1 

## Arling, Jeremy

From: Whiteman, Chad <Chad_S_Whiteman@omb.eop.gov> Sent: Thursday, April 23, 2015 5:16 PM To: Donaldson, David Cc: Arling, Jeremy; Hufford, Drusilla; Schillo, Bruce Subject: RE: EO 12866 Comments on EPA draft MeBr CUE 2016 NO PR Attachments: EO12866 Review of EPA SNAP MeBr Criticial Use Exemp tion Proposed Rule - 2060-AS44 - 4 _23_2015.docx



### David, Attached are the follow-up comments on the draft pr oposed rule that can be identified by searching for EO12866 in the comment bubbles. These are the only outstanding co mments. Thanks, Chad

From: Donaldson, David [mailto:Donaldson.David@epa.gov] Sent: Tuesday, April 7, 2015 9:09 AM To: Whiteman, Chad Cc: Arling, Jeremy; Hufford, Drusilla; Schillo, Bruce Subject: RE: EO 12866 Comments on EPA draft MeBr CUE 2016 N OPR Chad, Please see the attached documents for the interagen cy call. Talk to you at 11. Best, David

From: Whiteman, Chad [ mailto:Chad_S_Whiteman@omb.eop.gov ] Sent: Friday, March 13, 2015 3:48 PM To: Donaldson, David Subject: EO 12866 Comments on EPA draft MeBr CUE 2016 NOPR Hi David, Attached are the EO 12866 interagency comments o n the EPA draft proposed rule titled, “Protection o f Stratospheric Ozone: The 2016 Critical Use Exemption from the Pha seout of Methyl Bromide,” RIN: 2060-AS44. Regards, Chad*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

1 of 29 6560

- 50

- P EO12866MeBrCUE2060
- AS44NPRM 040615 .doc ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 82 [EPA
- HQ
- OAR
- 2013
- 0369 ; FRL
- 9922
- 39
- OAR ] RIN: 2060
- AS44 Protection of Stratospheric Ozone: The 2016 Critical Use Exemption from the Phaseout of Methyl Bromide AGENCY: Environmental Protection Agency. ACTION: Proposed rule. SUMMARY: The Environmental Protection Agency ( EPA ) is proposin g uses that qualify for the critical use exemption and the amount of methyl bromide that may be produced or imported for those uses for the 2016 control period

. EPA is proposing this action under the authority of the Clean Air Act to reflect consensus decision s of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer at the Twenty

- Sixth Meeting of the Parties in November 2014

. DATES: Comments must be submitted by [ insert date 30 days after publication in the federal register ]

. ADDRESSES: Submit your comments, identified by Docket ID No. EPA
- HQ
- OAR
- - 2013
- 0369 , 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 Deleted: 01 20 15

Commented [A1]: Has EPA considered issuing a proposed rule for both the 2016 and 2017 control periods? If the agency has already proposed to the Parties of the Montreal Protocol the CUEs for 2017, then it would seem that including the 2017 control period in this rulemaking action would be a good idea. What are t he pros and cons of doing this? Commented [A2R1]: Response: The 2017 U.S. nomination is still under review by the parties. Commented [A3]: May be useful to include the month/year of the meeting to help explain the sequencing of events.*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

2 of 29  Phone: (202) 566

- 1742

 U.S. Mail: Docket EPA

- HQ

- OAR

- 2013

- 0369 , 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

- 2013

- 0369 , EPA Docket
Center

- Public Reading Room, EPA W est 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

- 2013

- 0369 . 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 , includi ng any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or oth erwise 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*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

3 of 29 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 or 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

. Dock et : All documents in the docket are listed on the www.regulations.gov web site

. Although listed in the index, some information is not publicly available, e.g., confidential business information ( CBI ) or other information whose disclo sure is restricted by st atute. Certain other material, such as copyrighted material, is not placed on the Internet and wi ll 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 Publi c Reading Room is (202) 566

- 1744, and the telephone number for the Air and Rad iation Docket is (202) 566

- 1742

. FOR FURTHER INFORMAT ION 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 Impl ementation Branch (6205 T ), 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 Deleted: ,*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

4 of 29 bromide critical use exemption, other Stratospheric Ozone Protection regulations, the science of ozone layer depletion, and related topics. SUPPLEMENTARY INFORMATION: This proposed rule concerns C lean Air Act (CAA) restrictions on the consumption, production, and use of methyl bromide (a Class I, Group VI controlled substance) for critica l uses during calendar year 201 6 . Under the Clean Air Act, methyl bromide consumption (consumption is defined un der 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 use s that will qualify for the critical use exemption as well as specific amounts of methyl bromide that may be produced and imported fo r proposed critical uses for 2016

. I. General Information Entities and categories of entities potentially regulated by this proposed action include producers, importers, and exporters of methyl bromide; applicators and distributors of methyl bromide; and users of methyl bromide that applied for the 2016 critical use exemption including growers of vegetable crops, ornamentals, fruits, and nursery stock, and owners of stored food commodities. 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 ques tions*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

5 of 29 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 inf ormation (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 iden tify 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 t hat 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 t he rulemaking by docket number and other identifying information (subject heading, Federal Register date, and page number).

 Follow directions

- The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Re gulations (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*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

6 of 29 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 po ssible, avoiding the use of profanity or personal threats.

 Make sure to submit your comments by the comment period deadline identified. II. What Is Methyl Bromide? Methyl bromide is an odorless, colorless, toxic gas which is used as a broad

spectrum pesti cide 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 regulato ry authority. Under FIFRA, methyl bromide is a restricted use pesticide. Restricted use pesticides are subject to Federal and State requirements governing their sale, distribution, and use. Nothing in this proposed rule implementing Title VI of 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 thi s proposal must comply with FIFRA and other pertinent statutory and regulatory requirements for pesticides (including, but not limited to, requirements pertaining to restricted use pesticides) when producing, importing, exporting, acquiring, selling, distr ibuting, transferring, or using methyl bromide. The provisions in this proposed action Commented [A4]: EPA is allowing CA to use methyl bromide, but not Florida or Georgia so it is not clear how this action does not limit the use of methyl bromide. Please explain. Commented [A5R4]: Response: This rule does not limit other authorities that may affect methyl bromide. For instance, it does not affect FIFRA labeling, CAA h aza rdous air pollutant controls , or CA Dept. of Pest icide Regulation use reporting.*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

7 of 29 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 brom ide. 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 (Montre al Protocol). The Montreal Protocol is the international agreement aimed at reducing and eliminating the production and consumption of stratospheric ozone

depleting substances. The United States was one of the original signatories to the 1987 Montreal Prot ocol , and the United States ratified the Protocol in 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 Pro tocol 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 bas eline for establishing a freeze on the level of methyl bromide production and consumption for developed countries. EPA*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

8 of 29 published a rule in the Federal Register on December 10, 1993 (58 FR 65018), listing methyl bromide as a Class I, Group VI controlled sub stance. 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 pro duction 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, th e Parties agreed to 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 United States continued to have a 2001 phas eout 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 Pa rties also established a phaseout date of 2015 for countries operating under Article 5 of the Protocol (developing countries )

.*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

9 of 29 IV. What Is the Legal Authority for Exempting the Production and Import of Methyl Bromide for Critical Uses Permitted by the Parties to the Montreal Protocol? In October 1998, the U.S. Congress amended the Clean Air Act to prohibit the termination of production of methyl bromide prior to January 1, 2005, to require EPA to align the U.S. phaseout of methyl bromide 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 co nsumption in a 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. T hrough an interim final rule on July 19, 2001 (66 FR 37751), and a final rule on January 2, 2003 (68 FR 238) , EPA amended the regulations to allow for an exemption for quarantine and preshipment purposes . On December 23, 2004 (69 FR 76982), EPA published a 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 t he critical use exemption framework for each of the annual control periods from 2006 to 2015

. Deleted: Authorized

Deleted: (QPS) Deleted: through an interim final rule on July 19, 2001 (66 FR 37751), and a final rule on January 2, 2003 (68 FR 238)*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

10 of 29 In accordance with Article 2H(5) of the Montreal Protocol , the Parties have issued several Decisions pertaining to the critical use exemption. These include Decis ions IX/6 and Ex. I/4, which s et forth criteria for review of 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 d ocket for this proposed action. In this propose d rule on critical uses for 2016, EPA is honoring commitments made by the United States in the Montreal Protocol context. Under authority of section 604(d)(6) of the CAA, EPA is now proposing the uses that will qualify a s approved critical uses for 2016 , as well as the amount of methyl bromide that may be produced or imported to satisfy those uses. The proposed critical uses and amounts reflect Decision XXVI / 6 , taken at the Twenty

- Si xth Meeting of the Parties in November 2014

. V. What I s the Critical Use Exemption Process? A. Background of the Process Article 2H of the Montreal Protocol established the critical use exemption provision. At th e Ninth Meeting of the Parties in 1997 , the Parties established the criteria for an exemption 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 t he lack of availability of methyl bromide for that use would result in a significant market disruption; and (ii) T here are no technically and economically feasible alternatives or substitutes available to the user that are acceptable from the standpoint of environment and health and are suitable to the crops and Deleted: [ proposing to honor ] [ Deleted: ] Commented [A8]: Response: Thi s has been standard CUE preamble language for many years. EO12866: Okay with l eaving original language.*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

11 of 29 circumstances of the nomination.” EPA promulgated these criteria in the definition of “critical use” at 40 CFR 82.3. In addition, Decision IX/6 provides that production and consumption, if any, of methyl bromide for critical uses should be permitted only if a variety of conditions have been met, including that a ll technically and economically feasible steps have been taken to minimize the critical use and any associated emission of methyl bromide , that research programs are in place to develop and deploy alternatives and substitutes , and that m ethyl bromide is not available in sufficient quantity and quality from existing stocks of banked or recycled methyl bromide. EPA requested critical use exemp tion applications for 2016 through a Federal Register notice published on May 31, 2013 (78 FR 32646). Applicants submitted data on their use of methyl bromide, the technical and economic feasibility of using alternatives, ongoing research programs into the use of alternatives in their sector, and efforts to minimize use and emissions of methyl bromide.
EPA review s the data submitted by applicants, as well as data from governmental and academic sources, to establish whether there are technically and economi cally 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, an interagency workgroup reviews other parameters of the exemption applica tions such as dosage and emissions minimization techniques and applicants’ research or transition plans. As required in section 604(d)(6) of the CAA, for each exemption period, EPA*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

12 of 29 consults with the United States Department of Agriculture (USDA)

. 1 This assessment process culminates in the development of the U.S. critical use nomination (CUN). Annually s ince 2003, t he U.S. Department of State has submitted a CUN to the United Nations Environment Programme (UNEP) Ozone Secretariat. The Methyl Br omide 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 Partie s then t ake Decisions on critical use exemptions for particular Parties, including how much methyl bromide may be supplied for the exempted critical uses. EPA then provides an opportunity for public comment on the amounts and specific uses of methyl bromide that the agency is proposing to exempt.
On January 22 , 201 4 , the United States submitted the twelfth Nomination for a Critical Use Exemption for Methyl Bromide for the United States of America to the Ozone Secretariat of UNEP. This nomination cont ained the requ est for 2016 critical uses. In March 2014, MBTOC sent questions to the United States concerning technical and economic issues in the 2016 nomination. The United States transmitted responses to MBTOC in March 2014. In May 2014 , the MBTOC prov ided their interim recommendations on the U.S. nomination in the May TEAP Interim Report. These documents, together with reports by the advisory bodies noted above, are in the public

1 See CAA section 604(d)(6): “To the extent consistent with the Montreal Protocol, the Administrator, after notice and the opportunity for public comment, and after consultation with other departments or instrumentalities of the Federal Governme nt having regulatory authority related to methyl bromide, including the Secretary of Agriculture, m ay exempt the production, importation, and consumption of methyl bromide for critical uses” Commented [A9]: Does this happen at the same time every year? Commented [A10R9]: Response: Yes.

Deleted: ,*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

13 of 29 docket for this rulemaking. The proposed critical uses and amounts permit ted in this rule reflect the analyse s contained in those documents. B. How Does This Proposed Rule Relate to Previous Critical Use Exemption Rules? The December 23, 2004, Framework Rule established the framework for the critical use exemption program in the United States , 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 and to indicat e which uses meet the criteria for the exemption program for that year. This proposed action continues the approach established in the 2013 R ule (78 FR 43797 , July 22, 2013 ) for determining the amounts of Critical Use Allowances (CUAs) to be allocated for critical uses. A CUA is the privilege granted through 40 CFR part 82 to produce or import 1 kilogram ( kg ) of methyl bromide for an approved critical use during the specified control period. A control period is a calendar year. See 40 CFR 82.3. Each year’s allowances expire at the end of that control period and, as explained in the Framework Rule, are not bankable from one year to the next.
C . Proposed Critical Uses In Decision XXVI

/ 6 , tak en in November 2014 , the Parties to the Protocol agreed “[t]o permit, for the agreed critical

- use categories for 2015 and 2016 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 Deleted: authorized Commented [A11]: EO12866: Suggest using permitted as opposed to authorized.

Deleted: r

Commented [A12]: Does the table also i nclude the quantity that may be used or j u st the critical

- use categories? If it includes the quantities, suggest including next to the categories list below. Commented [A13R12]: Response: Easier to follow a discussion of critical uses in this section and critical use amounts in the next section.*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

14 of 29 applicable, the levels of production and consumption for 2015 and 2016 set forth in table B of the annex to the present decision, which are necessary to satisf y critical uses ....” The following uses are those set forth in table A of the annex to Decision XXVI/ 6 for the United States for 2016 :

 C ured pork
 Strawberry field EPA is proposing to modify the table in 40 CFR part 82, subpart A, appendix L to reflect the agreed critical use catego ries for 2016

. EPA is proposing to amend the table of critical uses and critical users based on th e uses permitted in Decision XXVI/ 6 and the technica l analyses contained in the 2016 U.S. nomination that assess data submitted by applicants to the CUE program

. Specifically, EPA is proposing to remove the food processing uses that were listed as critical uses for 2014. The California Date Commission as well as all users under the food processing use (r ice millers , p et food manufacturing facilities , and m embers of the Nort h American M illers’ Association) d id not submit CUE applications for 2016 and therefore were not included in the 2016 U.S. nomination to the Parties of the Montreal Protocol

. EPA is also proposing to remove the remaining commodity uses ( walnuts, dried plums, figs, an d raisins). These sectors ap plied for a critical use in 2016 but the United
States did not nominate them for 201 6

. In addition, some sectors that were not on the list of critical uses for 2014 or 2015 submitted applications for 2016. These sectors are: Michigan c ucurbit , eggplant, pepper, and tomato growers; Florida eggplant, pepper, strawberry, and tomato growers; t he California Association of Nursery and Garden
Centers ; California stone fruit, table and raisin grape, walnut, and almond growers ; Deleted: amounts

Commented [A14]: Reproduce proposed (amended) table here? Or at least indicate amounts? Might also be helpful to identify critical uses, critical use amounts, and critical users for the prior year (or even reproduce the table found at http://www.epa.gov/ozone/mbr/cueinfo.html to demonstrate that CUE amounts are steadily declining? Commented [A15R14]: Comment 1: Reproduce proposed (amended) table here? Or at least indicate amounts? Response: Easier to follow a discussion of critical uses in this section and critical use amounts in the next section. The sentence should say “uses” and not “amounts.” See edit. Comment 2: Might also be helpful to identify critical uses, critical use amounts, and critical users for the prior year (or even reproduce the table found at http://www.epa.gov/ozone/mbr/cueinfo.html to demonstrate that CUE amounts are steadily declining? Response: This is accomplished by re

- ordering the subsequent paragraphs, per the next comment. Commented [A16]: Move paragraphs marked *** (below) to here, as they offer more detail on the specific proposed amendments to the table of critical uses and users? Deleted: EPA is proposing to amend appendix L to subpart A to reflect the lists of approved critical uses authorized by the Parties for 201 6.*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

15 of 29 ornamen tal growers in California and Florida; and the U.S. Golf Course Superintendents Association. EPA conducted a thorough technical assessment of each application and considered the effects that the loss of methyl bromide would have for each agricultu ral sector, and whether significant market disruption would occur as a result. As a result of this technical review, EPA in consultation with the USDA and the Department of State determined that these users did not meet the critical use criteria in Decision IX/6 and the United States therefore did not include them in the 2016 Critical Use Nomination. EPA notified these sectors of their status by letters dated March 28, 2014

. For each of these uses, EPA found that the re are technically and economically feasible alternatives to methyl bromide

. EPA requests comment on the technical assessment of the applications found in the docket to this rule and the determination that these users did not meet the critical use criteria and whether there is any new or additional information that the agency may consider in preparing future nominations. EPA is also seeking comment on the technical analyses contained in the U.S. nomination (available for public review in the do cket) and information regarding any changes to the registration (including cancellation s or registrations), use, or efficacy of alternatives tha t occurred after the nomination was submitted . EPA recognizes that as the market for alternatives evolves, the t hresholds for what constitutes “significant market disruption” or “technical and economic feasibility” may change. Such information has the potential to alter the technical or economic feasibility of an alternative and could thus cause EPA to modify the an alysis that underpins EPA’s determination as to which uses and what amounts of methyl bromide qualify for the CUE. EPA notes that it will not finalize a rule containing uses beyond those agreed to by the Parties for 2016

. Commented [A17]: Please provide the technical assessment. Commented [A18R17]: Respons e: This assessment can be found in the docket to the rule. Commented [A19R17]: EO12866: Please provide the document that contains the technical assessment . Suggest including a footnote here with the name of the document and docket number so that the public can reference th e technical assessment

.

Deleted: the United States Government ( U SG) Commented [A20]: Will EPA simply specify the other agencies...”the Department of State in consultation with EPA and USDA determined...”

Commented [A21]: Please include a discussion concerning how the agency arrived at this conclusion that there are technically and economically feasible alternatives to methyl bromide. EPA references the cost analysis that was conducted so it would be helpful to describe this in the preamble and go out for comment on the assumptions. Commented [A22R21]: Response: Added inserted sentence along with a re ference to the technical documents contained in the docket and reference to future nominations

. Commented [A23R21]: EO12866: It would be helpful if the agency could discuss the technical and economic analysis even if only a high level summary. For example, does the agenc y have any c ost information for MeBr and alternatives that would show that the cost of MeBr is the same or below the cost of alternatives (i.e. economically feasible)? Does EPA have any information that would show that that recent experience shows that al ternatives have been equally effective pesticides such that crop output is the equivalent ?

Commented [A24]: Suggest deleting or stating the challenges associated with changing; however, the agency should allow for the public notice and comment process to proceed before ma king such a definitive statement. Commented [A25R24]: Response: This is standard preamble language.*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

16 of 29 D . Proposed Critical Use Amounts Table A of the annex to Decision XXVI/ 6 lists critical uses and amounts agreed to by the Parties to the Montreal Protocol for 2016 . The maximum amount of new production and import for U.S. critical uses in 201 6 , specified in Table B of the annex to Decision XXVI/6 , is 234.78 MT , minus available stocks

. This figure is equivalent to less than 1 percent o f the U.S. 1991 methyl bromide consumption baseline of 25,528 MT

. EPA is propos ing to determine the level of new production and import according

to the framework and as modified by the 2013 Rule . Under this approach, the amount of new production for each control period would equal the total amount permitted by the Parties to the Mon treal Protocol in their Decision s minus any reductions for available stocks, carryover , and the uptake of alternatives. These terms (available stocks, carryover, and the uptake of alternatives) are discussed in detail below. Applying this approach, EPA is proposing to allocate allowances to exempt 234,780 kg (234.78 MT) of new production and import of methyl b romide for critical uses in 2016. Available Stocks : For 2016 the Parties indicated that the United States should use “available stocks,” but did n ot indicate a minimum amount expected to be taken from stocks. Consistent with EPA’s past practice, EPA is considering what amount, if any, of
the existing stocks may be available to critical users during 2016

. T he latest data reported
to EPA from December 31, 201 3 , show existing stocks to be 356,561 kg

. These data do not reflect drawdown of stocks that occurred during 2014 or that is likely to occur during
2015

. The Parties to the Protocol recognized in their Decisions that the level of existing stocks may differ from the level of available stocks. Decision XXVI/6 state s that Commented [A26]: Does this mean the uses have to be satisfied from available stocks first? Below, there is a proposal to ? Commented [A27R26]: Response: That is correct, which is why the rule analyzes whether/ a nd to what extent there are “available stocks.” EPA proposes below to find that there are no available stocks to s ubtract from the authorization.
Commented [A28]: Is this an EPA rule or reference to a MP rule? Please provide the citation if not already provided previously. Commented [A29R28]: Response: EPA rule. This is the second reference to the rule. Added the FR cite where it is first mentioned on page 13.

Commented [A30]: Suggest using the sa me units of MT to avoid any confusion. Or, list the kg number alongside the ton number in the previous paragraph.... “is 234.78 MT (234,780 kg), minus available...”

Commented [A31]: How c ertain is this number? Also, the agency indicate s on p. 17 that it does not include quan tities that end users have stockpiled. Do we have any idea the size of those stockpiles? Regarding existing stockpiles, w hat is EPA’s view on whether there’s legal authority under CAA/obligation under MP to regulate the use of any MeBr stockpiled by end users (golf courses, etc.) ? Commented [A32R31]: Comment 1 : How certain is this number? Response : EPA will update with latest data when available. Comment 2 : Also, the agency indicates on p. 17 that it does not include quantities that end users have stock piled. Do we have any idea the size of those stockpiles? Response: EPA does not collect data on quantities that end users have stockpiled. Comment 3 : Regarding existing stockpiles, what is EPA’s view on whether there’s legal authority under CAA/obligati on under MP to regulate the use of any MeBr stockpiled by end users (golf courses, etc.)? Response: We do not regard stocks in the hands of end users as “available” to other users.*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

17 of 29 “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 e xisting stocks...

. ” In addition, the Decision states that “parties operating under critical

- use exemptions should take into account the extent to which methyl bromide is available in sufficient quantity and quality from existing stocks

.... ” E arlier Decisions a lso 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 may determine their level of available stocks. Section 604(d)(6) of the CAA does not requir e 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 2013 CUE Rule (78 FR 43797, July 22, 2013) , EPA established an approach that considered whether a percentage of the existing inventory was available . In that rule, EPA took comment on whether 0% or 5% of the existing stocks was available

. The final rule found that 0% was available for critical use in 2013 for a number of reasons including: a pattern of significant underestimation of inventory drawdown; the increasing concentration of critical users in California while inventory remained dis tributed nationwide; and the recognition that the agency cannot compel distributors to sell inventory to critical users. For further discussion, please see the 2013 CUE Rule ( 78 FR 43802)

. EPA believes these circumstances remain true for 2016. First, E PA believes that stocks were likely drawn down significantly in 2014

. In part, this is because , as a consequence of changes in FIFRA labeling, t he last date for sale of pre

- phaseout methyl Commented [A33]: Will EPA explain this legal interpretation to help us understand why the agency does not regulate existing stocks? Commented [A34R33]: Response: EPA has always distinguished between “existing stocks” and “available stocks.” In determining how much production and consumption should be permitted, EPA takes into account the portion of “existing stoc ks” that it determines to be “available. ” Commented [A35R33]: EO12866: Interagency commenter stated that t he United States has consistently expressed the view that management of U.S. stocks is best left to the U.S. government. We do not believe it is in the U.S. interest t o ask the international community to manage our stocks for us. We strongly advise against changing this view. This language has been consistently used over many allocation rules.

Commented [A36]: Please provide the FR citation.*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

18 of 29 bromide for golf courses was November 30, 2014. EPA is aware that end users worked to

se cure supplies prior to that date. Supplies of methyl bromide in the hands of end users are not included in calculating existing stocks. Second, while stocks rem ain distributed nationally, t he only pre

- plant critical use permitted for 2016 is strawberry fruit in California. This is also the only pre

- plant sector that can continue to purchase stocks in 2015 as a result of the changes to FIFRA labeling , except for sectors with quarantine and preshipment uses . Therefore, EPA anticipates much of the inventory in California to be drawn down in 2015. For these reasons, EPA is proposing to find 0% of the existing inventory available for use in 2016 . EPA specifically invites comment on whether between 0% and 5% of existing inventory will be available to critical users in 2016 , taking into consideration the FIFRA labeling changes, the recent history of inventory drawdown, the removal of the critical stock allowance provisions that limited the amount of stocks that can be sold for critical uses , the quantity and geographical location of permitted uses, and the quantity and location of stocks

. Existing stocks, as of December 31, 2013, were [ estimated to be ] equal to 356,561 kg. Therefore, 5% would be 17,828 kg

. Were EPA to find 5% of existing stocks to be available, EPA would reduce the amount of new production for
2016 by that amount

. Carryover Material : EPA regulations prohibit methyl bromide produced or imported after January 1, 2005, under the critical use exemption , from being added to the
pre - 2005 inventory . 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 any excess methyl bromide left Commented [A37]: Please discuss the petitions received by Fl orida and Georgia strawberry growers, the reason for rejecting their request, and request comment on whether there is any new information that EPA should consider when issuing the final rule. Commented [A38R37]: Response: Georgia strawberries did not apply for critical use methyl bromide for 2016. EPA is requesting comment on the Florida analysis per the comment on page 15. Deleted: QPS

Commented [A39]: Suggest revising this sentence/paragra ph to clarify. In another sentence in the preamble, the agency says, “ The maximum amount of new production and import for U.S. critical uses in 2016 ... is 234.78 MT , minus available stocks ” Why just 0% and 5% and not the range of numbers in between? Deleted: or Commented [A40]: To what does this refer? Commented [A41R40]: Response: The U.S. 2005 authorization limited the total amount of stocks that could be used for critical uses. EPA built this into the framework and continued this through the 2012 rule as the “critical stock allocation.” However, subsequent decisions by the Partie s did not cap the amount of stocks that could be used for critical uses and thus EPA removed the restriction in the 2013 CUE Rule.

Deleted: authorized Commented [A42]: EO12866: Suggest using permitted as opposed to authorized.
Commented [A43]: Response: Existing stocks is reported data, so it is not an est i mate (unlike available stocks).

Deleted: existing Commented [A44]: Is there a difference between the existing inventory, and the “existing pre

- 2005 inventory”?

Deleted: the amount of methyl bromide produced or imported under the critical use exemption, but not exported or sold to end

users in that year*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

19 of 29 over from that year’s CUE and reduces next year’s total allocation by that amount. 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 doubl e - counting of carryover amounts

. EPA anticipates that a ll critical use methyl bromide that companies reported to be produced or imported in 2014 w ill be sold to end users for that year

. EPA bases this assumption on the fact that there has been no carryover for the last four years. EPA notes that the agency w ill look at the reported 2014 data when issuing the final rule. Therefore, EPA is proposing to apply a carryover deduction of 0 kg to the new production amount for 2016 , consistent with the method used in previous CUE rules, and with the format in Decision XVI/6 for calculating column L of the U.S. Accounting Framework. All U.S. Accounting Framew orks for critical use methyl bromide are available in the public docket for this rulemaking. Uptake of Alternatives : EPA considers data on the availability of alternatives that it receives following submissi on of each nomination to UNEP. In previous rules EPA has reduced the total CUE amount when a new alternative has been registered and increased the new production amount w hen an alternative is withdrawn, but not above the amount permitted by the Parties. Neither circumstance ha s occurred since the nomination was submitted for 2016. EPA is not proposing to make any other m odifications to CUE amounts to

account for availability of alternatives. Rates of transition to alternatives have already been applied for permitted 2 016 critical use amo unts through the nomination and authorization process . EPA will consider new data received during the comment period Deleted: . EPA

Deleted: 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 next allocation rule

. So for example, t

he amount of carryover from 2014 is factored into the determination allocation for 2016

. Commented [A45]: Could EPA explain this more easily by saying something like, “ any excess MeBr left from any given year’s CUE is “carried over,” and EPA reduces the next year’s CUE request by this amount. ” Does EPA add each year’s carryover amount to the “existing inventory,” because that term is used to refer only to the amount of MeBr that exist ed as of January 1, 2005 when [s omething happened?]? Would be helpful if EPA included the actual numbers and requested comment on the values. Commented [A46R45]: Comment: Could EPA explain this more easily by saying something like, “any excess MeBr left from any given year’s CUE is “carried over,” and EPA reduces the next year’s CUE request by this amount.” Response: See edits

. Comment: Does EPA add each year’s carryover amount to the “existing inventory,” because that term is used to refer only t o the amount of MeBr that existed as of January 1, 2 005 when [something happened?]? Response: No, the terms “inventory” and “stocks” only refer to pre

2005 material, when the phaseout occurred. Carryover does not get added to the inventory or stocks. Comm ent: Would be helpful if EPA included the actual numbers and requested comment on the values. Response: Will update with latest data when available. Commented [A47]: What does “end users for that year” mean? Will be sold and used in that year? Also note that tense is of

f as this is coming out in 2015

. Commented [A48R47]: Response: This paragraph will be updated when the latest data are available.

Commented [A49]: Does the agency actually apply r ates of transition to alternatives? Or is it just that the 2016 critical use amounts reflect the possible use of alternatives? Please clarify the meaning of this sentence. Commented [A50R49]: Response: Yes*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

20 of 29 and continues to gather information about methyl bromide alternatives through the CUE application process, and by other means. EPA al so 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 : E PA is proposing to allocat e critical use allowances for new production or import of methyl bromide equivalent to 234,780 kg to Great Lakes Chemical Corp oration, Albemarle Corp oration, ICL

– IP America, and TriCal, Inc in proportion t o their respective baselines

. Paragraph 3 of Decision XXVI/6 state s that “parties shall endeavo u r 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 permitting critical uses. These Decisions call on Parties to endeavor to allocate critical use methyl bromide on a sector basis. The proposed Framework Rule contained 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 in the final Framewo rk Rule 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), and because of the limited number of permitted uses, the agency believes that under the Deleted: to the four companies that hold baseline allowances,
Commented [A51]: Perhaps specify the companies here, or at least cite table on pp. 27

- 28?

Deleted: authorizing Commented [A52]: EO12866: Suggest using permitting as opposed to authorizing.*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

21 of 29 approach adop ted in the Framework Rule, the actual critical use will closely follow the sector breakout listed in the Parties’ decisions. [ Emergency Use: The U.S. government is committed to using flexibility in the Protocol's existing mechanisms as an avenue to address changes in national circumstance that affect the transition to alternatives. EPA welcomes comments and any new information on specific emergency situations that may necessitate the use of methyl bromide, consistent with the requirements of the Montreal Protocol, and which could be difficult to address using current tools and authorities. ]
E . The Criteria in Decisions IX/6 a nd Ex. I/4 Decision XXVI/6 call s on Parties to apply the criteria in Decision IX/6 , paragraph
1 and the conditions set forth in Decision Ex. I/4 (to the extent applicable) to exe mpted critical uses for the 2016 control period. The following section provides references to sections of this preamble and other documents where EPA considers the criteria of those two Decisions. Decision IX/6 , paragraph 1 contains the critical use criteria which are summarized in Section II .A of the preamble. The nomination documents detail how each proposed critical use meets the criteria in Decision IX/6 , paragraph 1 including : the lack of available technically and economically feasible alterna tives 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 paragraphs 5 and 6 t hat Parties consider and implement MBTOC recommendations, where feasible, on actions a Party may take to reduce the Commented [A53]: Response: Discuss

. EO12866: Further discussion needed as there are conflicting interagency comments on this language. Commented [A54]: This section is difficult to follow; perhaps re - summarize the conditions imposed by the two Decisions (introduced on pp. 10

- 11 and 13 above), and then summarize preexistin g interpretation(s) of those conditions? Deleted: and the criteria in Decision IX/6 paragraph 1

Deleted: CUNs

Deleted: paragraph 1 of Deleted: ,*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

22 of 29 critical use s of methyl bromide and include information on the methodology they use to determine economic feasibility. A discussion of the a gency’s application of the critical use criteria to the proposed critical uses for 2016 appears in S ections II .A., II .C. , and II.D. of this preamble. EPA 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 agency has previously provided its interpretation of the criterion in Decision
IX/6 , paragraph (1)(a)(i) regarding the presence of significant marke t disruption in the absence of an exemption

. EPA refers readers to the preamble to the 2006 CUE rule (71 FR 5989, February 6, 2006 ) as well as to the memo in the docket titled “Development of 2003 Nomination for a Critical Use Exemption for Methyl Bromide for the United States of America” for further elaboration

. As explained in those documents, EPA’s interpretation of this term has several dimensions, including looking at potential effects on both demand and supply for a commodity, evaluating potential los ses at both an individual level and at an aggregate level, and evaluating potential losses in both relative and absolute terms

. T he United States has also considered the adoption of alternatives and research
in to methyl bromide alternatives in the development of the National Management Strategy submitted to the Ozone Secretariat in December 2005 and updated in Oct ober 2009 . The National Management Strategy addresses all of the aims specified in Decision
Ex. I/4 , paragraph 3 to the extent feasible and is available in the docke t for this rulemaking.
F . Emissions Minimization Deleted: in paragraph 1 of Decision IX/6 Deleted: and

Deleted: ¶ The remaining considerations are addres sed in the nomination documents including : the lack of available technically and economi cally 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 paragraphs 5 and 6 that Parties consider and implement MBTOC recommendations, where feasible, on actions a Party may take to reduce the critical use s of methyl bromide and include information on the methodology they use to determine economic feasibility. Deleted: Some of these criteria are evaluated in other documents

. Deleted: (see Decision IX/6 paragraph (1)(b)(iii) ) Deleted: ,*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

23 of 29 Previous D ecisions of the Parties have stated that critical users shall employ emission s 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 strat egy for risk mitigation through the 2009 Reregistration Eligibility Decision (RED) 2 for methyl bromide, available in the docket to this rulemaking, which is implemented through restrictions on how methyl bromide products can be used. This approach means th at methyl bromide labels require that treated sites be tarped

. The RED also incorporated incentives for applicators to use high

- barrier tarps, such as virtually impermeable film, by allowing smaller buffer zones around those sites. In addition to
minimizin g 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

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

– Agricultural Research Service (USDA

- ARS) and the National Institute for Food and Agriculture (USDA

- NIFA) to promote emission s reduction techniques. The federal
gov ernment has invested substantial resources into developing and implementing best practices for methyl bromide use, including emission s reduction practices. The Cooperative Extension System, which receives some support from USDA

- NIFA , provides locally appropriate and project

- focused outreach education regarding methyl bromide transition best practices. Additional information on USDA research on alternatives and emissions reduction can be found at:

2 Additional informatio n on risk mitigation measures for soil fumigants is available at http://epa.gov/pesticides/reregistration/soil_fumigants/ Deleted: , where s uch tarps are allowe Commented [A55]: Are they disallowed in some jurisdictions, or is use just infeasible in some areas?*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

24 of 29 http://www.ars.usda.gov/research/prog rams/programs.htm?NP_CODE=308 and http://www.csrees.usda.gov/fo/methylbromideicgp.cfm

. Users of methyl bromide should continue to make every effort to minimize overall emissions of methyl bromide. EPA also encourages researchers and users who are using techniques to minimize emissions of methyl bromide to inform EPA of their experiences and to provide information on such techniques with their critical use applications.
II I. Statutory and Executive Order Reviews Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws

- regulations/laws

- and

- executive

- orders. A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. This action was deemed to raise novel legal or policy issu es. Any changes made in response to OMB recommendations have been documente d in the docket. B. Paperwork Reduction Act (PRA) This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060

- 0482

. The application, recordkeeping, and reporting requirements have already been established under previous critical use exemption rulemakings

. C. Regulatory Flexibility Act (RFA) Commented [A56]: EO12866: Does EPA have any plans to change the recordkeeping and reporting requirements through this rulemaking?*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

25 of 29 I certify that this action will not have a signif icant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant e conomic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on 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. We have therefore concluded that this action wil l relieve regulatory burden for all directly regulated small entities.
D. Unfunded Mandates Reform Act (UMRA) This action does not contain any unfunded mandate as described in UMRA , 2 U.S.C. 1531

- 1538

. The action impo ses no enforceable duty on any s tate, local or tribal governments or the private sector. E. Executive Order 13 132: 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 th e various levels of government. F. Executive Order 13175: Consultation and Coordination with Indian Tribal
Governments This action do es not have tribal implications as spec ified in Executive Order
13175 . This rule does not significantly or uniquel y affect the communities of Indian tribal Commented [A57]: Does the rule limit in which states the CUE applies? The CUE for strawberries is just for CA growers while GA and FL growers were not given exemptions. For the manufacturers that were granted CUEs, are they restricted to using methyl bromide in just California or coul d they also use it in other states where they may operate? Commented [A58R57]: Response: This rule allows the production and use of met hyl bromide according to which applicants applied , were included in the U.S. nomination, and authorized by the Parties to the Montreal Proto col . Applicants are regional trade associations not States, so this rule does not impose any duties or responsibilities on State governments.*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

26 of 29 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 13045: Protection of Children from E nvironmental Health and Safety Risks This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the Agency does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action’s health and risk assessments are contained
in the Regulatory Impacts Analysis and Ben efits Analysis found in the docket. H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution,
or Use This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. This action does not pertain to any segment of the energy production economy nor does it regulate any manner of energy use. I. National Technology Transfer and Advancement Act This rulemaking does not involve techni cal standards. J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low

- Income Populations EPA believes this action 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*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

27 of 29 population, inclu ding any minority or low

- income population. Any ozone depletion that results from this action 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.
P opulations that work or live near fields or other application sites may benefit from the reduced amount of methyl bromide applied, as compared to amounts allowed under previous critical use exemption rules.

List of Subjects in 40 CFR Part 82 Environmental protection, Chemicals, Exports, Imports, Ozone depletion.

Date d :

Gina McCarthy , Administrator

. For the reasons stated in the preamble, 40 CFR p art 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

. Amend § 82.8 by revising the table in paragraph (c)(1) to read as follows: § 82.8 Grant of essential use allowances and critical use allowances

. Protection of Stratospheric Ozone: The 2016 Critical Use Exemption from the Phaseout of Methyl Bromide (Page 27 of 28)

Commented [A59]: Wouldn’t it impa ct th ose who work outdoors more than others and disproportionately poor and minority (agricultural workers) ? Commented [A60R59]: Response : [Discuss]*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

28 of 29 * * * * * (c) * * * (1) * * *
Company 2016 Critical use allowances for pre - plant uses* (kilograms) 2016 Critical use allowances for post - harvest uses* (kilograms) Great Lakes Chemical Corp. A Chemtura Company 140,707 1,969
Albemarle Corp. 57,862 810 ICL

- IP America 31,976 447 TriCal, Inc. 996 14 Total 231,540 3,240
* 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.
* * * * *
3

. Amend s ubpart A by revising a ppendix L to read as follows: APPENDIX L TO SUBPART A OF PART 82

– APPROVED CRITICAL USES AND LIMITING CRITICAL CONDIT IONS FOR THOSE USES FOR THE 2016 CONTROL PERIOD

Column A Column B Column C
Approved Critical Uses Approved Critical User , 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 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 POST

- HARVEST USES*** Interagency W orking Comments on Draft Language under EO13563 and 12866 Interagency Review. Subject to Further Policy Review. Draft, Do Not Cite, Quote, or Release During Review ***

29 of 29 Dry Cured Pork Products Members of the National Country Ham

Association and the American Association of Meat Processors, Nahunta Pork Center (North Carolina), and Gwaltney of Smithfield Inc. Red legged ham beetle infestation Cheese/ham skipper infestation Dermest i d beetle infestation Ham mite infestation