules, 

the SCF is not a “reserve” or a “strategic inventory” of methyl bromide but is merely an 

analytical tool used as part of the prior formula for determining the amount of available 

stocks.2

 EPA notes that the entire amount of new production authorized for 2013 is 562 

MT, which is substantially less than the existing inventory. EPA believes that, although 

portions of the existing inventory may not practically be available under usual 

circumstances (e.g., because it may be located in the Southeast and not California), users 

may be able to access greater amounts of inventory in the event of extraordinary 

circumstances such as a catastrophic domestic production failure.

In addition to soliciting comment on the approach of calculating CSAs as a 

percentage of existing inventory, EPA is also soliciting comment on the specific 

percentage of inventory to be used. Since 2006, the amount of prior year inventory used 

through the expenditure of CSAs has ranged from 8% to 26%. EPA believes that it 

would be appropriate to select a percentage that is below the historic range for several 

reasons. First, EPA wishes to ensure that the amount allocated for 2013 will be available 

to critical users in that year. As discussed above, EPA believes availability of existing 

 

2 The SCF was EPA’s technical estimate of the amount of inventory that would be adequate to meet the 

need for critical use methyl bromide after an unforeseen domestic production failure, until imports became 

available.
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inventory is becoming increasingly difficult to estimate as pre-2005 inventory declines. 

Although EPA is proposing to consider historic patterns of availability in considering 

how many CSAs to allocate, the fact that stocks in the Southeast may be unavailable as a 

practical matter for growers in California, while critical uses have recently become highly 

concentrated in California, suggests that, even under this approach, a conservative 

approach to estimating availability of inventory is warranted.

In addition, EPA believes it is appropriate to select a percentage at or below the 

low end of the historic range of inventory use for CUE in light of recent developments 

regarding iodomethane. In March 2012, Arysta LifeScience, the manufacturer of 

iodomethane, announced that it was suspending the sale of iodomethane across the 

United States. When the U.S. submitted the 2013 CUN to UNEP in early 2011, this 

alternative was registered for use on ornamentals, peppers, tomatoes, and strawberries in 

48 states including California and states in the Southeast. Many critical users had been 

transitioning to this alternative since the product was federally registered in 2010. 

Adopting a conservative approach to determining the amount of available stocks in 2013 

would help ensure that methyl bromide inventory exists for non-critical uses affected by 

the withdrawal of this product. However, in 2013 some uses were not authorized, in part, 

based on their ability to use iodomethane as an alternative. As EPA has stated in past 

rules, the agency is not proposing to add uses that were not authorized as critical uses by 

the Parties in Decision XXIII/4. However, selecting a percentage at the lower end of the 

historic range of inventory usage takes into consideration the possibility that there will be 

increased demand for stocks for non-critical uses in 2013.
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After consideration of these factors, EPA is proposing to allocate critical stock 

allowances equal to 5% of the January 1, 2012, reported inventory. The inventory as of 

that date was 1,248,876 kg. Therefore, EPA is proposing to allocate 62,444 kg of critical 

stock allowances for 2013. EPA believes it is reasonable assume that 5% of existing 

inventory on January 1, 2012, will be available for critical users in 2013. Historically, the 

drawdown of inventory for all uses has never exceeded 42% of the prior year’s inventory. 

Drawdown would have to be over twice that rate in 2012 for there to be less inventory in 

2013 than the amount of the proposed CSA. Rather, EPA anticipates that the constraints 

on drawdown discussed in prior rules (e.g. critical uses capped by allocation amounts, 

revised labeling removing uses, increased value of the material as supply decreases) will 

continue to limit the drawdown in 2012. At the same time, expenditure of CSAs have 

never amounted to less than 8% of inventory, and even if inventory was purchased for 

critical uses at only half that rate, it would still amount to 4% of the existing inventory, so 

EPA anticipates that at least that much inventory will be available for critical uses during 

2013.

The agency welcomes comment on a range of values from 0% to 10% of existing 

inventory, or 0 kg to 124,888 kg. The new production amounts would be correspondingly 

changed such that the total authorization would be 562,326 kg, regardless of the CSA 

amount. EPA is not proposing to allocate CSAs equal to more than 10% of existing 

inventory because the agency wants to ensure that the amount allocated for 2013 will be 

available to critical users in that year.

In summary, EPA is proposing to allocate an amount of available inventory based 

on a percentage of the existing inventory. EPA is proposing 5% of the 2012 reported 
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inventory, or 62,444 kg, but welcomes comment on a range of values from 0-10%. As in 

past years, EPA would allocate CSAs 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 listed companies of their 

CSA allocations in a letter following publication of the final rule. 

3. Approach for Determining New Production and Import Allowances

For 2013, EPA is proposing to generally apply the existing framework established 

in the Framework Rule. Under this approach, the amount of new production would equal

the total amount authorized by the Parties to the Montreal Protocol in Decision XXIII/4, 

minus the CSA amount detailed above, minus any reductions for carryover and the 

uptake of alternatives. Applying this established approach, EPA is proposing to exempt

limited amounts of new production and import of methyl bromide for critical uses in 

2013 such that the total authorization equals 562,326 kg. Because EPA proposed a range 

of values for the critical stock allocation, there would be a corresponding range of values 

for the new production/import amount from to 437,438 kg to 562,326 kg. EPA is 

proposing the midpoint of 499,882 kg. EPA is taking comment on this approach.

Carryover Material The Parties in paragraph 6 of Decision XXIII/4 “urge parties 

operating under critical-use exemptions to put in place effective systems to discourage 

the accumulation of methyl bromide produced under the exemption.” As discussed in the 
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Framework Rule, EPA regulations prohibit methyl bromide produced or imported after 

January 1, 2005, under the critical use exemption being added to the existing pre-2005 

inventory. Quantities of methyl bromide produced, imported, exported, or sold to endusers 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 endusers in that year. EPA deducts 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. Carryover material (which is produced using critical use allowances) is not 

included in EPA’s definition of existing inventory (which applies to pre-2005 material) 

because this would lead to a double-counting of carryover amounts, and a double 

reduction of critical use allowances (CUAs).

All critical use methyl bromide that companies reported to be produced or 

imported in 2011 was sold to end users. The information reported to EPA is that 1,499 

MT of critical use methyl bromide was produced or imported in 2011. Slightly more than 

the amount produced or imported was actually sold to end-users. This additional amount 

was from distributors selling material that was carried over from the prior control period.

Using the existing framework, EPA is proposing to apply the carryover deduction of 0 kg 

to the new production amount. EPA’s calculation of the amount of carryover at the end of 

2011 is consistent with the method used in previous CUE rules, and with the method 

agreed to by the Parties in Decision XVI/6 for calculating column L of the U.S. 

Accounting Framework. Past U.S. Accounting Frameworks, including the one for 2011,

are available in the public docket for this rulemaking.
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Uptake of Alternatives Under the existing framework, EPA considers data on the 

availability of alternatives that it receives following submission of each nomination to 

UNEP. In previous rules EPA has reduced the total CUE amount when a new alternative 

has been registered. Because EPA determines the CSA allocation separately, any 

reduction in the total amount has been reflected in a corresponding reduction in the 

allocation for new production/import. However, where an alternative is withdrawn, EPA 

cannot propose to increase the total CUE amount above the amount authorized by the 

Parties.

Another development since the USG submitted the 2013 CUN is that Dimethyl 

Disulfide (DMDS) has been registered in additional states. In July 2010, EPA registered 

DMDS to control nematodes, weeds, and pathogens in tomatoes, peppers, eggplants, 

curcurbits, strawberries, ornamentals and forest nursery seedlings, and onions. The CUN 

considered only a limited uptake in 2013. At that time only a few states had registered 

DMDS and it was not registered in either California or Florida. Twenty-four states have 

now registered DMDS, including Georgia and Florida.

EPA is proposing not to make a reduction to the new production/import allocation 

based on these additional state registrations. As discussed above, over 90% of the amount 

authorized is for critical uses in California, which has not yet registered DMDS. EPA 

anticipates that the uptake of DMDS in the Southeast will therefore not significantly 

affect total demand for critical use methyl bromide. 

EPA is not proposing to make any other modifications for alternatives. Transition 

rates for other alternatives have already been applied for authorized 2013 critical use 

amounts through the nomination and authorization process. EPA will consider new data 
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received during the comment period and continues to gather information about methyl 

bromide alternatives through the CUE application process, and by other means. EPA also 

continues to support research and adoption of methyl bromide alternatives, and to request 

information about the economic and technical feasibility of all existing and potential 

alternatives.

Allocation Amounts EPA is proposing to allocate 2013 critical use allowances for 

new production or import of methyl bromide equivalent to 499,882 kg. Because EPA is 

proposing a range of values for the critical stock allocation, EPA is taking comment on 

the corresponding range of values for the new production/import amount from to 437,438 

kg to 562,326 kg.

EPA is proposing to allocate allowances to the four companies that hold baseline 

allowances. The proposed allocation, as in previous years, is in proportion to those 

baseline amounts, as shown in the proposed changes to the table in 40 CFR 82.8(c)(1).

Paragraph 3 of Decision XXIII/4 states “that parties shall endeavor to license, permit, 

authorize or allocate quantities of methyl bromide for critical uses as listed in table A of 

the annex to the present decision.” This is similar to language in prior Decisions 

authorizing critical uses. These Decisions call 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 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 
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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.

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

Paragraphs 1 and 4 of Decision XXIII/4 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 2013 control period. A discussion of the agency’s 

application of the criteria in paragraph 1 of Decision IX/6 appears in sections V.A., V.D., 

and V.E. of this preamble. In section V.D. the agency solicits comments on the technical 

and economic basis for determining that the uses listed in this proposed rule meet the 

criteria of the critical use exemption. The CUNs detail how each proposed critical use 

meets the criteria listed in paragraph 1 of Decision IX/6, apart from the criterion located 

at (b)(ii), as well as the criteria in paragraphs 5 and 6 of Decision Ex. I/4. 

The criterion in Decision IX/6(1)(b)(ii), which refers to the use of available stocks 

of methyl bromide, is addressed in section V.E. 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 “Development of 2003 Nomination for a Critical Use Exemption for Methyl 

Bromide for the United States of America” for further elaboration.
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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, updated in October 2009, as well as 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.

There continues to be a need for methyl bromide to conduct the research required 

by Decision IX/6. A common example is an outdoor field experiment that requires 

methyl bromide as a standard control treatment with which to compare the trial 

alternatives’ results. As discussed in the preamble to the 2010 CUE rule (75 FR 23179), 

research is a key element of the critical use process. Research on the crops shown in the 

table in Appendix L to subpart A remains a critical use of methyl bromide. While 

researchers may continue to use newly produced material for field, post-harvest, and 
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emission minimization studies requiring the use of methyl bromide, EPA encourages 

researchers to use pre-phaseout inventory purchased through the expenditure of CSAs. 

EPA also encourages distributors to make inventory available to researchers, to promote 

the continuing effort to assist growers to transition critical use crops to alternatives.

G. 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. EPA developed a 

comprehensive strategy for risk mitigation through the 2006 Reregistration Eligibility 

Decision (RED) for methyl bromide, which is implemented through restrictions on how 

methyl bromide products can be used. This approach requires that methyl bromide labels 

include directions that treated sites be tarped except for California orchard replant where 

EPA instead requires deep (18 inches or greater) shank applications. The RED also 

incorporated incentives for applicators to use high-barrier tarps, such as virtually 

impermeable film (VIF), by allowing smaller buffer zones around those sites. In addition 

to minimizing emissions, use of high-barrier tarps has the benefit of providing pest 

control at lower application rates. The amount of methyl bromide nominated by the 

United States reflects the lower application rates necessary when using high-barrier tarps, 

where such tarps are allowed.

EPA will continue to work with the U.S. Department of Agriculture –

Agricultural Research Service (USDA-ARS) to promote emission reduction techniques. 

The federal government has invested substantial resources into best practices for methyl 
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bromide use, including emission reduction practices. USDA-ARS has a national outreach 

effort to publicize the best practices. Additional information on USDA research on 

alternatives and emissions reduction can be found at: 

http://www.ars.usda.gov/research/programs/programs.htm?NP_CODE=308.

Users of methyl bromide should continue to make every effort to minimize 

overall emissions of methyl bromide to the extent consistent with State and local laws 

and regulations. EPA also encourages researchers and users who are successfully using 

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 

proposal is a “significant regulatory action.” This action is likely to result in a rule that 

may raise novel legal or policy issues. Accordingly, EPA submitted this action to the 

Office of Management and Budget (OMB) for review under 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 propose to 

change any of those existing requirements. The Office of Management and Budget 
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(OMB) has previously approved the information collection requirements contained in the 

existing regulations at 40 CFR part 82 under the provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-0482. The OMB 

control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

The RFA generally requires an agency to prepare a regulatory flexibility analysis 

of any rule subject to notice-and-comment rulemaking requirements under the 

Administrative Procedure Act or any other statute unless the agency certifies that the rule 

will not have a significant economic impact on a substantial number of small entities.

Small entities include small businesses, small organizations, and small governmental 

jurisdictions. For purposes of assessing the impacts of this rule on small entities, small 

entity is defined as: (1) a small business as defined by the Small Business 

Administration’s regulations at 13 CFR 121.201 (see Table below); (2) a small 

governmental jurisdiction that is a government of a city, county, town, school district or 

special district with a population of less than 50,000; and (3) a small organization that is 

any not-for-profit enterprise which is independently owned and operated and is not 

dominant in its field.

Category NAICS code SIC code NAICS Small business 

size standard (in 

number of employees 

or millions of dollars)

Agricultural 

production

1112- Vegetable and 

Melon farming

0171- Berry Crops $0.75 million

1113- Fruit and Nut 

Tree Farming

0172- Grapes

1114- Greenhouse, 

Nursery, and 

Floriculture Production

0173- Tree Nuts

0175- Deciduous Tree Fruits 

(except apple orchards and 

farms)

0179- Fruit and Tree Nuts, NEC
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0181- Ornamental Floriculture 

and Nursery Products

0831- Forest Nurseries and 

Gathering of Forest Products

Storage Uses 115114- Postharvest 

Crop activities (except 

Cotton Ginning)

$7 million

311211- Flour Milling 2041- Flour and Other Grain 

Mill Products

500 employees

311212- Rice Milling 2044- Rice Milling 500 employees 

493110- General 

Warehousing and 

Storage

4225- General Warehousing and 

Storage

$25.5 million

493130- Farm Product 

Warehousing and 

Storage

4221- Farm Product 

Warehousing and Storage

$25.5 million

Distributors and 

Applicators

115112- Soil 

Preparation, Planting 

and Cultivating

0721- Crop Planting, Cultivation, 

and Protection

$7 million

Producers and 

Importers

325320- Pesticide and 

Other Agricultural 

Chemical 

Manufacturing

2879- Pesticides and Agricultural 

Chemicals, NEC

500 employees

Agricultural producers of minor crops and entities that store agricultural 

commodities are categories of affected entities that contain small entities. This proposed 

rule would only affect entities that applied to EPA for an exemption to the phaseout of 

methyl bromide. In most cases, EPA received aggregated requests for exemptions from 

industry consortia. On the exemption application, EPA asked consortia to describe the 

number and size distribution of entities their application covered. EPA estimated that 

3,218 entities petitioned EPA for an exemption for the 2005 control period. EPA revised 

this estimate in 2011 down to 1,800 end users of critical use methyl bromide. EPA 

believes that the number continues to decline as growers cease applying for critical uses. 

Since many applicants did not provide information on the distribution of sizes of entities 

covered in their applications, EPA estimated that, based on the above definition, between 

one-fourth and one-third of the entities may be small businesses. In addition, other 
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categories of affected entities do not contain small businesses based on the above 

description.

After considering the economic impacts of this proposed rule on small entities, I 

certify that this action will not have a significant economic impact on a substantial 

number of small entities. In determining whether a rule has a significant economic impact 

on a substantial number of small entities, the impact of concern is any significant adverse

economic impact on small entities, since the primary purpose of the regulatory flexibility 

analyses is to identify and address regulatory alternatives “which minimize any 

significant economic impact of the proposed rule on small entities.” (5 U.S.C. §§ 603-

604). Thus, an agency may certify that a rule will not have a significant economic impact 

on a substantial number of small entities if the rule relieves a regulatory burden, or 

otherwise has a positive economic effect on all of the small entities subject to the rule.

Since this rule would allow the use of 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. EPA estimates in the Regulatory Impact Assessment found in the docket to this 

rule that the reduced costs resulting from the de-regulatory creation of the exemption are 

approximately $22 million to $31 million on an annual basis (using a 3% or 7% discount 

rate respectively). We have therefore concluded that this proposed rule would relieve 

regulatory burden for all small entities.

D. Unfunded Mandates Reform Act

This action contains no Federal mandates under the provisions of Title II of the 

Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, 

or tribal governments or the private sector. The action imposes no enforceable duty on 
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any State, local or tribal governments or the private sector. Instead, this action would 

provide an exemption for the manufacture and use of a phased out compound and would

not impose any new requirements on any entities. Therefore, this action is not subject to 

the requirements of sections 202 or 205 of the UMRA. This action is also not subject to 

the requirements of section 203 of UMRA because it contains no regulatory requirements 

that might significantly or uniquely affect small governments. 

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have substantial 

direct effects on the States, on the relationship between the national government and the 

States, or on the distribution of power and responsibilities among the various levels of 

government, as specified in Executive Order 13132. This proposed rule is expected to 

primarily affect producers, suppliers, importers, and exporters and users of methyl 

bromide. Thus, Executive Order 13132 does not apply to this proposed rule. In the spirit 

of Executive Order 13132, and consistent with EPA policy to promote communications 

between EPA and State and local governments, EPA specifically solicits comment on this 

proposed action from State and local officials.

F. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments

This action does not have tribal implications, as specified in Executive Order 

13175 (65 FR 67249, November 9, 2000). This rule does not significantly or uniquely 

affect the communities of Indian tribal governments nor does it impose any enforceable 

duties on communities of Indian tribal governments. Thus, Executive Order 13175 does 
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not apply to this action. EPA specifically solicits additional comment on this proposed 

action from tribal officials.

G. Executive Order No. 13045: Protection of Children from Environmental Health 

and Safety Risks

EPA interprets EO 13045 (62 F.R. 19885, April 23, 1997) as applying 

only to those regulatory actions that concern health or safety risks, such that the 

analysis required under section 5-501 of the EO has the potential to influence the 

regulation. This action is not subject to EO 13045 because it does not establish an 

environmental standard intended to mitigate health or safety risks.

H. Executive Order 13211: Actions that Significantly Affect Energy Supply, 

Distribution, or Use

This proposed rule is not a “significant energy action” as defined in Executive 

Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, 

Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a 

significant adverse effect on the supply, distribution, or use of energy. This proposed rule 

does not pertain to any segment of the energy production economy nor does it regulate 

any manner of energy use. Therefore, we have concluded that this proposed rule is not 

likely to have any adverse energy effects.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 

(“NTTAA”), Public Law No. 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 
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are technical standards (e.g., materials specifications, test methods, sampling procedures, 

and business practices) that are developed or adopted by voluntary consensus standards 

bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the 

agency decides not to use available and applicable voluntary consensus standards. This 

proposed rulemaking does not involve technical standards. Therefore, EPA is not 

considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in 

Minority Populations and Low-Income Populations

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental justice. Its main provision directs federal agencies, to 

the greatest extent practicable and permitted by law, to make environmental justice part 

of their mission by identifying and addressing, as appropriate, disproportionately high 

and adverse human health or environmental effects of their programs, policies, and 

activities on minority populations and low-income populations in the United States.

EPA has determined that this proposed rule will not have disproportionately high 

and adverse human health or environmental effects on minority or low-income 

populations, because it affects the level of environmental protection equally for all 

affected populations without having any disproportionately high and adverse human 

health or environmental effects on any population, including any minority or low-income 

population. Any ozone depletion that results from this proposed rule will impact all 

affected populations equally because ozone depletion is a global environmental problem 

with environmental and human effects that are, in general, equally distributed across 

geographical regions in the United States.
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List of Subjects in 40 CFR Part 82

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

DATE: ____________________

______________________________________________

Lisa P. Jackson, 

Administrator.

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

follows:

PART 82- PROTECTION OF STRATOSPHERIC OZONE

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

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

2. Section 82.8 is amended as follows:

a. by revising the table in paragraph (c)(1);

b. by revising paragraph (c)(2) including the table.

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

* * * * *

(c) * * *

(1) * * * 

Company 2013 Critical use allowances for 

pre-plant uses* (kilograms)

2013 Critical use allowances for 

post-harvest uses* (kilograms)

Great Lakes Chemical Corp.

A Chemtura Company

287,633 16,145

Albemarle Corp. 118,281 6,639

ICL-IP America 65,365 3,669

Protection of Stratospheric Ozone: The 2013 Critical Use Exemption from the 

Phaseout of Methyl Bromide (Page 45 of 48)
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TriCal, Inc. 2,035 114

Total** 473,315 26,567

* 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 2013 on a pro-rata basis 

in relation to the inventory held by each.

Company

Albemarle Degesch America, Inc. Prosource One

Bill Clark Pest Control, Inc. Helena Chemical Co. Trical Inc.

Burnside Services, Inc. ICL-IP America Trident Agricultural Products

Cardinal Professional Products Industrial Fumigant Company TriEst Ag Group, Inc.

Chemtura Corp. Pacific Ag Supplies Inc. Univar

Crop Production Services Pest Fog Sales Corp. Western Fumigation

TOTAL –62,444 kilograms

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

APPENDIX L TO SUBPART A OF PART 82 – APPROVED CRITICAL USES 

AND LIMITING CRITICAL CONDITIONS FOR THOSE USES FOR THE 2013

CONTROL PERIOD

Column A Column B Column C

Approved 

Critical Uses

Approved Critical User and Location 

of Use

Limiting Critical Conditions

that exist, or that the approved critical user reasonably 

expects could arise without methyl bromide fumigation:

PRE-PLANT USES

Cucurbits Georgia growers on fewer than 10 acres Moderate to severe yellow or purple nutsedge infestation

Moderate to severe soilborne disease infestation 

Moderate to severe root knot nematode infestation
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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 on fewer than 10 

acres

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

Nursery 

Stock (Fruit, 

Nut, Flower)

Members of the California Association 

of Nursery and Garden Centers 

representing Deciduous Tree Fruit 

Growers

Moderate to severe nematode infestation

Medium to heavy clay soils

Local township limits prohibiting 1,3-dichloropropene

Orchard 

Replant

California stone fruit, table and raisin 

grape, wine grape, walnut, and almond 

growers

Moderate to severe nematode infestation

Moderate to severe soilborne disease infestation

Replanted orchard soils to prevent orchard replant 

disease

Medium to heavy soils

Local township limits prohibiting 1,3-dichloropropene

Ornamentals (a) California growers Moderate to severe soilborne disease infestation

Moderate to severe nematode infestation

Local township limits prohibiting 1,3-dichloropropene

(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) 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

(b) Georgia growers on fewer than 10 

acres

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

California growers Moderate to severe black root rot or crown rot

Moderate to severe yellow or purple nutsedge infestation

Moderate to severe nematode infestation

Local township limits prohibiting 1,3-dichloropropene

Time to transition to an alternative

Strawberry 

Nurseries

California growers Moderate to severe soilborne disease infestation

Moderate to severe yellow or purple nutsedge infestation

Moderate to severe nematode infestation

Tomatoes (a) 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
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(b) Georgia growers on fewer than 10 

acres

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

POST-HARVEST USES

Food 

Processing

(a) Rice millers in the U.S. who are 

members of the USA Rice Millers 

Association

Moderate to severe beetle, weevil, or moth infestation

Presence of sensitive electronic equipment subject to 

corrosion

Time to transition to an alternative

(b) Pet food manufacturing facilities in 

the U.S. who are members of the Pet 

Food Institute

Moderate to severe beetle, moth, or cockroach infestation

Presence of sensitive electronic equipment subject to 

corrosion

Time to transition to an alternative

(c) Members of the North American 

Millers’ Association in the U.S.

Moderate to severe beetle infestation

Presence of sensitive electronic equipment subject to 

corrosion

Time to transition to an alternative

Commodities California entities storing walnuts, dried 

plums, figs, raisins, and dates (in 

Riverside county only) in California.

Rapid fumigation required to meet a critical market 

window, such as during the holiday season

Dry Cured 

Pork Products

Members of the National Country Ham 

Association and the Association of Meat 

Processors, Nahunta Pork Center (North 

Carolina), and Gwaltney and Smithfield 

Inc.

Red legged ham beetle infestation

Cheese/ham skipper infestation

Dermested beetle infestation

Ham mite infestation